Plaintiff v Defendant

1 The factual substratum of this case is briefly summarised in an earlier ruling and will not be repeated here.[1]

2 This ruling deals with two applications. First is the summons of the defendant, Nicola Gobbo, seeking further discovery from the plaintiff, Faruk Orman, of business records of companies that Orman is associated with. Gobbo argued that the further discovery is likely to be relevant to Orman's claim that he has suffered damage to his reputation resulting from Gobbo's tortious conduct.

3 Second, Orman has applied for leave to file an amended pleading against Gobbo adding a claim of misfeasance in public office, among other amendments. Gobbo argued that the proposed pleading did not disclose a cause of action against her for misfeasance in public office, and that the leave sought should not be granted.

4 Gobbo applied for discovery of documents within the following categories:

1. Documents filed with the Fair Work Commission concerning Enterprise Bargaining Agreements (EBAs) endorsed by the Construction Forestry and Maritime Employees Union (CFMEU), as obtained by:

(a) Allsafe Commercial Pty Ltd;

(b) ZK Civil Pty Ltd;

(a) Allsafe Labour Pty Ltd; and

(b) any entity of which the plaintiff is, or has since 12 June 2020 been, a director or shareholder.

1. Documents that record all proposals, negotiations, bargaining or other dealings with any official or employee of the CFMEU in relation to proposed EBAs for:

(a) Allsafe Commercial Pty Ltd; and

(b) ZK Civil Pty Ltd;

(c) Allsafe Labour Pty Ltd; and

(d) any entity of which the plaintiff is, or has since 12 June 2020 been, a director or shareholder.

1. In relation to ZK Civil Pty Ltd, documents that:

(a) concern the purchase, sale or transfer of the business;

(b) record the terms of the plaintiff's ongoing interest in the business; and

(c) record amounts the plaintiff has received from or contributed to the business.

1. All letters, emails, text messages, or messages exchanged on any other messaging services between the plaintiff and any official or employee of the CFMEU between 12 June 2020 and 30 September 2024, relating to:

(a) proposals, negotiations, bargaining or other dealings for proposed EBAs;

(b) cancellation or termination of EBAs;

(c) obtaining or retaining contracts, scopes of work or other arrangements for work to be carried out by Allsafe Commercial Pty Ltd, Allsafe Waterproofing Pty Ltd, Allsafe Investments Pty Ltd, Precast Install Pty Ltd, Allsafe Labour Pty Ltd or any entity of which the plaintiff is, or has since 12 June 2020 been, a director or shareholder.

1. All documentation in respect of the plaintiff's involvement in any other employment, business or commercial enterprise from August 2019 to date relating to:

(a) the position that the plaintiff held within each such organisation;

(b) the income derived by the plaintiff from such organisation;

(c) any financial contribution made by or on behalf of the plaintiff in such organisation.

1. All documents in respect of Fome (Aust) Pty Ltd as the Trustee for the Fome Family Trust from 3 June 2022 such as income and expenses, the Trust Deed, any Trust Declarations, and distributions to beneficiaries.

5 The third party to the proceeding, the State of Victoria ('State'), made a discovery application in very similar terms while it was a defendant. Gobbo relied on an affidavit made by Daniel Marquet, solicitor for the State, on 22 October 2024. The following is a summary of Marquet's evidence insofar as it is relevant to Gobbo's application for further discovery:

(a) In July 2024, national media outlets commenced reporting on allegations that underworld figures and members of outlaw motorcycle gangs ('OMCGs') had obtained influential positions within the Victorian branch of the Construction, Forestry & Maritime Employees Union ('CFMEU').

(b) In August 2024, Mark Irving KC was appointed as administrator of the CFMEU.

(c) Following the 'Building Bad' reports series, Geoffrey Watson SC was engaged by the CFMEU and its national secretary to investigate several of the allegations that were made ('Watson investigation'). Watson's interim report, which is publicly available, contained observations including that:

(i) OMCG members appointed as union delegates have a role in approving a business wishing to enter into an enterprise bargaining agreement ('EBA') with the CFMEU;

(ii) each EBA facilitated or endorsed by the Victorian branch of the CFMEU needed to be 'approved' by an organiser or senior official;

(iii) EBAs had been entered into by three companies connected with Orman, namely Allsafe Commercial Pty Ltd, ZK Civil Infrastructure Pty Ltd ('ZK Civil Infrastructure'), and Allsafe Labour Pty Ltd ('Allsafe Labour');

(iv) it appeared that members of the executive team of the Victorian CFMEU branch interceded on Orman's behalf to secure the EBAs for the companies; and

(v) the events surrounding ZK Civil Infrastructure indicate that the EBA obtained by it was treated as a financially valuable commodity.

(d) Orman obtained a CFMEU endorsed EBA for ZK Civil Infrastructure in September 2022 and transferred ownership of that company the following day.

(e) Orman was reported in the media as saying that he had not received any money for ZK Civil Infrastructure or the EBA, and that he maintained an interest in the company.

(f) A media report contained information suggesting that Orman had used his influence with the CFMEU to obtain the EBA, and that ZK Civil Infrastructure was transferred to a businessman who called on Orman's assistance after failing in other attempts to obtain an EBA.

(g) Orman's spouse is the sole director, secretary and shareholder of Allsafe Labour.

6 Discovery must be focused on the central issues in the proceeding rather than matters that are peripheral.[2] It is not necessary for Gobbo to establish that the further discovery will elicit documents that are admissible and will be tendered at trial. It is sufficient that the discovered documents may lead to a train of inquiry in relation to a fact in issue, or may be used in cross-examination of witnesses.[3]

7 Orman claims that the damage he has suffered by reason of Gobbo's tortious conduct includes damage to his reputation. He has withdrawn a claim for loss of income.

8 Orman submitted that the damage to his reputation occurred when he was prosecuted, convicted and imprisoned for murder and that anything that occurred over a decade later, after his conviction had been overturned and he was freed from prison, was irrelevant to the issue of reputation raised by the proceeding. I reject Orman's submission. The damage to reputation can continue up to the time damages are assessed, and more recent events can be relevant to this assessment.[4] Orman's reputation up to the date of trial is a central aspect of his damages claim.

9 Gobbo wishes to show that Orman's reputation has been damaged by his business dealings and interactions with CFMEU officials, and to have the use of the discovered documents for that purpose.

10 Orman submitted that only publicly available material could be relevant to his reputation. He submitted that confidential company business records could not be relevant to his reputation and were therefore not discoverable. I reject this submission. It is not known at this stage what the company records will disclose, or what use Gobbo will seek to make of them in the proceeding. However, it is easy to envisage that the documents sought to be discovered will be used to challenge Orman's credit or his reputation within the construction industry or more broadly. A company record that is not public may contain evidence of a transaction or interaction that is public.

11 Orman also opposed Gobbo's application on grounds that it was intended to discover documents directed exclusively to credit.[5] It is true that Gobbo's submissions focused on the potential for the documents to be used in cross-examination of Orman as to his credit. However, those submissions must be understood in the context of the issue of reputation raised by Orman in the pleaded claim, and Gobbo's desire to defend that claim by showing that at least in recent times Orman's reputation has been diminished for other reasons. I do not accept that the further discovery sought by Gobbo is directed exclusively to credit.

12 Orman makes two further objections to Gobbo's application: first, that the discovery sought is too broad and extends to companies that Orman is not associated with; and second, that the further discovery sought is not proportionate given that the issue to which it is addressed is relatively peripheral.

13 Orman objects to categories 1(c), 2(c) and 4(c) in [4] above, to the extent that they seek discovery of documents relating to Allsafe Labour, on the grounds that he has never been a director or shareholder or otherwise held an interest in that company. The evidence shows that Orman's spouse is the sole director and shareholder of Allsafe Labour. It may be that as a result, he is not in possession of documents in the above categories. However, the evidence is sufficient to justify ordering the discovery sought in relation to Allsafe Labour. Gobbo will need to consider whether to take any other step if no Allsafe Labour documents are discovered by Orman on the grounds that he is not in possession of those documents.

14 I accept that category 4(c) is too broad, would potentially require extensive searches to be undertaken at a late stage of the proceeding, and is not proportionate. Discovery of these documents may have been appropriate had Orman proceeded with a claim for loss of earnings. However, the category goes beyond evidence on which Gobbo relies, particularly in relation to the Watson investigation which focused on the relevance of Orman's relationship with the CFMEU to the granting of EBAs to companies with which he was associated.

15 I accept Orman's submission that category 5 is excessively broad and not clearly directed to any fact in issue, such as reputation. I will not allow that category.

16 I will also disallow category 6. There is evidence that Orman is a director and shareholder of Fome (Aust) Pty Ltd. However, there is no evidence that the company is the trustee of the Fome Family Trust. Further, as with category 5, there is no evident link between the discovery that is sought and any fact in issue in the proceeding.

17 I will order that Orman make further discovery of documents in categories 1, 2, 3 and 4(a) and (b) in Annexure A to the summons filed by Gobbo dated 10 January 2025.

18 Orman has applied to file and serve a fourth amended statement of claim ('4FASOC'). The proposed amendments in the 4FASOC include an additional claim of misfeasance in public office against Gobbo. The addition of this claim is the only amendment to which Gobbo objects.

19 The misfeasance in public office claim is set out in the following paragraphs of the proposed 4FASOC:

117.A. At all relevant times the [sic] Gobbo was discharging the functions, duties and powers associated with her responsibilities as an Australian Legal Practitioner, a Barrister and an officer of the court; and thereby acting in her capacity as public official.

118.A. At all relevant times, the public functions and duties of Gobbo included:

(a) a duty to comply with the oath given to the court, that she would well and honestly demean herself in the practice of the profession as an Australian Lawyer and officer of the court.

(b) that she would comply with the legal and professional rules, applying to legal practitioners in Victoria, and in particular those applying to barristers,

(c) a duty of honesty to the court and disclosure to the court;

(d)(d) a duty not to mislead or deceive the court;

(d) a duty not to disclose or misuse the Plaintiff's confidential information, which relevantly survives the termination of any retainer by the Plaintiff.

(e) a duty not to act in circumstances of conflict of interest

(f) a duty to advance and protect the Plaintiff's interests.

(b) a duty to uphold the rule of law;

(c) a duty to promote and protect the proper administration of justice.

119.A. While acting in her capacity as public official, Gobbo deliberately and knowingly committed:

(a) egregious breaches of her duties as a legal practitioner to the Plaintiff;

(b) breaches of her duties to the court as a barrister and an officer of the court;

(b) a fraud upon the Court and the Plaintiff in the Peirce and Kallipolitis proceedings;

(c) the perversion of the course of justice.

The Plaintiff refers to the facts and matters set out at paragraphs 17-76.

120.A. The impugned conduct of Gobbo was performed:

(a) in disregard of the proper performance of her duties and public functions as a public official, in her capacity as an Australian Lawyer, Barrister and Officer of the court, and

(b) maliciously with the intent to cause harm to the Plaintiff, or reckless disregard to same, being:

(i) the subversion of the Plaintiff's right to procedural fairness (including independent representation) and a fair trial;

(ii) the prosecution and conviction for offences of murder in circumstances which gave rise to a substantial miscarriage of justice -

and so amounts to misfeasance in public office.

The malice is to be inferred from the totality of the impugned conduct, whereby the Defendant deliberately and knowingly was involved in improperly obtaining evidence that was used in securing a prosecution and conviction of the Plaintiff, and otherwise failing to disclose matters relevant to the defence of the Plaintiff, with disregard to her duties to the court, the rights of the Plaintiff and the proper administration of justice.

20 The following is an example of the pleaded conduct relied on by Orman as the basis of the misfeasance in public office claim:

...

(d) acting for [Orman] (as referred to below) when [Orman] denied the allegations of the murders of Peirce and Kallipolitis, was conduct that was required to be disclosed:

(i) to the defence;

(ii) to the Director of Public Prosecutions; and

(iii) to the Court,

in the Peirce and Kallipolitis murder proceedings, and further, was conduct:

(iv) in breach of Gobbo's duties as a legal practitioner acting for [Orman];

(v) in breach of Gobbo's' duties as a legal practitioner to the Court acting in the Peirce and Kallipolitis murder proceedings;

(vi) that, should the evidence so obtained be relied upon in the laying of charges or commencement and maintenance of a prosecution of [Orman] in relation to the Peirce and Kallipolitis murder proceedings, would deny [Orman] a fair trial and result in the perversion of justice.

1. The Plaintiff's committal for the murder of Peirce commenced 11 March 2008. Relevantly:

...

(b) Prior to and during the committal and the trial Gobbo did not disclose, and further took steps to ensure, that her involvement in acting for "Thomas"; facilitating the making of the statements incriminating [Orman]; and acting as a police informer regarding "Thomas" and [Orman], were not disclosed to [Orman], the Court and the Prosecutor, and/or were concealed from [Orman], the Court and the Prosecutor.

21 Gobbo opposes Orman being granted leave to amend his pleading on the ground that the misfeasance in public office claim has no real prospect of success. Amending a pleading by adding a claim that has no real chance of success would be futile and should not be permitted.[6]

22 To succeed in a claim of misfeasance in public office, a plaintiff must establish: '(a) an invalid or unauthorised act; (b) done maliciously; (c) by a public officer; (d) in the purported discharge of his or her public duties; and (e) which caused loss or harm to the plaintiff.'[7]

23 The plaintiff in Cannon v Tahche ('Cannon')[8] brought a claim for misfeasance in public office against a barrister and an instructing solicitor ('applicants') who prosecuted him for charges of indecent assault and rape. The applicants applied to have the plaintiff's claim struck out on the basis that he did not have a good cause of action against them, because they were not holders of a public office. The Court said that while the precise limits of the tort remain undefined, it was relatively clear that:

... the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the "public good", and which is attached to the office. ... Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public to whom the defendant owed a duty to exercise the power legitimately, namely, only in the public interest and not for an ulterior purpose.[9]

24 The Court said that while 'public office' had been given a wide meaning in the authorities for the purposes of the tort, and that the meaning of 'holder of a public office' depended on the circumstances of the case:

...it seems that, since the tort is essentially concerned with the misuse of a relevant power which is an incident of a public office, it follows as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it. Put another way, an essential feature of such a public office is that a relevant power is an incident of it.[10]

25 The Court considered relevant authorities including Tampion v Anderson ('Tampion'),[11] which concerned a claim against an inspector appointed by an Order in Council as a Board of Inquiry ('Board'), and a barrister who was briefed to assist the Board. The Court in Cannon said, in relation to the decision at first instance by McInerney J:

Although his Honour did not find it necessary to define the precise nature or extent of the interest which the public must have in the performance of the duty before the office can be regarded as a public office, he concluded that counsel appointed to assist a Board of Inquiry or a Royal Commission is not a public officer even though counsel's fees are provided for out of public revenue. His Honour said that such counsel was in no sense answerable to members of the public for the performance or non-performance of his or her duty. Such counsel was answerable to the client, to the instructing solicitor and to the Board or Commission but to no-one else.[12]

On appeal from Tampion, the Full Court said that while it was not necessary that a defendant be employed by the Crown, it was necessary that the officeholder owe duties to members of the public as to how the office was to be exercised.[13]

26 The Court in Cannon dismissed the claim of misfeasance in public office because the applicants, as prosecutor and instructing solicitor, did not hold a public office at the relevant time. The Court also found that there was no relevant power attaching to the office that the applicants did hold, and that the duty owed by the applicants in relation to the conduct of the prosecution was owed to the Court and was not a public duty actionable by the plaintiff. In relation to the question of power, the Court said:

Whatever powers may be said to attach to the office of the Director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial.[14]

27 In Leerdam v Noori,[15] which concerned a claim against opposing solicitors in relation to steps taken in a proceeding, Spigelman CJ said that the solicitors did not hold an 'office' or have 'governmental power of any character'. His Honour continued:

The concept of an "office", in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a "public" nature. It is not sufficient merely to be employed by a public authority for public purposes.[16]

Allsop P concluded that the solicitors had simply contracted to represent the opposing party and were not vested with any governmental or executive power or any other public duty, meaning they were therefore not public officers for the purposes of the tort.[17] Macfarlan JA said, agreeing with the Court in Cannon, that an office could not be characterised as a public office if no relevant power was attached to it.[18]

28 I conclude for the following reasons that Orman's claim of misfeasance in public office has no real prospect of success. I will not give Orman leave to amend his pleading to add that claim.

29 First, there is no real prospect of establishing that the impugned conduct was done by Gobbo as a public officer. Orman relies on Gobbo's role 'as an Australian Legal Practitioner, a Barrister and an officer of the Court' for her being a public officer for the purposes of the tort. Gobbo was simply engaged on a contractual basis as a barrister to represent Orman from time to time. She had not been appointed to an official position to which continuing functions and duties were assigned. She had not been vested with any governmental or executive power. Her fees were not paid out of public revenue. She was not answerable to members of the public for the performance or non-performance of her role as counsel.

30 Second, there was no public power exercisable by Gobbo as an incident of her role as counsel briefed to appear for Orman. Gobbo was simply performing the function of representing Orman in criminal proceedings. There was no public duty owed by Gobbo that is actionable by Orman. The duties she owed were to the Court and to Orman as her client. While a breach of that private duty owed to Orman is actionable in negligence, it is not the foundation of a claim for misfeasance in public office.

31 There were other amendments in the proposed 4FASOC to which no objection was taken. I will order that Orman has leave to file and serve the proposed amended pleading incorporating the amendments to which no objection was taken, but deleting any amendments relating to the proposed claim for misfeasance in public office.

32 I will hear from the parties as to any consequential orders.

[1] Orman v State of Victoria [2024] VSC 627.

[2] Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573, [34] (J Forrest J).

[4] Walter v Alltools Ltd (1944) 61 TLR 39; McDonald v Coles Myer Ltd [1995] NSWSC 67; (1995) Aust Torts Reports 81-361; Sadler & State of Victoria v Madigan [1998] VSCA 53, [63] (Charles JA); Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232, [238]-[242].

[5] George Ballantine & Son Ltd v FER Dixon & Son Ltd (1974) 2 All ER 503; Beecham Group Ltd v Bristol-Myers Co [1979] VicRp 27; [1979] VR 273, 277-8.

[6] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [43]; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29].

[7] Morris v St Vincent's Health Australia Ltd [2020] VSC 690, [55].

[8] [2002] VSCA 84; (2002) 5 VR 317 ('Cannon').

[11] [1973] VicRp 32; [1973] VR 321.

[13] Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720; Cannon (n 8) [50].

[15] [2009] NSWCA 90; (2009) 227 FLR 210.