Gann v Hosny

[2015] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0138

JASON WILLIAM GANN

v

JOSEPH HOSNY

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JUDGES:	WHELAN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 and 16 March 2015
DATE OF JUDGMENT:	16 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 43
JUDGMENT APPEALED FROM:	[2012] VCC 661 (Judge Davis)

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APPEAL PROCEDURE – Sole ground of appeal that judgment procured by fraud – Issue of fraud contested – Respondent to give evidence on the issue and adduce medical evidence – Not appropriate for Court of Appeal to determine issues involving oral evidence and cross-examination – Appeal allowed to the extent that issue of fraud referred back to trial court – Appeal otherwise dismissed without adjudication on the merits – Noble v Owens [2010] 3 All ER 830 followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S W Stuckey	K & L Gates
For the Respondent	Ms K S Gladman	Nowicki Carbone

WHELAN JA
FERGUSON JA:

1. On 12 December 2014, this Court granted an application by Jason William Gann for an extension of time in which to appeal from a judgment delivered in favour of Joseph Hosny in the County Court on 6 June 2012.[1]

   [1][2014] VSCA 344.

1. The events which gave rise to the cause of action, and the relevant circumstances of the trial, are briefly set out in the Court of Appeal’s decision on that application and we will not repeat them now. 

1. The appellant, Mr Gann, has a single ground of appeal.  It is that the judgment below was procured by fraud. 

1. The appellant brought an application for leave to issue a subpoena.  As a result of communication from the registry of the Court of Appeal, the parties were asked to address the issue of how the allegation of fraud should be determined and were referred to a number of relevant authorities, including McDonald v McDonald,[2] Noble v Owens,[3] and an unreported decision of this Court in Drapac v Wain.[4]

   [2](1965) 113 CLR 529.

   [3][2010] 3 All ER 830, [2010] EWCA Civ 224.

   [4](Unreported, Victorian Court of Appeal, Warren CJ, Nettle and Whelan JJA, 7 October 2013).

1. It became clear in the course of the hearing that the issue of whether the judgment was procured by fraud is to be contested.  Further, counsel for Mr Hosny has informed the Court that he will be giving evidence on the issue and that it is likely that there will be medical evidence as well. 

1. In the circumstances, the Court expressed the tentative view that the issue of fraud should be determined in the County Court.  Apart from other considerations, it was not appropriate for this Court to determine issues where there will be oral evidence and cross-examination. 

1. One matter of particular concern to the appellant was the fact that the respondent has been seeking to enforce the judgment in the United States of America, and the appellant was concerned that enforcement proceedings might occur in the USA if this appeal were to be dealt with.  The respondent has met that concern by giving an undertaking, through his counsel, that he will not seek to enforce the judgment entered in his favour on 6 June 2012, whether in Australia or elsewhere in the world, until the hearing and determination of the issue of fraud by the County Court or further order.

1. The parties are not agreed as to how the matter should be remitted to the County Court.  The appellant seeks an order that the appeal be allowed to the extent of the remitter whereas the respondent contends that the appeal should be dismissed and the appellant should be required to issue a new proceeding. 

1. Following the approach of the English Court of Appeal in Noble v Owens, referred to without being expressly cited by this Court in Drapac v Wain, it seems to us that the appropriate course is to allow the appeal to the extent that the issue of fraud is referred to be tried in the County Court.  As it is unsatisfactory for the appeal to otherwise remain on foot, in accordance with what was done in Drapac v Wain, the appeal should otherwise be dismissed without an adjudication of the merits. We indicate that if, for some reason, the appeal has to be reinstated, the factors which led to the existing extension of time would, we anticipate, remain operative.

1. [Discussion as to form of orders].

1. In ‘Other Matters’, we note: 

A. The hearing concerned an application brought by the appellant, filed on 22 January 2015, seeking leave to issue a subpoena to the Victorian WorkCover Authority. Prior to the hearing, the parties were asked to address the Court on the issue of how the allegation of fraud, the appellant’s single ground of appeal, should be determined. Prior to the hearing the President made a determination under s 11 (1A) of the Supreme Court Act 1986 (Vic).

B.     The respondent, by his counsel, undertook to the Court that he will not seek to enforce the judgment entered in his favour on 6 June 2012, whether in Australia or elsewhere in the world, until the hearing and determination of the issue of fraud by the County Court, or further order.

C.     It is anticipated that:

i.subject to any contrary direction of the County Court judge, if the judge who hears and determines the issue of fraud rejects the allegation of fraud, the original judgment will stand, but if the judge finds that the fraud is proved, he or she should make a reassessment of the damages;

ii.provided that Judge Davis does not recuse herself, the decision as to whether Judge Davis should hear the issue of fraud is to be determined by the Chief Judge of the County Court;

iii.the costs of the appeal will be determined after the determination of the issue of fraud.

1. The orders are: 

1.   The appeal is allowed to the extent that the issue of whether the judgment by Her Honour Judge Davis made 6 June 2012 in County Court proceeding number CI-10-00399 was procured by the fraud of the respondent is referred to the County Court for hearing and determination by such judge as the Chief Judge considers appropriate.

2.   The appeal is otherwise dismissed without an adjudication on the merits.

3.   The costs of the appeal are reserved.

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