Gann v Hosny - [2014] VSCA 344

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0138

JASON WILLIAM GANN

Applicant

JOSEPH HOSNY

Respondent

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JUDGES:	WEINBERG JA and GINNANE and SLOSS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2014
DATE OF ORDERS:	12 December 2014
DATE OF JUDGMENT:	22 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 344
JUDGMENT APPEALED FROM:	Hosny v Victoria Racing Club & Anor [2012] VSC 661 (Judge S Davis)

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APPEAL – Application for extension of time within which to file notice of appeal – More than two years elapsed from date judgment delivered – Judgment allegedly procured by fraud – Compelling evidence that plaintiff below gave false testimony at trial – Reasonably arguable that damages award should be varied or set aside – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A M Donald	K & L Gates
For the Respondent	Mr A G Uren QC	Nowicki Carbone

WEINBERG JA
GINNANE AJA
SLOSS AJA:

On 12 December 2014, this Court heard an application by Jason William Gann, the defendant to an action brought by Joseph Hosny for damages for assault and battery. Judgment in that matter was delivered in favour of Hosny on 6 June 2012. Damages in the sum of $325,000 (including aggravated damages, assessed at $25,000) were awarded against Gann. There was no appeal against that decision. It was not until October of this year, more than two years out of time, that Gann decided to appeal. Plainly, it would require special circumstances before this Court would extend time for a period of that length. Nonetheless, having heard the argument on the point, the Court ordered that time be extended. We said we would publish short reasons in due course. These are those reasons.

Hosny’s claim against Gann arose out of an incident that occurred at Flemington Racecourse on Derby Day 2007. Hosny was employed by Victoria Racing Club Ltd (‘the VRC’) to drive a shuttle bus between various marquees at the racecourse on that day.

Gann and a friend both attempted to board the bus. They were told by Hosny that it was overcrowded, and asked to get off. That led to a verbal and physical confrontation. Gann struck Hosny repeatedly to both the head and body. Hosny sustained injuries, but was also traumatised by what had occurred. He claimed that Gann’s attack upon him had led to his being unable to continue full-time or gainful employment.

In February 2008, Gann was charged with unlawful assault. In May 2008, he pleaded guilty to that charge at the Melbourne Magistrates’ Court. Subsequently, he returned to the United States where he apparently resides.

In February 2010, Hosny commenced legal proceedings against the VRC in the County Court. He claimed that the VRC, as his employer, had been negligent in failing to protect him from being assaulted and injured.

In August 2010, the Victorian WorkCover Authority (‘the VWCA’), which had been brought into the matter as the statutory insurer, instituted an indemnity proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gann v Hosny

Details

AGLC: Gann v Hosny [2014] VSCA 344
Case: [2014] VSCA 344
Decision Date: 22 December 2014

CaseChat Overview and Summary

The case of Gann v Hosny involved a dispute between the parties, Gann, the appellant, and Hosny, the respondent, regarding an appeal against a decision made by a lower court. The original judgment was delivered more than two years prior to the appellant’s application for an extension of time to file a notice of appeal. The appellant contended that the judgment had been procured by fraud and that there was compelling evidence suggesting the plaintiff had provided false testimony during the trial. The appellant argued that there was a reasonably arguable case that the damages award should be varied or set aside.

The legal issues before the court were whether the appellant had demonstrated a reasonable excuse for the delay in filing the notice of appeal, and whether there was a reasonably arguable case that the original judgment should be varied or set aside due to the alleged fraud. The court considered the circumstances of the delay, the compelling evidence of false testimony, and the potential impact on the damages award. The court acknowledged that the appellant had presented compelling evidence of fraud and that there was a reasonable argument that the damages award should be reconsidered.

In granting the extension of time, the court found that the appellant had provided a reasonable excuse for the delay and had demonstrated a reasonably arguable case that the original judgment should be varied or set aside. The court recognised the significance of the alleged fraud and its potential impact on the fairness of the original judgment. The compelling evidence of false testimony provided by the appellant supported the argument for the need to reconsider the damages award. The court concluded that it was in the interests of justice to grant the extension of time to allow the appellant to pursue the appeal on the merits.

The final orders of the court were that the appellant's application for an extension of time to file a notice of appeal was granted. The appellant was permitted to proceed with the appeal on the condition that certain steps were taken to expedite the proceedings. The court directed that the appeal be heard and determined within a specified timeframe to ensure that the matter was resolved as efficiently as possible.

Orders