Gann v Hosny (No 2)
[2017] VCC 402
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-02963
| JASON WILLIAM GANN | Plaintiff |
| v | |
| JOSEPH HOSNY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 28 November 2016 | |
DATE OF JUDGMENT: | 12 April 2017 | |
CASE MAY BE CITED AS: | Gann v Hosny (No 2) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 402 | |
REASONS FOR JUDGMENT
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to set aside judgment – judgment allegedly procured by fraud – evidence that defendant gave false testimony at trial
Legislation Cited: Evidence Act, s128
Cases Cited: Hosny v Victoria Racing Club & Anor [2012] VCC 661; Gann v Hosny [2014] VSCA 344; Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81; Karam v Palmone Shoes Pty Ltd & Anor [2014] VSCA 148; Wentworth v Rogers (No 5) (1986) 6 NSWLR 535; Boswell v Coaks (No 2) (1894) 6 R 167; Cabassi v Vila (1940) 64 CLR 130; McDonald v McDonald (1965) 113 CLR 529; Briginshaw v Briginshaw (1938) 60 CLR 336
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Donald | Aitken Partners |
| For the Defendant | Mr D Dealehr | Nowicki Carbone |
HIS HONOUR:
1 The plaintiff in this action, Jason William Gann (“the plaintiff”), seeks an order that the judgment of this Court dated 6 June 2012,[1] wherein he was the second defendant, and the defendant herein, Joseph Hosny (“the defendant”), was the plaintiff, be set aside on the basis that it was procured by fraud (“the judgment”).
[1]Hosny v Victoria Racing Club & Anor [2012] VCC 661
2 The judgment obtained concerned a claim in tort for general damages for personal injuries caused by intentional trespass to the person, in that the plaintiff assaulted and battered the defendant (“the assault”), causing him mental injury, loss and damage (“the claim”).
3 The defendant also claimed that he had suffered mental injury in the course of his employment as a bus driver with the Victoria Racing Club Limited (“the VRC”) at the Flemington Racecourse on Derby Day 2007 (4 November) as a result of the assault.
4 Damages for pain and suffering and loss of enjoyment of life were awarded to the defendant in the sum of $300,000, together with a further sum of $25,000 for aggravated damages.
5 Leave was granted to the plaintiff by the Court of Appeal for an extension of time in which to file a notice of appeal, on 12 December 2014.[2]
[2]Gann v Hosny [2014] VSCA 344
6 It should be noted that the claim commenced before the Court as a jury action against the VRC, as first defendant, for alleged breach of its duty as an employer to its employee and the plaintiff was named as second defendant. The three parties were each represented by Senior Counsel.
7 Also before the Court was a recovery action by the WorkCover insurer of the VRC seeking, inter alia, reimbursement from the assailant/plaintiff for weekly payments of compensation paid to the defendant.
8 As appears in the judgment, a number of preliminary matters preceded the empanelment of the jury:
9 First, there were consent orders made settling the recovery action between the plaintiff and the Victorian WorkCover Authority.
10 Secondly, there was an application by the solicitors for the plaintiff for leave to withdraw from the record. Senior Counsel for the plaintiff indicated to the Court that his client did not intend to defend the common law proceeding, did not wish to participate in the hearing, and was content for judgment to be entered against him. The plaintiff’s then instructing solicitors would continue to act for him in the recovery action until the Deed of Settlement was signed, but otherwise wished to be removed from the record. The learned trial judge refused the application by the solicitors for leave to withdraw and ruled that they should remain on the record for the purposes outlined by Pagone J in Investec Bank (Australia) Limited v Mann & Anor,[3] if only for the limited purpose of receiving service and thereby avoiding inconvenience and expense to the then plaintiff during the course of, and shortly after, completion of the trial.
[3][2012] VSC 81
11 Thirdly, on 23 April 2012, the learned trial judge granted leave to the plaintiff (the defendant herein) to file and serve a Second Further Amended Statement of Claim dated 23 April 2012. One of the amendments made was the addition, in the prayer for relief, of a claim for aggravated and/or exemplary damages. The action, thus pleaded, was one for economic loss, general damages and aggravated and exemplary damages.
12 A jury was empanelled on the afternoon of 23 April 2012 and on the following day, Senior Counsel for the defendant opened the case before the jury. The trial was then adjourned to 26 April 2012 and, on that date, the defendant gave evidence-in-chief and was cross-examined. Discussion between counsel then took place and after lunch, the parties filed consent orders dismissing the action against the VRC with no orders as to costs.
13 Thereafter, Senior Counsel for the plaintiff applied for discharge of the jury and for the matter against the plaintiff to proceed as a cause. The application was acceded to and Senior Counsel abandoned the claim for economic loss and proceeded as a claim for general damages and ancillary relief. The action proceeded against the plaintiff undefended.
14 The learned trial judge, at the conclusion of the evidence, considered that the particulars of unlawful assault had been proved and could be briefly restated as follows:
·In the early evening of 3 November 2007, the shuttle bus had reached the maximum number of passengers and Mr Hosny was about to drive the shuttle bus away from the area adjacent to the marquees and towards the main gate;
·Mr Gann entered the rear side door of the shuttle bus and was informed by Mr Hosny that there was no room in the shuttle bus;
·Mr Gann responded by stating that he and his female friend could sit together in the front seat of the shuttle bus. Mr Hosny informed Mr Gann that this was not possible for safety reasons and he would need to wait for the next run;
·Mr Gann abused and swore at Mr Hosny and refused to exit the shuttle bus before punching Mr Hosny with a clenched fist to the face and head on repeated occasions. Other passengers pushed Mr Gann out of the shuttle bus;
·Mr Gann’s female friend then opened the front passenger door of the shuttle bus and sat in that seat before Mr Gann pulled her out of the seat and out of the shuttle bus. Mr Gann then leaned across that seat and pulled Mr Hosny, who was still seated in the driver’s seat, towards him by the jacket. Mr Gann threw a number of punches at Mr Hosny, striking him once or twice;
·Mr Gann then exited the shuttle bus, went around to the driver’s door and tried to open it. Mr Hosny attempted to keep the door closed. Mr Gann punched the driver’s window several times, before Mr Hosny started the shuttle bus and drove away;
·On 18 February 2008, Mr Gann was charged with unlawful assault in relation to the assault on Mr Hosny on 3 November 2007 and was summoned to appear at the Melbourne Magistrates’ Court on 27 March 2008;
·On 29 May 2008, Mr Gann pleaded guilty at the Melbourne Magistrates’ Court to the charge of unlawful assault. He was released without conviction upon an undertaking to be of good behaviour for a period of twelve months, starting on 29 May 2008.[4]
[4]Hosny v Victoria Racing Club & Anor (supra) at paragraph [10]
Evidence relied on by the Plaintiff
15 The defendant gave evidence and was cross-examined by Senior Counsel for the VRC prior to settlement with the first defendant. After the discharge of the jury, his sister-in-law, Ms Maria Hosny, gave evidence.
16 Counsel for the defendant tendered a number of documents:
· Statements from eye witnesses (Ms Belinda Healy, Mr Scott Healy, Mr Chris Muir, Mr Jerome Kettle and Ms Merridee Kettle);
· Statements from two VRC employees, Mr John Maher and Ms Kylie White;
· Mr Gann’s Answers to the plaintiff’s Interrogatories dated 28 November 2011;
· A letter from the plaintiff’s solicitors to the County Court dated 8 December 2010 relating to a proposed adjournment of the trial date of 27 January 2011 to a date in July 2011;
· The reports of treating general practitioner, Dr Jonathon Stokes;
· The reports of treating psychologists, Ms Maria Mercuri and Ms Roslyn Berkovitch, and of the treating psychiatrist, Dr Rowan McIntosh; and
· Medico-legal reports of psychiatrists, Professor George Mendelson, Dr Timothy Entwisle, Dr Stephen Stern and Dr Don Senadipathy.[5]
[5](Supra) at paragraphs [16] and [17]
17 The same reports from the eight medical practitioners were also tendered in evidence before me.[6]
[6]Exhibits “K” to “S” inclusive
18 In addition, the defendant before me tendered three reports of Dr McIntosh dated 15 October 2014, 14 October 2015 and 12 October 2016 (exhibit 1), the report of Dr Dutch dated 3 November 2007 (exhibit 2), the report of Dr Stokes dated 26 June 2015 (exhibit 3), and the report of Dr Kaplan dated 17 May 2016 (exhibit 4).
19 Whilst the claim was on foot against both defendants, Senior Counsel for the VRC cross-examined the defendant to the effect that, following the assault, he had been dishonestly receiving weekly payments of compensation for total incapacity at the same time that he was working shifts as an attendant at various sporting venues. It was put to him that, in those circumstances, he had been dishonestly receiving money from the VRC’s insurer, to which he was not entitled. It is a reasonable inference that this line of cross-examination was material to the matter being settled against the first defendant by withdrawal of the proceeding and, thereafter, abandoning any claim for economic loss against the second defendant (the plaintiff herein).
20 In his opening before the jury, Senior Counsel for the defendant stated:
“Since the attack on Mr Hosny he attempted to return to work for a few more days of the spring racing carnival with the VRC. He wasn’t assigned any further to drive the bus, which of course was understandable. But notwithstanding being able to get back to work for those few days, essentially he has worked not at all since then. The overwhelming view of the medical experts is that he is unlikely to do so in the future.”[7]
[7]Transcript (“T”) 158, Lines (“L”) 12-19
21 Later, he further stated:
“There will be evidence about the plaintiff’s working earnings in his employment, and it will be further alleged that by reason of the injuries, the plaintiff has been incapacitated for all work since on or around 3 November 2007. A claim is made for past loss of earnings, from the date of the incident till today’s date … It is also alleged that [t]he plaintiff’s future earning capacity has been severely impaired, if not completely removed, by reason of the injuries. As a result of his psychiatric symptoms and restrictions he has been unable to return to any form of employment and is unlikely to find suitable work in the future, and he claims future loss of earning capacity to the normal retirement age of 65 years.”[8]
[8]T163, L23 – T164, L6
22 During evidence-in-chief, the defendant stated he was born in March 1957 and at the time of the assault, he was employed as a part-time gate attendant and usher at the Melbourne Cricket Ground on a casual basis outside the hours of his normal, full-time employment. He was also performing similar work for the VRC, the Moonee Valley Racing Club and the Melbourne Racing Club.[9]
[9]T173, L15 – T174, L4
23 The defendant further stated that shortly prior to the assault, he had been made redundant from his full-time occupation on or about 11 October 2007. Since that date, he had been actively seeking further full-time employment, up until the time of the assault.[10]
[10]T174, L31 – T175, L16
24 Later, the defendant was asked:
Q:“What sort of emotional state were you in after the assault?---
A:I was fearful of my life. I just – I didn’t want to work any more for the next three days, but they have a rule at the VRC that you have got to be available all the four days, otherwise you don’t get a gig next year. It doesn’t matter how many years you’ve been there.
Q:So what happened the next day? Did you go back to work?---
A:Yes, … [they] put me somewhere where I wouldn’t be in great danger, near the office. I was working just around the office, helping people and that.
Q:Were you ever assigned again to drive minibuses?---
A:… No.
Q:Did you last work at Flemington at the end of that Spring Racing Carnival?---
A:Yes, it was on the last Saturday, the last Saturday.”[11]
[11]T187, L29 – T188, L12
25 He further attested, following the assault, the defendant’s general practitioner, Dr Frost, referred him to a psychologist, Maria Mercuri, and in February 2008, he was referred to a psychiatrist, Dr Rowan McIntosh. Since that time, he has continued to consult Dr McIntosh fortnightly and from about 2010, he had been seeing him weekly. In the course of that treatment, he was prescribed Effexor, Xanax, Cymbalta, Seroquel, Zyprexa and Temazepam.[12]
[12]T189, L2-14
26 When asked in what way the assault had affected him, the defendant replied that it had given him:
“… post-traumatic stress disorder which I’d never heard of before … I struggle every day with day-to-day things … I keep asking the question, ‘Why did this happen to me,’ because I like to work and I haven’t been able to work for all this time. The doctor said I might not be able to work for other times.”[13]
[13]T190, L5-16
27 When asked what transpired with respect to his marital relationship, the defendant replied:
“Well, I haven’t been able to, you know, because I haven’t been able to work for this period of time – I’m not even able to work at a later time, you know, it has strained the relationship because my wife can’t work either. She has got a chronic illness called Crohn’s disease.”[14]
[14]T191, L2-7
28 The defendant then related how his marriage resulted in a separation, how he lived in a one-bedroom flat with his married brother and their young child for a time and, thereafter, how he had been living in temporary accommodation here and there.[15]
[15]T192, L1-28
29 Later, the defendant stated he returned to work with the VRC on Melbourne Cup Day, 6 November 2007, some three days after the assault.[16]
[16]T198, L21-22
30 Then, the defendant was asked:
Q: “What were you like in those early times?---
A:I was in the house, yes, and I didn’t stay – I didn’t go out for a period of about six or seven months. I didn’t go out unless I went to the appointments and stuff like that, but I had to go to.”[17]
[17]T200, L27-31
31 Next, the defendant was asked:
Q:“Do you remember what your state was like when you first went to see Dr McIntosh … in about February of 2008 …?---
A:I was very, very anxious, very depressed, very agitated. I would just go in, you know, and be very agitated and he’d say, ‘Settle down, I’m just going to talk to you’.
Q:Were you seeing him frequently?---
A:Yes.
Q:Did you have difficulty in leaving home at that time and in going out?---
A:Yes.
Q:Did you go to shopping centres?---
A:No. I avoided all crowded places if possible. But he encouraged me to go a couple of times. That’s when I started having panic attacks and stuff like that.
Q:Did Dr McIntosh encourage you to try to get back to normal activities?---
A:Yes.
Q:Did he encourage you to try to do some part-time work?---
A:Yes.
Q:Did you make an attempt to get back to some part-time work?---
A:Yes, I tried to work at the MCG for a few shifts.
Q:Now, the records suggest you first received some payment for part-time shifts in July of 2008. Does that sound about right?---
A:Probably.
…
Q:Typically how long would the shifts be at the MCG?---
A:About four to five hours.
Q:Was there sometimes one and sometimes two shifts a week depending on the number of football games?---
A:That’s right. But a couple of times I didn’t complete the shifts and I told my supervisor that I wasn’t well, and my supervisor knew what I was going through, so they were able to send me home.
Q:Did they dock your pay when they sent you home early?---
A:No, because I’ve been working there for 25 years.
Q:Apart from those shifts did you work anywhere else during 2008?---
A:I can’t remember working anywhere else.
Q:Is it possible you might have done the odd shift or two and you can’t remember?---
A:Maybe I could’ve done one at Mini (sic) Valley, but I can’t remember.
…
Q:Were you able to do shifts over a period of a little bit over 12 months at the MCG from, it looks July 08 through to about September 09?---
A:Yes, because I was encouraged by Dr McIntosh to do them, and I just couldn’t do them any more.”[18]
[18]T204, L15 – T206, L2
32 It should be noted that this evidence is at odds with the opening referred to in paragraphs 20 and 21 above.
33 As to the circumstances relating to his employment at the MCG in this period, the defendant stated:
“Because where I was working, at the MCG, they put me in a place near the Jim Stynes Room, where there’s not much activity going through; like, there’s not a lot of people. But when I tried to go and watch a Carlton game, I had a panic attack after about half an hour and I couldn’t stay there any longer.”[19]
[19]T206, L11-16
34 It should be noted at this point that, in the proceeding before me, it was conceded by counsel for the plaintiff that since September 2009, the WorkCover insurer had placed the defendant on total incapacity payments which had subsisted at the time of the hearing of the claim, and thereafter.
35 The defendant further stated that in approximately 2010, Dr McIntosh arranged for a gym and swim program for him, which he had been attending four times a week.[20]
[20]T206, L25-30
36 As to the circumstances subsisting after September 2009, the defendant was asked:
Q:“… I don’t think I asked you how you came to cease working at the MCG. It looks like you last worked there in about September 2009. Does that sound about right?---
A:Yes.
Q:What caused you to stop working there? Why did you stop?---
A:Because I just felt that I couldn’t cope with the crowds. Even though I was at the – at the Jim Stynes Room, I still had to go through other parts of the MCG and there was a lot of crowd. And I was, you know – I wasn’t that well, really. I was just trying to work, because I always worked all my life, so – but I couldn’t get back into it.”[21]
[21]T207, L8-19
37 Since the attack, the defendant stated his daily activities consisted of going to the Melbourne Clinic three times a week on Monday, Wednesday and Friday, and he attended gym and swim programs on Tuesday, Thursday, Saturday and Sunday. In addition, he had regular appointments with his psychologist and his psychiatrist, consisting of Dr McIntosh on Mondays and a new psychologist, Ms Berkovitch.[22]
[22]T207, L20 – T208, L4
38 Later, the defendant was asked:
Q:“Some of the doctors have described a feeling you have of shame and humiliation?---
A:Yes.
Q:What is it that causes you [to] feel shame or are you not sure?---
A:I’m not sure. But I know dealing with the WorkCover system is a very traumatic experience. I have had two insurance companies assess my claim and I have had eleven case managers.”[23]
[23]T209, L10-14
Cross-examination
39 Under cross-examination from Senior Counsel for the VRC, the defendant repeated he had worked on the three days of the Spring Carnival after the assault.[24]
[24]T222, L9-29
40 The defendant was then taken to an affidavit he had sworn on 6 May 2009, paragraph 34, which stated:
“I have not returned to any form of employment since the incident in question.”[25]
[25]T226, L8-10
41 He was then asked:
Q: “[That] [i]s completely untrue, isn’t it?---
A:I have tried to work … I thought that part meant for the VRC, but I have worked three or four shifts at the MCG, which I already noted before … But because I’m on a lot of medication and I probably didn’t understand it.”[26]
[26]T226, L24 – T227, L8
42 The defendant was then taken to paragraph 10 of his affidavit, which stated:
“At the time of the incident … the subject of the application, in addition to my employment with the Victoria Racing Club Ltd, I was employed on a casual basis by the MCG, Moonee Valley Racing Club, and Melbourne Racing Club.”[27]
[27]T227, L23-29
43 Next, the defendant was asked:
Q:“What you then say is that you did, what, two or three shifts with the MCG after your accident. Is that right?---
A:I think it was a little bit more than that, about four or five shifts.
Q:Four or five shifts?---
A:Yes.
Q:Whilst you were doing those four or five shifts, did you have a medical certificate from your general practitioner certifying you as totally unfit for all employment?---
A:Yes.”[28]
[28]T228, L7-15
44 The defendant was then asked:
Q:“[In the] four years between November [20]07 to November 2011, a period of four years, how many shifts did you do with the MCC, the Melbourne Cricket Ground?---
A:I can’t recall, but I wold have done four or five shifts.
Q:Four or five?---
A:Yes.
Q:In total?---
A:Roughly.
Q:Yes, okay?---
A:Yes, I can’t recall.
Q:Yes?---
A:Because my psychiatrist encouraged me to do that.
Q:Yes?---
A:And I told Dr Stokes about it.”[29]
[29]T228, L25 – T229, L3
45 The defendant was then taken to particulars of economic loss prepared by his solicitors on 5 April 2012, wherein it was stated:
“As a result of the injuries sustained by the plaintiff he has been unable to return to any employment.”[30]
[30]T231, L14-16
46 He was asked:
Q: “That, likewise is wrong?---
A: Yes.
Q:Did you tell your solicitors that you had done some work at the MCG?---
A: I can’t remember me not telling them or telling them.”[31]
[31]T231, L16-19
47 The defendant was then taken to a number of medical certificates prepared by his treating practitioners and which had also been signed by him. In a certificate from Dr David Frost, general practitioner, dated 5 November 2007, he had certified the defendant as being unfit for any duties between 5 November 2007 to 19 November 2007 and, on the certificate, the defendant had ticked the box:
“‘I have not been engaged in any paid employment, self employment or voluntary employment since the last continuing certificate of capacity was provided, and declare that the details I have given on this certificate are true and correct knowing that false declarations are punishable by law.”[32]
[32]T232, L29 – T233, L3
48 The defendant was questioned in relation to this as follows:
Q: “Is that right?”---
A: Yes.
…
Q: What you’ve done, and this is signed by you on 24 January of 2008 – so you are declaring, knowing that a false declaration is punishable by law, on 24 January of 2008 that you have not been engaged in any form of employment, paid, self or voluntary?---
A: Yes.
Q: Is that declaration true?---
A: I think so, sir.
Q: Do you?---
A: Yes.”[33]
[33]T232, L22 – T233, L11
49 The defendant was later asked:
Q:“So if you were working in November 2007 and December of 2007, after the carnival, after the assault, then this declaration is false, isn’t it?---
A:No.
Q:You’ve said here, ‘I have not been engaged- - -’?---
A:I don’t understand what you’re trying to say. I’m really not understanding.
Q:Did you work in November and December of 2007?---
A:I worked at the VRC. You already know that.
Q:After the incident and after the final day of the carnival, did you work anywhere in the remainder of November or December of 2007?---
A:I can’t remember. I might have worked but I can’t remember because I don’t think I put a claim form in then.”[34]
[34]T235, L7-19
50 Later, the defendant was asked:
Q:“We might help your confusion in this way if we can. What I suggest to you is this: that you worked at the VRC on 10 November 2007 which is final day. Is that right?---
A:Yes.
Q:Then on 25 November … you worked as a general attendant at the Melbourne Racing Club. Is that right?---
A:Probably, sir.
Q:You told the members of the jury that you worked four or five partial shifts at the MCG, when I suggest to you that you worked at the Melbourne Racing Club on 25 November 2007 when you had declared that you hadn’t worked at all?- - -
A:No. I didn’t put a certificate in at that time.
Q:I’m putting to you that you were working on 25 November 2007 for the Melbourne Racing Club?- - -
A:I can’t remember working there at the Melbourne Racing Club.”[35]
[35]T235, L27 – T236, L11
51 Further, it was put to the defendant:
Q:“I suggest to you that you worked there [the MCG] throughout 07, 08, into 09 and 2010 … Is that right?---
A:No, sir.
Q:It’s not?---
A:Not as far as I remember, sir. My psychiatrist, Dr McIntosh, encouraged me to try to go back to the MCG and try it there.”[36]
[36]T237, L1-9
52 It was then put:
Q:So what I’m suggesting to you is this: that these certificates that date from November 2007 through to September of 2009, just those ones, have you as incapable or unfit for any duties through that whole period. Is that correct?---
A:Yes.
Q:So you’re certifying and what you’re doing in effect is providing documents which declare – that is, it’s a declaration by you which is punishable by law – that you have been unfit for all duties throughout that period. Is that right?---
A:Yes.
Q:Those declarations that you signed are false, aren’t they?---
A:No.
Q:You were working?---
A:Yes, I was trying to get back to work, sir.
Q:That’s not my question. You were declaring that you haven’t done any work in your declaration and you are working, aren’t you?---
A:I’m not working at the moment, sir.
Q:In the period that we’re talking about between late 07 and late 09, you had been working. Is that right?---
A:I worked in some shifts at the MCG. I told you about that.
Q:Four or five partial shifts?---
A:Yes.
Q:Is that right?----
A:Yes, sir.
Q:That’s the only work you’ve done?---
A:No, I also worked, I think, once at Moonee Valley.
…
Q:But in the documents that you provide, to whoever you have to provide them to, you declare the fact that you have not done any work at all. Is that right?---
A:That’s what I did, I didn’t do any work.
Q:Well, you did. You went to work at the MCG?---
A:Yes, sir.
Q:So the declarations that you make are false?---
A:Well, I didn’t see it that way at the time, sir.
Q:If you declare that, ‘I am not working’ and you are working, it’s false, isn’t it?---
A:I was trying to get back to work, sir.
Q:It’s not the question. It’s false, isn’t it?---
A:Well, that’s what you say, yes.”[37]
[37]T237, L28 – T239, L1
53 The defendant was then taken to a number of records which suggested he had been working at the Melbourne Racing Club in November 2007 and at the MCG in December 2007. He was asked:
Q:“Yes. I want to go through with you, if I might, that on 25 November 2007 you worked as a general attendant at the Melbourne Racing Club at Caulfield with a pay date of 25/11/07. Is that correct?---
A:Probably, sir, I can’t remember.
A:So as early as November 07 you are working. Is that right?---
A:I can’t remember.
Q:Then – you can’t? Then the records show that on 9 November 2007, with a pay date of 9 December 2007, you have worked as a general attendant at the Melbourne Racing Club, call it Caulfield, for 89.5 hours?---
A;I have never worked that long anywhere, sir.
Q:The records will show, your employment records at Caulfield will show, that a pay date of 9 December 07 – December 07, the month after – that you worked 89.5 hours at the Melbourne Racing Club?---
A:I can’t remember doing that, sir.
Q:Can’t remember?---
A:No.”
HER HONOUR:
Q:“Mr Scanlon, is there a document to that effect?”---
MR SCANLON:
A:“Yes, Your Honour.”
HER HONOUR:
Q:“If you could show the witness.”
MR SCANLON:
A:“Yes, Your Honour.”
Q:(To witness) Could you have a look at that document that is circled, please?”---
MR McGARVIE:
Q:“Your Honour, if I might have a look before it goes to the witness? I am indebted to my learned friend.”
MR SCANLON:
A:“They’re in subpoenaed records that have been released by my learned friend, Your Honour. If you go down to the - - -?---
A:I can’t read that.
Q:I’m sorry?---
A:I can’t read that. It’s too small handwriting.
Q:What it says is that on 9 December 2007 there are 89.5 hours worked by you, and up the top can you see the – it’s the earnings for an employee number 08082, Hosny, Joseph. Is that you?---
A:Yes.
Q:In fact on 25 November 2007, as I’ve already put to you, you were there, and then on 9 December 2007 you were also working there. Is that correct?---
A:Yes, that’s what it says. Yes.
Q:Then on 26 December 2007 you were working at the Melbourne Cricket Ground, and 26 December 2007 would be, almost unquestionably, the Boxing Day Test, wouldn’t it?---
A:Yes, sir.”[38]
[38]T239, L2 – T240, L11
54 And further:
Q:“On 26 December 2007 you worked nine hours on Boxing Day at the MCC, doing pass-outs at the gate, from 9 am to 6 pm, a period of nine hours. Is that correct?---
A:Yes, possibly, sir. I can’t remember.”[39]
[39]T240, L28-31
55 The defendant was further asked:
Q:“… Now, you told the members of the jury that you did four or five part shifts and your normal shift was maybe four and a half to five hours?---
A:That’s at the footy season, sir.
Q:Just a moment. You said you did four or five partial shifts. Right?---
A:Yes.
Q:And that is not true, is it, because in the cricket season you were working at the MCC. This is within a month of your assault. You’re working at the MCC on Boxing Day, 26 December 2007, between 9 am and 6 pm, a period of nine hours. Would that be correct?---
A:Yes, sir. That would be nine hours.
Q:The next day, on 27 December, day 2 of the test, 2007, you are working at ramp 3 from 8.30 am to 6 pm, a period of 9.5 hours at the MCG. Is that right?---
A:Yes.
Q:And then on 28 December, day 3 of the test, you are working in the pass-out sections gate from 9 am to 6 pm, a period of nine hours at the MCG. Is that right?---
A:That’s possibly right, yes.
Q:To tell these members – these members of our community, the jury, that you did four or five partial shifts at the MCG, was a complete lie, wasn’t it?---
A:No, sir, because I did these shifts before I filled in the WorkCover … Yes. I still was working after the assault, because I didn’t know what the assault was going to have an effect on me. I didn’t fill in WorkCover forms until later that – the next year. So I wasn’t lying. How can I be lying.
Q:Okay?---
A:You’re saying that I was working when I said I wasn’t working; that’s not true.
Q:You were working, I suggest to you, when you were having – declaring to doctors that you were unfit for all duties and you had not engaged in any employment, which was not true, was it?---
A:No, sir, I don’t know where it says that, sir. But I’m saying to you I did not put a WorkCover claim in, because my union wanted me to put a WorkCover claim in and I really didn’t want to until it affected me in the way it has affected me in the last four years.”[40]
[40]T241, L1 – T242, L13
56 The defendant was then asked:
Q:“Did you work between 18 March 2008 to 23 June of 2008 a period in excess of three months with the Foster’s Group as a mailroom clerk?---
A:I tried to work there, yes, sir.
Q:Did you work there?---
A:Yes, sir.
Q:During that period between 18 March 2008 and 23 June 2008 over three months you were still providing certificates certifying that you had not engaged in any employment. Is that right?---
A:If that’s what it says, yes, sir.
Q:Those declarations which you made which you know are punishable by law were false because you were working for Foster’s, weren’t you?---
A:Yes, sir. I didn’t know they were false, no, sir.
Q:You’re putting in a certificate saying I have not worked self employed, paid of (sic) voluntary at a time in the three-month period that you were working for Fosters in the mailroom?---
A:Yes.
Q:You were obtaining certificates certifying you as totally unfit for work and at the same time working. Is that right?---
A:That’s not the way I see it, sir. … I don’t think I’ve worked there three months, sir.
Q:How long did you work at Fosters?---
A:I can’t remember sir, I really can’t remember.
Q:Do you remember working at Fosters?---
A:Yes, sir.
Q:When I asked you before what work have you done since the assault by Gann you said, ‘Four or five partial shifts with the Melbourne Cricket Club’?---
A:That’s what I thought you were referring to, sir.
Q:No. I asked you what work you’d done, and your answer is, ‘I’ve done four or five shifts.’ There is not a mention of Fosters.
…
The fact is you were working at Fosters and providing false certificates, weren’t you?---
A:No, sir.
Q:You’ve got a certificate that says, ‘I have not worked,’ and you’re working. Is that right?---
A:Yes, sir.
…
Q:Then whilst you were working at Fosters were you also working at the Melbourne Cricket Club?---
A:I can’t remember, sir.
Q:The records will show that whilst you were at Fosters on 10 May of 2008 you worked as an attendant for five hours. That would be what you would describe, would you not, as a full shift?---
A:Yes, sir.
Q:On 17 May 2008, the next week, you were working at the MCG between 11.30 am and 5 pm, being 5.5 hours. Is that correct?---
A:If that’s what it says, sir, yes.
…
Q:Then on 24 May 2008 working at the back stairs between 3.45 pm and 10.30 pm, a period of 6.75 hours at the MCG?---
A:I can’t remember that one, sir.
…
Q:Then on 25 May of 2008 working from 12.30 to 5.15, which is 4.75 hours, all of the time you were working at Foster’s Group. So you were working two jobs?---
A:I can’t remember doing that, sir.
Q:Have a think about it. While you were working at Fosters in the mailroom were you also working at the MCG as an attendant?---
A:I can’t remember doing that, sir. I can’t remember that.
Q:When you said, ‘I’ve had four or five attempts at working at the MCG,’ you know that to be completely false, don’t you?---
A:No, sir.
Q:You don’t?---
A:No, sir.
Q:You say you’ve only worked four or five partial shifts?---
A:From what I can remember, sir, yes.”[41]
[41]T242, L19 – T245, L14
57 Further, it was put:
Q:“Then on 15 June you’re an attendant from 11.30 am to 5 pm, 5.5 hours at the MCG. Would that be right?---
A:I’d say so if that’s what it says there.
Q:Then on 22 June 2008, the following week – and I might say you’re still with Fosters. Is that right?---
A:I can’t remember the dates I worked there, sir.
Q:Just have a think about this. Did you work with Fosters in the mailroom?---
A:Yes, sir.
Q:Have you ever told anyone about that?---
A:Yes, sir.
Q:Who?---
A:My doctor, sir.”[42]
[42]T246, L17-27
Further discussion
58 It would appear that the matter was then stood down while negotiations took place between counsel. Prior to that adjournment, Senior Counsel for the VRC stated to the Court:
“Your Honour, from 19 November 2007 until today, the plaintiff has been in receipt of weekly payments of compensation at a time when he is in our submission and on any view, even on his evidence, has been working.”[43]
[43]T248, L19-23
59 As to the propriety of cross-examining the defendant about receiving workers’ compensation payments, Senior Counsel stated:
“It is a very different situation here where the plaintiff is working and receiving workers’ compensation payments. The extent of this work is unfinished, in terms of the cross-examination, and I seek from your Honour leave to put to him as a credit issue which will then enliven s128 of the Evidence Act, that during the time that he was working for these employers Foster’s, MCG, Melbourne Racing Club etc that in addition thereto he was in receipt of weekly payments of compensation.
It goes further to another issue, and that is in relation to motivation for work. Your brother Coish allowed the cross-examination of the witness in relation to the fact of receipt of workers’ compensation payments upon the basis that it went directly to his motivation for employment. It is also very relevant to the fact that the histories given to the doctors are awry in relation to his employment.”[44]
[44]T248, L27 – T249, L13
60 With respect to an application for a certificate of indemnity from prosecution pursuant to s128 of the Evidence Act, her Honour said to Senior Counsel for the defendant:
“You’re on notice. You will want to consider your position. ... Yes ... This material was in the possession of the plaintiff’s camp. It is extraordinarily unfortunate that it should come to this position for the plaintiff in circumstances like this and that this should not have been foreshadowed as an issue and dealt with in the usual way, short of effectively in an ambush in front of a jury in a trial like this. It’s most unfortunate.”[45]
[45]T250, L1-10
The state of the Defendant’s evidence
61 It is clear enough on the viva voce evidence that the learned trial judge was apprised of false statements contained in the defendant’s affidavit sworn 6 May 2009, in the particulars of economic loss dated 5 April 2012 and in the opening to the jury. On the other hand, the learned trial judge had before her the defendant’s evidence-in-chief that he had worked between July 2008 and September 2009, sometimes two shifts a week, at the MCG, and then outside the Jim Stynes Room and away from crowds.[46] Her Honour would have had to compare that evidence with the statements in cross-examination that the defendant had worked four to five shifts only at the MCG in the same period and earlier. There was no apparent challenge to the defendant’s assertion that he just could not work any more after September 2009 although he had been performing some work in 2008 until September 2009.
[46]T205-206
62 The learned trial judge had the opportunity of assessing the defendant in the witness box, and may have given weight to the fact that he was on medication at the time of giving his evidence, to the extent of nineteen tablets a day,[47] and in certain questions and answers upon non-contentious matters.[48] In any event, following discussions, the claim was dismissed against the employer by consent, with no order as to costs, and there was an abandonment of a claim for economic loss against the second defendant.
[47]T204, L13
[48]See T199, L4-11; see also T201, L24-28 and T202, L28-31
63 The learned trial judge then went on to assess general damages and aggravated damages, being fully apprised of the issue that the question of working and receiving WorkCover payments was relevant to the history given to the doctors in terms of assessing the mental state of the defendant.[49]
[49]T249, L11-13
Magistrates’ Court prosecution
64 In this proceeding, the defendant admits that on 1 September 2014, he appeared in the Magistrates’ Court of Victoria at Melbourne and pleaded guilty to one charge brought against him by the Victorian WorkCover Authority, namely that between 4 March 2008 and 15 September 2009, he dishonestly obtained a financial advantage for himself in the amount of $49,787.20, being payments under the Accident Compensation Act 1985, by deception, namely by falsely representing to his treating medical practitioners and the Victorian WorkCover Authority that he was unable to work, which inability was caused by the assault.
65 The defendant further agrees, in this proceeding, that his plea in mitigation of sentence contained an agreed summary of facts whereby it was admitted that:
(a)he made a claim for payments of weekly compensation on the basis of an incapacity for work caused by the assault;
(b)the injury causing his incapacity was a mental injury, namely Post-Traumatic Stress Disorder, which first incapacitated him for work on 10 January 2008, and no claim was made for incapacity caused by physical injury;
(c)he commenced receiving weekly payments of compensation on 3 March 2008;
(d)he was told (and at all times, he knew) that for an ongoing entitlement to weekly payments of compensation, he must provide certificates of capacity, and that he must inform his employer (the VRC) if he returned to work in part;
(e)he was told (and at all times, he knew) that heavy penalties applied if he made false declarations as to his capacity for work;
(f)between 4 March 2008 and 4 September 2009, twenty-two certificates of capacity were provided to the Authority by which the defendant’s treating general practitioner certified that the defendant had no work capacity, and in each certificate the defendant declared that he had not been engaged in any form of paid employment, self-employment or voluntary work since the last certificate of capacity was issued, and that the details he had given in each certificate were true and correct, knowing that false declarations were punishable by law;
(g)for the purpose of the plea, the defendant admitted the fact that on twenty-two separate occasions over an eighteen‑month period, the defendant provided certificates of capacity in which he knowingly made a false declaration for the dishonest purpose of receiving money from the Authority to which he knew that he was not entitled;
(h)in fact, he had returned to work one week after the assault, and between 4 March 2008 and 4 September 2009, was engaged in paid employment in casual positions and sporting events at the Flemington Racecourse, at the MCG, at Moonee Valley Racecourse, at the Caulfield Racecourse, and in various mailroom positions;
(i)he mainly worked at the MCG, including on Boxing Day, and the Moonee Valley Racing Club;
(j)he did not inform the Authority of the fact of his paid employment.
66 The defendant further admits that he had thereby declared falsely that he had not been engaged in any form of paid employment, self-employment or voluntary work since the last certificate of capacity was issued, and declared that the details he had given on this certificate are true and correct, knowing that false declarations are punishable by law.
67 Further, he admitted that at the hearing of the plea, it was said by his counsel that he had been paid, all up, an estimate of $10,000 over the eighteen‑month period, and further, that on average, he was paid about $20 per hour, by reason of which at the same time as he had declared on twenty-two occasions that he had no work capacity and that he worked approximately 500 hours.
68 The defendant further admitted that at the same time as he was described by his treating doctors as:
(a)anxious, fearful, disorganised and dysphoric;
(b)crying for extended periods;
(c)suffering significant interference with his short-term memory, concentration and retention;
(d)significantly phobic, staying at his brother’s house for days at a time;
(e)fearful of being attacked if he went out;
(f)remaining hypervigilant and unable to concentrate
he had worked more than fifty shifts as a crowd attendant at the MCG and at other places including the Moonee Valley Racecourse, worked in a mailroom, and otherwise had a capacity for full-time work and to mix with the general public.
69 Although conceding the facts thus pleaded, the defendant has asserted that at all material times, he was psychologically suffering from the effects of the mental injury.
70 By reason of the admissions thus made and the evidence given before the learned trial judge, the plaintiff asserts:
(a)the judgment was obtained and/or procured by fraud of the defendant;
(b)the evidence of the defendant’s fraud was discovered for the first time after the date of the judgment, which evidence would have produced a vastly different result with respect to the assessment of damages;
(c)it is unconscientious for the defendant to take advantage of his fraud; and
(d)by reason of these matters the judgment is liable to be set aside.
71 The fraud thus identified would appear to amount to the assertion that the defendant made false representations to the Court, such that he intended that the Court should act on those fraudulent representations, and that in fact the Court did act on those representations and the plaintiff thus has suffered damage as a consequence.
72 The defendant, for his part, asserts that his viva voce evidence before the Court was affected by his psychiatric injury, and that no knowingly false representations were made. He had admitted in evidence-in-chief that he had worked up to two shifts a week between July 2008 and September 2009, and, accordingly, the Court was not substantially misled, or at all.
73 Further, when Senior Counsel for the VRC submitted to the learned trial judge, on instructions, that the defendant had been in receipt of weekly payments of compensation from 19 November 2007 until today, at a time when he had been working, those instructions must have been part of the negotiations between the Victorian WorkCover Authority and the plaintiff in settlement of the s138 proceeding prior to the commencement of the jury action. There is no allegation by the plaintiff that he had been misled by the Victorian WorkCover Authority with respect to that issue.
74 Further, it is alleged by the defendant that there is no “new evidence”, in the sense that the issue of the defendant being unlawfully in receipt of weekly payments of compensation whilst working had been placed before the Court in the original proceeding. It is further submitted by the defendant that the plaintiff has not proved that there would have been a different result before the Court if the admitted facts had been known by the learned trial judge.
Principles relating to setting aside a judgment for fraud
75 In the Victorian Court of Appeal decision of Karam v Palmone Shoes Pty Ltd & Anor,[50] Nettle JA stated:
“The fraud relied upon must be proved with particularity and the proof must be strict and cogent.”[51]
[50][2014] VSCA 148
[51]At paragraph [31] per Nettle JA
76 Further, in citing the New South Wales decision of Wentworth v Rogers (No 5),[52] his Honour cited Kirby P with approval to the following effect:
“[T]he burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.
In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegation of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render inequitable that such party should take the benefit of the judgment.”[53]
[52](1986) 6 NSWLR 534 at 539
[53]Wentworth v Rogers (No 5) (supra) at paragraph [39]
77 In expanding on material which constitutes “newly discovered facts”, his Honour, Kirby P, also considered that the House of Lords decision in Boswell v Coaks (No 2):[54]
“... laid down, in the clearest possible terms, that the action to set aside a judgment on the ground that it had been procured by fraud must be based upon something newly discovered, after the first trial. It must not amount to a challenge to a matter canvassed in that trial.”[55]
[54](1894) 6 R 167 at 170
[55]Wentworth v Rogers (No 5) (supra) at 541
78 His Honour then stated that decisions of the High Court of Australia, which bind this Court, as the English Court of Appeal does not, make it plain that the rule in Boswell is part of the law of Australia.[56]
[56]Wentworth v Rogers (No 5) (supra) at 541, citing Cabassi v Vila (1940) 64 CLR 130 at 147; and McDonald v McDonald (1965) 113 CLR 529 at 533
79 The Court of Appeal, in the application for extension of time in which to file a notice of appeal, stated:
“It is sufficient for present purposes to say that Kirby P’s judgment provides some support for the applicant’s contention that he should be granted an extension of time, based upon his recent discovery that Hosny had pleaded guilty to fraud. In that regard, his Honour had made the point that ‘mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief’. On the other hand, Kirby P also set out, in considerable detail, the various considerations that would apply, at the hearing of any appeal, which might militate against the drastic step being taken of setting aside the judgment allegedly affected by fraud.
In those circumstances, we determined that time should be extended, and the various matters raised on behalf of the respondent considered in due course by this court. It goes without saying that, although we concluded that the applicant’s proposed grounds of appeal were arguable, whether they ultimately succeed is another matter.”[57]
[57]Gann v Hosny (supra) at paragraphs [34] and [35]
80 In the hearing before me, the plaintiff’s counsel relied on the statement by Menzies J in McDonald v McDonald[58] to the effect:
“Where, however, the acceptance of fresh evidence would also prove a party’s fraud at the earlier trial, it seems that it is not necessary to go to the length of showing that, had the evidence been available at the earlier trial, it would have produced an opposite result. ‘ … A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail’. [References cited].”
[58](supra) at paragraph [11]
81 By way of comparison, Chief Justice Barwick held:
“The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh. In that event, the circumstances that the fresh evidence may tend to support the conclusion that the verdict was obtained by fraud, or by surprise, or by subornation of witnesses will not prevent the grant of a new trial on the ground of the discovery of fresh evidence, or require the Court to satisfy itself of the fraud, surprise or subornation of witnesses as the case may be: McCann v Parsons (1954) 93 CLR 418, at p 426. Nor, in my opinion, does that circumstance lessen in any respect the stringency of any of the rules which apply to the grant of a new trial upon the ground of the discovery of fresh evidence. The fresh evidence, though it suggests fraud, surprise or subornation of witnesses, must yet fully satisfy all the criteria laid down with respect to fresh evidence warranting a new trial although it may be that, in some cases, the tendency of the evidence to show fraud may make it more likely to be conclusive. In my opinion, it would be a misreading of Lord Buckmaster’s speech in Hip Foong Hong v H Neotia & Co (1918) AC 888, at p 894 to conclude otherwise.
…
The reasons given by the leading judgment in the Supreme Court for granting a new trial in this case might possibly be read as tending to suggest that a new trial may be granted where there merely is evidence, as distinct from a finding, of fraud in obtaining the verdict, even though that evidence may not fully satisfy the rules to which I have referred governing the grant of a new trial upon the ground of the discovery of fresh evidence, or it might be read as suggesting that because in the Court's opinion it pointed to fraud, it did not need to be found that it would probably be conclusive of the issues between the parties. But, in my opinion, either view would be erroneous.
However, upon a close reading of the reasons for judgment to which I have referred, I agree with my brother Menzies in concluding that the ground upon which the Supreme Court really acted in this case was the discovery of fresh evidence. … .”[59]
[59](ibid) at paragraphs [4], [6] and [7]
Conclusions
82 I am not satisfied that the fact of the defendant receiving weekly payments of compensation while still working in the period March 2008 to September 2009 is a new matter, in the sense that it was a matter canvassed in the trial referred to above.
83 Further, once the Court had been seized of the issue, the defendant abandoned any claim to economic loss, and proceeded on a claim for general damages and aggravated damages. Liability under these heads is not challenged.
84 The plaintiff, on retaining the services of experienced solicitors and Senior Counsel, chose to not take any part effectively in the trial following settlement of the s138 recovery proceedings. The plaintiff has not adduced evidence before me that he was misled as to the issue by the Victorian WorkCover Authority, in the sense that it can be inferred that the Victorian WorkCover Authority should have made known to the plaintiff the same matters as to the issue which formed the instructions to Senior Counsel for the VRC. Indeed, Senior Counsel was cross-examining from documents discovered in the proceeding.
85 The learned trial judge, having been seized of the issue, made findings with respect to the reliability of the evidence of the defendant with respect to the heads of damage claimed. Neither counsel before me sought to attack the reasonableness of the judgment based on the material before the Court. No medical practitioner was called in either proceeding to attest to a relevant change of opinion with respect to the defendant’s mental state, viz-à-viz, working whilst in receipt of weekly payments of compensation.
86 The state of the evidence before the primary learned trial judge, and indeed as at today, is that the defendant had ceased working in September 2009 on account of the injuries caused by the assault and that at all material times since then, including after the Magistrates’ Court hearing, the Victorian WorkCover Authority had accepted liability for ongoing weekly payments of compensation.
87 In view of the issue being placed before the Court, and in view of the consequent findings of liability with respect to the defendant’s evidence, I do not consider that the plaintiff in this action has proved the elements of fraud in accordance with the principles laid down in Briginshaw v Briginshaw.[60] In other words, although the burden of proof is on the balance of probabilities, I must take into account the seriousness of the allegations being made and their consequences.
[60](1938) 60 CLR 336
88 For the sake of completeness, I do not consider that the plaintiff has established that there is “fresh evidence” which would justify the setting aside of the primary judgment in accordance with the principles referred to above.
89 In all the circumstances, I find that the plaintiff has failed to discharge the burden of proof that the judgment was procured by fraud, and the claim will be dismissed.
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