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Gaundar v Hogan

Gaundar v Hogan

Case [2014] ACTCA 4 7 March 2014

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PARAS GAUNDAR v APRIL MAREE HOGAN
[2014] ACTCA 4 (7 March 2014)

APPEAL – Damages – Personal Injury – inadequacy of reasons – primary judge may be in better position than appellate court to assess evidence – insufficiency alone will not lead to setting aside of judgment, error must be shown – trial judge’s reasons to be read in context of trial as a whole – consideration of reasons reveals no error

COSTS – error conceded by respondent shortly before trial – appeal would have proceeded despite early concession – appeal fails on other grounds alleged – order favouring respondent warranted

Australian Capital Territory v Crowley & Ors (2012) ACTCA 52
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Fox v Percy (2003) 214 CLR 118
Gamser v Nominal Defendant (1977) 136 CLR 145
Pettitt v Dunkley [1971] 1 NSWLR 376
Precision Plastics Pty Ltd v Demir (1975) 49 ALJR 281
O’Brien v Noble [2012] ACTCA 13
Wilson v Peisley (1975) 50 ALJR 207

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 27 - 2012
No. SC 357 of 2007

Judges: Burns and Dowsett JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 7 March 2014

IN THE SUPREME COURT OF THE     )          No. ACTCA 27- 2012
  )          No. SC 357 of 2007
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PARAS GAUNDAR
Appellant

AND: APRIL MAREE HOGAN
Respondent

ORDER

Judges:  Burns and Dowsett JJ and Nield AJ
Date:  7 March 2014
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be allowed.

the figure of $599,586 in order 1 of the orders below be deleted and the figure of $575,411 be inserted in lieu thereof.

the appellant pay four fifths of the costs of the respondent on appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 27 - 2012
  )          No. SC 357 of 2007
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PARAS GAUNDAR
Appellant

AND:APRIL MAREE HOGAN
Respondent

Judges:  Burns and Dowsett JJ and Nield AJ
Date:  7 March 2014
Place:  Canberra

REASONS FOR JUDGMENT

BURNS J:

I agree with the reasons proposed by Dowsett J and with his Honour’s orders save as to costs.
With respect to costs, the appellant has succeeded on one issue only, being failure of the primary Judge to allow in her calculation of damages for deferral of a portion of the damages awarded for future impairment of earning capacity. This error was conceded by the respondent, albeit not until shortly prior to the hearing of the appeal. On each of the other grounds of appeal, the appellant has been unsuccessful.
It is clear from the way in which the appeal was conducted that the appellant would have…

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 Gaundar v Hogan

Details

AGLC: Gaundar v Hogan [2014] ACTCA 4
Case: [2014] ACTCA 4
Decision Date: 7 March 2014

CaseChat Overview and Summary

The appeal in *Gaundar v Hogan* concerned a dispute over damages awarded for personal injury. The primary judge had awarded the respondent, Mr Hogan, damages in the sum of $599,586. The appellant, Ms Gaundar, appealed this decision.

The central legal issue before the appellate court was whether the primary judge's reasons for the damages award were inadequate to the point of demonstrating error. The court also considered the appropriate costs order, particularly in light of a concession made by the respondent shortly before the trial.

The appellate court acknowledged that a primary judge is often in a better position than an appellate court to assess evidence. It held that mere insufficiency in reasons alone will not lead to the setting aside of a judgment; rather, an error must be demonstrated. Reading the primary judge's reasons in the context of the trial as a whole, the court found no error in the assessment of damages. However, the court allowed the appeal on other grounds, specifically to correct the quantum of damages awarded. The figure of $599,586 was amended to $575,411. Despite the concession made by the respondent, the appeal would have proceeded on other grounds, leading to the appellant being ordered to pay four-fifths of the respondent's costs on appeal.

Orders

Orders of the court

1. the appeal be allowed.

2. the figure of $599,586 in order 1 of the orders below be deleted and the figure of $575,411 be inserted in lieu thereof.

3. the appellant pay four fifths of the costs of the respondent on appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Gaundar v Hogan [2014] ACTCA 4

Most Recent Citation

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93

Cases citing this decision · 9 of 9 shown

R v Stacker
[2020] ACTCA 34 Para 1

…In both written and oral submissions the Prosecution referred to Williams v The Queen [2014] ACTCA 4 and Cranfield v The Queen [2018] ACTCA 3 ( Cranfield ) to support the proposition that a discount for a plea of guilty should be generally predictable.…
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd
[2018] FCAFC 93 Para 4

…A 79; 88 ACSR 80 at 116 [157]; Spata v Tumino [2018] NSWCA 17 at [141]; H v P [2011] WASCA 78 at [47]; X v Y [2015] WASCA 70 at [61]; Gaundar v Hogan [2014] ACTCA 4 at [5]; Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370 at 373 [5]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [36];…
QA v Chief Psychiatrist of the Act
[2018] ACTCA 10

…of Taxation v Brixius (1987) 16 FCR 359 Davey v Herbst, Herbst and Bray (No 2) [2012] ACTCA 19 Egan-Green v Mclean [2017] ACTCA 28 Gaundar v Hogan [2014] ACTCA 4 Omari v Omari [2016] ACTCA 16; 14 ASTLR 23 Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; 243 ALR 728 QA v Chief…
Smith v Pangallo
[2017] ACTCA 61 Para 6

…2 at [68]. A further limitation upon an appeal such as the present was referred to by Dowsett J (with whom Burns J agreed) in Gaundar v Hogan [2014] ACTCA 4 at [6]: [S]ome aspects of a case may allow for more than one “correct” answer, although the “correct” answer may fall within a range. Again, an appellate cou…
Singh v Cooper
[2016] ACTCA 55

…(2003) 214 CLR 118 Fry v McGufficke [1998] ACTSC 20 Fry v McGufficke [1998] FCA 1499 Gamser v Nominal Defendant (1976-77) 136 CLR 145 Gaundar v Hogan [2014] ACTCA 4 Griffiths v Kerkemeyer (1977) 139 CLR 161 Howard v Aikman (2015) 74 MVR 184 Huen v Hyland [2004] ACTCA 5 Lounge v Deborah Wentworth-Shields [2002] AC…
Calvary Hospital Auxiliary Inc v D'Amico
[2016] ACTCA 39 Para 1

…As Dowsett J, with whom Burns J agreed, said in Gaundar v Hogan [2014] ACTCA 4 at [13]:…
Omari v Omari
[2016] ACTCA 16 Para 5

…this appeal, but it is desirable to briefly set out the applicable principles. The nature of this appeal was set out by Dowsett J in Gaundar v Hogan [2014] ACTCA 4 at [5] – [6]: It seems to be common ground that the appeal is by way of rehearing. The appellant submits that on such an appeal, “the Court is oblige…
Moon v Whitehead
[2015] ACTCA 17 Para 1

…this appeal, but it is desirable to briefly set out the applicable principles. The nature of this appeal was set out by Dowsett J in Gaundar v Hogan [2014] ACTCA 4 at [5] – [6]:…
Roberts v Rhodes
[2014] ACTCA 20 Para 1

…214 CLR 118 and Allesch v Maunz (2000) 203 CLR 172, and has been considered many times by this Court. Recently, it was considered in Gaunder v Hogan [2014] ACTCA 4.…

View all 9 citing cases →

Cases cited in this decision · 7 of 7 shown

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 1

…lly, any insufficiency will relate to an aspect or aspects of the reasons and not to the reasons as a whole. The decision in Pettitt v Dunkley [1971] 1 NSWLR 376 is an exception in that regard. An identified insufficiency may not necessarily lead to the setting aside of the whole judgment, or even the relevant…
Australian Capital Territory v Crowley
[2012] ACTCA 52 Para 1

…ment which in its opinion ought to have been given in the first instance’”. The quoted passage comes from the decision of this Court in Australian Capital Territory v Crowley & Ors (2012) ACTCA 52 at [5]. Whilst it may be correct as far as it goes, it does not go as far as the appellant’s submissions might imply. There are at least two limitations u…
O'Brien v Noble
[2012] ACTCA 13 Para 1

…The appellant also relies on the decision of this Court in O’Brien v Noble [2012] ACTCA 13. In that case, the Court examined the relevant judgment before concluding that it was insufficient in some respects. In this case we have not had the benefit of such an analysis. The present assertion of insufficiency is qui…
Fox v Percy
[2003] HCA 22 Para 1

…nge. Again, an appellate court will not intervene to substitute its view for that of the primary Judge, unless error is first shown. See also Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [22] - [31]. An award of damages for personal injuries may contain numerous components. Some may be capabl…
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd
[2001] FCA 1833 Para 1

…first limitation appears from the decision of the Full Court of the Federal Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21] – [30]. The case demonstrates that error must be shown before an appellate court is called upon to consider the appropriate judgment to be given. As Allsop J…
Gamser v Nominal Defendant
[1977] HCA 7 Para 1

…In Gamser v Nominal Defendant (1977) 136 CLR 145 at 159 Aickin J (Gibbs and Stephen JJ concurring) endorsed the remarks made by Barwick CJ in Wilson v Peisley and cited above. I should say, however, that at 149 Gibbs J seems to have deprecated the use by Barwick CJ of the word “outrageous”.…
Precision Plastics Pty Ltd v Demir
[1975] HCA 27 Para 1

…In Precision Plastics Pty Ltd v Demir (1975) 49 ALJR 281 Gibbs J said at 285 (McTiernan, Stephen and Murphy JJ concurring):…

Legislation cited in this decision · 0

No legislation cited in this case.