Jason William Gann v Joseph Hosny
[2017] VSCA 303
•20 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0050
| JASON WILLIAM GANN | Applicant |
| v | |
| JOSEPH HOSNY | Respondent |
---
| JUDGES: | SANTAMARIA, KAYE and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2017 |
| DATE OF JUDGMENT: | 20 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 303 |
| JUDGMENT APPEALED FROM: | [2017] VCC 402 (Judge Brookes) |
---
APPEAL – Intentional tort - Assault – Defendant charged – Charge proved - Release without conviction on good behaviour bond – Common law proceeding for damages brought by injured person (plaintiff) - Psychiatric injury – Proceeding not defended at trial – Evidence of plaintiff as to extent of work engaged in since assault – Judgment for plaintiff – Later prosecution of plaintiff for obtaining accident compensation payments by deception – Proceeding by defendant to set aside damages judgment as procured by fraud – Alleged perjury of plaintiff when giving evidence of work engaged in since assault – Reliance on admissions made in later criminal prosecution – Multiple deficiencies in case pursued by defendant at trial of proceeding brought by him - Perjury not established – Leave to appeal refused – Wentworth v Rogers (No 5) (1986) 6 NSWLR 543 applied.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant For the Respondent | Mr A M Donald Mr D C Dealehr | Bird & Bird Slater & Gordon |
SANTAMARIA JA:
For the reasons given by Ashley JA and Kaye JA, I agree that the application for leave to appeal should be refused.
KAYE JA:
For the reasons given by Ashley JA, I agree that the proposed appeal has no prospect of success, and accordingly leave to appeal should be refused.
At the risk of repetition, and without detracting from the reasons given by his Honour, there are four principal reasons why I have reached that conclusion. In summary, they are as follows. First, the applicant failed to establish that there was any significant difference between the evidence given by the respondent, at the damages trial, in respect of the work that he performed in the period March 2008 to September 2009, to the work that, by his plea of guilty in the Magistrates’ Court criminal proceeding, he admitted performing during that period. Secondly, to the extent that there was any such difference, the applicant failed to establish that there was any fraud by the respondent in giving evidence in the damages proceedings as to that aspect of his work capacity. Thirdly, the applicant failed to establish that, to the extent to which the respondent’s evidence in the damages trial was inaccurate as to the amount of work that he performed in that period, that evidence was material to the assessment of damages by the judge in that case. Fourthly, the applicant has entirely failed to establish that, after the conclusion of the damages trial, there has been any relevant new discovery by him of something material, by virtue of which the judgment for damages against him was the product of fraud.
Before addressing each of those matters, it is trite, but important, to bear in mind that the allegation made by the applicant, that the respondent obtained the damages award as a consequence of a fraud by him in the County Court, is a most serious allegation. In effect, and indeed specifically, the applicant has alleged, as part of his cause of action, that the respondent was guilty of the criminal offence of
perjury in giving evidence in his damages trial. Basic principle required the applicant to adduce cogent proofs in order to sustain such a serious allegation on the balance of probabilities. Insofar as the applicant relied on the drawing of inferences against the respondent, such inferences could only be drawn if the court was comfortably satisfied that the inference, contended for by the applicant, was the more probable inference, bearing in mind that the acceptance of such inference would constitute a finding against the respondent of the commission by him of a serious criminal offence.[1] In this case, the proofs adduced by the applicant, in respect of each of the four matters I have mentioned, fell well short of attaining that standard at all.
[1]Briginshaw v Briginshaw (1938) 60 CLR 336, 354 (Starke J), 362–3 (Dixon J); Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 130-1 (Winneke P).
The first matter, which the applicant failed to establish, was that the evidence given by the respondent in the damages trial was significantly untrue. In support of that aspect of his claim, the applicant submitted that there was a substantial difference between, on the one hand, the respondent’s evidence as to the work that he performed between March 2008 and September 2009, and, on the other hand, the amount of work that he performed during that period as admitted by his guilty plea before the magistrate.
Ashley JA has summarised the effect of the evidence given by the applicant, in that regard, in the damages trial, at [84] below, and I shall not repeat it. In the criminal case, the prosecutor, in his opening, went no further than noting that, while the respondent had claimed compensation payments for the entirety of that period, he had in fact worked throughout that period in casual positions for the Victorian Amateur Turf Club, the Melbourne Cricket Club, the Moonee Valley Racing Club, and for a period in a mail room position organised by an employment agency. The prosecutor did not provide any other detail or information concerning the amount of work performed by the respondent, for those organisations, during that period. Pausing there, that was no basis upon which the applicant, in the fraud proceeding, could contend that there was a substantial difference between the work admitted to by the respondent by his plea of guilty in the criminal proceeding, to the work that he described that he performed in the damages trial. The plea of guilty, by the respondent in the criminal proceeding, was no foundation for the central proposition relied on in this proceeding, namely, that the respondent, by that plea, had thus confessed to committing perjury in the evidence that he gave in the damages trial. That proposition could not, on any view, be properly sustained.
In order to attempt to bolster his case, the applicant sought to rely on an observation made by the respondent’s counsel, during the plea in the criminal proceeding, that the respondent was paid approximately $20 per hour during the period that was charged, and that, in doing so, he had earned approximately $10,000. An extrapolation, from those two pieces of information, to an assessment of how many hours the respondent worked over that period, would be nothing more than an exercise of piling one assumption on another. However, assuming in the applicant’s favour that the respondent worked eight hour shifts during that period, and assuming that the two estimates stated by his counsel on his plea were accurate, it had the consequence that he had worked approximately 60 shifts during the 18 months of the charge period. Even taking those assumptions into account, that meant that the respondent worked less than one shift per week during the period in question. That statistic, based as it is on assumption and indeed speculation, would, even if accepted, be an insufficient foundation for a respectable conclusion that the work, that was admitted to have been performed by the respondent during that period, was substantially different to the work that the respondent in fact had described in his evidence in the damages trial.
Further, and to the extent to which there was any relevant difference between the respondent’s evidence as to the work that he performed in 2008 and 2009, and the work that, in the criminal proceeding, he admitted performing during that period, it was entirely insufficient as a basis for an inference, on the balance of probabilities, that the respondent had intentionally given false evidence as to that aspect of his claim in the damages trial. As Ashley JA has pointed out, there is a significant difference between evidence that might be incorrect or inaccurate on the one hand, and evidence that is the product of a perjury on the other hand. The inference, which the applicant sought to be drawn against the respondent in this regard, is significantly and further weakened, first, by an examination of the manner in which the respondent gave his evidence at the damages trial, and, secondly, by the uncontested evidence as to the respondent’s flawed memory that was put before the judge in the fraud trial.
As Ashley JA has already noted, the evidence given by the respondent in the damages trial, as to the work that he performed after the incident in November 2007, was hedged with uncertainty. There was cogent medical evidence, put before the court in that case, and on the fraud trial, as to why that was so.
In a series of reports, dated as early as February 2008, his treating psychiatrist, Dr Rowan McIntosh repeatedly made reference to the respondent having significant memory and concentration issues. In a report dated 11 September 2008, Dr McIntosh stated that the respondent was ‘excessively anxious and even more forgetful /distractible than previously was the case’. In a later report dated 15 October 2014, that was tendered in the fraud trial, Dr McIntosh specifically addressed the issues relating to the effect of those matters on the evidence that the respondent gave in cross-examination in the damages trial. When asked whether any diagnosed psychological or psychiatric illness could have caused the respondent not to comprehend the import of questions that he was asked in cross-examination at the damages trial, Dr McIntosh responded as follows:
I would highlight the following. Having been so significantly unwell over the years, (in the context of continuing to be moderately unwell) — I would suggest that Mr Hosny’s memory for what transpired many years previously — is clearly poor. I find it highly likely that Mr Hosny’s recollections of what happened many years previously is patchy at best. The expectation that Mr Hosny might recall with a great degree of precision what happened on a certain date five or six years previously is not consistent with the gravity of Mr Hosny’s illness.
The same view was expressed by another psychiatrist who treated the respondent, Dr Jon Stokes. In a report dated 26 June 2015, Dr Stokes stated:
He is perpetually anxious and on edge. His thought processes tend to be disorganised and chaotic. His short term memory is poor. Dr Doherty states he could return to his pre-injury duties, a suggestion I find difficult to conceive given Mr Hosny can barely remember when he has an appointment to see me and has to be sent reminders as to when to attend.
In addition, the respondent was examined by Dr Albert Kaplan, a psychiatrist, in May 2016 for the purposes of the fraud proceeding. Dr Kaplan considered that the respondent had developed a post-traumatic stress disorder. He expressed the view that, when the respondent was cross-examined in the damages trial in April 2012, it was likely that he would have struggled to respond thoughtfully and in a measured way, in light of his psychiatric condition, and, in particular, his anxiety, his difficulties with concentration and memory, his loss of confidence and his panic disorder. Dr Kaplan concluded:
As part of his psychiatric conditions, Mr Hosny has difficulty with his memory and concentration, experiences anxiety, particularly in public places, and has lost confidence. These factors would all have compromised his capacity to analyse questions addressed to him, make decisions in regard to those questions, and provide considered evidence.
It is particularly significant that, in the fraud proceeding, that is the subject of this application, the applicant did not seek to cross-examine any of those three medical practitioners as to the views expressed by them. Nor did the respondent seek to adduce any expert evidence, or other evidence, in contradiction of them.
Thus, there were two significant factors that were, in my view, an insuperable obstacle to the applicant establishing, on the requisite balance of probabilities, that any difference between the respondent’s evidence, on his damages trial, and the admissions that he made in the criminal proceeding, as to the work that he performed between March 2008 and September 2009, was the product of a fraud by the respondent in the damages trial. To summarise, those obstacles were, first, the fact that any such difference was not demonstrable or substantial, and, secondly, any difference could be adequately explained by the vague and uncertain manner in which the respondent gave his evidence in the damages trial, and by the uncontradicted expert medical evidence as to the deficiencies in his memory processes.
The third difficulty, with the applicant’s case, is that it could not be demonstrated that any difference between the evidence given by the respondent, as to the work that he performed in the period March 2008 to September 2009, and the work that, by his later guilty plea, he admitted to performing during that period, was material to the assessment of damages by the judge.
It must be remembered that the judge was assessing general damages, for pain, suffering and loss of enjoyment of life, past and future. No doubt, the respondent’s evidence, that he could no longer perform work that had previously been gratifying to him, was a relevant component of that claim. However, the period that is in question in this case — 18 months between March 2008 and September 2009 — was but a minor part of the total period to which that aspect of his claim for general damages would apply. It was common ground, and not in dispute, that the respondent had been unable to perform any work at all after September 2009. Nor has it been suggested that the respondent would, in the future, be able to return to gainful employment. Thus, the period of work in question — March 2008 to September 2009 — was only relevant to an assessment overall of one aspect of the respondent’s pain, suffering and loss of enjoyment of life during a limited period in respect of which the whole of the assessment was made by the judge. The claimed inability by the respondent to be able to work during that 18 month period paled into significance, in the assessment of his general damages, in comparison with the other devastating consequences that the injuries, inflicted on him by the appellant, have had on his life. In short, he had lost his home, his family, his marriage and his earning capacity. He had been maintained on a high regime of medication to treat his serious long-standing and intractable psychiatric issues, all of which, on the evidence, were a consequence of the gratuitous assault perpetrated on him by the applicant.
In that respect, it is noteworthy that, in her judgment in the damages trial, the judge did not mention, at all, the respondent’s incapacity to perform work between March 2008 and September 2009. Her Honour noted that, before the assault the respondent had a ‘solid work history with no lengthy periods away from work’, and that the respondent had been working two jobs paying off a mortgage. In describing one effect of the assault, the judge expressly stated:
He has been unable to work at all since September 2009 and has lost his ability to do the work he enjoyed as an attendant and bus driver.
Thus, to the extent that there was any shortcoming in the evidence given by the respondent in respect of his work capacity between March 2008 and September 2009, it is not evident that it played any material role in the judge’s assessment of the general damages to be awarded to the respondent arising out of the injuries inflicted on him by the applicant.
No doubt recognising that difficulty, counsel for the applicant has sought to submit that if the ‘true’ evidence relating to the respondent’s work history had been put before the judge in the damages trial, that would, or might, have had a different effect on the judge’s assessment of the medical evidence on which the respondent’s claim for damages depended. That proposition, however, fails in limine. As I have noted, it is clear from the reports of Dr McIntosh, and other medical practitioners, that the respondent suffered a florid psychiatric injury as a consequence of the assault on him by the applicant. It is not evident, from the medical reports, that that diagnosis by the respondent’s practitioners was dependent on, or affected by, the amount of work that he did, or did not do, during the period March 2008 to September 2009. On the contrary, Dr McIntosh, in his report dated 15 October 2014, specifically stated that he was aware that the respondent was doing some shifts with the Victorian Racing Club and at the MCG in 2008, but that he did not really discuss the respondent’s work situation with him ‘that much’. Dr McIntosh stated that he was ‘much more focused’ on the respondent’s deteriorating psychiatric state. He noted that the respondent was clearly unwell during the period in question, that he was often late for appointments, and that at times the respondent would telephone him from the Richmond Station saying that he was having another panic attack on the platform.
In that respect, it is, again, significant that the applicant, in the fraud trial, did not seek to cross-examine Dr McIntosh, or any of the other medical practitioners, whose reports were tendered in evidence in the damages trial. In particular, none of those medical practitioners were cross-examined with a view to demonstrating that, if that practitioner had been informed of the work actually performed by the respondent during the period March 2008 and September 2009, he would or might have expressed a different view as to the respondent’s psychiatric condition and the consequences of it.
In those circumstances, it is not demonstrated that any difference between the work that the respondent described, in his evidence in the damages trial, as performing during the period March 2008 to September 2009, to the work that, by his guilty plea, he admitted to performing, was material, either to the medical opinions of the doctors that were put before the judge assessing the damages, or to the assessment by the judge of the respondent’s psychiatric state during that period, or more broadly.
Finally, it is clear, on any view, that the applicant has entirely failed to demonstrate that the alleged ‘fraud’, on which he relies, was fresh, in the sense that it was not discovered, and could not have been discovered, by the applicant at the time at the damages trial. Most significantly, the applicant failed to give evidence in the fraud trial. I observe that that was a glaring and quite extraordinary omission, given the nature of the claim made by him. The criminal charge against the respondent, to which he pleaded guilty, was based on the materials that were obtained by counsel for the Victoria WorkCover Authority in the damages trial. Those materials had been subpoenaed to the County Court in the damages trial, and had been available to the applicant and his solicitors at that trial. No evidence was given by the applicant, or indeed his solicitors, as to whether they in fact had those materials in their possession at the time of the damages trial. In short, the applicant failed to demonstrate that there was something ‘fresh’, which he had learnt subsequent to the damages trial, and which constituted a fraud that was material to the award of damages made in favour of the respondent.
For those reasons, I agree with Ashley JA that the application to this Court has no prospect of success at all.
I would also add to my observations that which is described by Ashley JA as an ‘additional matter’. The damages proceeding were brought by the respondent to claim damages against the applicant for an unprovoked and wanton assault on him by the applicant. Nothing relied on by the applicant, in the present proceeding, affected, or impugned, the finding by the judge, in the damages trial, that the applicant had committed the tort of assault against the respondent. On any view, as a consequence of the assault, the respondent was entitled to an award of damages. Even taking the claim made by the applicant, in this proceeding, at its highest, it could not be gainsaid that, on any assessment of damages, the respondent was entitled to an award of a substantial sum of damages against the applicant. The applicant came to the judge in the present case, and to this Court on this application, seeking equity. He has made no steps at all to compensate the respondent for the assault he committed against the respondent. He has not even sought to pay any sum of money into court in that respect.
On the present application, the court did not have the advantage of any argument as to whether, in those circumstances, the principle that he who seeks equity must do equity, would in any event have been an effective response to the claim made by the applicant.[2] It is not necessary for us to express any view on that matter. It is sufficient to observe that, in the circumstances of this application, it is noteworthy that the applicant has not taken any step to make amends to the respondent for the serious wrong that he occasioned to the respondent.
[2]Compare Meyers v Casey (1913) 17 CLR 90, 123–4 (Isaacs J).
ASHLEY JA:
On Derby Day 2007, 3 November, Joseph Hosny was employed by the Victoria Racing Club (‘VRC’) to drive a shuttle bus from a marquis area at the Flemington Racecourse to the main gate. On the early evening of that day, Jason Gann attempted to enter the bus when it was full. Hosny asked him to disembark. Gann then assaulted Hosny on several distinct occasions, in one instance punching him repeatedly to the face and head.
In February 2008, Gann was charged with unlawful assault. In May 2008, he pleaded guilty and was released without conviction on a 12 months good behaviour bond.
In circumstances which I will later describe in more detail, Hosny brought a common law proceeding against Gann for damages, claiming that he had suffered psychiatric injury in consequence of the assault (‘the damages proceeding’). He sought damages both for economic loss and for pain and suffering. Following a trial in April 2012 (‘the first trial’, or ‘the damages trial’) a County Court judge (‘the first judge’) entered judgment in his favour on 6 June 2012[3] for $325,000, being $300,000 for ordinary compensatory pain and suffering damages, and $25,000 aggravated compensatory damages (‘the damages judgment’).
[3]Hosny v Victoria Racing Club & Anor [2012] VCC 661 (Judge Davis).
Then, in 2014, Hosny pleaded guilty to a rolled-up count of obtaining a financial advantage by deception. It related to his claiming and receiving weekly payments of accident compensation between March 2008 and September 2009 in respect of injuries allegedly sustained in the 2007 assault. Contrary to declarations made when lodging certificates of capacity, he had in fact engaged in some casual work in that period (‘the charge period’).[4] He was convicted and sentenced to a short period of imprisonment, wholly suspended, and orders for compensation and costs were made.
[4]As the Magistrate noted when sentencing Hosny, the prosecutor conceded that the total amount which Hosny had received for his casual work was ‘roughly about $10,000’.
Somehow, Gann became aware of the criminal proceeding (‘the charge matter’). He sought leave to appeal against the damages judgment out of time. He relied, relevantly for present purposes, upon the ground that the damages judgment had been procured by a fraud on the part of Hosny of which he, Gann, had only recently become aware.
On 16 March 2015, this Court granted Gann leave to appeal[5] and allowed the appeal to the extent that it be remitted for consideration by the County Court the hearing and determination of the question whether the damages judgment had been procured by fraud.
[5]An extension of time in which to apply for leave to appeal having been granted on 12 December 2014: Gann v Hosny [2014] VSCA 344.
By writ dated 18 June 2015 (‘the second proceeding’), Gann formulated his claim consequent upon the remitter. He summarised his plea this way:
3. By reason of the matters pleaded hereafter:
(a)the Judgment was obtained and/or procured by the 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; and
(c)it is unconscientious for the Defendant to take advantage of his fraud.
He further pleaded circumstances said to support that summary:
5.In this Court’s reasons for giving the Judgment published on 6 June 2012, the Court made findings of fact referable to the 18 month period from March 2008 to September 2009, namely that:
(a)after the Assault, the Defendant was scared to put the bins out at night and could not do things around the house;
(b)the Defendant worked a few shifts “here and there” at the Melbourne Cricket Ground (MCG) in 2008 and 2009 but could not cope with being in a crowded place and ceased work in September 2009;
(c)the most compelling evidence came from Dr Rowan McIntosh, the Defendant (sic) treating psychiatrist, who had treated the Defendant from early 2008;
(d)the Defendant told Dr McIntosh that within days or weeks of the Assault, the Defendant developed a spectrum of quite debilitating psychiatric symptoms;
(e)the Defendant remained anxious, fearful, disorganised and dysphoric, crying for extended periods and suffering significant interference with his short-term memory, concentration and retention;
(f)on 15 July 2009, Dr McIntosh reported that the Defendant’s life in the preceding 15 months had been very difficult that he became significant phobic and stayed at his brother’s house for days at a time, fearful of being attacked if he went out;
(g)the Defendant remained hyper-vigilant and unable to concentrate;
(h)prior to the Assault, the Defendant had a solid work history with no lengthy periods away from work;
(i)the Defendant experienced minor improvement in late 2009 which prompted Dr McIntosh to encourage the Defendant to work the odd shift at the MCG as an attendant.
6.In assessing general damages in the sum of $300,000.00 this Court accepted as truthful the evidence of the Defendant and the compelling evidence of Dr McIntosh and of the Defendant’s treating psychologist, Ms Berkovitch.
7.The Judgment was predicated upon findings that:
(a)the Defendant’s evidence was the truth;
(b)the psychiatric and psychological opinion given by the Defendant’s treating doctors was also predicated upon an acceptance by them that the Defendant was telling the truth about his conditions and their effect on him.
…
18.On 1 September 2014, the Defendant appeared in the Magistrates’ Court of Victoria at Melbourne and pleaded guilty.
19.By pleading guilty to the charge, the Defendant admitted allegations that:
(a)he dishonestly obtained a financial advantage for himself in the sum of $49,787.20 (in effect he stole that money from the Authority);
(b)he falsely represented to his medical practitioners that he was unable to work;
(c)he falsely represented to the Authority that he was unable to work.
…
21.By the Declarations, the Defendant 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.
…
24.By reason of the matters aforesaid, by his own admission, the Defendant:
(a)was not and is not a witness of truth;
(b)knowingly gave false evidence at the trial of the Proceeding;
(c)solely for the purpose of his own financial gain, was a person knowingly prepared systematically to defraud a statutory authority, namely the Authority, administering a public fund.
25.The Defendant’s claim made in the Proceeding resulting in the Judgment was based on the same evidence as the Compensation Claim by reason of which the spectrum of quite debilitating psychiatric symptoms which debilitated him and wholly incapacitated him for work was the same spectrum of quite debilitating psychiatric symptoms which comprised the evidence by which his claim for damages against the Plaintiff was proved.
26.By reason of the matters aforesaid, at the same time as the Defendant 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 hyper-vigilant and unable to concentrate;
the Defendant worked more than 50 shifts as a crown attendant at the MCG and at other places including the Moonee Valley racecourse, worked in a mail room and otherwise had a capacity for full time work and to mix with the general public.
By his defence, Hosny put in issue many of the matters pleaded in support of Gann’s claim.
The issues raised in the second proceeding were litigated before a different County Court judge (‘the second judge’) in November 2016. On 12 April 2017, the judge dismissed the proceeding, by which Gann sought that the damages judgment be set aside and that there be a retrial.
Proposed grounds of appeal
From the second judge’s order, Gann now seeks leave to appeal. He relies upon these grounds:
1.The learned trial judge erred in finding that the Applicant had not discharged the burden of proving the Respondent’s fraud.
2.The learned trial judge erred in that the judgment was against the evidence or the weight of the evidence or not reasonably open on the evidence.
3.The learned trial judge erred by failing to consider the whole or a substantial part of the Applicant’s case.
4.The learned judge erred by determining the proceeding by reference to matters other than the evidence and by taking into account irrelevant considerations.
5.The learned judge erred by drawing inferences that could not be drawn from the evidence.
6.The learned trial judge erred by treating the evidence adduced in proof of the Respondent’s claim for pecuniary loss as not evidence adduced in proof of his claim for non-pecuniary loss.
7.The learned judge erred by misdirecting himself as to the law.
8.The learned judge erred by not treating as fresh evidence the evidence of the Respondent’s post-trial admissions made by his plea of guilty and by the agreed statement of facts presented on the plea.
Circumstances of the damages proceeding more closely described
Hosny commenced the damages proceeding by writ dated 5 February 2010. The defendant was VRC.
In August of that year, Victorian WorkCover Authority (‘VWA’), as statutory insurer of VRC under the Accident Compensation Act 1985 (‘the Act’), instituted a proceeding under s 138 of the Act against Gann. That led on, in August 2011, to Hosny adding Gann as a defendant to the damages proceeding.
Hosny’s claim as then formulated was one for damages both for economic loss and for pain and suffering. He pleaded that the assault had caused him enduring psychiatric injury.
The trial of the damages proceeding began on 18 April 2012. Up until that day, Gann had been represented by solicitors and Senior Counsel. On that day, his Senior Counsel informed the judge that his client would not defend the claim brought against him. He did so in unequivocal, even strident, language:
… it is correct to say that Mr Gann is in court. However, I am to advise the court that he does not wish to defend the proceedings and he is not intending to instruct anybody to defend the proceedings …
And
My instructions are from him that he does not wish to partake in the proceedings, full stop.
And, later
... I am just here on behalf of [the solicitors]. Mr Gann is not here. He is not going to defend the proceedings, he is not going to address the jury, he is not going to make any submissions and he is gone …
And
... He doesn’t want to partake of proceedings. He’s content to have a judgment entered against him. ... He doesn’t want to be heard in relation to it … he won’t be opposing anything.
And
Mr Gann has exercised his right not to defend these proceedings. That’s his choice. He’s not going to be here. He’s not going to partake of the proceedings. He’s not going to be in receipt of any documents. He’s not instructing any solicitors. He will have no contact.
Gann was evidently in court at the outset of those statements by his counsel, but not later.
On that day also, Gann’s solicitor unsuccessfully sought leave to withdraw. The judge’s refusal of that application was founded on Gann then being resident overseas (although he was present at one stage on the particular day), and it being considered important that his legal representatives remain on the record for service purposes.
Thereafter, for the remainder of the trial, Gann neither appeared in person nor was represented by counsel. Moreover, it appears that the solicitors, though remaining on the record, did not participate at all in the trial. In light of counsel’s statements to the judge, it seems clear that this non-participation accorded with their client’s instructions.
I should refer next to two other events which occurred in the course of the trial, but before a jury was empanelled. First, Hosny was granted leave to file and serve an amended statement of claim. The application to amend was made before Gann’s counsel made his concluding statements about his client’s intentions.
By his amended statement of claim, Hosny sought, inter alia, aggravated compensatory damages or exemplary damages. He continued to seek damages for both economic loss and for pain and suffering.
Second, and again before the jury was empanelled, an order was made by consent in the s 138 recovery proceeding brought by VWA against Gann. The terms of settlement are unknown, save by the parties.
Once the jury was empanelled, Hosny’s counsel opened the matter. He stated, inter alia, that his client had been unemployed since the assault. Whilst this was consistent with particulars of loss and damage which had been filed not long before trial, it was inconsistent with evidence which Hosny later gave both in evidence-in-chief and in cross-examination by counsel for the VRC. There, Hosny stated and conceded respectively that he had engaged in some casual work between November 2007 and September 2009.
After Hosny had been cross-examined with respect to post-assault work,[6] there were negotiations between his counsel and counsel for the VRC. Those negotiations resulted in consent orders being made which dismissed his claim against that entity.
[6]But not, it seems, when that cross-examination was at an end.
Hosny’s claim then proceeded against Gann alone. The jury having been dismissed, the matter proceeded before the judge alone. Various lay witnesses gave evidence, Gann’s answers to interrogatories were put in, and eight reports of medical practitioners and allied health experts were tendered. Gann not being represented or present, none of the health professionals was cross-examined.
As will be seen, Hosny evidently abandoned altogether his claim for economic loss damages. Such abandonment is implicit in the reasons of the judge at that trial. Her Honour’s consideration was confined to pain and suffering damages and to the questions whether aggravated compensatory damages or exemplary damages ought be awarded. There was simply no mention of economic loss damages at all.
The second proceeding
As I have said, the proceeding commenced by Gann in 2015 came on for trial (‘the second trial’) in November 2016. The entirety of the transcript is not part of the material on the present application, but some matters are clear.
First, Gann did not give evidence at the second trial. He could have given evidence, inter alia, as to what information he possessed about Hosny’s post-assault casual work at the time when he abandoned participation in the damages trial, what attempts he[7] had made before that time to ascertain the position, and whether he understood at that time that Hosny’s particulars of economic loss, and histories which he had given to doctors, did not align with his performance of some post-assault work.
[7]Or his solicitors on his behalf.
Second, Gann did not call Hosny to give evidence.[8] Gann could have sought to demonstrate that Hosny’s evidence in the damages trial with respect to post-assault work, and the histories which he had given to doctors, had been deliberately false.
[8]Had it turned out to be necessary, Gann might have relied on s 38 of the Evidence Act 2008 (Vic).
Third, Hosny did not give evidence in his own case.
Fourth, medical reports which had been tendered in the damages trial were placed before the second judge, as was the transcript of the damages trial. The reports of more than one practitioner adverted to problems, both reported or observable, with Hosny’s memory and concentration in the period up to the damages trial.
Fifth, updated medical reports were admitted. The report of Dr McIntosh, the treating psychiatrist, addressed these questions: (1) what if anything had he known about Hosny performing casual work in 2008 and 2009; and (2) what was the significance or otherwise, vis a vis diagnosis and prognosis, if and insofar as Hosny had given a faulty history with respect to such work.
Sixth, no doctor or other health professional upon whose opinion Hosny had relied in the damages trial was called for cross-examination by Gann. Such a doctor or other health professional could have been, but was not, cross-examined in an attempt to demonstrate that – (1) Hosny’s memory problem was not such as could explain his failure to report that he was undertaking casual work from time to time in 2008 - 2009, and could not explain his answers under cross-examination by counsel for the VRC; and (2) that had the full picture been known, it would have changed his or her diagnosis, or opinion as to the severity of Hosny’s illness.
Seventh, the transcript of the hearing in the charge matter and the Magistrate’s sentencing remarks were tendered.
Eighth, so far as it might be relevant, it was common ground that Hosny had remained incapacitated for work since September 2009 by his compensable injury, and had been in receipt of accident compensation throughout that period.
The reasons of the second judge
All of the proposed grounds of appeal attack the reasons for judgment of the second judge.[9] It is thus necessary to set out his Honour’s path of reasoning.
[9]Gann v Hosny (No 2) [2017] VCC 402. Particularly when referring to the submissions for the applicant, I will describe them simply as ‘Reasons’.
His Honour set out clearly and accurately the procedural history pertinent to the damages trial. He described, in detail, Hosny’s economic loss claim as formulated in written particulars, as deposed to by Hosny in a 2009 affidavit, as asserted (in effect) by histories given to doctors and other health professionals, as asserted in certificates of capacity which he had signed, as opened by his counsel, as described by Hosny in his evidence-in-chief, and as disclosed under cross-examination by counsel for the VRC. His Honour faithfully recorded a good deal of that cross-examination, which enabled a conclusion that Hosny had undertaken work, mostly casual, between November 2007 and September 2009 for a number of employers — predominantly at sporting venues, but in one instance, in a mail room.
The second judge noted that counsel for VRC had foreshadowed cross-examination of Hosny specifically intended to reveal that he had been in receipt of weekly payments of compensation at times when he was also undertaking some paid work. Counsel submitted that proof of such matters would also bear upon Hosny’s credibility.
Whilst, as the second judge noted, the particular cross-examination did not take place, Hosny settling with the VRC, it is not in doubt that the first judge must have been alive to the great likelihood, if not the certainty, that Hosny had been in receipt of weekly payments of compensation at times when he was undertaking casual work.
The second judge summarised the basis upon which the first judge had assessed damages this way:
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. 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.
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, and in certain questions and answers upon non-contentious matters. 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.
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.
The second judge then addressed the 2014 charge matter. He noted the admissions made by Hosny in that proceeding. They included admissions that he had knowingly made a false declaration of capacity when providing medical certificates in support of his claim to weekly payments and that he had in fact engaged in casual work with a number of employers, this standing in contrast with histories provided to treating practitioners.
His Honour then noted the competing submissions for the parties as follows:
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.
Having referred to pertinent authorities — Karam v Palmone Shoes Pty Ltd & Anor,[10] Wentworth v Rogers (No 5),[11] Boswell v Coaks (No 2)[12] and McDonald v McDonald,[13] the judge expressed these conclusions:
[10][2014] VSCA 148 [31] (Nettle JA).
[11](1986) 6 NSWLR 534, 539 (Kirby P).
[12](1894) 6 R 167, 170.
[13](1965) 113 CLR 529.
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 s 138 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. 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.
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.
The damages trial and the first judge’s reasons
The second judge referred, in stating his conclusions, to the first judge’s reasons. It is necessary to say something about those reasons, and to set them in context.
Having set out most of the procedural history, the first judge recorded Hosny’s claim for damages as follows:
14.Mr Hosny alleges that his injuries were caused by the unlawful assault committed by Mr Gann on 3 November 2007. The particulars of injuries state that these are “psychological/psychiatric injuries including but not limited to post traumatic stress disorder, anxiety and depression”.
15.In addition to general damages for pain and suffering and loss of enjoyment of life, Mr Hosny seeks aggravated and/or exemplary damages against Mr Gann on the basis of a number of particulars which are set out at paragraph 10 of the Second Further Amended Statement of Claim …
Her Honour then summarised the evidence upon which Hosny relied:
16.Mr Hosny gave evidence and was cross-examined before the jury. After the discharge of the jury, his sister-in-law, Ms Maria Hosny, gave evidence.
17.Counsel for the Mr Hosny 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 treating psychiatrist Dr Rowan McIntosh; and medico-legal reports of psychiatrists Professor George Mendelson, Dr Timothy Entwistle, Dr Stephen Stern and Dr Don Senadipathy.
Having addressed the impact of the assault upon Hosny, the judge stated that:
21.There was compelling, unchallenged evidence as to the psychological impact of the assault on Mr Hosny. That evidence came from Mr Hosny, Ms Maria Hosny, from his treating team (general practitioner, psychologists and psychiatrist) and from medico-legal psychiatrists.
22.Prior to the assault he had been happily married, living with his wife in a home they had purchased with a mortgage. He was working two jobs part-time. I noted that in his statement, Mr Maher of the VRC stated that Mr Hosny had performed casual work for the VRC for six or seven years without any disciplinary issues. He was a competent worker who at the time of the assault was carrying out his duties in a polite manner. I also note that in a previous job, he had received an award at work for being the best improved out of 700 mail workers. He was regarded as a loyal and reliable employee in that position.
23After the assault, Mr Hosny was shaking and in shock. He was sore in the face, arms and head. He became anxious and depressed and he developed Post Traumatic Stress Disorder (PTSD). He was scared to put the bins out at night, and could not do things around the house. He and his wife argued. He was unable to work and the house had to be sold in a hurry and at a loss. They moved into rented accommodation, but Mr Hosny began binge drinking and was smoking up to 35 cigarettes per day. He and his wife separated about 18 months ago. He moved in with his brother and sister in-law and their two year old child, staying on the couch of their one bedroom flat. After some time, his sister in-law asked him to leave because of his drinking. Occasionally he would stay in motels and backpacker accommodation, and sometimes his wife would allow him to stay overnight at home when he went to pick up his mail. All his weekly income was spent on his accommodation. At the time of the hearing, he was staying in accommodation provided by a friend.
24.Mr Hosny said he is taking 19 pills per day (including Seroquel, Lovan, Xanax, Epilim and Tomazepam) for his psychological symptoms. He was encouraged by Dr McIntosh to do a bit of work but developed panic attacks. He worked a few shifts here and there at the Melbourne Cricket Ground in 2008 and 2009 but could not cope with being in a crowded place and ceased all work in September 2009. He struggles every day with anxiety and depression. He worries about being attacked on his way to his appointments. He sleeps very poorly, often staying awake at night drinking coffee or alcohol. He has nightmares and flashbacks concerning the assault. He has had episodes of self-harm in which he has poured boiling water on his chest and burned himself with matches and a lighter.
…
27.Mr Hosny’s sister in-law, Maria Hosny said she has known him for 14 years. Before the assault, he was outgoing, easy to talk to and enjoyed going out, meeting people, going to the theatre and to family functions. He was happily married and he and his wife were always going out and doing things together.
28.After the assault, there was a dramatic change in his personality. He became reserved and difficult to communicate with. He preferred to stay at home. His marriage broke up. When he stayed with his brother and sister in-law, he never went out unless he had to, and cried a lot. She found him even more depressed now than he was when he lived with her and she can hardly talk to him.
29.There was consensus among medico-legal examiners that Mr Hosny suffers from chronic PTSD which has persisted in spite of treatment and which renders him incapable of working. The medication he requires has caused his diabetes to be unstable. Dr Entwistle described him as requiring “ongoing psychiatric treatment and may require in-patient hospitalisation at some time given his unchanged, heavily symptomatic, vulnerable and distressed condition.” Dr Senadipathy found that Mr Hosny is suffering a “severe” and “profound” PTSD “which has affected his emotional skills, cognitive functions, behaviour and significant changes in his personality”. His illness “has contributed to marital breakdown, homelessness, inability to work and incapacity to cope with day to day activities”.
30.Dr Mendelsohn and Dr Stern diagnosed a major depressive disorder in addition to PTSD.
31.The most compelling medical evidence, however, comes from Dr McIntosh, who has treated Mr Hosny since early 2008. Mr Hosny told him that within days or weeks of the assault he developed “a spectrum of quite debilitating psychiatric symptoms”, including feeling constantly fearful and waking with flashbacks of the assault. In his reports written in 2008 Dr McIntosh noted that in spite of treatment with Efexor, Zoloft and Zyprexa, Mr Hosny’s condition was deteriorating rather than improving. He remained anxious, fearful, disorganised and dysphoric, crying for extended periods and suffering significant interference with his short-term memory, concentration and retention. Dr McIntosh decided to completely change his medication. Three months later, in March 2009, Dr McIntosh reported to Mr Hosny ’s general practitioner that in spite of the change in medication, there had been no significant decrease in his symptoms.
32.On 15 July 2009, Dr McIntosh reported that Mr Hosny’s life in the preceding 15 months had been very difficult. His marriage fell apart during 2008 because of his condition and his wife told him to go and live with his brother. He became significantly phobic and stayed at his brother’s house for days at a time, fearful of being attacked if he went out. He remained hyper-vigilant and unable to concentrate. Prior to the assault he was a person who was happily married, had a solid work history with no lengthy periods away from work, no psychiatric history and no history of drug or alcohol abuse. As a result of the assault he developed a classical PTSD and major depression requiring substantial medication and regular and intensive psychological support.
33.While Mr Hosny experienced a minor improvement in late 2009 which prompted Dr McIntosh to encourage him to work the odd shift at the MCG as an attendant, Dr McIntosh felt that before doing so Mr Hosny would require group therapy to help him curtail his avoidance behaviour, social anxiety and panic attacks. By early 2011, Mr Hosny’s homelessness was continue to compromise his mental health and in April 2011 Dr McIntosh noted that his condition had stagnated. He frequently attended consultations in an agitated and anxious state, on occasions bordering on “inconsolable and unreassurable”. He required weekly or fortnightly sessions with his treating psychologist and continued to face “unique personal dilemmas” on a day to day basis, often without any human contact apart from sessions with his treating team. For this reason, he also required the support of the group programmes provided by the Melbourne Clinic three days per week. In August 2011 Dr McIntosh noted that Mr Hosny continued to suffer from often “relentless” anxiety, and was impecunious, struggling along, alone, in “rather difficult rental accommodation”. Mr Hosny was still often phoning Dr McIntosh in times of crisis or difficulty. His PTSD remained “very difficult to treat - his symptoms still significantly incapacitating”.
34.In his most recent report dated 26 March 2012, Dr McIntosh reported that Mr Hosny continued to lead “a very compromised existence ... for the most part, he leads a semi itinerant almost homeless lifestyle”, staying regularly at an inn frequented by semi-itinerant, loud, substance abusing individuals. Mr Hosny often locks himself in his room at night “in a hyper-vigilant/anxious state”. He continues to see Dr McIntosh weekly and suffers ongoing mood and anxiety symptoms, remaining preoccupied about the “likelihood” that he will be assaulted again. Each week he tells Dr McIntosh his belief that he is in danger and while his ideas in this regard are “‘almost’ delusional”, they cause him to have significant panic attacks even when he thinks about getting on a train. He often rings Dr McIntosh from his phone whilst at the train station to say that he fears he is going to be attacked. He still presents “with chronic mood symptoms (dysphoria/panic/agitation/short-term memory/information processing deficits) as well as a chronic PTSD (dissociation/hyper-vigilance/endlessly reliving the original assault from 2007)”. He remains chronically unable to think clearly or to concentrate or to retain information and is unlikely ever to return to any form of employment.
35.Mr Hosny’s current treating psychologist, Ms Berkovitch, reported in late May 2011 that Mr Hosny was “struggling to cope from week to week with intense anxiety and stress, depression and panic. He continued to complain of an inability to concentrate (his mind “wanders”) and I struggled to try to motivate him. His negativity was almost total, and his talk of self-harm became more frequent. He cried frequently and appeared to feel overwhelmed. However he still became very easily irritated and frustrated and frequently had to be calmed and restrained in my office”. He took an overdose of pills in March 2011 and was rescued when his brother called an ambulance. He has at times become so indifferent to his own welfare that he has indulged in self-harm by binge drinking or cutting himself. He has been extremely heavily medicated but still has not progressed. He relies heavily on his contacts with his treating team, the Melbourne Clinic groups and the gym sessions he does each week, as these are his only ongoing contacts with the outside world. Even with these supports, he “is in a constant state of acute crisis management as every issue is potentially extremely stressful and I am constantly receiving telephone calls out of hours and have even had to attend to him personally to manage acute stressful situations”.
36.Ms Berkovitch concluded that although his condition may stabilise if he finds stable accommodation and some financial stability, he will never have a capacity to return to work and will suffer anxiety, stress and panic attacks for the foreseeable future.
The first judge had the advantage of seeing and hearing Hosny give evidence. She had sat through his evidence in chief, in which he agreed that between mid-2008 and September 2009 he had performed casual work at the MCG, sometimes one and sometimes two shifts a week (though not always completing a shift). She was well-equipped to evaluate his response to cross-examination by counsel for the VRC. In that connection, she knew that Hosny had not worked since September 2009, and that questions about the amount of post-assault work that he had performed were thus directed to a period which was between two and a half and four years before the trial. She knew that he was taking a lot of prescribed medication at the time of the damages trial. Medical reports had been tendered which diagnosed him as suffering from a severe psychiatric illness, and which referred to him having memory and concentration deficits. As against those considerations, which were capable of explaining Hosny’s somewhat uncertain evidence in cross-examination by counsel for the VRC - he used the language of possibility and probability quite often, and he accepted at times the content of a document from which counsel was cross-examining - her Honour knew that he had falsely declared that he was not undertaking paid work, in support of a claim for accident compensation; and she knew that histories which he had given to doctors were silent as to post-assault work. It was in that entire context that her Honour described Hosny as ‘an impressive witness’; and accepted, ‘without reservation his evidence as to the impact of the assault on his life’.
The judge expressed these conclusions with respect to ordinary compensatory damages:
39.As to general damages, Mr Hosny is entitled to damages for his pain and suffering and loss of enjoyment of life flowing from the assault perpetrated upon him by Mr Gann. It is clear from the unchallenged evidence that the impact of the assault upon him has been devastating. Prior to the assault he was a happily married man with no pre-existing psychiatric history and with a solid work history. He was working two jobs, paying off a mortgage and socialising regularly. He was outgoing and loved going out and going to the theatre. As a result of the assault, he suffers chronic severe and debilitating PTSD. He has been unable to work at all since September 2009 and has lost his ability to do the work he enjoyed as an attendant and bus driver. His marriage broke up as a result of his deteriorating psychological condition. His house had to be sold. He is homeless, scared of people, has panic attacks and suicidal thoughts. He has a history of self-harm including setting himself alight and an incident of pouring boiling water over himself. He binge drinks and smokes twice as many cigarettes as before the assault. His diabetes has been compromised by the poor diet he keeps due to homelessness and due to the side effects of some of the medication he takes for the psychological symptoms suffered as a result of the assault. He would not be in this situation today if not for the assault.
40.In all the circumstances, I assess general damages for pain and suffering and loss of enjoyment of life in the sum of $300,000. The award takes into account the initial fear, humiliation and anguish caused by the assault as well as the devastating impact it has had and continues to have on his life. The psychological sequelae of the assault have robbed him of his health, his ability to maintain a very solid work history, his ability to socialise and to move freely in the community, his marriage, his home, his sense of safety and his peace of mind. The award reflects that I accept Mr Hosny’s evidence, the compelling evidence of his treating team, particularly his treating psychiatrist, Dr McIntosh, and his treating psychologist, Ms Berkovitch, as well as the medico-legal evidence, concerning his initial and ongoing symptoms as well as the severity, chronicity and apparent intractability of the PTSD and depression he continues to suffer and is likely to continue to suffer into the future. I take into account that Mr Hosny is 50 years old and must live with the consequences of the assault for the rest of his life.
With respect to aggravated compensatory damages, the judge said this:
43.… I consider that the appropriate conduct to scrutinise was his conduct during the assault and subsequent to the assault in defending the proceeding at least from the time of his plea in the Melbourne Magistrates’ Court on 29 May 2008 until 18 April 2012, and I deal with that conduct below.
44.I accept Mr Hosny’s evidence that he felt very afraid of Mr Gann during the assault, when Mr Gann verbally abused him before making three separate, deliberate attempts to land punches on his head. As I have already indicated, there is overwhelming evidence from Mr Hosny and each of the passengers present on the bus (apart from Mr Gann and his female friend) that the attack was sustained and completely unprovoked by Mr Hosny, who had been polite at all times to Mr Gann and who remained in his seat with his seatbelt on. It is also clear from this evidence that Mr Hosny was so terrified after the assault that he was shaking, crying and unable to continue driving or to speak to his supervisor on the phone. There is abundant evidence that the assault has severely injured Mr Hosny in his feelings, inducing in him feelings of fear, anger and humiliation.
45.I accept Mr Hosny’s evidence that he was upset that Mr Gann had never expressed remorse or apologised for what he had done. I accept his evidence that when he attended the Magistrates’ Court hearing in 2008 where Mr Gann pleaded guilty to the assault, he was again afraid and also upset by the non-conviction disposition given to Mr Gann to allow him to pursue his lucrative television career in the United States. I also accept that Mr Hosny was upset that in spite of Mr Gann’s plea of guilty to the assault, until the first day of the trial of this proceeding on 18 April 2012, Mr Gann was denying the allegation of assault, denying the allegation that Mr Hosny did not consent to the assault, denying that Mr Hosny was injured by reason of the assault, and not admitting that he had been charged with unlawful assault in relation to the assault on Mr Hosny and had pleaded guilty to the charge and summons on 29 May 2008. I accept that, in addition, in his answers to interrogatories, Mr Gann had not only denied his culpability but falsely asserted that the Mr Hosny had threatened him with violence. I accept Mr Hosny’s evidence that this conduct compounded the distress he experienced as a result of the assault…
46.I consider that the matters outlined above demonstrate insulting conduct by Mr Gann which has increased Mr Hosny’s suffering. I acknowledge that the emotional hurt and psychological damage inflicted by the assault is substantially compensated for by an appropriate award of general damages. Nevertheless, I consider that a further amount is properly awarded for Mr Hosny’s mental anguish and humiliation flowing from Mr Gann’s conduct during the assault and after the assault. I assess aggravated damages in the sum of $25,000.
Submissions for the applicant
It was submitted for the applicant, in writing, that —
(1)At the ‘fraud trial’ — a reference to the second trial — Gann established, ‘and did so clearly’, that Hosny procured the judgment by fraud.
(2)‘The learned judge ought to have found that, by reason of Hosny’s admitted perjury, when added to the patently false medical histories tendered at the assault trial and forming part of Hosny’s case, that there were exceptional circumstances warranting setting aside of the Judgment. In any event, the learned judge erred in not finding that the admissions made by Hosny on the plea including the statement of agreed facts constituted fresh evidence for the purpose of a proceeding to set aside a judgment procured by fraud.’
(3)With respect to grounds 1 and 2:
(a)contrary to the finding of the second judge, the first judge was not apprised of Hosny’s work history;
(b)the second judge wrongly relied upon questions asked by counsel for VRC, not the witness’s answers, and upon his statements from the Bar table;
(c)the evidence before the first judge was that Hosny had only worked a few shifts ‘here and there’ at the MCG after the assault;
(d)Hosny’s admissions in his defence to the instant proceeding, his failure to dispute matters set out in notices to admit served by Gann, and his false statements to medical practitioners meant that the finding of the second judge that Gann had not proved that Hosny had knowingly advanced a false case at trial was against the evidence, the weight of evidence and was not reasonably open;
(e)the finding of the second judge that the first judge was appraised by Hosny’s viva voce evidence of false statements made by him in an affidavit and by counsel in opening was against the weight of the evidence and was not reasonably open.
(4)With respect to ground 3:
(a)the second judge had failed to deal with the submission for Gann that two arguments advanced for Hosny could not co-exist: the argument that by reason of mental upset he had not fully comprehended and understood the import of his answers at trial; and the argument that in any event, he had made full and appropriate admissions;
(b)the reasons of the second judge made no mention of facts set out in the notices to admit, or of the significance of Hosny’s ‘perjury’ when added to false medical histories;
(c)the reasons of the second judge did not advert to Gann’s submission that Hosny’s ‘comprehension and memory’ argument was something new, not adverted to at the first trial, inconsistent with both the transcript at trial and with a doctor’s note concerning Hosny’s mental state in early April 2012, and inconsistent with Hosny’s ability, generally, to answer questions at trial;
(d)the second judge should have found that Hosny’s ‘full and appropriate admissions defence’ had no merit;
(e)the second judge had failed to consider Gann’s submissions that an adverse inference should be drawn against Hosny because he did not give evidence at the second trial.
(5)With respect to grounds 4 and 5:
(a)the second judge took irrelevant considerations into account as follows:
(i)negotiations and settlement of the s 138 proceeding and the reasons for that settlement;[14]
[14]In this regard, the applicant cited Reasons [73].
(ii)statements and assertions made by senior counsel for the VRC from the bar;[15]
[15]The applicant cited Reasons [58]–[60], [73].
(iii)the settlement of Hosny’s proceeding against the VRC and the reasons for that settlement;[16]
[16]The applicant cited Reasons [19].
(iv)that, at the assault trial, no wage records or certificates of capacity were tendered and were not evidence adduced. Only a fleeting reference was made to the wage records by senior counsel for Hosny during Hosny’s examination-in-chief. Wage records and certificates of capacity were referred to by senior counsel for the VRC in his cross-examination of Hosny but were not tendered. The learned judge erred in giving weight to information that was not evidence but was assertion from the bar (albeit referred to in cross-examination) and, from an evidentiary perspective, ought to have been given no weight;
(v)that Hosny had not worked since September, 2009 and had been in receipt of weekly payments of compensation;[17]
[17]The applicant cited Reasons [86].
(vi)that Gann had retained the services of experienced solicitors and senior counsel and had chosen not to take part effectively in the assault trial following settlement of the s 138 proceeding;[18] and
[18]The applicant cited Reasons [84].
(vii)that Gann had not adduced any evidence before the learned judge that he was misled by the VWA in the sense that it can be inferred that the VWA should have made known to Gann the same matters which informed the instructions to senior counsel for the VRC.[19]
[19]The applicant cited Reasons [84].
(b)the second judge speculated by inferring that the first judge may have given weight to Hosny’s evidence that he was taking 19 tablets a day.
(6)With respect to ground 6, Gann’s case was that the extent of Hosny’s working was linked inextricably with his claim for pain and suffering damages, because it bore upon evidence of the extent to which he was disabled in the period 2008 to 2009.
(7)With respect to ground 7, the judge erred —
(a)by not holding that there are circumstances where perjury itself warrants setting aside a judgment as procured by fraud;[20]
[20]Counsel cited Cabassi v Vila (1940) 64 CLR 130.
(b)by not holding that a judgment tainted or affected by fraudulent conduct is tainted throughout and the whole must fail.[21]
(8)With respect to ground 8, the second judge erred by not finding that —
(a)Hosny’s admissions in the charge proceeding constituted fresh evidence;
(b)the newly discovered evidence was Hosny’s perjury;
(c)Gann had established that his case was based on a newly discovered fraud — Hosny’s admitted perjury.
[21]Counsel cited McDonald v McDonald (1965) 113 CLR 529, 535 (Taylor J). See also 541 (Menzies J).
I should say a little about counsel’s principal oral submissions. I will not recapitulate matters raised in the written submissions to which there was no substantial addition. Counsel:
(1) accepted that his client’s case depended upon proof of perjury;
(2)submitted that perjury should necessarily be inferred from the degree of discrepancy between the amount of work which Hosny had admitted performing in his evidence at the damages trial and the amount of work which, in the charge matter, he had admitted performing — by his plea and by admissions made on the plea. But for those admissions, counsel stated, the second proceeding would not have been instituted;
(3)submitted that, in this case, the perjury was of such an order as to constitute the exceptional case in which perjury alone will call for a judgment to be set aside on the ground of fraud;
(4)contended that, if the Court rejected the submission last noted, then a combination of perjury together with the deliberate provision of false histories to doctors required that the judgment be set aside as being procured by fraud;
(5)submitted that the judgment should be set aside for fraud even if his client knew at the time of the damages trial, or had the means of knowing, that Hosny had given false evidence; and
(6)relied upon ‘admissions’ made by Hosny’s counsel at the second trial that the first judge had been misled.
In answer to a question from the Court, counsel stated – and it soon became common ground – that Gann had not satisfied the damages judgment in whole or in part. To be clear, he had not done so either before the charge matter was initiated and later concluded, or thereafter.
Submissions for the respondent
It was submitted in writing for Hosny that —
(1)Gann had failed to establish that there had been a new discovery of something material.
(2)Gann’s assertion of and reliance upon ‘admitted perjury’ was false.
(3)Gann asserted, without foundation, that patently false medical histories had been tendered at the first trial.
(4)Gann had every opportunity, before the first trial, to make his own inquiries into Hosny’s medical and work histories.
(5)The second judge rightly concluded that Gann had failed to discharge the burden of proof that the damages judgment was procured by fraud.
(6)With respect to grounds 1 and 2:
(a)the first judge had placed before her Hosny’s work history, medical reports, and receipt of Accident Compensation Act payments;
(b)at the second trial, Gann did not place before the judge fresh facts not considered by the judge at the assault trial. There had been placed before the first judge evidence pertaining to Hosny’s work history, as well as medical reports and receipt of weekly payments of compensation. Further, Hosny’s work history and the medical reports were matters either known to or which ought to have been well known to Gann before the conclusion of the first trial;
(c)Gann chose not to attend the trial or to obtain a trial transcript. He must not be permitted to keep a complaint in reserve;[22]
[22]Counsel cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538 (Kirby P) and Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645 [49].
(d)Gann could not establish that, absent the supposed fraud, it was reasonably probable that he would succeed. In any event, the Court has a residual discretion to decline to set aside a judgment obtained by fraud.[23]
[23]Counsel cited Johns v Cosgrove [2002] 1 Qd R 57, 92 [94] (Thomas JA), McDonald v McDonald (1965) 113 CLR 529, 533 (Barwick CJ) and Hip Foong Hong v H Heotia & Co [1918] AC 888, 894 (Lord Buckmaster).
(7)With respect to ground 3:
(a)matters referred to in aides memoire relied upon by Gann at the second trial were in fact fully canvassed before the first judge;
(b)notices to admit served upon Hosny in the second proceeding carried Gann’s case no further;
(c)the question of Hosny’s comprehension and memory at the first trial was a matter for the judge who presided on that occasion;
(d)the fact that Hosny did not give evidence at the second trial was of no moment.
(8)With respect to grounds 4 and 5, the second judge properly considered matters adverted to by Gann. The inferences which his Honour drew were available.
(9)With respect to ground 6, the second judge’s approach was correct and his conclusion was proper and not unreasonable. In any event, this ground was not relevant to the merits of Gann’s grounds of appeal.
(10)With respect to ground 7, the second judge properly applied the relevant law.
(11)With respect to ground 8, the finding of the second judge that the damages judgment was not procured by fraud was open. Further, Hosny’s post-trial admissions did not constitute fresh evidence.
Orally, counsel added the following:
(1) the transcript showed that the ‘admissions’ which Hosny had made at the second trial, that the first judge had been ‘misled’ as to the amount of his client’s post-assault work, were not admissions that his client had perjured himself;
(2) his client’s admissions for the purposes of the charge matter were founded on material which had been available at the first trial. Employment and wages records of post-assault employers had been subpoenaed and had been produced to the County Court Registry before the damages trial. They had been available for inspection by the parties in the ordinary way;
(3) in fact, the evidence of work performed post-assault of which Hosny gave evidence at the first trial, and the amount of work to which he admitted in the charge matter, were not materially different;
(4) the first judge had understood that Hosny had worked at times until 2009, but not thereafter. Her Honour’s reasons disclosed such awareness;
(5) Gann had deliberately absented himself from the damages trial. He had deprived himself of the opportunity of cross-examining Hosny. There had been no challenge to the medical reports at that trial. It should be supposed that the reports had been provided to the opposing parties in accordance with the Rules. Gann could not be permitted to ‘keep his powder dry’ for years after the damages trial. There is a need for finality in litigation; and
(6) at the second trial, the onus had been upon Gann to establish that health professionals had been misled into giving evidence on a false basis by the histories which Hosny had given them. Dr McIntosh’s later report gave no support for such a conclusion. There had been no application by Gann at the second trial to call any health professional for cross-examination.
Further to the matter noted at [76] above, counsel confirmed that the damages judgment remained wholly unsatisfied. He stated, without objection, that his client had made costly attempts to enforce the judgment in the United States, but without any success.
Principles
Principles relevant to disposition of this application – where the alleged fraud is said to have been revealed by fresh evidence – were summarised by Kirby P in Wentworth v Rogers (No 5)[24] as follows:
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.
Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643).
Sixthly, the 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 allegations 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 it inequitable that such party should take the benefit of the judgment.
[24](1986) 6 NSWLR 534, 538-539 (‘Wentworth’). Those principles were recently accepted as being applicable by the parties in Bodycorp Repairers Pty Ltd v Maisano [2017] VSCA 252, 6-7 [17], and this Court did not suggest the contrary.
Analysis
In my opinion:
(1)For two reasons, the second judge was correct to conclude that Gann failed to establish that the damages judgment was procured by Hosny’s fraud; and
(2)the evidence sought to be relied upon by Gann to establish that the damages judgment was procured by fraud was not fresh evidence as the law understands that concept.
Gann contends that Hosny deliberately gave false evidence at the damages trial as to the extent of work which he performed in the charge period and deliberately made false representations to health professionals that he was unable to work in the period up to September 2009. The deliberate falsity of his evidence and representations, it is contended, was disclosed by Hosny’s response in the charge matter, that response showing that he had perjured himself at the damages trial. Further, this circumstance only became known to Gann when the charge matter reached its conclusion. He contends that perjury was established by the extent of the discrepancy in the amount of work which Hosny admitted performing in the first trial and the amount of work to which he admitted in the charge matter. This perjury was so serious as to itself call for the damages judgment being set aside as being procured by fraud.
Then it is said that, in assessing damages, the first judge acted on the unsound basis that Hosny was a witness of truth, and upon the opinions of health professionals which were unreliable. Had the true circumstances been before the first judge, there would have been a vastly different (that is, lower) assessment of damages. If Hosny’s perjury was not of itself a basis for setting aside the damages judgment, then the addition of Hosny’s deliberately untrue histories, and their effect upon the damages trial, when combined with the perjury, called for that judgment to be set aside.
It is convenient to summarise, next, the state of the evidence as to Hosny’s post-accident work history which was before the first judge. Whilst it should be accepted that her Honour was not apprised of the exact detail of Hosny’s casual work in the charge period, there was evidence before her of these matters:
(1)Hosny had worked shifts at the MCG during the Boxing Day Test 2007, at which time he had not yet made a claim for compensation.
(2)Hosny agreed that he had worked sometimes one, sometimes two shifts per week at the MCG between mid-2008 and September 2009.
(3)Hosny had undertaken some shifts at the MCG – a few specific dates were put to him in cross-examination by counsel for the VRC - between mid-2008 and September 2009.
(4)At some time, not precisely defined, Hosny had undertaken ‘roughly, four to five shifts’ at the MCG; no more.
(5)Particulars of economic loss dated 5 April 2012, which stated that Hosny had been unable to return to any employment, were wrong.
(6)In the period between the assault and September 2009, Hosny had ‘probably’ worked shifts at Caulfield Racecourse.
(7)Hosny had ‘tried’ to work for a period — uncertain as to duration, he did not think that it was for three months - in the Fosters Group mail room in 2008.
(8)In the period when he was undertaking shifts at the MCG and Fosters, Hosny had provided certificates of capacity in which he had declared — by ticking a box — that he had not engaged in paid employment.
(9)Hosny had done no work since September 2009.
Further, although there was no direct evidence[25] that Hosny had received weekly payments of compensation after he submitted a claim — cross-examination to that effect was foreshadowed, but did not happen because the proceeding between Hosny and the VRC was settled — this very experienced County Court judge could have been in no doubt that Hosny had received weekly compensation in response to making a claim and thereafter providing certificates of capacity.
[25]As distinct from a statement made by counsel for the VRC from the Bar Table.
I next note that Hosny’s claim for past and continuing economic loss, particularised not long before trial and opened by Senior Counsel, was altogether abandoned subsequent to his cross-examination by counsel for the VRC. The available transcript does not disclose this circumstance, but when particulars of loss and damage and counsel’s opening are compared with the judge’s reasons — which make no mention at all of an economic loss claim — the inference is inevitable.[26]
[26]The second judge stated that the economic loss claim had been abandoned: Reasons [62]. The basis for this statement is not apparent, but it was not in issue that it represented the fact.
It is not clear to me why Hosny’s claim for economic loss, at least as from September 2009, was abandoned. But such abandonment was apt to underline the evident concern of Hosny’s side arising from his evidence as to work in the period up to September 2009, by contrast with his case as particularised and opened.
Next, cross-examination by counsel for the VRC, unequivocally, was a direct attack upon the extent of Hosny’s disability, his credibility, and the reliability of histories which he had given to health professionals, this bearing upon their assessment of the nature and extent of his disability. The judge must have been alive to those matters, notwithstanding that, by his own choice, Gann was not present or represented in Court to press them — whether by cross-examination of Hosny or the health professionals, or by submissions. The judge, seized of these matters, nonetheless made a favourable assessment of Hosny,[27] and accepted the evidence of the principal treating psychiatrist, who had encouraged Hosny to undertake some work. In reaching her conclusions, and thus as bearing upon her assessment of damages, the judge accepted, inter alia, uncontradicted evidence that, by reason of injury attributable to the assault, Hosny had not worked and had been incapable of work since September 2009; and that his medical future was bleak.
[27]The evidentiary context in which her Honour did so is set out at [71].
Against that background, I should say why, in my opinion, the second judge was correct to conclude that Gann failed to establish that the damages award was procured by fraud.
The first reason is this: Gann’s case is that Hosny deliberately misled the trial judge, on his oath, as to the amount of work which he performed in the period up to September 2009, and that he deliberately misled one or more health professionals as to his work in that period so as to cause them to give unduly favourable evidence. To be clear, the question is not whether Hosny committed a fraud on VWA, a fraud which he admitted when he pleaded guilty in the charge matter.
In my opinion, Gann plainly failed to make good the fraud for which he contended. According to Gann’s case, Hosny admitted in the charge matter, or must be taken to have admitted, that he perjured himself in the damages trial. I do not accept that this was so. Hosny admitted a fraud as against VWA, but it does not follow that he admitted perjuring himself in the damages trial. Moreover, even if it was correct to say that Hosny did not fully state in his evidence the amount of work which he had undertaken after the assault, that would be far from saying that this involved deliberate deception. It would be far from establishing that Hosny perjured himself in giving evidence. The entirety of the circumstances which I mentioned at [71] above are in point. There is a large difference between evidence which is inaccurate and evidence which is perjured. In my opinion, Gann did not establish the latter – which would, of itself, rarely be a basis for setting aside a judgment as being procured by fraud.
I should add four further matters in this connection.
First, as I have previously noted, counsel for Gann pressed that there was a large discrepancy between Hosny’s evidence and the truth of the situation as revealed in the charge matter. He repeatedly referred to that part of Hosny’s evidence where he said that he had worked roughly four to five shifts at the MCG. Using total earnings of about $10,000 and an hourly rate of $20 - referred to on the plea – counsel calculated that in the period between March 2008 and September 2009 Hosny had worked 500 hours. He mentioned also that Hosny had made himself available for work on other occasions in that period. He relied too upon the first judge’s recitation (in the course of her Honour summarising Hosny’s evidence) that up until September 2009 he had ‘worked a few shifts here and there at the MCG’.
In my view, counsel’s submissions about the extent of the alleged discrepancy considerably overstated the situation, and an already weak argument became weaker still. Hosny’s evidence at trial at a number of points went beyond saying that he had worked ‘roughly four to five’ shifts at the MCG. I have summarised pertinent evidence at [84] above. Next, the figure of $10,000 apparently referred to total earnings in the relevant period – that is, for employers including the Fosters Group and VATC[28] - rather than earnings only when Hosny was employed at the MCG. Further, depending upon the number of hours in a shift,[29] it seems that Hosny worked only about 60 shifts in the 18 month period – that is, less than one per week. Again, the passage in the reasons of the first judge upon which counsel relied was not to be confused with Hosny’s evidence.
[28]Now the MRC.
[29]There was some suggestion that an ordinary shift varied between 8 and 10 hours in length.
Second, the very serious allegations made against Hosny - that he deliberately gave false evidence in the damages trial, and that he deliberately misstated his work situation to health professionals with an intent to gain a more favourable opinion – have never been put to him. Nor has any medical professional ever been examined to the effect that, if he or she was misled as to Hosny’s work history in the period up to September 2009, it would affect his or her diagnosis or assessment of the extent of compensable disability. I add that Dr McIntosh’s report dated 14 October 2015 was of no assistance at all to Gann in respect of those matters.
Third, and relatedly, I reject Gann’s submission that an inference adverse to Hosny — who did not carry the burden of proof in the second proceeding— should be drawn against him because he did not give evidence in his own case at the trial of that proceeding.
Fourth, the submission that Hosny’s counsel admitted, at the second trial, that his client had committed perjury when giving evidence at the first trial, is not supported by the transcript.
But assume that Hosny did give false evidence as to the extent of his casual work in the post-assault period; and/or that he deliberately misled the health professionals in that connection. The first judge was made well aware of what was said to be Hosny’s misstatement of the position and made well aware that Hosny had made false declarations to the VWA in that connection. It was abundantly evident, even without cross-examination of the health professionals, that an argument was available that their opinions were in doubt because of Hosny’s misstated position. Nonetheless, Gann failed to establish, in my opinion, that it was reasonably probable, absent what I have assumed to have been a fraud for present purposes, that the damages judgment would have been any different. Viewing Hosny’s evidence in its entirety, at best for Gann the ‘discrepancy’ upon which he relied was not large. Further, Hosny had not worked for some years before the first trial was held, and the medical prognosis was bleak. Gann’s contention that the damages award would have been much less had the first judge known of the full circumstances is, in my opinion, no more than speculation.
I turn to the second judge’s finding that the evidence sought to be relied upon by Gann was not ‘fresh’. As Gann put his case, it was not in debate that there must be fresh evidence before the drastic step is taken of setting aside a judgment on the ground that it was procured by fraud. According to Gann’s submissions, the new evidence consisted of Hosny’s admissions on the plea in the charge matter. The ‘newly discovered evidence was [Hosny’s] admitted perjury’.
The submission was misconceived. In the charge matter, Hosny did not admit perjuring himself in the damages trial. Simply, he admitted that he had made false claims for accident compensation by declaring that he had not done any work at times when he had undertaken some casual work. Furthermore, the construct by which Gann contended that fraud had been revealed by Hosny’s plea and admissions in the charge matter was unsound.
This weakness in Gann’s case is emphasised by him not asserting that the fresh evidence was evidence simply as to the extent of the casual work performed by Hosny in the period which I have been discussing. Assuming that there was some ‘discrepancy’, as Gann’s counsel submitted was the case, such an assertion would inevitably be successfully met by a response that Gann, choosing to absent himself from the damages trial, had not been present to hear Hosny’s evidence-in-chief and the cross-examination by counsel for the VRC, to himself explore the nature and extent of work performed by Hosny in the particular period, and to explore the significance of any discrepancy in the histories given to health professionals and the circumstances disclosed by the evidence.
Further, Gann’s case in the second trial was silent in several respects. First, Gann did not give evidence of being unaware, at the time of the damages trial that Hosny – contrary to his May 2009 affidavit, and his written particulars of economic loss - had undertaken casual work up until September 2009; or, indeed, at any time post assault. The point is emphasised by the fact that, as became clear in this Court, employment and wages records were available for examination by the parties before the damages trial commenced.
Second, the s 138 proceeding brought by VWA against Gann was settled, as I have said, before the jury was empanelled at the damages trial. There was no evidence before the second judge to suggest – contrary to an inference which would otherwise arise – that Gann was unaware in the negotiations which culminated in the settlement that there was a live question as to what work Hosny had undertaken in the period up to September 2009. Again, this emphasises Gann’s choice not to participate in the first trial.
I add this: had Gann attended throughout the first trial, had he known or had the means of knowing that Hosny was giving false evidence about his post-assault work history, and arguably deliberately so, I do not accept (as his counsel submitted was the case) that Gann could have sat silent and then sought to set aside a judgment in Hosny’s favour for fraud at some later time. Counsel cited no authority for that submission, and it is inconsistent with the second principle stated by Kirby P in Wentworth.[30]
[30]Wentworth v Rogers (No 5) (1986) NSWLR 534, 538.
What I have thus far said has addressed the substance of many of the submissions advanced for Gann. For completeness, I should refer briefly to other aspects of his written submissions.
I reject the submissions – see [74](3)(b) above – that the second judge relied upon questions, not answers, and upon submissions from the Bar Table, at the damages trial.
Contrary to the submission noted at [74](3)(c) above, the evidence before the trial judge was not simply that Hosny only worked a few shifts ‘here and there’ at the MCG after the assault.
With respect to ground 3, what were described by Gann as alternative arguments advanced for Hosny at the second trial did not require explicit comment by the second judge. In substance, his Honour did not find that Hosny had made full and appropriate admissions at the damages trial; and did not positively conclude that Hosny’s evidence had been affected by want of full comprehension.
Next, with respect to grounds 4 and 5, for reasons that should be apparent from what I have already said, none of the circumstances identified at [74](5)(a)(i), (iii), (v), (vi) or (vii) above was irrelevant. The circumstance identified at [74](5)(a)(ii) necessarily flowed from evidence which Hosny gave in cross-examination. The circumstance identified at [74](5)(a)(iv) was insubstantial. The real issue was whether Hosny had done any work, and if so, how much, subsequent to the assault. That did not require tender of wage records.
Further, with respect to grounds 4 and 5, and contrary to the submission noted at [74](5)(b) above, the second judge did not infer that the first judge had concluded that Hosny was a credible witness by finding ingestion of substantial medication to be an explanation for vagueness in his evidence. There was evidence of ingestion of substantial medication, and there was evidence that Hosny’s memory was considerably deficient. But the second judge did not conclude that the first judge had fastened upon them.
Finally, the submissions alleging ‘failures to hold’, made under cover of ground 7, are beside the point. That is so because, in my view, Gann failed to establish that Hosny gave perjured evidence at the damages trial.
An additional matter
I have referred at [76] and [79] above to the fact that Gann has not paid any part of the judgment sum; and that costly attempts to execute against him in the United States have been fruitless.[31] Gann assaulted Hosny. He committed an intentional tort. He absented himself from the trial. A judgment regular on its face was entered against him. He did not meet it. Years later, he sought what his counsel characterised as equitable relief, alleging – but failing comprehensively to establish – that Hosny had procured the damages judgment by fraud. In its entirety, this was deplorable conduct. Regardless of the alleged fraud, Hosny was entitled to very substantial damages; and, it might well be, no different damages. There is a question, which need not be decided, whether the judge at the second trial, or this Court, should have granted relief had Gann made good his claim that the judgment had been procured by fraud.
[31]I note that, on the plea in the charge matter, Hosny’s counsel stated that on his instructions his client would be unable to proceed with execution in the United States if a conviction was sustained. Whether or not that is so, it says nothing about Gann’s failure to satisfy the judgment.
Disposition
In my opinion, leave to appeal should be refused because the proposed appeal does not have a real prospect of success.[32] I would say, indeed, that it has no prospect of success.
[32]Supreme Court Act1986 (Vic) s 14C.
2
6
0