This is a short but informative decision arising from a particularly interesting set of facts.

The Court of Appeal, comprising of Weinberg JA, Ginnane and Sloss AJJA, on 22 December 2014 extended time in which to file a Notice of Appeal some two years after the date of judgment.  In the usual course the timeframe pursuant to the Victorian Civil Procedure Rules (Order 64) required the lodgement of a Notice of Appeal within 14 days.  Whilst the extension of time is discretionary, it is rarely granted.

Facts

Joseph Hosny was assaulted at Flemington Racecourse on Derby Day 2007.  Hosny was employed by the Victorian Racing Club Ltd as a driver of a shuttle bus between marquees at the Racecourse that day.  Jason Gann was a patron at the Racecourse who attempted to board the bus upon which Hosny was driving.  Hosny requested Gann not board the bus which led to a verbal and physical confrontation.  Gann struck Hosny with Hosny sustaining both physical and psychological injury.

Unrelated to the matter but not unsurprising, Gann was charged with unlawful assault.  He pleaded guilty to that charge and returned to the United States where he resides.

Hosny, as a result of his injuries, commenced legal proceedings against both his employer and  Gann for common law damages.  Concurrent with Hosny's claim for damages, the Victorian WorkCover Authority (as insurer for the VRC) initiated recovery action against Gann as a third party tortfeasor, which was in a short time settled by consent prior to the commencement of Hosny's damages trial.

Upon commencement of the damages trial, Gann advised the Court he would not be defending his action and his legal representative sought to withdraw from the proceeding.  Leave to withdraw was refused however Gann did not defend the action.  Hosny sought pain and suffering damages only.  Ultimately orders were entered by consent dismissing Hosny's claim against his employer and judgment entered against Gann for general damages of $300,000 together with aggravated damages in the sum of $25,000.

Intervening events

Following trial and the current Court of Appeal application Hosny was charged with numerous counts of obtaining financial advantage by deception for the period 4 March 2008 to 15 September 2009 wherein he received in excess of $80,000 in weekly payments on account of being incapacitated for employment.  Ultimately on 1 September 2014 Hosny pleaded guilty to the one rolled up charge of obtaining financial advantage by deception.  It was upon discovery that Hosny had admitted to having defrauded WorkCover that Gann now sought to appeal against the judgment obtained in June 2012 for $325,000.

The law

In Victoria, parties are required to commence an appeal by filing a Notice of Appeal in accordance with Order 64 within 14 days (as it was then).  Enlargement of time is discretionary pursuant to Order 64.08.  Importantly the delay must be explained and reasons advanced to justify the delay (refer Gallo v Dawson [1990] HCA 30). The discretion is to a large part said to be unfettered and should be exercised flexibly.  Their Honours noting particularly that discretion exists for the purposes of enabling a Court to avoid any injustice.  The Court must determine whether justice as between the parties is best served by granting or refusing the extension sought (Gallo at 480).

Reasoning

Without providing one clear chain of reasoning case law previously discussed competing interests wherein a plaintiff has a vested right to retain the judgment; the length of delay in commencing the appeal; the reasons for delay; the chances of the appeal succeeding and the degree of prejudice to the plaintiff if time is extended.  Particular to this matter, the Court rejected the respondent's contentions that two years had been an inordinate delay, that Hosny had suffered considerable psychological injury irrespective of whether he had exaggerated the extent of his incapacity, and lastly that judgment was for pain and suffering alone not economic loss and accordingly any exaggeration did not materially affect the outcome in a global sense.

In extending the time for service of the Notice of Appeal it was stated:

'Everything changed when Hosny effectively acknowledged he had lied on oath during the course of the trial, and thereby procured a judgment in his favour that was inflated by reason of his fraud.'

Their Honours had previously in their decision noted:

'Having read the transcript of Hosny's cross examination closely, it seemed to us that his plea of guilty indicated that he had deliberately falsified his evidence in certain important respects, but nevertheless succeeded in persuading the trial judge that he was a truthful witness.'

'That calls into question the soundness of the damages verdict.'

As to the timing of filing a Notice of Appeal, whether that be on the suspicion of fraud or awaiting a finding or plea of guilty, the Court referred to a decision of Kirby P (as he was then) of the New South Wales Court of Appeal in Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534.  With reference to that issue, His Honour made the point that "mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief".  It was then in the Court's view appropriate for Gann to not have sought the current relief until a clear admission or finding of fraud is available.

The Court granted an extension of time in which to file the required Notice.