Khanna v Woolworths Group Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khanna v Woolworths Group Limited [2022] NSWCA 94

Hearing dates:

9 June 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Before:

Gleeson JA at [1]
Leeming JA at [33]

Decision:

(1)   Summons seeking leave to appeal dismissed.

(2)   Applicant to pay the respondent’s costs in this Court.

Catchwords:

LEAVE TO APPEAL – slip and fall case – whether an injustice in rejecting plaintiff’s claim – proposed challenge to factual findings underpinning findings of obvious risk, no breach of duty and limitation defence – no issue of principle

Legislation Cited:

Civil Liability Act 2005 (NSW), ss 5B, 5C, 5F

Limitation Act 1969 (NSW), ss 50A, 50C, 50D

Supreme Court Act 1970 (NSW), s 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.3(1), 42.1

Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

House v The King (1936) 55 CLR 499; [1936] HCA 40

Pawlowska v Zajglic [2011] NSWCA 118

Re in the Will of Gilbert (1946) 46 SR (NSW) 318

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:

Procedural rulings

Parties:

Sanjeev Khanna (Applicant)
Woolworths Group Limited (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
Mr S Blackman (Respondent)

Solicitors:
Self-represented (Applicant)
HBA Legal - Sydney (Respondent)

File Number(s):

2021/327025

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 567

Date of Decision:

20 October 2021

Before:

Dicker SC DCJ

File Number(s):

2019/30652

Judgment

1. GLEESON JA: The applicant, Sanjeev Khanna, seeks leave to appeal from: (a) a judgment and orders made in District Court on 20 October 2021 giving judgment for the respondent, Woolworths Group Limited (Woolworths), in a personal injury claim brought by Mr Khanna against Woolworths and ordering Mr Khanna to pay Woolworths’ costs of the proceedings as assessed, and (b) an interlocutory judgment given in the District Court proceedings on 22 June 2021 refusing Mr Khanna leave under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.3(1) to issue a subpoena to the “CEO and Proper Officer of Public Liability” of Woolworths.

2. Leave to appeal is required if the amount in issue is less than the threshold of $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). In this case, the primary judge contingently assessed damages in the amount of $56,294.60. In order for an appellant to establish that s 101(2)(r) of the Supreme Court Act does not deprive the appellant of an appeal as of right the appellant must show that he or she has a realistic prospect on appeal of obtaining judgment in their favour for at least $100,000: Pawlowska v Zajglic [2011] NSWCA 118 at [14]-[15] (Campbell JA).

3. Mr Khanna was self-represented. He did not submit that he had an appeal as of right. He was correct not to do so, notwithstanding that he had asserted an entitlement to compensatory damages of $133,480…