Sajn v Kennedy [2011] NSWCA 359 (18 November 2011)

Last Updated: 24 November 2011

Court of Appeal New South Wales

Case Title:	Sajn v Kennedy
Medium Neutral Citation:	[2011] NSWCA 359
Hearing Date(s):	18 November 2011
Decision Date:	18 November 2011
Jurisdiction:
Before:	Macfarlan JA at [1]; [7] Young JA at [6]
Decision:	Application for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - application for leave to appeal - no issue of principle
Legislation Cited:
Cases Cited:	Fox v Percy [2003] HCA 22; 214 CLR 118
Texts Cited:
Category:	Principal judgment
Parties:	Danica Maria Sajn (Applicant) Matthew Harold Kennedy (Respondent)
Representation
- Counsel:	Counsel: R M Sweet (Applicant) A Crossland (Respondent)
- Solicitors:	Solicitors: Stojanovic Solicitors (Applicant)
File number(s):	CA 2007/294235
Decision Under Appeal
- Court / Tribunal:
- Before:	Gibb DCJ
- Date of Decision:
- Citation:	Danica Maria Sajn v Matthew Harold Kennedy
- Court File Number(s)	DC 2007/294235
Publication Restriction:

JUDGMENT

1. MACFARLAN JA : This is an application for leave to appeal from a judgment of S J Gibb DCJ given in proceedings for damages in which the plaintiff (who is the applicant in this Court) alleged that she had been sexually assaulted by the defendant (who is the respondent in this Court).

2. Her Honour's 77-page judgment dealt in considerable detail with the applicant's allegations and the evidence led to support them. The outcome of the proceedings turned upon her Honour's assessment of the witnesses, in particular the credibility of the applicant and the respondent.

Her Honour described the proceedings as "an almost classic 'she said: he said'" case (Judgment p 10). In essence the primary judge concluded that the applicant's evidence should not be accepted and that her proceedings failed.

3. To successfully challenge the judgment it would be necessary for the applicant to demonstrate that the primary judge's credit-based conclusions were contrary to "incontrovertible facts or uncontested testimony" or were "glaringly improbable" or "contrary to compelling inferences" ( Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] - [29]).

4. I have considered, both individually and cumulatively, the matters that the applicant has raised in her written and oral submissions. In my view those matters do not indicate that, if leave to appeal were granted, the applicant would have any realistic prospect of satisfying the principles to which I have referred and thereby succeeding in her challenge to the judgment below.

5. As the applicant has no reasonable prospect of success on appeal and there is no other reason apparent from the applicant's submissions why she should be granted leave to appeal, I propose that her application be dismissed with costs.

6. YOUNG JA : I agree and an additional factor is that far less than $100,000 seems to me to be involved.

7. MACFARLAN JA : The order of the Court is that the application for leave to appeal is dismissed with costs.

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