Barbieri v Pirovic

[2021] NSWCA 341

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Barbieri v Pirovic [2021] NSWCA 341

Hearing dates:

13 December 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Before:

Brereton JA

Decision:

(1) Unless by 14 January 2022 the appellant has filed her submissions and supporting affidavit on the question of an extension of time, the proceedings be dismissed with costs.

(2) The proceedings be otherwise adjourned to 7 February 2022 before the Registrar for further directions with a view to referral that day to a judge for hearing of the question of an extension of time if the proceedings have not by then been dismissed.

(3) The appellant pay the respondent’s costs of today fixed in the sum of $500.00.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Appeal out of time – No compliance by appellant with directions for filing of affidavits and submissions on question of extension of time – No motion for dismissal filed by respondent – First default by appellant in this Court – Indulgence granted to appellant but with self-executing dismissal of appeal if orders not complied with

Cases Cited:

Pirovic v Barbieri [2020] NSWSC 1892

Pirovic v Barbieri [2021] NSWSC 335

Category:

Procedural rulings

Parties:

Anita Victoria Barbieri in her capacity as executrix of the estate of the late Frank Bakaric (Appellant)
Antun Pirovic (Respondent)

Representation:

Counsel:
T Hall (sol) (Appellant)
J Drummond (Respondent)

Solicitors:
Hall Partners (Appellant)
Delaney Lawyers (Respondent)

File Number(s):

2021/305801

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1892;

[2021] NSWSC 335

Date of Decision:

21 December 2020;
8 April 2021

Before:

Sackar J

File Number(s):

2019/199597

Judgment (EX TEMPORE)

1. BRERETON JA: On 27 October 2021, the appellant Anita Victoria Barbieri, in her capacity as executrix of the estate of the late Frank Bakaric, filed a notice of appeal from a judgment given by Sackar J in the Equity Division on 21 December 2020,[1] and from a subsequent costs judgment of 8 April 2021. [2] The grounds of appeal are largely concerned with challenging his Honour's rejection of the evidence of some witnesses – presumably, those one whose evidence the appellant relied – and preferring the evidence of other witnesses. It must be said, therefore, that the appeal does not at first sight appear to have substantial prospects of success. However, as only the Notice of Appeal is before me, not much can be deduced in that regard.

   1. Pirovic v Barbieri [2020] NSWSC 1892.

   2. Pirovic v Barbieri [2021] NSWSC 335.

2. The first order sought in the Notice of Appeal is that time for filing an appeal be extended. It is apparent, from the fact that the material date was 21 December 2020, that the appeal is some ten months out of time.

3. On 24 November 2021, the Registrar made directions noting that the parties had agreed that the question of an extension of time be heard separately, and directing that the appellant's affidavit and submissions on that question be filed and served by 3 December 2021, the respondent's affidavit and submissions by 10 December 2021, and the question of an extension of time be listed for hearing on 13 December 2021 – that is to say, today. The appellant did not comply with the direction for filing and service of her affidavit and submissions, and the respondent asks that the matter be dismissed today.

4. In circumstances where there is no motion before the Court for dismissal of the appeal, and where this appears to be the first default on the part of the appellant – at least in this Court – it seems to me that I should accede to the appellant's submission that, rather than refusing an extension of time and dismissing the appeal as incompetent today, I should grant the indulgence of an extension of time, subject to a self-executing order for dismissal of the appeal as incompetent if there isw a further default.

5. The Court therefore orders that:

1. Unless by 14 January 2022 the appellant has filed her submissions and supporting affidavit on the question of an extension of time, the proceedings be dismissed with costs.

2. The proceedings be otherwise adjourned to 7 February 2022 before the Registrar for further directions with a view to referral that day to a judge for hearing of the question of an extension of time if the proceedings have not by then been dismissed.

3. The appellant pay the respondent's costs of today fixed in the sum of $500.00.

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Endnotes

Decision last updated: 31 January 2022