Barbieri v Pirovic

In *Barbieri v Pirovic*, the Court of Appeal considered objections to the competency of an appeal brought by the appellant out of time. The respondent had not filed a motion for dismissal, despite the appellant's failure to comply with directions for filing affidavits and submissions concerning the extension of time. This was the appellant's first default in the Court of Appeal.

The primary legal issue before the Court was whether to grant indulgence to the appellant to remedy her non-compliance with the court's directions regarding the extension of time for her appeal. The court also had to determine the appropriate orders to manage the proceedings, considering the appellant's default and the respondent's lack of a formal dismissal motion.

Brereton JA, acknowledging the appellant's default, granted indulgence but imposed a strict condition. The court reasoned that while the appellant had failed to meet the filing deadlines for her submissions and supporting affidavit on the question of an extension of time, a self-executing dismissal order would be appropriate if compliance was not achieved. This approach balanced the need for adherence to court procedures with the possibility of allowing an appeal to proceed, albeit under stringent conditions.

The Court ordered that unless the appellant filed her submissions and supporting affidavit on the question of an extension of time by 14 January 2022, the proceedings would be dismissed with costs. The proceedings were otherwise adjourned to 7 February 2022 for further directions, with a view to referral to a judge for the hearing of the extension of time question if the appeal had not been dismissed. The appellant was also ordered to pay the respondent's costs of the day, fixed at $500.00.