De Maine v Kizmann

[2025] ACTCA 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	De Maine v Kizmann
Citation:	[2025] ACTCA 26
Hearing Date:	25 July 2025
Decision Date:	25 July 2025
Before:	Elkaim AJ
Decision:	See [34]
Catchwords:	APPEAL – APPEAL FROM THE SUPREME COURT – Application for leave to appeal out of time – where basis of delay
is a mistaken belief that $1,000,000 is to be paid to the court to
hear the appeal – delay adequately explained – where appellant was not cross-examined at hearing – where appellant believes
outcome of hearing would have been different had he been cross-
examined – no fresh evidence to be adduced – forensic decision not to be manipulated to permit a re-hearing – appeal dismissed
Supreme Court Act 1933 (ACT), s 37J
Legislation Cited:
Aulich Civil Law Pty Ltd v Pappas [2022] ACTSC 345
Cases Cited:
Kelly v Director of Public Prosecutions (ACT) [2015] ACTCA 15 Kizmann v De Maine (No 2) [2024] ACTSC 139
Kizmann v De Maine (No 3) [2024] ACTSC 171
Parties:	Gregory John De Maine (Appellant)
Ivan Gerad Kizmann (Respondent)
Representation:	Counsel
Self-represented (Appellant) S Baker-Goldsmith (Respondent)
Solicitors
Self-represented (Appellant)
Legal on London (Respondent)
File Number:	AC 1 of 2025
ELKAIM AJ:
Introduction:

1. I am sitting in this matter as a single judge constituting the Court of Appeal pursuant to s 37J of the Supreme Court Act 1933. The application before me is for leave to appeal out of time from a final judgement. The application was filed on 20 February 2025. It is opposed.

2.       The decision which the applicant wishes to appeal is Kizmann v De Maine (No 2) [2024] ACTSC 139. It is a decision of the Chief Justice.

3.       The application was filed on 20 February 2025 together with a draft notice of appeal. The notice of appeal should have been filed by 6 June 2024. Accordingly it is about eight months late. This is a significant period.

4.       The application is supported by an affidavit of Mr Gregory De Maine (the applicant) dated 20 February 2025. There is also another document dated 20 February 2025 addressed to the Chief Justice in which the applicant provides a commentary on assorted paragraphs in the judgment.

5.       The applicant is self-represented so that it is necessary to give him some leeway but not so much as to unfairly prejudice the respondent.

6.       The respondent has pointed out the many court rules that the applicant has either contravened, or failed to obey, in the drafting of his application and supporting documents. I think the leeway that I have mentioned above enables me to allow him to present his application in the way he has prepared it. Obviously if he were to obtain leave he would need to, at the very least, amend his notice of appeal.

7.       I note that the hearing was completed within one day and the applicant was represented by counsel and solicitors. Each side had filed affidavit evidence, but only the respondent was cross-examined.

8.       In her reasons on costs (Kizmann v De Maine (No 3) [2024] ACTSC 171) the Chief Justice summarised the dispute between the parties:

1․ In these proceedings, Mr Ivan Kizmann sought to enforce loans made through negotiation

with a longstanding friend, Mr Gregory De Maine. The single issue in the proceedings by the time it was heard by me was whether the loans were made to Mr De Maine personally or instead to his now defunct company, Shostko Systems Pty Ltd.

2․ In a judgment published on 9 May 2024, I found in favour of Mr Kizmann against Mr De

Maine personally; see Kizmann v De Maine (No 2) [2024] ACTSC 139. I ordered that the first defendant pay the plaintiff's costs. However, upon being informed that there was an application by the plaintiff for a different order as to costs, I stood the matter over to today for determination of that application.

9.       In Aulich Civil Law Pty Ltd v Pappas [2022] ACTSC 345 Mossop J confirmed the application of the principles stated by Refshauge J in Kelly v Director of Public Prosecutions (ACT) [2015] ACTCA 15 to civil matters. Mossop J summarised the principles at [16]:

a.	Time limits are important and must prima facie be obeyed.
b.	An application to extend time should only be granted if, having regard to the important value of finality in litigation and the need for timeliness to be respected, it is proper to do so.
c.	The mere absence of prejudice is not enough to justify an extension of time.
d.	The merits of the appeal must be taken into account in deciding whether to extend time.
e.	The application should be determined by the court’s view of the demands of justice in
accordance with a broader judicial discretion and not by the application of a verbal formula.
f.	The court should determine whether if leave is refused there would be a miscarriage of justice.

10.     I think these six considerations can be further refined to the following:

• Time limits have a purpose; there must be an explanation for the delay.

• The merits of the appeal must be taken into account.

• A miscarriage of justice would arise if leave was refused.

11.    In his affidavit, the applicant concentrates on asserting that the respondent was personally involved in the financial woes suffered by the applicant, that the respondent

was a “liar” and there is “critical information” that was not presented during the hearing.

12.     As to the reasons for delay the applicant states:

“I could not Appeal because I did not have over a $1M to lodge with the Court

An Appeal opportunity was never really available to me Your Honour, which is why I am reaching out to you now. I am sorry Your Honour but there is no other avenue that I know for me to take to get the truth to you.

At what opportunity do you get to Appeal if you don’t have a lazy $1M laying around…Appeal

out of time?”

13.     During the hearing I asked the applicant what he meant by the above reason. He said he had come to the conclusion that in order to appeal he needed to pay $1 million into court. This arose from an email he had received from his counsel on 21 May 2024. The email reads:

“If you were to appeal in your current circumstances I would anticipate an application for

security for costs in circumstances where:

a.	the judgement including costs against your will exude $1,000,000
b.	There is documentary evidence authored by you indicating an incapacity to pay
c.	The prospects of success of the appeal likely to poor”

14.     I assume, in fact hope, the grammatical errors in the email as just recorded, have come about in their recording and were not present in the original email. I also note that the

applicant used the word “counsel” to refer to his lawyers generally. Whatever the case,

the email does not say there must be a payment of $1 million. It says no more than that an application for security for costs could be anticipated. Security for costs, if ordered, would never equal, or come close to, the verdict sum. The likely security would be referable to costs and not to the verdict.

15.     The applicant did however read out an email, or a letter, dated 15 May 2024 in which his solicitor is told in unequivocal terms that he wished to appeal. This probably prompted the above email of 21 May 2024 which was misinterpreted by the applicant so that he thought he needed to pay $1 million into court. On this background I think there is an explanation for the delay, notwithstanding that it is derived from an erroneous reading of the 21 May 2024 email.

16.     The draft notice of appeal is not particularly helpful in establishing even a foundation upon which merits of the appeal might be identified. The notice states:

“The grounds for the Appeal are to bring to the Judges attention that the Complainant

deliberately lied under oath to pervert the Courts judgement of the case against me the

Defendant.”

17.     Like the affidavit, the grounds seem to concentrate on asserting the dishonesty of the respondent. The orders sought in the notice are:

“(a) Once Her Honour is satisfied that the Judgement against me was made on false

information, I ask for the matter to be thrown out of court…or

(b) There being a new Hearing at the Supreme Court ACT to rehear the Case with, this time, me the Appellant (Defendant, Gregory De Maine) being allowed to stand in the dock and

defend himself against these false allegations.”

1. Returning to the affidavit the suggestion seems to be that there will be a “submission of

   further critical information not presented during the Court Hearing that supports my case

   that debunks the fabricated statements made by the plaintiff on the 10th July, 2023.” 10

   July 2023 is the day when the matter was heard.

2. The affidavit then goes on to give an explanation of the “Main Points”. There is a

   commentary on various aspects of matters that arose during the case. The explanations are supplemented by the letter I referred to above which has a more extensive commentary related to various paragraphs in the decision.

20.     Because of the unhelpful documentary material, and I do not mean to be critical of the applicant, I asked the applicant to tell me in the hearing what his complaint actually was. He responded that he had assumed that he would have been called to give evidence, by

one side or the other, so that he would be given an opportunity to rebut the “lies” that

had been given in evidence by the respondent.

21.     As stated above, the applicant had not given evidence in chief, or been cross-examined, during the primary hearing. He was not required for cross-examination so that one would normally assume his affidavit evidence, which was before the court, was not challenged. Her Honour dealt with this point, at [14]:

The evidence was given by affidavit. Mr Kizmann’s primary affidavit was sworn on 15 July

2022. He also swore an affidavit in reply dated 23 November 2022. He was cross-examined at the hearing. Mr De Maine swore an affidavit dated 18 October 2022. Mr De Maine did not attempt to reproduce the relevant conversations in direct speech and much of the content of his affidavit was ruled inadmissible. In written submissions provided before the hearing, he foreshadowed giving oral evidence in addition to his affidavit evidence. However, that course was not pursued at the hearing and he was not required for cross-examination. His case rested principally on the existence of the signed written agreement and the contention

that “the later advances were all on the same basis”.

22.     In addition I think it is important to quote from the transcript of the proceedings where the

applicant’s affidavit and his giving evidence were discussed:

HER HONOUR: Well, we can have that debate. What about things that Mr Kizmann says Mr De Maine said that he hasn't addressed in his affidavit? Do you abandon those parts of your evidence?

MR CONNELL: No, Mr De Maine has not addressed our affidavits. It's a classic

…(inaudible)… situation. He's had the opportunity. There was an order of the court by the

Registrar for exchange of affidavits.

HER HONOUR: I'm talking about things that came out of Mr Kizmann’s mouth just now in

his evidence, such as the statement about the reason the contract was in the name of the

company.

MR CONNELL: Your Honour, I'm not obliged to adduce evidence.

HER HONOUR: I don't want to have an argument with you, Mr Connell. I just want to make sure that - - -

MR CONNELL: Sorry, your Honour, I'm not trying to argue. I'm just trying to put a proposition.

HER HONOUR: Yes. No, we'll deal with it in submissions. I just want to make sure that I'm understanding correctly that we're at the point of a deliberate forensic choice being made not to cross-examine Mr De Maine. And I think you're making that clear.

MR CONNELL: We are, your Honour. It's an issue I anticipated in my written submissions,

which I understand your Honour's just glanced on. We say it's a classic …(inaudible)…

situation. The defendant did not traverse in any meaningful way the statement of the pleadings of the plaintiff. He did not traverse in any way the plaintiff's evidence when he had the opportunity to adduce an affidavit. He's left with effectively no evidence to contradict Mr Kizmann's version of events. There's nothing to cross-examine on.

HER HONOUR: The first sentence might be correct without the second sentence being correct, that's my concern. But you made your position clear. We'll deal with it in submissions.

23.     I asked the applicant if there had been any discussion between him and his lawyers about whether or not he would give oral evidence. I understood him to say there had

been discussion but he had relied on the “instructions of counsel” who he thought had

made an assumption that he would win the case.

1. In oral submissions, the applicant said the fresh evidence was “the truth”. Obviously, that

is not fresh evidence in the sense of evidence that is relevant but has emerged, or been
discovered, since the hearing.

25.     In addition, the commentary, as described by the applicant, is a series of explanations.

It is not an analysis or identification of error on her Honour’s part. On one understanding

of the applicant’s complaints, he does not challenge her Honour’s findings, but rather

says that they would have been different had she had the benefit of his own oral
evidence.

26.     In his Reply submissions the applicant makes allegations against the counsel that represented him at the hearing. He says:

“Unfortunately, my Counsel did not consult with me on the validity of the statements made

by the Plaintiff. Such an opportunity would have allowed me to be cross-examined by my own Counsel, which would have, at the very least, allowed me to correct the blatantly false

statements made by the Plaintiff.”

1. The applicant’s counsel would not have been allowed to cross examine his own client. If

   the applicant is suggesting incompetence on the part of his lawyers, the type of conduct of a lawyer which might give rise to an injustice is far from present in this matter. There would need to have been, at least, some evidence of gross incompetence.

28.     Further, the overwhelming impression that I have of the manner in which the hearing was conducted is that forensic decisions were taken, on advice and after discussion, which cannot now be effectively manipulated to permit a new case to be run. The applicant may well be disappointed with his lawyers but he has not provided any evidence that would lead me to a conclusion that they had acted without discussing the manner in which the case was to be heard with him, in particular concerning his giving evidence, and there is no suggestion that his lawyers acted contrary to his instructions.

1. The applicant, even graciously stated in his oral submissions that “it’s not that they did

   the wrong thing” and then he said they simply made the wrong assumption about how

   the case would end.

30.    In his final oral submissions, the applicant stressed that had he been given the

opportunity to challenge the respondents “lies” the result would have been different. As

I hope I have explained, his argument does not rely on fresh evidence and does not amount to an allegation of such bad conduct on the part of his lawyers that a different result might have emerged had they followed his instructions.

31.     Finally, I note that although the hearing was on 10 July 2023, the decision date is 9 May 2024. This means the applicant had 10 months to apply to make further submissions or call fresh evidence. He did not do so.

32.     I can well understand that a person who receives a judgement against him for over $850,000 will be aggrieved and anxious to right a perceived wrong. The commentary however does not provide grounds of appeal. If it is supposed to represent evidence that was not put forward at the hearing, there is no identification of any evidence that was not available at the hearing.

33.     While I sympathise with the applicant, because I think he genuinely believes he was not given an opportunity to present his case, nevertheless the application must fail. The delay is just adequately explained, but there is no identifiable merit in the appeal and there is no miscarriage of justice that would arise if the application is refused. The fact that the applicant will now be faced with having to pay a large sum of money is not a miscarriage of justice; it is a consequence of a well-reasoned judgment against him based on the evidence that was before the court.

34.     I make the following orders:

(1)	The application for leave to appeal out of time is dismissed.
(2)	The applicant is to pay the respondent’s costs of the application.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.

Associate:

Date: