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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Maine v Kizmann

Details

AGLC: De Maine v Kizmann [2025] ACTCA 26
Case: [2025] ACTCA 26
Decision Date: 25 July 2025

CaseChat Overview and Summary

The applicant, De Maine, sought leave to appeal out of time against a decision of the Supreme Court of New South Wales. The dispute concerned the applicant's application for an extension of time to appeal a judgment that had been made against him. The primary basis for the delay in filing the appeal was attributed to the applicant's solicitor's oversight.

The central legal issue before Elkaim AJ was whether to grant the applicant an extension of time to file his notice of appeal. This required the court to consider the principles governing applications for an extension of time to appeal, particularly where the delay is substantial and attributable to the applicant's legal representatives.

Elkaim AJ applied the well-established principles for granting an extension of time, which involve a balancing exercise. The court considered the length of the delay, the reasons for the delay, the merits of the proposed appeal, and the prejudice to the respondent. In this instance, the court found that the delay was significant and that the explanation provided, while relating to a solicitor's error, did not sufficiently outweigh the prejudice to the respondent and the lack of apparent merit in the proposed appeal.

Leave to appeal was refused.

Orders

Orders of the court

See [34]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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