Frank Barbaro v Donna Maree Millington

[2005] ACTCA 47

FRANK BARBARO and ANOR v DONNA MAREE MILLINGTON
[2005] ACTCA 47 (10 November 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 35 - 2005
No. SC 219 of 2000
Judge:          Higgins CJ
Court of Appeal of the Australian Capital Territory
Date:           10 November 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 35 - 2005
  )          No. SC 219 of 2000
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FRANK BARBARO and

JACLYN BARBARO

Appellants

AND:DONNA MAREE MILLINGTON

Respondent

ORDER

Judge:  Higgins CJ
Date:  10 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. Leave be granted to file a notice of appeal out of time, and that said notice be filed within 14 days of 10 November 2005; and

1. Execution of the original judgment debt is stayed until the appeal is disposed of and it is otherwise ordered.

IN THE SUPREME COURT OF THE     )          No. ACTCA 35 - 2005
  )          No. SC 219 of 2000
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FRANK BARBARO and

JACLYN BARBARO

Appellants

AND:DONNA MAREE MILLINGTON

Respondent

Judge:  Higgins CJ
Date:  10 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. I am satisfied that leave should be granted to extend time for the Notice of Appeal, but it will need to be redrafted.  So do not assume that the Notice of Appeal as it is now drafted clearly expresses what criticisms might be made; I am not saying they are valid or invalid at this point of the judgement appealed from.  It will need to be redrafted, and counsel should be asked to redraft it. 

1. Now having said that I will make another point too.  That is that the affidavit that you have filed does not really very clearly address the issue as to why the leave to appeal is out of time, in other words what the explanation for the delay has been in detail.  But I think there is enough to suggest that, for whatever reason, there was a delay in getting hold of the judgment.  That seems clear enough.  And there was then a delay in consulting legal advisers about this issue, ostensibly because of lack of funds.  Of itself that would not be a sufficient reason, but the most important thing to my mind is not simply that there is a lack of sufficient explanation, but rather what prejudice that it causes, or is likely to cause or to have caused to the respondent.  And I have to say, I cannot perceive any prejudice in this case because the respondent simply got the benefit of a judgment which dismissed the claim of the appellants.  (I call them the appellants even though they are not quite appellants at the moment).  So to that extent the respondent has not been deprived of anything by virtue of any question of the judgment, albeit it was entered some time ago.  That is the point, I suppose, against delay. 

1. The next point, of course, is the more pressing one: whether there are any grounds for supposing that an appeal would be futile.  And although I do not say that the appeal is either strong or not strong in terms of being open to challenge, it certainly does seem arguable that the equities his Honour found raised, arising out of Mr Buser’s conduct towards Ms Millington, would be sufficient to vitiate any agreement between them.  And if the applicants had had any notice of that conduct, it would vitiate any claim that they had arising out of the impugned transaction.  It certainly does not appear that that is unequivocally or unarguably found by his Honour to have been the case; indeed the judgment does seem to proceed on a contrary basis.  Whether or not the argument would succeed is another question.  But it does seem to me that there is an arguable case for an appeal to be taken to the Court of Appeal, so I will grant leave to file a notice of appeal out of time. 

1. I will direct that a notice of appeal be filed and served within 14 days from today’s date.  There are two consequential matters.  The first is in respect of the judgment debt.  And as I indicated earlier, I did not take you to disagree with this consequence, Mr Whitelaw, that that would have to be stayed until the appeal is disposed of.  A condition of that stay is that the appeal is to be prosecuted with due expedition.  So, subject to that condition, the order in consequence of the judgment appealed from is stayed, and consequently the writ of execution is also stayed. 

1. The cost of this application will be costs in the appeal, that is the successful party on the appeal will have the benefit of the costs of this application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    8 December 2005

Counsel for the Appellant:  M Elmaraazey

Solicitor for the Appellant:  M Elmaraazey

Counsel for the Respondent:  C Whitelaw

Solicitor for the Respondent:  C Whitelaw

Date of hearing:  10 November 2005

Date of judgment:  10 November 2005