Lopilato v D'Ambrosio [1979] FCA 165

S97 bathe a

JUDGMENT No. coccvecscovesenecel enevcaccecse EV ae Ppp ee

IN THE FEDERAL COURT OF AUSTRALIA

General Division No. 18 of 1978

BETWEEN: FELIX LOPILATO and MARIC LOPILATO

Applicants

AND: ANTONIO D'AMBROSIO

Defendant

REASONS FOR JUDGMENT Coram: SMITHERS J. CONNOR J. FRANKI J.

6 April 1979.

The applicants, who were the defendants below, apply for special leave to appeal from a judgment of the Supreme Court of the Australian Capital Territory given by Blackburn C.J. on 27 October 1978. By Notice of Motion of 17 November 1978 the applicants sought special leave from this Court to appeal against the judgment on the sole ground that each of two certificates of the Registrar on which the judgment was based contained a fundamental accounting error. The applicants' solicitor was under a misapprehension that it was necessary to seek special leave to appeal whereas the true position was that there was an appeal as of right. Had the applicants filed a Notice of Appeal on the day they gave Notice of Motion it would have been in time and would have founded an appeal as of right in the ordinary way.

The Notice of Motion applying for special leave did not constitute a Notice of Appeal but it did tell the respondent that the applicants intended to appeal if the law would so permit, as in fact it did; and it did state the ground on which such appeal would be based. It appears to us that we should have regard to the substance rather than the form and that the action taken on behalf of the applicants to seek a review of the judgment on the stated ground constitutes a special reason, within the meaning of 0.70 r.6(2) of the High Court Rules, for giving special leave. We consider therefore that the applicants should have special leave to appeal on the ground that each of the Registrar's certificates contains a