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 fundamental accounting error. On the footing that the applicants were granted special leave to appeal Mr. Kelly applied for leave to include a further ground in the proposed Notice of Appeal. This application might have been made to the Court hearing the appeal but it was obviously convenient to have the matter settled as early as possible. The ground is that the judgment of Blackburn C.J. is wrong in law because in accordance with the two certificates of the Registrar, it imposes upon the defendants a joint liability to pay certain sums to the plaintiff. The applicants submitted, this is wrong because Fox J. found that it was a term of the partnerships between the plaintiff and the defendants that the capital and profits and/or the losses thereof would be contributed, shared and/or borne equally by the three partners. Mr. Kelly submitted that a finding of joint liability by the Registrar was irreconcilable with these findings of Fox J. He submitted further that the error was apparent on the face of the record and that this constituted a special reason for giving special leave to appeal on this ground. We think that this ground is distinctly arguable. however, It is apparent,/that this ground of appeal for which leave is now sought is directed essentially to found a new and separate attack upon the certificates upon which the judgment of Blackburn C.J. was founded. But the alleged errors in the certificates, if indeed there be such errors, were discernible from the time the certificates were given, in the case of one from 20 September 1976 and in the case of the second from 27 February 1978. In the proceeding in which the judgment of Blackburn C.J. was given the defendants were represented by Mr. Gallen of Counsel who announced that he did not consent to judgment. His Honour said to Mr. Gallen with reference to the orders sought by the respondent "those orders and declarations are not consented to but not opposed, Mr. Gallen but you do not offer anything in opposition to them". Mr. Gallen said "I do not offer anything in opposition". However, in November 1978 an application was made to Blackburn C.J. to set aside the judgment on the grounds that there had been a fundamental accounting error on the part of the Registrar. This applicaticn came on for hearing on 19 January 1979. It was rejected. However, before this, namely in November 1978, the Notice of Motion for special leave to appeal was filed on the basis that fundamental accounting errors had occurred. In these circumstances the question before the Court is whether leave to include a ground in the appeal should be granted which would permit the applicants to raise in the appeal what may be called the errors in the certificate insofar as they certified to a joint liability of the a ce te to the picheste It is necessary to observe that the suggestion that this aspect of the certificates was erroneous has never been made in any of the various proceedings which have occurred. It is acknowledged that the notion that this aspect of the judgment might be open to did not occur elbieete. ; attack /to any adviser of the ants until 2 April 1979, the day before the hearing of this application began. To give leave to appeal on this ground therefore is quite a different proposition from giving leave to appeal on the ground referred to in the Notice of Motion of 17 November 1978. The Court is asked to give leave to appeal on a point on which until 2 April 1979 no person had even thought of appealing. The plaintiff had judgment on 27 October 1978. It was obtained in the presence of counsel for the applicants and without his opposition. At the expiration of the 21 days allowed under the rules the respondent had in the words of Kitto, Windeyer and Owen JJ. in Vilenius v. Heinegar (1962) 36 A.L.J.R. 200 at 201 "....a vested right to retain the judgment unless this Court under Sub rule 2 of rule 6 for special reasons should give leave to appeal ....". Insofar as Mr. Kelly wishes to have leave to appeal on the joint liability aspect it is as though he were making an application for leave to appeal for the first time on 2 April 1979 in respect of a judgment given on 27 October 1978. It is manifest that a party who desires to challenge a judgment by appeal should have regard to the rules applicable to such a challenge including the times specified for so doing. It is appropriate that litigation should come to an end. In this case there is no reason why any person giving reasonable attention to the possibility of attacking the judgment would not have been in a position to consider the joint liability aspect. But no person did consider it, or if they did, they did not act thereon. The result is that during the period since 18 November 1978 the dahokek nas had his veSted righto-tecréterthe judgment. It cannot in our view be a special reason for giving leave to appeal that the applicants merely failed to realise that there was a possible ground of appeal arising out of the joint judgment and so allowed the time for appeal and at least four months thereafter to expire. No reason is given for such failure,which has existed in the case of one certificate since September 1976 and in the case of the other since February 1978. And during that time the defendants' advisers were fully informed of the relevant facts and latterly actively engaged in considering matters which might justify an attack on the certificates. In all the circumstances we are satisfied that no special reason exists for giving special leave to appeal on the ground relating to joint liability. In our approach to the problem we have had regard to what transpired in Ibbitson v. Dunlop Tyre Service (Strathfield) Pty. Ltd. (1970) 44 A.L.J.R. 126 and Velenius v. Heinegar (1962) 36 A.L.J.R. 200 and Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (i974) 131 C.L.R. 333. We should also state that we regard the decision in Measures v. McFadyen (1910) 11 C.L.R. 723 as illustrative of the view that where an application is made within time for arrest of judgment or equivalent relief the fact that the judgment was by consent is not in all circumstances a fatal objection to such an application. In the case before us is critical. For the reasons above we Kelly to amend the Notice of Motion a ground of the proposed appeal the October 1978. it is the element of time which reject the application by Mr. of November 1978 to include as joint aspect of the judgment of