ERNESTO RIZZUTI v COLIN DALEY QUINN and CO [1990] NSWCA 156

ERNESTO RIZZUTI v COLIN DALEY QUINN and CO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 4 June 1990

[1990] NSWCA 156

Handley JA In this matter, Mr Rizzuti, appearing in person, applies for leave to appeal out of time to challenge an order by Nash DCJ, which was handed down on 25 October, 1985. The actual order made by Nash DCJ is not before me, but I am informed by Mr Greenwood, and this is indeed the basis of Mr Rizzuti's application, that His Honour ordered that Mr Rizzuti's statement of claim in an action against his former solicitors for professional negligence be struck out. Such an order is an interlocutory order and it is now well established that this Court has no jurisdiction under s128 of the District Court Act 1973 to hear an appeal from such an order made by a judge of the District Court.

Accordingly, even if Mr Rizzuti had applied promptly to this Court for leave to appeal in November 1985 within the normal fourteen day period, this Court would have been bound to have refused leave to appeal on the basis that the proposed appeal was incompetent, being outside the rights of appeal granted by Parliament in s128 of the District Court Act. In addition of course, there has been very great delay since Judge Nash made the order in question.

It is true that in February last year Clarke JA, in refusing leave to appeal from a decision of Studdert J. in this Court, who had confirmed an order of Master Monaahan, dismissing a Supreme Court action brought by the applicant Mr Rizzuti against his former solicitors for professional negligence, did advert to the possibility, and it was no more than a possibility, that even at that stage Mr Rizzuti could have applied for leave to appeal out of time from Judge Nash's order.

Since Clarke JA made those remarks in February last year, a further fourteen or fifteen months has elapsed, but more importantly, in the meantime, five judges of this Court by majority held in the case of Clutha Developments Pty Limited v Barry (1989) 18 NSWLR 86 that s128 of the District Court Act did not confer a right of appeal in proceedings from an order such as that in issue here and the High Court of Australia in April this year refused special leave to appeal.