RIZZUTI v FORSHAW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 6 February 1990, 6 February 1990 [1990] NSWCA 157 Professional negligence — Admissibility of evidence — Whether quantum would exceed jurisdiction of District Court — Transfer of Proceedings to Supreme Court — Dismissal of appeal. the costs of the motion. Clarke JA (On Notice of Motion) The first matter before the Court is a notice of motion pursuant to which Mr Rizzuti has sought that the Court review the decision of Mr Justice Samuels whereby his Honour dismissed a notice of motion which Mr Rizzuti had filed in court. Primary reliance is placed upon the affidavit material that was filed before the Court and considered by Mr Justice Samuels, but, in addition, Mr Rizzuti has relied upon evidence of damages which he claims to have suffered and which appears in an affidavit filed in court following the hearing before Mr Justice Samuels. He also relies upon the transcript of evidence before his Honour in partial support of a contention that an interpreter misled the Court. The orders which were sought in the original notice of motion, and which have been sought again today, are many in number and in most instances are orders which it would be highly unlikely that this Court would make. There are, in addition, some orders sought, and I have in mind a claim for security for costs, which it is within the usual operation of this Court to make, although, obviously, only if supported by appropriate evidence. Upon a review of all of the evidence which has been filed, I am unable to discern any basis upon which any of the orders can be made. There is no evidentiary basis for the ordering of security against the present respondent, nor has any reason been shown why any of the other orders, which are, I apprehend, in the nature of preliminary orders, should be made, and, accordingly, I agree with Mr Justice Samuels in his conclusion that the notice of motion contains very little of substance and that which is of substance is unsupported by evidence. Mr Rizzuti has taken much time today complaining about treatment which he claims to have received at the hands of various solicitors. If he has indeed received that treatment it is a most unfortunate matter, but, as the Court has sought to explain to him, it does:not provide legal advice or legal assistance and is required to adjudicate upon disputes which come before it. It can, therefore, give Mr Rizzuti no assistance and if he wishes to pursue his complaints about these matters, it will be necessary for him to approach the appropriate authorities. I would propose that the notice of motion be dismissed and that Mr Rizzuti, who is described in the proceedings as the plaintiff, pay the costs of the motion. (On Appeal) Mr Rizzuti commenced proceedings in the District Court against the present respondents, who are members of a firm of solicitors. Quite a long time ago he filed a summons in this Court seeking an order that the District Court proceedings 2 UNREPORTED JUDGMENTS be transferred to this Court pursuant to s145 of the District Court Act. His claim for that relief was heard by Master Monaghan on 9 August 1988. The Master observed that the basis of the claim was that the damages sought by Mr Rizzuti were said to exceed the jurisdiction of the District Court. Accordingly, the transfer application was made to ensure that if Mr Rizzuti recovered damages he did not suffer any loss as a result of the limited jurisdiction of the District Court. Having noted the basis for the application, Master Monaghan considered the evidence adduced in support of it and concluded that the action was properly brought in the District Court and should not be remitted to the Supreme Court. Mr Rizzuti appealed from this order and his appeal was heard by Mr Justice McInerney on 3 February 1989 His Honour took some care to set out the history and to determine whether there was any evidence that Master Monaghan was, as Mr Rizzuti contended, biased or whether there was any indication that the Master had failed to apply proper principles in the determination of the motion. His Honour concluded that no reason had been shown for the allegation of partiality and that there was no material provided in support of the claim of error on the part of the Master. There has not been any new material put before the Court on this aspect of today's proceedings and the question which has been posed by the notice of appeal is in essence whether Mr Justice McInerney failed to apply proper principles or fell into error in some other way in upholding the Master's decision. Before turning to that question, I should observe that Mr Rizzuti did not seek and obtain the leave of this Court to proceed with the appeal from what was clearly the interlocutory judgment of Mr Justice McInerney. However, no application was made to strike out the appeal on the grounds it was incompetent. Counsel explained to the court that his clients had instructed him to cooperate in having the matters of substance determined by the Court as they had done when he had declined to raise some technical matters before Mr Justice McInerney. The fact that no application to strike out the appeal was made does not mean that leave would automatically be granted. In fact, in normal circumstances I doubt very much whether leave would have been granted for the prosecution of the present appeal. However, as the proceedings have gone this far and as Mr Rizzuti claims that part of his present predicament has been caused by the action of legal advisers, in order finally to resolve this matter and because the appeal has been fully heard, it seems appropriate to grant leave and to consider the appeal. In that respect I can express my conclusion very shortly. The principles applied by both the learned Master and Mr Justice McInerney were, in my opinion, the correct principles and the decision of both does not appear to me to have been flawed by any other discernible error. There is no evidence of any cogency which supports the proposition that the damages which would likely be awarded to Mr Rizzuti if he were successful would exceed $100,000. It is true that Mr Rizzuti has tendered an affidavit in which he catalogues a large array of claims which would entitle him, he claims, to damages of great dimension. However, it is clear from the affidavit itself that he is endeavouring to group within the one proceeding, that is the present proceeding, a whole series of claims, some of which are nothing to do with it, and that in any event the bases upon which some of the larger amounts of money are claimed are fanciful. Having discerned no error in the judgment under appeal, I am of the view that the appeal should be dismissed with costs. Meagher JA (On Notice of Motion) URJ RIZZUTI v FORSHAW (Handley JA) 3 I agree. In fact, I am even more adverse to Mr Rizzuti's case than has been suggested because, in addition to the matters mentioned, I am of the view that there is no jurisdiction to award security of costs against a respondent or against a defendant. (On Appeal) I am of entirely the same view as the presiding judge and I do not wish to add anything. Handley JA (On Notice of Motion) I also agree. Mr Justice Samuels, it appears from his reasons for judgment, fully considered the original motion that Mr Rizzuti brought and which was heard on 27 November 1989 and, after hearing Mr Rizzuti today at some length and considering the document that he placed before this Court, I am satisfied that Mr Justice Samuels acted correctly in dismissing the original notice of motion on 27 November 1989. Nothing has emerged during the hearing today, in my opinion, which throws any doubt on the correctness of Mr Justice Samuels' reasons or the orders which he then made. I agree with the order proposed by the presiding judge. (On Appeal) I also agree. Under normal circumstances in my view the appropriate course would have been for this Court to have dismissed the appeal as incompetent and to have refused leave to appeal, but in the special circumstances of this case, where Mr Rizzuti appears in person and an earlier order had been made by a judge of this Court expediting the appeal, it seems appropriate that leave should be granted and the appeal heard and disposed of on its merits and not dismissed purely for procedural reasons. I agree with the reasons for judgment that have been delivered by Mr Justice Clarke also and I have no reason to add anything further to them. I also agree with his orders. The notice of motion will be dismissed. Mr Rizzuti is to pay the costs of the motion. The orders of the court will be that the appeal is dismissed with costs. Counsel for the Appellant: In person Solicitors for the Appellant: Acting on behalf of self Counsel for the Respondent: P Greenwood Solicitors for the Respondent: Minter Ellison