TAOUBE v RIZZUTI RIZZUTI v TAOUBE [1991] NSWCA 264

TAOUBE v RIZZUTI RIZZUTI v TAOUBE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 26 June 1991, 26 June 1991

[1991] NSWCA 264

Mahoney JA By a proceeding commenced on or about 19 January 1988 Mr Emesto Rizzuti sued Mr Riad Taoube. The particulars of his claim were set out in numbered paragraphs 1-11 and in two additional paragraphs set forth in the proceeding. Mr Rizzuti acted on his own behalf: he was not represented by a solicitor.

On 21 February 1991 two motions in the proceeding came before his Honour Judge Ward. The first motion was a motion by the defendant seeking dismissal of the proceeding or a stay of it; the second motion, by the plaintiff, sought to have the proceeding set down for trial.

His Honour saw the defendant's motion as "really seeking that the statement of claim be struck out pursuant to the Rules Pt9 r17 and this application is based on two grounds, broadly, namely that there is no reasonable cause of action disclosed in the pleadings and secondly that the pleadings have a tendency to cause embarrassment and that they are in effect an abuse of the process of the court".

His Honour examined the plaintiff's claim as pleaded and concluded that it disclosed no cause of action or none such as should be allowed to stand. His Honour then said: "TI order that the plaintiff's statement of claim be struck out and the proceedings dismissed with costs and the plaintiff to pay the costs of this motion." In those circumstances, it was not necessary to deal with the other motion.

On 13 March 1991, Mr Rizzuti lodged a document entitled "Notice of Appeal" in this Court against his Honour's orders. The notice of appeal, apart from alleging that the judge "should not have struck out the plaintiffs statement of claim..." alleged disadvantage, injustice and bias and failure to consider documents. It asked for orders: