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: "1. That the court accept all the documents which have been disregarded by Judge Ward. 2. That the court ascertain the reliability of the Defendant/Applicant's affidavit and also the veracity of Mr Connor's affidavit. 3. Damage. 4. Interest. 5. Health. 6. Costs. 7. For such orders as this Court deems necessary." By a notice of motion dated 2 May 1991 the defendant moved this Court for orders that the appeal be dismissed, that Mr Rizzuti give security for Mr Taoube's costs of and incidental to the appeal and for costs of the motion. The affidavit in support of the notice of motion indicates that the motion is based upon the claim that the notice of appeal is "incompetent and is outside the provisions of s128 of the District Court Act 1973". 2 UNREPORTED JUDGMENTS It is established that, subject to the matter to which I shall refer, there is no jurisdiction in this Court to entertain an appeal from an interlocutory order made in the District Court: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86. By Act No 103 of 1990, changes were made in this regard. Provision was made by s128(5A) allowing an appeal to the Supreme Court "with the leave of the Supreme Court" from rulings, orders, directions or decisions there referred to. However, s128(5A) did not apply to the order made by Ward DCJ because that order was made before the commencement of the relevant portion of Act No 103 of 1990. In my opinion, therefore, there is no jurisdiction in this Court to hear the appeal which Mr Rizzuti has sought to bring. Iam conscious that the order of Ward DCJ was not merely that the statement of claim be struck out, with leave to redraft it, but that the proceeding be dismissed with costs. But that order was not, in my opinion, a final disposal of the proceeding, within the authorities in which this aspect of the law has been considered. The dismissal of the proceeding was on grounds relating to the form of the proceeding and it would be open to Mr Rizzuti, should he be able to draft an appropriate claim for the purpose, to bring a further proceeding in respect of the causes of action which he desires to set up. In my opinion, therefore, it is proper, on the motion of the defendant Mr Taoube, to order that the appeal be dismissed as incompetent. Mr Rizzuti should pay the costs of the proceeding, including the costs of the present motion. It is in these circumstances not necessary to consider any other motions brought in that appeal. Priestley JA I agree with Mahoney JA. Meagher JA I agree with Mahoney JA. Appeal dismissed as incompetent. Mr Rizzuti to pay the costs of the proceeding.