RIZZUTI v HANCOCK AND ORS [1992] NSWCA 213

RIZZUTI v HANCOCK AND ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 24 February 1992

[1992] NSWCA 213

Mahoney JA Before the court today there are two notices of motion. The first inorder of date of filing is a notice of motion by Mr Rizzuti, the claimant, filed on 9 December 1991. That notice of motion seeks orders set forth in twenty-two paragraphs. The first of them seeks an order for expedition of the appeal. The other matters that are sought do not appear to be appropriate matters - I speak generally - for a notice of motion of this kind.

The first motion seeks an order for the expedition of the hearing of the appeal. It emerges from what has been said today that the appeal papers are not yet in order. However, I am informed - and I have indicated during the course of discussion that I have been informed - that the index has been settled and that, subject to Mr Rizzuti signing the appropriate documents and paying the appropriate fees in the Registry, the Registry can and will proceed with the preparation of the appeal papers. When the appeal papers have been prepared then the matter will be in an appropriate state for the fixing of a date for hearing and no doubt the Registrar, having regard to the history of the matter, will fix a reasonably early date for hearing of the appeal. I do not mean by this I am making a specific order for expedition but it is proper this appeal be disposed of without unnecessary delay. The order for expedition sought is not an order which I think ought to be made but, provided that Mr Rizzuti, as I have said, signs the necessary documents and pays the necessary fees, then the matter can proceed and the hearing date can be fixed.

Ihave before me also a motion by the opponents. The motion was filed on 31 January 1992. It seeks, amongst other things, an order that the document described as "Supplementary Notice of Appeal" filed on 18 November 1991 be struck out. Other orders are sought. The supplementary notice of appeal, of which Ihave a copy, appears to be a document which, from the court's stamp on it, was filed on 25 October 1988. Whether that notice of appeal is properly before the court or whether leave will be necessary for the filing of it is a matter it is not necessary for the court to determine at the present time. If it is a matter setting forth grounds of appeal which properly Mr Rizzuti can rely upon at the present time those grounds can be relied upon at the hearing, even though the document is not included in the formal appeal papers as the operative notice of appeal. The Registrar may see fit to include it in the appeal papers with forming any judgment as to whether it is an operative ground of appeal. If, on the other hand, the grounds of appeal are not proper formally to be relied upon at the present time, then if Mr Rizzuti desires to rely upon them he may seek leave to do so at the hearing of the appeal or may claim that he is entitled so to do without leave. If he desires formally to move on the matter he may do so by motion but the convenient course would appear to be for him, on the hearing of the appeal, simply to claim to be able to rely upon the grounds set forth in the supplementary notice of appeal and to have the court rule upon them at that stage. If the court