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 2 UNREPORTED JUDGMENTS says he is not presently entitled to rely upon them then he may seek leave at that stage to do so. This is a convenient way of dealing with a matter which has been pending over long. That leaves outstanding the notice of motion insofar as it is a claim by the respondents to strike out the supplementary notice of appeal. In order to deal with that it would be necessary for the court to go to the length of ascertaining whether the supplementary notice of appeal is operative in the sense to which I have referred. I do not think time should be taken in deciding that. It is proper that orders be made which will be effective to dispose of the whole matter without unnecessary delay. I would propose to stand over the further hearing of the notice of motion of 31 January 1992 until the hearing of the appeal or further order. The costs of the motion can be dealt with by the court on that occasion. Mr Rizzuti has indicated to the court that he is prepared today to sign the necessary documents and pay the fees for the purpose of enabling appeal papers to be prepared and the appeal brought on for hearing. I will fix a date being Friday next by which stage steps are to be taken by him to that end. If he does not take such steps by that date then the respondents may move for the striking out of the appeal. The court can then consider whether that is the way in which the matter should be brought to a head. Mr Rizzuti is perfectly aware of what his position is. He has in addition had in court the assistance of a person to explain it to him. As I have said, he has indicated he will take the necessary steps today but, in any event, he must do so by next Friday. I will dismiss the motion of 9 December 1991. I will reserve the costs of that motion to the court dealing with the appeal. I will stand over further hearing of the notice of motion of 31 January 1992 until the hearing of the appeal or further order.