RIZZUTI v TALARICO [1992] NSWCA 214

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

MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1992, 5 June 1992

[1992] NSWCA 214

COMPETENCY OF APPEAL — NOT DECIDED — APPEAL HOPELESS — NO ISSUE OF PRINCIPLE APPEAL from District Court — Competency of appeal not decided — Appeal hopeless — Dismissed with costs — No issue of principle.

Mahoney JA In these proceedings, which come before this Court as the result of District Court proceedings in a matter of 11012/85, the court is asked to entertain an appeal or appeals. The papers disclose that on 12 May 1989 Kinchington DCJ made orders striking out the particulars of claim that had been filed in this proceeding or proceedings. Mr Rizzuti, the plaintiff in the proceedings, desires to appeal against the order which the learned judge made. He has lodged documents described as notices of appeal in relation to the order or orders that the learned judge made.

The matters have been brought before this Court on a number of occasions and directions, or orders in the nature of directions, have been given which, in effect, were intended to ensure that the matters finally be brought before this Court for a final consideration and for determination. The matters are now before this Court accordingly.

Mr Rizzuti has appeared for himself. He has stated matters which have been, if I may so describe them, foreshadowed in the documents which appear in the appeal papers, in the judgment of Kinchington DCJ, in the notice of appeal which he has filed and in a document described I think as an affidavit which appears in the papers. The affidavit bears the date 1 June 1989.

What is before this Court is essentially a twofold question: whether there is a right of appeal in relation to the order or orders made by the judge and, secondly, whether that appeal can succeed. I say "can succeed": it may be more correctly whether it "should succeed".