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". The court has examined the papers. I am satisfied that there is no prospect of success: the appeal or appeals cannot succeed. The statements of claim which were filed were described essentially as a claim for compensation arising from malicious damage to property, arrest and defamation. The facts which were stated in support of the allegations in the statement of claim were said to have occurred on 17 February 1979. The proceedings were brought in the District Court by a summons or summonses which appear to be dated 5 June 1989. (I have referred to them as if they were two proceedings. It may well be the better view that there is only one proceeding but I intend by what I have said to cover the possibility that there may be two). However that be, the proceedings were commenced on 5 June 1985. The result was, therefore, that if the cause of action alleged arose on 17 February 1979 then the proceedings were brought outside the statutory period allowed for the proceedings. They were statute barred. The matter was brought before Kinchington DCJ on 12 May 1989. An application was made by the defendant that the statement of claim be struck out and that the amended statement of claim be struck out. The papers show that 2 UNREPORTED JUDGMENTS there were two documents filed. Both of them referred to malicious damage of property, arrest and defamation and both of them refer to 17 February 1979. His Honour put aside, I think, the question of whether the statement of claim or statements of claim showed a cause of action in their terms and went directly to the issue of the Statute of Limitation and the bar imposed by it. His Honour concluded, in my opinion correctly, that the proceedings were clearly barred by the Statute of Limitation. The point has been taken in the particulars of defence which had been filed by the defendant, and his Honour had, I think, little alternative but to uphold that contention. The result is that, in my opinion, his Honour's order striking out the statement of claim or statements of claim was clearly correct. If the matter were to be brought properly before this Court as on an appeal, this Court would have no alternative but to dismiss the appeal. It may be that in fact there is no appeal to this Court in relation to this matter or no appeal without leave to appeal. But this is not a matter upon which it is necessary for the court to express an opinion. Ihave gone directly to the merits of the matter. In my opinion, for the reasons to which I have referred, clearly his Honour's decisions were right. Therefore, if there be an appeal effectively before this Court, the order the court should make is that the appeal should be dismissed. In the circumstances, I think the court has no alternative but to make such an order. I note the court has not found it necessary to hear Mr Stanton in relation to the appeal or appeals. He has indicated that there is before the court at the moment a motion for security for costs of the appeal which was stood over from an earlier date. He has indicated the view of his client, which is a sensible view, that it is best to proceed with the appeal and the court has followed that course. The order which the court makes is the appeal brought before this Court and the applications which have been brought before this Court, insofar as they are before the court, should be dismissed and should be dismissed with costs. Priestley JA I agree. Handley JA I also agree. Mahoney JA: Mr Rizzuti, I will direct that a copy of the judgment be made available to you. When it is typed out you may pick it up at the office of the Registry below so that you will have some indication of what is the nature of the orders which the court has made today. I am afraid there is nothing more than can be done for you. Appeal and applications dismissed with costs. The appellant appeared in person. Counsel for the respondent: SJ Stanton Solicitors for the respondent: El Khouri and Associates