RIZZUTI v HANCOCK [1992] NSWCA 212

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

KIRBY P, CLARKE and MEAGHER JJA 14 July 1992, 5 August 1992 [1992] NSWCA 212

NEGLIGENCE — solicitor — breach of retainer — failure to appear at hearings — proceedings for assault dismissed — non-appearance follows termination of retainer — held: No default by solicitor and no error by trial judge. NEGLIGENCE — solicitor — retainer — proceedings for assault against neighbour — proceedings ultimately dismissed by magistrate for want of appearance of either party — trial judge (Shadbolt DCJ) finds nonappearance follows termination of retainer by solicitors held: (Dismissing the appeal) (per Meagher JA; Kirby P and Clarke JA concurring): (1) The want of appearance after termination of the retainer required that the client appear either in person or by fresh solicitors which he did not — no negligence and no breach of the contract of retainer shown; (2) No breach of procedural fairness was shown nor any bias on the part of the trial judge; (3) Accordingly, appeal dismissed.

Kirby P I agree with Meagher JA. Clarke JA I agree with Meagher JA.

Meagher JA This is an appeal by Mr Ernesto Rizzuti from a judgment given by his Honour Judge Shadbolt in the District Court on 12 February 1988. In that action Mr Rizzuti sued Messrs Hancock Alldis and Co, a firm of solicitors, and did so unsuccessfully.

The saga begins with a dispute between Mr Rizzuti and one of his neighbours, Mr Taube, who had an incident in which they apparently assaulted each other and that incident resulted in each of then issuing a summons for assault against the other.

Both matters came before the Local Court at Kogarah on a number of occasions. The first occasion was 23 April 1981, the second occasion was 14 May 1981, the third occasion was 1 September 1981, the fourth occasion was 4 December 1981, the fifth occasion was 15 April 1982, the sixth occasion was 9 August 1982 and the seventh and final occasion on 10 September 1982.