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. It is not necessary, I think, to detail exactly what happened on each of these occasions but suffice it to say that on each occasion when the matter was adjourned there was seen to have been good reason for the adjournment. On one occasion, for example, the matter was not reached, on another occasion counsel for one of the parties became seriously ill the previous night, on another occasion one of the parties was unexpectedly confined in Lebanon and could not escape from that country. However, on 10 September 1982, on the seventh occasion it was before the court, there was no appearance for either side and the Magistrate, before whom it came, dismissed both proceedings. I should explain that on the first six occasions Mr Rizzuti was represented by the firm of solicitors whom he sued before his Honour Judge Shadbolt in the District Court litigation. Those solicitors terminated their retainer by letter to Mr 2 UNREPORTED JUDGMENTS Rizzuti on 17 August 1982. That means that when the matter came before the Local Court on 10 September 1982 Mr Rizzuti, as his Honour Judge Shadbolt found, had the option of either appearing in person or, alternatively, instructing some other solicitor to appear for him. Mr Rizzuti did neither of these things. The result was that the summons which be brought against Mr Taube was dismissed and his Honour Judge Shadbolt, unsurprisingly found he had no one to blame for this misfortune except himself. I do not see how there can be any reason to doubt the accuracy of his Honour's finding. If I go to the specific grounds of appeal which were argued in front of us a number of those grounds related to what happened on 1 September 1981. That was a day on which the matter was called on but adjourned to the Kogarah Court. The solicitors gave evidence that they appeared on that day on Mr Rizzuti's behalf in the person of Mr Styles, one of their number. Mr Rizzuti says that no one turned up. Mr Styles, according to his solicitors, allegedly obtained an adjournment because counsel he had briefed, Mr Asher Cohen, had become unwell the day before. That is disputed by Mr Rizzuti. We have seen the court file and some of the solicitor's files. They support the allegation that Mr Styles was present on that occasion. The appellant, Mr Rizzuti, also complains that before his Honour Judge Shadbolt no attempt was made by the defendants to call Mr Cohen to give evidence that he was ill, in fact, on 1 September. That is true but is does not matter very much. What is beyond dispute is that the solicitors were told by Mr Cohen, or by somebody on his behalf, that Mr Cohen was unwell and they believed it. That was perfectly sufficient evidence for them to act in the way in which they did. The other point which should be mentioned in regard to this ground of appeal is that the whole debate is irrelevant as long as Mr Rizzuti's rights were protected, which they were. It does not matter whether the adjournment was granted or not. Another ground of appeal related to his Honour's alleged refusal to allow witnesses to be called. The fact was that his Honour was generous in allowing evidence to be called on behalf of Mr Rizzuti, even permitting him to call his wife in reply when she could have been called in chief. In my view, there is no evidence which would justify any finding of incorrectness of his Honour's conduct of the trial in this respect. There was also an attempt, in a number of grounds of appeal, to suggest that his Honour was biased, that his Honour gave an incorrect impression of Mr Rizzuti, that his Honour should not have accepted the solicitors' accounts where they conflicted with Mr Rizzuti's accounts. His Honour heard evidence from both parties and his Honour was both entitled and obliged to find one way or the other. His Honour did, in fact, find on behalf of the defendant on these matters and no possible ground of error has been shown in his doing so. Indeed, if I may add for my part, merely looking at the transcript, it would seem to me that if we had to make the decision it would be precisely the same. There was another ground of appeal relating to the alleged acceptance of Mr Honeyman's evidence as to his involvement. This ground of appeal stands in a different category to the other grounds of appeal. URJ RIZZUTI v HANCOCK (Meagher JA) 3 His Honour found that Mr Honeyman became involved in October 1981. It is alleged that that is incorrect. It is, in fact, incorrect but not in favour of the appellant. The appellant was trying to argue that Mr Honeyman's evidence of the surrounding circumstances proved that he was involved as early as June of 1981 so whilst his Honour was in error in that regard it is not an error which avails the appellant. Another ground of appeal was that his Honour should not have accepted Mr Honeyman's evidence about telephoning Mr Rizzuti. There was a note by Mr Honeyman's secretary to the effect that such a telephone call was made and Mr Honeyman referred to that in his evidence. Accordingly, not surprisingly, his Honour accepted it. Another ground was that his Honour was biased and yet another ground was that his Honour interrupted Mr Rizzuti. These grounds fail for the same reasons that other grounds I have mentioned fail. The inevitable conclusion must be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: G Khoury (Solicitor) Solicitors for Appellant: G Khoury and Co Counsel for Respondent: P Greenwood / R C Titterton Solicitors for Respondent: Minter Ellison