RIZZUTI v SAAD [1993] NSWCA 237

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

KIRBY P, HANDLEY and SHELLER JJA 26 July 1993, 26 July 1993

[1993] NSWCA 237

PRACTICE and PROCEDURE — Court of Appeal — application to discharge or vary judgment of a single Judge of Appeal — Supreme Court Act 1970, s46(4) — application to appeal from District Court judgment out of time — time default of 11 months — no adequate explanation of delay — apparent futility of appeal — hearing involves assessment of credibility of witnesses — possible need for leave having regard to trivial nature of damage — held: No ground shown to discharge or vary single Judge's orders — motions dismissed.

Supreme Court Act 1970, s46.

Kirby P Before the Court is a purported Notice of Appeal and a Notice of Motion and, in effect, an application, under s46(4) of the Supreme Court Act 1970, for a review of a decision of a single Judge of this Court, Cripps JA.

Cripps JA s orders were made on 21 June 1993. They related to an application by the present claimant (as I shall call him), Mr Ernesto Rizzuti, for an extension of time within which to appeal against a judgment of a Judge of the District Court, Shillington DCJ.

The history of the subject litigation can be briefly stated. On 4 March 1987 Mr Rizzuti filed an ordinary statement of claim in the District Court. In part, the claim alleged that Mr Rizzuti had suffered great material and financial damage on two occasions by reason of the conduct of members of the Saad family entering his property, behaving in an aggressive way and physically threatening the claimant and his son.

The claim was brought against a number of members of the Saad family. They are neighbours of Mr Rizzuti and his family. The hearing of the proceedings commenced before Shillington DCJ on 18 June 1992. It continued until 19 June 1992. On that day his Honour delivered a judgment in which he concluded that the claim should be dismissed. He so ordered. He also ordered Mr Rizzuti to pay the costs of the Saads.