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. The reasons of Shillington DCJ have been placed before us. They indicate a brief chronicle of the allegations by Mr Rizzuti. They conclude with a statement by Shillington DCJ that the amount of damage on at least one occasion was trivial and would not require the attention of the District Court. As to another occasion, his Honour was not satisfied, on the balance of probabilities, that the event alleged had occurred. In those circumstances Shillington DCJ returned his verdict in favour of the Saads. He directed that judgment be entered in their favour. Mr Rizzuti did not act immediately to bring an appeal to this Court. He says that his reason for failing to do so was a default on the part of solicitors. His first application, being in the nature of a Notice of Appeal, was purportedly filed on 26 February 1993, together with a motion and affidavit seeking, in effect, an enlargement of time to allow the appeal to be prosecuted although, on the face of things, out of time. 2 UNREPORTED JUDGMENTS That motion came before this Court on 8 March 1993 constituted initially by Priestley JA sitting alone. Mr Rizzuti failed to appear when the matter was called. Subsequently the Court dismissed the application. It ordered Mr Rizzuti to pay the costs of the Saads of the application. On 31 May 1993 Mr Rizzuti filed in the Registry a further purported Notice of Appeal, Notice of Motion and affidavit. These again sought an extension of time for appealing from Shillington DCJ's orders and judgment. They also sought "leave to appeal" from the decision, seemingly so as to cure the time default. It was that second application which was heard by Cripps JA sitting alone on 21 June 1993. He dealt with the application pursuant to the Supreme Court Act s46(1). He dismissed the application. He did so essentially on two grounds. The first was that Mr Rizzuti had not established a sufficient explanation for the great delay (which was indeed by that time a repeated delay) in bringing the appeal to this Court. Secondly, with the principles expressed by the High Court in Jones v Hyde (1989) 63 ALJR 349 (HC) at 351; 85 ALR 23 at 27; and Abalos v Australian Postal Commission (1990) 175 CLR 167, 179 in mind, Cripps JA indicated that it was his assessment that Mr Rizzuti would have very great, if not insurmountable, difficulties in overturning the determination of the primary Judge having regard to the way in which he had expressed his reasons for concluding against his claim. The claimant has put before this Court a large number of submissions. They are contained, in their essence, in the body of the Notice of Appeal which he would seek to file if granted an extension of time. In the submissions, he has made various allegations. They include, by way of example only, the assertion that the judgments of the Court of Appeal are based on 50 to 70 percent perjury and that he is a naturalised Australian of Calabrian origin and is entitled to as much attention as Arabs (the Saads being, apparently, of Arab ethnicity). None of the matters that have been raised before the Court, either in oral argument or in the Notice of Appeal, demonstrate any error in the part of Cripps JA which would authorise this Court, reviewing his Honour's reasons, to discharge or vary what his Honour ordered. On the contrary, I am of a like opinion to that which Cripps JA expressed. I do not believe that an adequate explanation has been provided as to why such a very great delay occurred between the judgment of Shillington DCJ and the first or, still more, the second application to this Court brought for an extension of time within which to appeal. Mr Rizzuti is no stranger to the Court. He has had litigation in this Court before. He would know - as commonsense dictates - that it is essential to proceed with all due speed in seeking to appeal from an order of a court such as the District Court. This he did not do. He has never adequately explained why. As well, I believe that the second consideration which Cripps JA mentioned in his reasons adds strength to the conclusion which his Honour reached. As I read Shillington DCJ's judgment, his Honour's conclusions depended very much upon his assessment of the evidence of Mr Rizzuti on the one hand and of the Saads on the other. As he concluded in favour of the Saads, Mr Rizzuti would face the well known difficulties of disturbing such a conclusion having regard to the advantages which the law attributes to the primary judge who sees the witnesses in a contested case give their evidence, as we do not. There is another consideration. It derives from the apparently trivial nature of most, if not all, the incidents sued upon. This consideration presents a possible further impediment which might stand in the way of Mr Rizzuti in bringing an appeal to this Court, were it otherwise minded to cure the time default. The URJ RIZZUTI v SAAD (Sheller JA) 3 amount of the damage was, or would be, so small that it would probably require leave of this Court to appeal in any case. It is by no means certain, in such a case, that leave would be granted. I reach no final conclusion on that matter. It is simply another reason why, now to permit this appeal to proceed, would constitute a futility. That was the conclusion Cripps JA reached. Far from error being shown, in my view his Honour was right. A motion was filed by the claimant which sought the following orders: that the opponents (being the Saads) file a "Notice of Defence"; that the "plaintiffs" prove they were out of the country when the District Court hearing took place; and that the opponents produce relevant birth certificates to prove their respective given names. Mr Rizzuti agreed that this motion was incidental and attached to the appeal requiring attention only in the event that the Court reviewed Cripps JA's orders and extended the time within which the claimant might appeal. The motion must therefore fail with the substantive application for review under s46(4) of the Act. The claimant agreed that this would be so. The orders which I would therefore propose are: 1. The motion for discharge or variation of the judgment of Cripps JA of 21 June 1993 dismissed with costs; and 2. The motion for separate orders directed to the opponents, dismissed. Handley JA I agree. Sheller JA For the reasons given by the President I agree with the orders he proposes. Kirby P: The orders of the Court are, therefore, as I have provided. 1. Motion for discharge of variation of the judgment of Cripps JA dismissed with costs; and 2. Motion for separate orders directed to the opponents dismissed. the Claimant appeared in person Counsel for the Opponents: J Prowse (Solicitor) Instructed by: Macedone Christie Willis, Solari Partners