RIZZUTTI v HASSAN SAAD [1993] NSWCA 238

RIZZUTTI v HASSAN SAAD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Cripps JA 21 June 1993

[1993] NSWCA 238

Cripps JA. In this matter Mr Rizzutti, who was the plaintiff before Judge Shillington in the District Court, is making an application to extend the period of time within which to appeal against the Judge's decision.

On 19 June 1992 and after a two day hearing, Shillington DCJ entered judgment for the defendants in proceedings brought by the present claimant, who was the plaintiff, against five named defendants who were members of the Saad family. The plaintiff and the five named defendants live next to each other. Mr Rizzutti claimed in the District Court that members of the Saad family were guilty of trespass and one of them, in addition, guilty of breaking a window in his home.

The allegations made by Mr Rizzutti were in large measure, if not wholly, rejected by Shillington DCJ and he entered a verdict for the defendants with costs on 19 June 1992. Thereafter, so far as is known to me at least — subject to one matter which I will shortlymention — nothing further was done. On 26 February 1993, Mr Rizzuti went to the Supreme Court to file a notice of appeal and, as I would surmise, received advice that he needed to extend the period of time. At all events, he made that second application as well as endeavouring to lodge his notice of appeal. The return date for his application for time within which to extend the notice of appeal was 8 March. That was the date endorsed on the process. Mr Rizzuti, however, thought the date was 8 May. When the matter came on 8 March, Priestley JA dismissed the application with costs because there was no appearance for Mr Rizzuti.

Mr Rizzuti has now made what I will take to be a fresh application for leave to appeal out of time and he puts before the Court, in partial support of that application, circumstances explaining why it was that he did not appear in Court on 8 March when the matter was previously listed.