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. That explanation includes a number of assertions against the staff of the Supreme Court to the effect that he was tricked by them and that, perhaps, as he suggests in terms, the staff of the Supreme Court were favouring his opponents in this case. I am not prepared to make any such findings on the evidence before me. However, I am prepared to assume in Mr Rizzuti's favour that he did not turn up on 8 March, not because he did not wish to pursue his claim, but because, for some reason or other, he was mistaken and I amprepared also to assume in his favour that his mistake is, although I do not know what it is, understandable. I should also mention that on 3 May 1993 and after apparently no agreement as to costs, costs in the proceedings were taxed and these costs were paid in the sum of $40,100.61 on 27 May 1993. It is said by Mr Prowse, who is appearing for the respondents to this application, ie the Saad family, the payment of those costs operates to deny Mr Rizzuti his right to appeal alone. I am not persuaded 2 UNREPORTED JUDGMENTS that that is so. Mr Rizzuti has said that he paid the costs because, if he did not, enforcement proceedings could be taken. The question is whether I should extend the period within which Mr Rizzuti should appeal and, for this purpose, in Mr Rizzuti's favour, I will assume that I should be viewing the matter as at February 1993, that being the date when he first moved to appeal against the decision of Shillington DCJ entered in accordance with the District Court Act and Rules about eight months earlier. Mr Rizzuti's explanation for the delay is that, in effect, the lawyers have let him down. He has filed an affidavit and given evidence orally to the effect that he paid lawyers some $10,000 before his litigation was heard before Shillington DCJ, and other lawyers the sum of something over $10,000 after the litigation. He has also referred to the fact that he has paid a third firmof lawyers, at least two years before the case was heard, $1500. Mr Rizzuti says that, notwithstanding the payment of these sums, the lawyers did not proceed with his appeal. He has also included a reference in his affidavit to the sum of $40,000 which he paid the Federal Court of Australia. In evidence he has told me this has nothing to do with the present proceedings and, as that would appear to be so, I will take the matter no further. As I have endeavoured to explain, Mr Rizzuti, in an appeal of the type he seeks to bring in these proceedings, would need to persuade the Court that, for proper reasons, the judgment of Shillington DCJ should be set aside and I have referred to the circumstances that Shillington DCJ in his judgment made a number of findings concerning who he believed in what might be colloquially called a backyard dispute. I therefore take into account, as I think I am bound to do, the difficulties Mr Rizzuti would have in the appeal court in disturbing the findings of the trial judge. I also take into account that eight months elapsed between the judgment of Shillington DCJ and the lodging of the application to appeal out of time by Mr Rizzuti. No explanation was given beyond that lawyers were paid money during this period and Mr Rizzuti claimed that his lawyers let him down. I do not think that explanation is good enough to found this applicationbeing granted and, accordingly, I have come to the conclusion that the application for leave to appeal out of time must be dismissed. I direct that the application be dismissed with costs. Orders accordingly.