Rizzuti, E. v Daley, G.A

[1991] FCA 266

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1. JUDGMENT No.

   IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	NO. G34 of 1991
)
GENERAL DIVISION	1

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN :  ERNESTO RIZZUTI
Appellant

AND:	GERALDINE ANNE DALEY, TIMOTHY WILLIAM DALEY, RICHARD WOOLMER, IAN ROSS AND MICHAEL MILGATE T/AS COLIN DALEY OUINN & DWYER
First respondents PETER J. DWYER Second respondent

MINUTES OF ORDER

JUDGES MAKING ORDER:	Beaumont, Burchett and Hill JJ.
DATE OF ORDER:	22 May 1991
WHERE MADE :	Sydney
THE COURT ORDERS:

Order 36 of the Federal Court Rules.

Appeal dismissed with costs.

Note: Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G34 of 1991
)
GENERAL DIVISION	)

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:  ERNESTO RIZZUTI
Appellant

AND :	GERALDINE ANNE DALEY. TIMOTHY WILLIAM DALEY, RICHARD WOOLMER. IAN ROSS AND MICHAEL MILGATE T/AS COLIN DALEY OUINN & DWYER
First respondents PETER J. DWYER Second respondent

CORAM:	Beaumont, Burchett and Hill JJ.
m:	22 May 1991

REASONS FOR JUDGMENT

THE COURT: Ernesto Rizzuti, the appellant, seeks to

appeal from a judgment of a judge of the Court refusing to set aside a bankruptcy notice. The judgment was given on 17 December 1990. The notice of appeal was filed on 31 January

1991. It may be that the judgment from which the appeal is

sought to be brought is interlocutory and not final, in which event leave to appeal would be required. Further, the appeal may have been out of time. If it be necessary, we would extend the time for the appeal and grant leave to appeal.

The history of the bankruptcy proceedings and the litigation which preceded them is complicated. It is fully recited in the reasons of the primary judge (which should be read with these reasons) and need not be repeated here.

The subject bankruptcy notice was issued at the request of the respondents to the appeal. They had acted as solicitor for Mr. Rizzuti in 1979. In May 1985, Mr. Rizzuti sought to institute proceedings in the District Court against the solicitors for professional negligence. Mr. Rizzuti was then, and at all times since has been, unrepresented. In October 1985, the statement of claim filed by Mr. Rizzuti was struck out by Nash D.C.J. In June 1986, Mr. Rizzuti instituted fresh proceedings in the District Court. Despite Mr. Rizutti's arguments to the contrary, the proceedings were fresh proceedings, not a mere continuance of the 1985 proceedings. This action was removed into the Supreme Court. The solicitors applied for summary judgment. Master Monaghan held that the claim was statute barred and entered judgment

Studdert J. who dismissed the appeal. Mr. Rizzuti later	for the solicitors with costs. Mr. Rizzuti appealed to
sought, unsuccessfully, to appeal to the Court of Appeal from the judgments of Nash D.C.J. and of Studdert J.
The bankruptcy notice required payment of the sum of $5,554.63 being the costs, as taxed, pursuant to Master Monaghan's order for costs, together with interest.

As the pr imary judge n o t e d , there a r e w e l l

e s t a b l i s h e d p r i n c i p l e s w h i c h c o n t r o l the e x t e n t t o w h i c h a

c o u r t	o f	b a n k r u p t c y	may	" g o b e h i n d "	the	judgment	o n w h i c h	a
b a n k r u p t c y	n o t i c e	i s	b a s e d .	Before	the	pr imary	judge ,	M r .
R i z z u t i	i n v i t e d	the	Court	t o go	b e h i n d	the	judgment.	T h e

judge	s a i d :
" M r R i z z u t i makes a l l e g a t i o n s a g a i n s t the f i r m and
a g a i n s t v a r i o u s j u d i c i a l o f f icers who h a v e p l a y e d a
role i n the history o f the l i t i g a t i o n . In
p a r t i c u l a r , he a s s e r t s , i n e f f ec t , t h a t the
b a n k r u p t c y notice i s b a s e d upon a judgment for costs
awarded a g a i n s t h i m i n p r o c e e d i n g s t a i n t e d by
c o l l u s i o n and f r a u d . N o p r o c e e d i n g s h a v e been
i n s t i t u t e d i n the Supreme C o u r t t o set a s i d e the
judgment for f r a u d , i n accordance w i t h the
p r i n c i p l e s e x p l a i n e d m o s t recently i n Wentwor th v.
Roaers / N o . 52 (1986) 6 NSWLR 534. R a t h e r , the
a p p l i c a n t seeks t o h a v e t h i s C o u r t enter upon and
d e t e r m i n e t h a t i s s u e . N o t w i t h s t a n d i n g b u l k y
d o c u m e n t a t i o n p r o f f e r e d by Mr R i z z u t i , f rom which I
h a v e s o u g h t t o d i s t i l the a c c o u n t o f h i s l i t i g a t i o n
g i v e n e a r l i e r i n these r e a s o n s , there i s no b a s i s
upon wh ich I c o u l d f i n d a n y r e a s o n a b l e chance t h a t
he would s u c c e e d i f this C o u r t were t o ' g o beh ind '
the judgment upon wh ich the b a n k r u p t c y notice i s
b a s e d . "

T h e judge a l s o h e l d t h a t there w e r e no c i r c u m s t a n c e s

t o show f r a u d or c o l l u s i o n .

D e s p i t e the wide - rang ing c o m p l a i n t s made by M r .

R i z z u t i a g a i n s t h i s n e i g h b o u r s , h i s f o rmer so l ic i tor and

v a r i o u s j u d i c i a l o f f i c e r s , the q u e s t i o n f o r t h i s C o u r t i s

quite l i m i t e d . I t i s w h e t h e r the b a n k r u p t c y notice based on

the c o s t s o r d e r made i n r e s p e c t o f the p r o c e e d i n g b e f o r e

Master Monaghan s h o u l d be s e t a s i d e . There i s n o d o u b t a t a l l

that in that particular proceeding Mr. Rizutti's claim was rightly found to be statute barred. The costs order was an ordinary and correct consequence. The result clearly follows that the bankruptcy notice was properly founded and, there being no other attack on it, was not liable to be set aside. No case was, in a formal sense, raised under S. 41(7) of the BankruDtcv Act 1966, nor did the appellant adduce evidence on which any finding in his favour could be made under that provision.

Mr. Rizzuti addressed us along similar lines to his submissions at first instance. We have considered all that he has put but we have concluded that the primary judge was correct in his decision. We agree that no sufficient reason has been demonstrated for seeking to go behind the judgment here. It follows that the appeal will be dismissed with costs.

I certify that this and the preceding

three (3)) pages are a true copy of the
Reasons for Judgment herein of the Court

Associate %?!+ Dated: 22 May 1991"

Counsel and Solicitors	Mr. Rizzuti appeared in
for Appellant:	person
Counsel and Solicitors	Mr. Aldridge instructed by
for Respondents:	Mlnter Ellison
Date of hearing:	20 May 1991
Date Judgment delivered:	22 May 1991