Rizzuti v Taoube; Rizzuti v Daley

[1992] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S77 of 1991

B e t w e e n -

ERNESTO RIZZUTI

Applicant

and

RIAD TAOUBE

Respondent

Office of the Registry

Sydney Nos S67 and S81 of 1991

B e t w e e n -

ERNESTO RIZZUTI

Applicant

and

GERALDINE ANNE DALEY, TIMOTHY
WILLIAM DALEY, RICHARD WOOLMER,
IAN ROSS and MICHAEL MILGATE

trading as COLIN DALEY QUINN &

DWYER

First Respondents

PETER J. DWYER

Second Respondent

Applications for special leave

to appeal

MASON CJ

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 APRIL 1992, AT 4.00 PM

Copyright in the High Court of Australia

Rizzuti 1 10/4/92

MR M. CHURCHILL:  Your Honour, I appear on behalf of

Mr Rizzuti. I also appear in the other two matters

Mr Rizzuti has before the Court and I have similar

applications in both those matters for an

adjournment, Your Honour. (of Teakle Ormsby &

Associates)

MASON CJ: For an adjournment?

MR CHURCHILL:  Yes, Your Honour. I appreciate - if I can

explain what has happened.	Mr Rizzuti first saw me
on Friday.

MASON CJ: Perhaps, if you are applying for an adjournment

in the three matters, we ought to call the other

two matters as well and then I ought to ascertain

the appearances for the respondents in each of the

three matters.

MR M.R. ALDRIDGE:  In the matter of S67 of 1991, may it

please Your Honours, I appear for the respondents

with my learned friend, MR B. DEBUSE. (instructed

by Minter Ellison)

MR M.J. JOSEPH: If Your Honour pleases, I appear for

Mr Taoube, in No 77 of 1991. (instructed by

Macedone Christie Willis Solari Partners)

MR P.H. GREENWOOD:  May it please the Court, I appear with

my learned friend, MR P. BRAZIER, in special leave

application S81 for Daley & Others.(instructed by

Minter Ellison)

HIS HONOUR:	Yes, Mr Churchill?
MR CHURCHILL:	Your Honour, the situation is I first saw

Mr Rizzuti on Friday - that is last Friday - and I

could only see him on Wednesday and I have not been

able to take proper and comprehensive instructions

from him.	I have not been able to instruct counsel
in relation to the matter, and they are very
complex matters.	And as Your Honour will

appreciate from reading the appeal books, I will

have difficulty to present a proper case to the

Court on behalf of my client.

Now, Mr Rizzuti has handed me two letters; one

from the High Court dated 4 March this year
advising him of Order 69A rule 11 about the right
of presenting a case ..... by a barrister or

solicitor and having to establish extenuating

circumstances. That High Court letter was a letter

advising him of this matter before the Court today,

and then there is a letter from the New South Wales

Attorney-General's Department advising him of the

amendment to rule 11 Order 69A saying he had to

Rizzuti 10/4/92

establish extenuating circumstances, and he has

asked me to - - -

MASON CJ: "Exceptional circumstances", if he was going to

present the application himself.

MR CHURCHILL: Yes, Your Honour. In respect to that matter,

he was concerned by that amendment, Your Honour.

He has been concerned right throughout the

litigation. I appreciate it is involving quite a

number of other parties. I have told him, through

the interpreter, who he has brought along with him

today, an accredited interpreter - I have explained

to him the grounds of appeal need to be precisely

formulated for the Court, for the other parties to

determine the issues to be decided, and for me to

instruct counsel - I would have to instruct counsel to settle documents and to prepare anything for the

Court to properly argue the case before it.

My client has been suffering under severe

disabilities.	He is suffering under psychological
strain.	I have a medical report which I can show

counsel for the other side in respect of saying

that he needs to have psychological - I think he will need to be assessed by a psychologist and a

psychiatrist.

Those strains partly come about from these

matters in this litigation including a long-

standing dispute with the Taoube Family. Now,

there is a Mr Hamid Taoube who has assaulted my

client, and that is subject to other proceedings in other courts, on appeal. In that matter, Mr Taoube

was accused and he has been charged in respect of

an attempt to highjack a jet during the Iraqi War

and threatening to put a bomb in the jet. Mr

Taoube has also had two committal proceedings in respect of murder charges that have been

discontinued. Why I indicate that is to indicate

the nature of the psychological strains that have

been on my client, Your Honours, and I am in a	situation where I do believe this man has been	suffering under a disability in these proceedings
and the best I could do for him is to obtain an
adjournment so that I can properly present the
matter before the Court, and that is my reasons for seeking the adjournment.

He is also suffering under pain in respect of

back injuries - spinal injuries, which he has had

for 10 years, and there has been this terrible

fight going on in this street, Your Honour. The

man is under strain and I am really seeking the

Court's consideration of those pressures he is

under to give him the opportunity to come back

before the Court and properly present his case.

Rizzuti 3 10/4/92

TOOHEY J:  Mr Churchill, does Mr Rizzuti understand that

there may well be applications for costs sought in

respect of any adjournment?

MR CHURCHILL:  I believe he does understand that,

Your Honour. It is a matter that - he understands

now through the interpreter that his case has not
been presented in a manner which could be easily

followed and it has become a jungle of issues that

I cannot decipher properly and I accept the other

sides cannot decipher those properly, Your Honour.

MASON CJ:  You have drawn his attention to the possibility

of costs?

MR CHURCHILL:  I have not specifically but I will,

Your Honour.

MASON CJ: Well, I think you ought to do so.

TOOHEY J: Perhaps, Mr Churchill, making it clear that if

costs were awarded, they might be awarded in any

event. In other words, whatever the ultimate

outcome of the matters, he may be saddled with an

order for costs in respect of today's adjournment.

MR CHURCHILL:  I think Your Honour has made that clear from

the bench of that situation and Mr Rizzuti has got
the interpreter and I will just clarify that he

understands that.	He indicates he does understand
that situation.

MASON CJ: And he is prepared to have the application made

in that situation?

MR CHURCHILL:  Yes.

MASON CJ: Yes, Mr Aldridge, what do you say?

MR ALDRIDGE:	My instructions are to oppose the application strenuously. Might I say, Your Honours, that I
first found out about this application when my
friend made it, notwithstanding that we have been here all day, and whilst perhaps my instructions
would not have changed, it would have perhaps
reduced the costs that might otherwise apply.

Could I hand to Your Honours a chronology

which is essentially a chronology of the judicial

proceedings in this matter, and Your Honours can

see from that chronology that this is an

application for leave to appeal from a decision of

the Full Court of the Federal Court in relation to

an application to set aside a bankruptcy notice.

The bankruptcy notice is based on a certificate of

taxation pursuant to an order of Master Monaghan in

the Supreme Court of New South Wales in July 1988.

Rizzuti 10/4/92

That application went up to the Court of

Appeal via Mr Justice Studdard and then to

Mr Justice Clarke in the Court of Appeal.	Then a
bankruptcy notice was issued.	The case was heard

before Mr Justice Gumrnow and then the Full Court of

the Federal Court. So, there have been two

appellate courts to consider essentially the

correctness of the decision of Master Monaghan.

The case raised by Mr Rizzuti is, as appears

from both the judgment of Mr Justice Gumrnow and the

Full Court, in my submission, a question of fact only; simply there being findings by

Mr Justice Gumrnow that there were not sufficient facts proven that would justify the Federal Court

seeking to go behind the judgment.

MASON CJ:  Yes. We are aware of what the Full Court held

and what Mr Justice Gumrnow found.

MR ALDRIDGE:  Thank you, Your Honour. So that we say that

the application for special leave is misconceived

in any event and that there is no question of law before the Court. So that it would be futile and

an undue burden to have to come back, even if there

were an order for costs.

Finally, Your Honours, pursuant to

non-compliance with the bankruptcy notice, a

bankruptcy petition was presented against

Mr Rizzuti and has been adjourned on a number of

occasions and is next before the court on 28 April. I am not sure what period of life that petition has but it cannot have a life of more than two years

from the date of presentation. I am unable to

assist Your Honours exactly, at this stage, how

much of potential life it has left.

MASON CJ: Yes, thank you, Mr Aldridge.	Mr Joseph?
MR JOSEPH:	If the Court pleases, we also oppose the

application, firstly, on the ground that the

special leave application is misconceived and

futile and, secondly, no evidence has been put

before the Court - I know my friend spoke of the

report; we have not seen a report; nothing has been

tendered to the Court in respect of any

psychological condition. A costs order would, in

any event, be no protection for my client, having

regard to the bankruptcy proceedings pending and

that if, in fact, there is a medical condition, it

has taken a long time in coming when one looks at

the history of the litigation which this gentleman

has been able to pursue without any representation

at any time, despite many requests - - -

Rizzuti	10/4/92
MASON CJ:	Not attended with much success, however,

Mr Joseph.

MR JOSEPH:	No, Your Honour, but despite the requests of the court to get representation, he has insisted to
this day not to have it.  Our submission is that
the case should proceed.
MASON CJ:	Mr Greenwood.

MR GREENWOOD:  Your Honour, we join in those submissions. I

was just seeking to count up the number of times

that I_have appeared against Mr Rizzuti in front of

different judges and I am up to about ten, where he

has appeared on each occasion unrepresented and in

many instances he has been advised of the need to

be represented. For him to come today at the last

moment and seek an adjournment on this basis, we

suggest, is an inappropriate way for the matter to

proceed.

MASON CJ: Yes, Mr Churchill.

MR CHURCHILL:  I apologise. I do have the medical

certificate and a press cutting in relation to

Mr Taoube.

MASON CJ:	You had better show them to your opponents.
MR CHURCHILL:	I tender those, the newspaper report and the

medical report.

MASON CJ:  I take it you do not mind the Court looking at

these documents.

MR ALDRIDGE:  Not for the purpose of this application,

Your Honour.

TOOHEY J:  Mr Churchill, if the Court were minded to grant

an adjournment and it was on condition that your

client meet the costs, one of the difficulties in

by which to meet the costs, all it really means is	those sort of orders is that if there is no means	that the respondents' own costs just keep building
up. It might be a different situation where you have an applicant who is well able to meet any
costs that are incurred by reason of an
adjournment.

MR CHURCHILL:  I appreciate that, Your Honour. The

situation really becomes that is a matter for the

Court to consider. I cannot really say to the

Court that a person - can assure the Court that

costs will ever be paid in a matter. That is the

problem the Court has got as a policy

consideration, as to whether or not it should be

imposing restrictions on litigants because of their

Rizzuti 6 10/4/92

financial capacity.	I cannot indicate otherwise,
Your Honour.

TOOHEY J: Thank you.

MASON CJ:  The Court will take a short adjournment to

consider the question.

AT 4.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.17 PM:

MASON CJ:  Mr Churchill, the Court is minded to grant an

adjournment to the next sittings in Sydney on the

footing that the case would come on peremptorily on

that date. But the Court is only minded to grant

that adjournment on the applicant giving an

assurance that he will be represented by legal

representation, counsel or solicitor, on that

occasion.

MR CHURCHILL:  I will obtain that assurance. That assurance

is given, Your Honour.

MASON CJ:	Mr Churchill, there are two other things that the applicant should understand. If he is not
represented by a legal representative on that
occasion, the applications will be dismissed forthwith, and that is on the footing that there
will not be exceptional circumstances existing that would entitle him to present the application
himself. And, of course, the other condition which
will be reflected in an order is that the applicant
will pay the respondents' costs of the proceedings
today.  Now, will you explain that to the
applicant.
MR CHURCHILL:	I will explain that to him.
MR JOSEPH:	I wonder if I could be heard just on that second

order the Court is considering.

MASON CJ: Costs?

MR JOSEPH:  No, the order about being represented on the

next occasion. I wonder if an affidavit should be

filed in the Court some weeks before the next

sittings stating the name of the representative so

that if there is none we do not need to attend on

the next occasion, and costs therefore might be

saved.

Rizzuti 10/4/92

MASON CJ: Yes, Mr Churchill.

MR CHURCHILL:  He understands about if he is not represented

it will be dismissed forthwith. He understands he

will have to pay the respondents' costs of today.

I am sorry I did not hear - - -

MASON CJ:  The application made by Mr Joseph was that the

applicant, or someone on his behalf, file an

affidavit, say, two weeks in advance of the next

special leave day in Sydney stating who it is that

has been instructed to appear on his behalf.	The
object of the filing of that affidavit, it is
suggested, is that in the event that such an

affidavit is not filed, then the respondents would

be at liberty not to appear themselves on the

hearing of these applications when listed because

they would be entitled to assume that the applicant

would not be represented and that the applications

would be dismissed forthwith.

MR CHURCHILL: That is a matter for the Court. I accept

what they are saying and I understand their needs

to have that. I could not really resist that, if

that is what the Court thought appropriate.

Your Honour, can it be by letter form as opposed to

affidavit?

MASON CJ:  Yes. You understand that what is contemplated is

that a letter will be sent to the solicitors for
the respondents in the three applications stating

the name of the legal representative who has been

instructed and will appear on the hearing of the

applications and that that letter is to be sent not less than 14 days before the next special leave day

in Sydney.

MR CHURCHILL:  I will explain that to him.

MASON CJ: Very well.

MR ALDRIDGE:

One further thing, Your Honours, if I might,

the question of whether Your Honours would be

prepared to make any directions about the filing of

any amended draft notices of appeal or affidavits

in support of the applications.

MASON CJ: It is a bit difficult to give directions about

that.

MR ALDRIDGE: If Your Honours please.

TOOHEY J: If the applicant is to be legally represented,

one would expect that there would be satisfactory

grounds of appeal.

Rizzuti	10/4/92
MR ALDRIDGE:	I just simply did not want it to arrive at the

last minute, that is all.

MASON CJ: Having regard to what you said about the case

earlier, Mr Aldridge, I cannot imagine that you

consider that you are going to be greatly troubled.

MR ALDRIDGE: Perhaps I will poison my appetite,

Your Honour.

MASON CJ: In the circumstances, the three applications will

stand adjourned to the next special leave day in

Sydney upon the applicant's assurance, through his

solicitor, that he will be legally represented on

that occasion.

The Court directs that the applicant, by

letter, indicate to the respondents' solicitors, on

or before 14 days prior to the next special leave

day in Sydney, the name of the legal representative

that he is instructing who will appear on the

hearing of the three applications on his behalf.

The Court orders the applicant to pay the

respondents' costs of the proceedings today.

MR CHURCHILL: If the Court pleases.

AT 4.26 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Rizzuti 9 10/4/92