Alessandro Zollo v Commissioner of Consumer Affairs No. SCGRG 94/435 Judgment No. 4789 Number of Pages 5 Appeal Right of Appeal Appeal from Commercial Tribunal

[1994] SASC 4789

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Appeal - right of appeal - appeal from commercial tribunal - Commercial Tribunal conducted an inquiry into a complaint by the Commissioner for Consumer Affairs alleging grounds for disciplinary action against the appellant, a builder licensed under the Builders Licensing Act - the Tribunal published findings in which it held that it was satisfied that proper cause existed for disciplinary action as to some but not all of the grounds of complaint - on publication of the findings, the Tribunal indicated that it would hear the parties later as to the penalty to be imposed - before the parties were heard as to penalty, the appellant lodged an appeal to the Supreme Court against the published findings - on a preliminary objection to the competency of the appeal, held that the published findings did not constitute a 'decision' within the meaning of the relevant section of the Commercial Tribunal Act providing for appeals to the Supreme Court, and the appeal was accordingly incompetent - order that appeal be struck out. BuildersLicensing Act 1986 s19; Commercial Tribunal Act 1982 ss20 and 21 and Supreme Court Rules R 95.08, R 97.07 and R 97.04A(5). Australian Broadcasting Tribunal v Bond and Ors (1990) 94 ALR 11; Mobitel (International) Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288 and Harrington v Harrington (1979) 22 SASR 449, considered.

HRNG ADELAIDE, 4 October 1994 #DATE 4:10:1994

Counsel for appellant:     Mr J A Crocker

Solicitors for appellant:    Ward and Partners

Counsel for respondent:     Mr A D Wainwright

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal struck out.

JUDGE1 PERRY J The appellant is the holder of a category 2 builder's licence and is registered as a category 2 building work supervisor under the BuildersLicensing Act 1986. By complaint dated 29 November 1991, made pursuant to s.19(3) of the Builders Licensing Act, the Commissioner for Consumer Affairs set out alleged grounds for disciplinary action against the appellant, particularised in 15 counts.

2. Pursuant to s.19(1) of the Builders Licensing Act, the Commercial Tribunal established under the Commercial Tribunal Act 1982, held an inquiry for the purposes of determining whether proper cause existed for disciplinary action against the appellant, having regard to the matters set out in the complaint. The hearing of the inquiry extended over a number of days in the months of May and August 1992 and March 1993. Following that hearing, on 25 February 1994 the Tribunal delivered findings expressed in reasons extending over some 24 pages, the last paragraph of which reads:
"The Tribunal having conducted an inquiry under s.19 of the
    Builders Licensing Act, is satisfied that proper cause
    exists for disciplinary action and refers the matter back to
    the parties for submissions on the question of penalty."

3. As to penalty, s.19(6) of the Builders Licensing Act provides:
    "If, after conducting an inquiry under this section, the
    Tribunal is satisfied that proper cause exists for
    disciplinary action, the Tribunal may exercise one or more
    of the following powers:
    (a) it may reprimand the respondent;
    (b) it may impose a fine not exceeding $5,000 on the
    respondent;
    (c) where the respondent is licensed or registered, it may-
     (i) reduce the respondent's licence or registration, or
     both, to a more limited category;
     (ii) attach conditions or further conditions to the
     respondent's licence or registration;
     (iii) suspend the respondent's licence or registration, or
     both, for a specified period or until the fulfilment of
     stipulated conditions or until further order; or
     (iv) cancel the respondent's licence or registration, or
     both;
    (d) it may disqualify the respondent permanently, for a
    specified period, until the fulfilment of stipulated
    conditions, or until further order, from being licensed or
    registered, or both, under this Act;
    (e) where the respondent is a building consultant or former
    building consultant - it may make an order prohibiting the
    respondent from carrying on business as a building
    consultant permanently, for a specified period, until the
    fulfilment of stipulated conditions, except in accordance
    with stipulated conditions, or until further order."

4. S.20 of the Commercial Tribunal Act gives a right of appeal to the Supreme Court on the part of a party who is dissatisfied with a decision or order of the Tribunal. The appeal lies as of right if it involves a question of law, but otherwise it lies only by leave of the Tribunal or of the Supreme Court.

5. On 25 March 1994, before the Tribunal had heard the parties on the question of penalty, the appellant lodged a notice of the appeal to this Court against what is described in the notice as the "judgment" of the Commercial Tribunal made on 25 February 1994.

6. The notice then sets out some 10 grounds of appeal. Most of the grounds assert that the Tribunal "erred in law and in fact" in making various findings which are challenged in the notice.

7. The notice of appeal was filed without leave either of the Tribunal or of this Court.

8. The respondent to the appeal, that is to say, the Commissioner for Consumer Affairs, argues the appeal on a preliminary point, namely, that it is incompetent. The respondent did not bring a written application to strike out the appeal as incompetent pursuant to Rule 95.08 (and see Rule 97.07) but sought to be heard on an oral application for an order dismissing the appeal as incompetent pursuant to that rule. No objection was taken by Mr Crocker, counsel for the appellant, to the respondent's application for the appeal to be struck out proceeding in that way.

9. The basis upon which the argument proceeded is that the findings of the Commercial Tribunal which found expression in the reasons handed down on 25 February 1994, do not constitute either a "decision" or an "order" within the meaning of those words in s.21 of the Commercial Tribunal Act, and accordingly, the purported appeal is premature and for that reason incompetent.

10. The respondent contends that the matter should be allowed to proceed before the Commercial Tribunal to the point at which that Tribunal exercises one or other of the disciplinary powers set out in s.19(6), and that only after the Tribunal has taken that step would there be an appealable decision or order.

11. Notwithstanding the use of the expression "the judgment" in the purported notice of appeal, Mr Crocker did not contend that the findings appealed from constituted either a "judgment" or an "order". Rather, he contended that they constituted a "decision" within the meaning of that word in s.21 of the Commercial Tribunal Act, and the decision was, therefore, appealable notwithstanding that the Tribunal has yet to discipline the appellant.

12. The question of the meaning of the word "decision" in a context such as this can pose some difficulties. The word has a "variety of potential meanings": see Australian Broadcasting Tribunal v Bond and Ors (1990) 94 ALR
11 per Mason CJ at 22.

13. I have been referred to a number of authorities in which the word "decision" has been interpreted, including Mobitel (International) Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288, and Harrington v Harrington (1979) 22 SASR 449.

14. While assistance may be gained from authorities such as those, ultimately the meaning to be attached to the word, for present purposes, must have regard to its context in the Commercial Tribunal Act, bearing in mind also the processes to be followed by the Tribunal when holding an inquiry under s.19 of the Builders Licensing Act.

15. Mr Crocker has drawn attention to various expressions used by the Tribunal during the course of the reasons which it has published. For example, the Tribunal (10):
    "... finds Count 1 to be proved by the standard of proof
    necessary in disciplinary proceedings."

16. It found (11):
    "The standard of proof to be applied is proof on the civil
    standard at the higher end of the scale."

17. It "dismissed" count 7 (12). It indicated the basis for a ruling (13) as to its receipt in evidence of the transcript of other proceedings described as the Honan matter. It found (24):
    "The respondent has ceased to be a fit and proper person to
    be registered under (s.19) of the said Act."

18. It is true that passages such as those to which I have just referred indicate that the Tribunal has made certain findings as to the various counts in the complaint, but the process which the Tribunal was following cannot be equated, for example, with the hearing of a complaint or information by a Court. Although a "complaint" was lodged with the Tribunal which contained various "counts", and although the Tribunal was obliged to address its mind to those counts, representing as they did a convenient structure within which the inquiry proceeded, it was strictly not necessarily part of its function to find various "counts" proved or not. The only conclusion which the Tribunal was entitled in law to reach was that postulated by s.19(6) of the BuildersLicensing Act, that is, a conclusion as to whether or not it was "satisfied that proper cause exists for disciplinary action".

19. Mr Crocker put his argument on the footing that the Tribunal should ask itself the question whether it was so satisfied, and that the answer should be categorised as a "decision" for the purpose of founding a right of appeal under s.20 of the Commercial Tribunal Act. In my opinion, ingenious though that submission is, it does not represent the correct manner in which the process followed by the Tribunal should be understood. It represents a gloss on the words of s.19(6).

20. All that the Tribunal is entitled to do is to reach a view as to whether or not it is satisfied that proper cause exists for disciplinary action. If it is so satisfied, it must go on to exercise one of the disciplinary powers identified in s.19(6). In my opinion, all that the Commercial Tribunal has so far done is to reach a state of satisfaction that proper cause exists for disciplinary action. Short of any exercise of its power to discipline the appellant the fact that it has reached that state of satisfaction is not evidence of a decision which may be made the subject of an appeal under s.20 of the Commercial Tribunal Act. Mr Zollo's rights have not, so far, been affected.

21. It does not matter that the Commercial Tribunal described its findings as a "decision". Nor does it matter, in my view, that the Tribunal "found" various counts proved. That was only a convenient way of identifying the process by which it reached the state of satisfaction referred to in s.19(6) of the Builders Licensing Act.

22. In my opinion, the preliminary objection taken by the respondent to the competency of the appeal is sound.

23. It is unnecessary, in those circumstances, to determine the question whether or not, having regard to the fact that the grounds asserted in the purported Magistrate's appeal include a reference to questions of fact, the appeal is otherwise incompetent having been brought without leave: (see Rule 97.04A(5)).

24. I order that the purported notice of appeal dated 25 March 1994 be struck out as incompetent.