Zollo v Commissioner for Consumer Affairs - [2023] SASCA 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2023] SASCA 72
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton)
29 June 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS
The applicant initiated proceedings alleging a press release published by the respondent was defamatory. Summary judgment was entered against the applicant and subsequently upheld on appeal to a District Court Judge. The applicant now seeks leave to appeal that decision.
Held per the Court refusing leave to appeal and dismissing the appeal:
1. The applicant has failed to identify an appealable error and the appeal is without merit.
Building Work Contractors Act 1995 (SA); Uniform Civil Rules 2020 (SA), referred to.
Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo [2019] SADC 66; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191; McDonald v Attorney-General for the state of South Australia [2022] SASCA 43; Zollo v Commissioner for Consumer Affairs [2022] SADC 126; Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118, considered.

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2023] SASCA 72
Court of Appeal – Civil: Lovell, Bleby JJA and Dalton AJA

THE COURT: In March 2015, prior to taking disciplinary proceedings against Mr Zollo (‘the applicant’), the Commissioner for Consumer Affairs (‘the respondent’) issued a press release on its website as follows:
The State’s consumer watchdog has suspended the licence of an Adelaide home builder’ Built It Pty Ltd, effective Wednesday 25 March 2015.
Commissioner for Consumer Affairs, Dini Soulio, is taking action against Built It Pty Ltd, because of concerns relating to the involvement of Alessandro Zollo.
“Zollo gave an undertaking to the District Court not to act as a director of a body corporate that is a building work contractor,” Mr Soulio said.
“However, information before me indicates that Zollo has been the director of Built It and has personally acted as a building work supervisor on at least five homes built by Built It.”
“I am of the view that the company has acted unlawfully, improperly or negligently by performing building work which was not properly supervised by an approved supervisor contrary to the Building Work Contractors Act 1995.”
“I have formed the view that unless this action is taken, it is likely that Built It will continue to engage in unlawful conduct and there is a danger that people may suffer significant harm, or significant loss or damage, as a result of the conduct.”
If anyone has any concerns in relation to their dealings with Built It Pty Ltd or Mr Alessandro Zollo, they should contact Consumer and Business Services on 131 882.
On 5 January 2017, and prior to the determination of the disciplinary proceedings, the applicant issued proceedings for defamation against the respondent alleging that he was defamed in the press…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zollo v Commissioner for Consumer Affairs

Details

AGLC: Zollo v Commissioner for Consumer Affairs [2023] SASCA 72
Case: [2023] SASCA 72
Decision Date

CaseChat Overview and Summary

The applicant, Mr Zollo, appealed a decision of the District Court of South Australia granting summary judgment against him in defamation proceedings he had initiated against the respondent, the Commissioner for Consumer Affairs. These defamation proceedings arose from a press release issued by the respondent concerning disciplinary proceedings brought against Mr Zollo and Built It Pty Ltd under the Building Work Contractors Act 1995 (SA).

The central legal issues before the court were whether the respondent was entitled to summary judgment in the defamation proceedings, and by extension, whether the applicant's defamation claim was an abuse of process or otherwise unsustainable. This required the court to consider the nature of the respondent's press release and its relationship to the findings made in the disciplinary proceedings.

The court reasoned that the disciplinary proceedings had established significant adverse findings against Mr Zollo, including breaches of an undertaking given to the District Court and deliberate subversion of the building licensing regime. The Primary Judge in the disciplinary proceedings had found that Mr Zollo was not a fit and proper person to be a director of a building work contractor due to his conduct. The court considered that the press release accurately reflected these findings and was therefore likely protected by qualified privilege, or that the defamation claim was otherwise without merit given the established facts. The court noted that Mr Zollo had not provided legal representation and had pursued the defamation proceedings despite the adverse findings against him.

The appeal was dismissed, with the court upholding the summary judgment granted in favour of the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 5 January 2017, and prior to the determination of the disciplinary proceedings, the applicant issued proceedings for defamation against the respondent alleging that he was defamed in the press release. The disciplinary proceedings did not, as they say, go well for the applicant; he lost comprehensively. Despite the adverse findings, the applicant continued to pursue his defamation proceedings. Eventually, the respondent was successful in obtaining summary judgment against the applicant in the proceedings. The applicant appeals that decision.Background The applicant does not have legal representation. Following the press release, on 23 September 2015, the respondent filed a complaint in the District Court against both Built It Pty Ltd (‘Built It’) and the applicant pursuant to s 22 of the Building Work Contractors Act 1995 (SA) (‘the Act’). The complaint (as ultimately amended) alleged six grounds upon which there was proper cause for disciplinary action. Grounds 1 to 5 related to Built It, as a body corporate, which was a building work contractor under the Act. Ground 6 related to the applicant on the basis he was a director of Built It at the time of the conduct the subject of grounds 1 to 5. After a trial the Primary Judge, on 24 May 2019, found there was proper cause for disciplinary action against Built It (the company) and that disciplinary action may be taken against the respondent because he was director of the company at the relevant times. The Primary Judge made the following findings:[1]·the company failed to provide a certificate of insurance in 2011 and 2012 to three consumers as required by s 34(b) of the Act;·the respondent acted improperly in the course of conducting the business of the company between November 2011 and March 2015 because he was acting in breach of an undertaking he gave to the District Court on 21 March 2000; and·the company would not have been entitled to be licensed as a building work contractor during the period from November 2011 to March 2015 because the respondent was not a fit and proper person to be a director of the company by reason of his breach of the undertaking.[1] Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo [2019] SADC 66. On 17 December 2019, when considering what disciplinary action to take against the applicant, the Primary Judge remarked:[2]The seriousness of the findings against [Mr Zollo] cannot be appreciated without regard to the history of the matter. On 25 February 1994, the former Commercial Tribunal delivered judgment in disciplinary proceedings against [Mr Zollo]. Fifteen breaches of the former legislation were found proven. The Tribunal found that proper cause existed for disciplinary action against [Mr Zollo] on the basis he ceased to be a fit and proper person to be licensed and registered under that Act.On 7 December 1994, the Tribunal cancelled his licence as a builder and his registration as a building work supervisor forthwith. He was also disqualified from being licensed or registered or both until further order.On 21 March 2000, the disqualification imposed by the Tribunal in 1994 was discharged upon [Mr Zollo] signing an undertaking that he would not act as a director of a body corporate which holds a building work contractors licence. The relaxation of the 1994 orders in March 2000 enabled [Mr Zollo] to apply to the Commissioner for a licence or registration under the Act. No application was received by the Commissioner.In 2009, [Mr Zollo] commenced proceedings in this court which were dismissed by Chief Judge Muecke. The Chief Judge found he had no jurisdiction to order the Commissioner to send an application to [Mr Zollo] to renew [his] licence. He made it clear there was no impediment to [Mr Zollo] applying to the Commissioner for a licence if he was so minded.Rather than making that application, [Mr Zollo] established [Built It Pty Ltd], a body corporate that was a building work contractor. Contrary to his undertaking in March 2000, I have found he operated as a director of the [company] between 2 November 2011 and 9 March 2015.[Mr Zollo’s] breach of his undertaking was not an accidental one; it was deliberate, calculated and continued for over three years. He procured others to be directors in name only to try and obscure the fact it was entirely his business. He used the title of ‘estimator’ and described himself during these proceedings as a mere employee in an unconvincing attempt to distance himself from his true role. In so doing, he deliberately and consciously sought to subvert both his undertaking to the court and the builders’ licensing regime.The disqualification imposed upon [Mr Zollo] in 1994 was for a protective purpose. The level of protection was relaxed to some degree in March 2000 upon [Mr Zollo] signing the undertaking. That opened the way for [Mr Zollo] to make an application in accordance with the regulatory regime. Instead of so doing, he flouted the system and tried to operate under the radar by evading the application process. [2] Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191 at [4]-[10].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.