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

1. 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.

2. 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

3. The applicant does not have legal representation.

4. 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.

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.

6. 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].

7. The Primary Judge later observed:[3]

   [3] Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191 at [17]-[19].

   [Mr Zollo] has demonstrated a determined willingness to act in contravention of his undertaking and the builders’ licensing scheme. He has failed to accept responsibility for his actions. [Mr Zollo’s] past actions and ongoing dismissive attitude to the protective regime tells me he is highly unlikely to accept and obey any conditions of a licence should he be permitted to reapply. He has demonstrated no contrition, remorse or insight into his conduct. His actions following the relaxing of the 1994 orders show that trust in him was misplaced. It would defeat the protective scheme of the Act if the [Mr Zollo] were not permanently prohibited from operating within the building industry.

   I am satisfied that there is a need for comprehensive orders prohibiting him from working in the building industry again. In light of the permanent nature of the prohibition orders, I do not consider it necessary to impose a fine.

   I make the following orders:

   1. [Mr Zollo]is permanently disqualified from being licensed or registered under the Act pursuant to s 25(1)(d);

   2. [Mr Zollo] is permanently prohibited from being employed or otherwise engaged in the business of a building work contractor pursuant to s 25(e) of the Act;

   3. [Mr Zollo] is permanently prohibited from being a director of a body corporate that is a building work contractor pursuant to s 25(f) of the Act;

   4. [Mr Zollo] is permanently prohibited from carrying on business as a building consultant pursuant to s 25(g) of the Act;

   5. [Mr Zollo]is permanently prohibited from being employed or otherwise engaged in the business of a building consultant pursuant to s 25(h) of the Act; and

   6. [Mr Zollo] is permanently prohibited from being a director of a body corporate that is a building consultant.

8. The applicant appealed the Primary Judge’s judgment. The Full Court dismissed his appeal, expressly finding that there was no proper basis to interfere with the Primary Judge’s findings of fact.[4]

   [4] Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118 at [32].

9. Returning to the defamation proceedings, after receiving the initial Statement of Claim alleging defamation, the respondent applied to the court to have the Statement of Claim struck out. On 12 April 2017, the respondent was successful in that application. At this time, the disciplinary proceedings had not been determined. The applicant was granted leave to file a Revised Statement of Claim. On 8 June 2021, after the disciplinary proceedings had been finalised, the Revised Statement of Claim suffered a similar fate as the initial pleading but leave was again granted to the applicant to file another Revised Statement of Claim. The respondent filed a defence to his Revised Statement of Claim on 15 July 2021. On 22 September 2021, the respondent applied for summary judgment,[5] or, in the alternative, that the action be dismissed as it did not disclose a reasonable cause of action or that a reasonable cause of action was not capable of being disclosed. On 2 February 2022, the application was heard by District Court Master Roder.

   [5] Uniform Civil Rules 2020 r 144.2(2).

10. Master Roder observed that the applicant was unrepresented and his Statement of Claim was “far from a perfect model of pleadings”. Nonetheless, Master Roder, having analysed the pleadings, found that the applicant pleaded two imputations:

    1.      the applicant is dishonest; and

    2.      the applicant has committed offences of a criminal nature.

11. The respondent submitted that the Primary Judge’s findings in the disciplinary proceedings established that every statement in the press release and both of the imputations identified were true, or at least, in the case of the imputations, substantially true.

12. Master Roder conducted a careful analysis of the statements alleged to be defamatory and found that the imputations he had identified as arising from the pleadings were, on the findings of the Primary Judge, substantially true.

13. Prior to making his decision he asked the applicant if there were any other imputations arising from his Statement of Claim or the press release. The applicant submitted that the press release stated that he was a building work supervisor when he wasn’t. Master Roder found that such an imputation was not open on a proper reading of the press release.

14. Master Roder stated that it was inevitable, given the findings in the disciplinary proceedings, that had been upheld on appeal, that the defence of justification will succeed.  Master Roder was not satisfied that there was a reasonable basis for proceeding with the claim and he, therefore, entered summary judgment against the applicant.

15. The applicant appealed this decision. The appeal was heard by Judge Bochner sitting as a District Court Judge. On 25 October 2022, Judge Bochner dismissed the applicant’s appeal. She observed:[6]

    In both his oral and written submissions, the appellant sought to challenge the findings made in the Chapman judgments. He reiterated a number of the issues that he raised in that action, and which had not been accepted by Judge Chapman. He continued to assert facts which he had asserted at trial, and in respect of which adverse findings had been made. These included his contention that he had been an employee of a company and had not been performing any building work, that any undertaking that he may have given was invalid, and that Judge Chapman incorrectly found that he was a director of a building company at particular times. It was difficult, if not impossible to discern any submissions which related to an error on the part of the Master, save that the appellant disagreed with his decision to grant summary judgment in favour of the respondent.

    [6] Zollo v Commissioner for Consumer Affairs [2022] SADC 126 at [4].

16. Judge Bochner found that she was unable to determine in either the applicant’s Notice of Appeal or his submissions any specific criticism of Master Roder’s reasoning. She found that the applicant simply argued that Master Roder was wrong because the Primary Judge’s findings were wrong. Judge Bochner could not discern any error in Master Roder’s reasoning and therefore dismissed the appeal.

17. The applicant then appealed against Judge Bochner’s decision to this Court. While the proper forum for the appeal was to a single judge of the Supreme Court, the respondent submitted that, given the applicant’s “propensity to appeal” this Court should exercise the power in r 212.3(f) of the Uniform Civil Rules 2020 (‘UCR’) to exercise the appellate jurisdiction of the Supreme Court. In the circumstances we accept that submission. We note that, irrespective of the proper forum, as an appeal from an appeal decision, the applicant requires leave to appeal pursuant to r 213.1 of the UCR.

    Grounds of Appeal

18. The applicant’s appeal grounds are unclear. They simply challenge the findings of the Primary Judge from the disciplinary proceedings. They do not identify any relevant ground of appeal from Judge Bochner other than that the applicant disagrees with her decision.

19. The applicant in his written and oral submissions ignored, almost entirely, the grounds of appeal. Instead, the applicant argued a matter not argued before Judge Bochner, namely, the Primary Judge did not make a finding that he acted as a building work supervisor and that the press release, which accused him of doing so, was therefore defamatory.  As this was the only matter argued before this Court we deal with it as best we understand it.

    Applicant’s submissions

20. The respondent’s press release states that the applicant “acted as a building work supervisor” on at least five homes. The applicant submitted that he was only an employee not a building work supervisor. The applicant submitted in Court, as he did before the Primary Judge, that he was only an ‘estimator’ for the company, nothing more. Further, as far as we understood his argument, the company had an appointed building work supervisor.

21. The applicant submitted that Master Roder and then Judge Bochner erred in relying on the judgments of the Primary Judge to determine whether he was in fact acting as a building work supervisor. He submitted there was no evidence before the Primary Judge or on any of the appeals that he acted as a building work supervisor. The applicant further submitted that he had not acted as a building work supervisor as set out in the Act; as he was not registered pursuant to the Act he could not be considered a building work supervisor.

    Respondent’s submissions

22. The respondent submitted that leave to appeal should not be granted. The applicant, despite five revisions of his Statement of Claim, had not pleaded a defamatory imputation alleging he acted as a building work supervisor arose from the press release. Rather, he raised that imputation orally in submissions before  Master Roder. Master Roder mentioned the issue of supervision but did not deal with that imputation as he found that it was not open given the terms of the press release.

23. The respondent accepted that the press release does in fact state that the applicant was acting as a building work supervisor and to that extent Master Roder could be said to be incorrect in his observation. However, the applicant’s pleadings before Master Roder did not allege that acting as a building work supervisor carried some defamatory implication and therefore Master Roder’s comment must be seen as observing that no defamatory meaning arises from the press release mentioning that the applicant worked as a building work supervisor. We note that before this Court the pleadings still do not specifically make such an allegation.

24. The respondent submitted that the facts found by the Primary Judge, when considering whether the applicant was acting as a director, wholly overlap with the matters agitated in the defamation proceedings. The Primary Judge specifically rejected the applicant’s evidence that his only role was that of an estimator. The respondent accepted that the Primary Judge made no specific finding that the applicant acted as a building work supervisor but what she found about the work performed by the applicant made it plain that he was so acting. So much can be seen from the evidence of the various witnesses whose evidence she accepted and her finding that the applicant acted in the position of director of the company with respect to contracts (including the performance of building work performed under such contracts). Nonetheless, as the complaint was drafted it was not necessary for the Primary Judge to make specific findings as to whether the applicant acted as a building work supervisor.

25. The respondent, in any event, submitted that the alleged imputation was of little moment in comparison to the imputations that the applicant was dishonest and committed a criminal offence. Whether the applicant worked as a building work supervisor is of little significance and he would suffer no substantial injustice if the merit of that imputation was not considered.

26. The respondent submitted that no error had been demonstrated, there is no question of principle or importance to be determined and, further, there is no sufficient doubt in factual findings to warrant reconsideration.

    Discussion

27. It is clear from the grounds of appeal and the applicant’s submissions that he seeks to reagitate the findings of the Primary Judge in the disciplinary proceedings. He has not identified an error in Judge Bochner’s decision nor does he attempt to do so.

1. We generally accept the respondent’s submissions. To the extent that the applicant now raises that a defamatory imputation arises from the press release referring to him doing the work of a building work supervisor we reject his arguments. First, the evidence before the Primary Judge established that he did work as a building work supervisor and her findings, while not specific, encompass that fact. That is, the evidence before the Primary Judge and her findings establish that the fact is substantially true. Secondly, he has not pleaded such an allegation. Thirdly, even if the allegation could be made out in some unspecified way, such an imputation must be subsidiary to the two imputations which he has pleaded but which have been found to be substantially true. In our view, the appeal is without merit.

2. Leave to appeal is required before the merits of the appeal can be considered. In considering whether to grant leave to appeal, the Court acts in the interests of justice, having regard to whether the decision sought to be challenged is attended by sufficient doubt to warrant its reconsideration on appeal; whether allowing the decision to stand would work a substantial injustice to the applicant; and whether the proposed appeal raises an issue of principle or general importance.[7]

   [7] McDonald v Attorney-General for the state of South Australia [2022] SASCA 43 at [21].

3. None of these factors have been established. We would refuse leave to appeal.

   Orders

   1.Pursuant to rule 212.3(1)(f) of the Uniform Civil Rules 2020, the applicant’s appeal to a single Judge is referred to the Court of Appeal.

   2.     Leave to appeal is refused and the appeal is dismissed.