Zollo v Commissioner for Consumer Affairs - [2020] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2020] SASCFC 39
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)
21 May 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - WHAT IS - DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT
Application for permission to appeal against decisions made by a Judge sitting in the Administrative and Disciplinary Division of the District Court of South Australia.
The appellant’s final Notice of Appeal included nine grounds of appeal (the first of which was abandoned).
Held, per the Court:
1. An appeal lies as of right in respect of ground of appeal 2 and the first sentence of ground of appeal 9.
2. Permission to appeal is refused in respect of the balance of the proposed grounds of appeal.
Building Work Contractors Act 1995 (SA) ss 21(4), 22, 34(b); Corporations Act 2001 (Cth) s 471(B); District Court Act 1991 (SA) s 43(3), referred to.

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2020] SASCFC 39
Full Court: Peek, Lovell and Doyle JJ

THE COURT: This is an application by Alessandro Zollo for permission to appeal against decisions made by her Honour Judge Chapman on 24 May 2019 and 17 December 2019, sitting in the Administrative and Disciplinary Division of the District Court of South Australia.
On 23 September 2015, the Commissioner for Consumer Affairs (the respondent) filed a complaint against both Built It Pty Ltd and Mr Zollo 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 were against Built It, as a body corporate which was a building work contractor under the Act. Ground 6 was against Mr Zollo on the basis he was a director of Built It at the time of the conduct the subject of grounds 1 to 5.
On 22 November 2017, a liquidator was appointed to Built It, resulting in the proceedings against Built It (that is, grounds 1 to 5 of the complaint) being stayed by operation of s 471B of the Corporations Act 2001 (Cth).
The trial of the complaint proceeded against Mr Zollo only, and hence only on ground 6. However, as ground 6 alleged responsibility on the part of Mr Zollo for the alleged conduct of Built It under grounds 1 to 5, the evidence adduced by the Commissioner for Consumer Affairs addressed the conduct the subject of those other grounds.
The trial commenced in March 2018, and took place over a number of days spread between March 2018 and November 2018. Mr Zollo made various applications to adjourn the trial, some of which resulted in short adjournments, but which were otherwise rejected by the Judge. While Mr Zollo attended some parts of the trial, and indeed was represented by counsel on occasions, he declined to attend significant portions of the trial. He objected to the complaint proceeding against him in circumstances where grounds 1 to 5 were stayed, but the Judge overruled this objection.
On 24 May 2019, the Judge found that there was proper cause for disciplinary action against Mr Zollo, and that disciplinary action may be taken against him because he was a director of Built It at the relevant times. In particular, the Judge made findings that Built It failed to provide a certificate of insurance for work performed for three consumers between 2011 and 2014 (contrary to s 34(b) of the Act); that Mr Zollo acted improperly in the course of conducting the business of Built It between November 2011 and March 2015 because he was acting in breach of an undertaking he gave to the Court on 21 March 2000; and that Built It would not have been entitled to be licensed as a building work contractor during the period from November 2011 to March 2015 because Mr Zollo was not a fit and proper person to be a director of the company by reason of his breach of the undertaking.
On 17 December 2019, the Judge made orders permanently disqualifying and prohibiting Mr Zollo from being licensed or registered under the Act; from being a director of, or employed by, or otherwise engaged in the business of, a building work contractor under the Act; and from being a director of, or employed by, or otherwise engaged in the business of, a building consultant under the Act.
Mr Zollo filed a Notice of Appeal on 17 June 2019. He subsequently amended his grounds of appeal following the Judge’s decision of 17 December 2019. In his revised Notice of Appeal dated 23 March 2020, Mr Zollo included nine grounds of appeal, alleging that the Judge erred in the following ways:
1.   Erred in law in refusing to grant an adjournment of the trial and ordering the trial to proceed exparte (paragraphs 18, 19 and 22);
2. Erred in law in ruling that the commissioner may proceed against the second respondent as a director of the first respondent even though the proceedings against the first respondent are stayed contrary to the law of s 471B Corporations Act 2001 (Cth) requiring permission of the Full Court of the Supreme Court of South Australia to proceed with the Disciplinary Proceeding.
(paragraph 40); Transcript page 352 – lines 12 to 15);
3.   Erred in law that she did not accept Mr Zollo’s evidence that he had not signed the undertaking in March 2000 (Judgment 24.5.2019 – paragraph 91);
4.   Erred in law that in 2010 Mr Zollo was well aware that he had signed the undertaking not to be a director (Judgment 24.5.2019 – paragraph 169);
5.   Erred in law that Mr Zollo was registered as a director or acting as a de facto director during the period alleged in grounds 1-5 (Judgment 24.5.2019 – paragraph 175);
6.   Erred in law that there is proper cause for disciplinary action against the first respondent in regards to grounds 1-5 (Judgment 24.5.2019 – paragraph 176);
7.   Erred in law that ground 6 is proven is erroneous on the basis of reasons set out in Items 1 to 6 and 8 to 9 herein (Judgment 24.5.2019 – paragraph 177).
8.   FINAL GROUNDS OF APPEAL:
(i)The Learned Judge erred in law in that the commissioner may proceed against the second respondent as a director of the first respondent contrary to the law by s 471B Corporations Act 2001 (Cth) (paragraph 40);
(Transcript Ruling page 352 – Judgment of HH Judge Chapman page 2, Paragraph 9, 10)
(ii)(a)     The Learned Judge erred in not taking into consideration of the Commissioner failing or refusing to give reasons for cancelling the Appellant’s Builders & Supervisor’s Licences in 1997 as required according to Rule 10 – Appeals (3) & (4) also s 3A-19 (7), (8), (9) of the Builders Work Contractors Act 1995; (Transcript pages 398-399)
(b)as a result of (a) herein the Appellant was therefore prevented from instituting an appeal as his right pursuant to Rule 10 – Appeals (3) & (4), and s 3A-19A (7), (8) (9) of the Builders Work Contractors Act 1995. As a consequence of the above the Appellant engaged a Solicitor to make an Application to the District Court of South Australia. A Crown Law Officer prepared a document referred to as “Undertaking” sight unseen by the Appellant. The Crown Law Officer and the Appellant’s Solicitor handed it to Judge Lee of the District Court on 21 March 2000. The Appellant was not in attendance in any of the subsequent Court hearings of the Application.
(Ground 4 page 1 paragraph 5, 6 of HH Judge Chapman Judgment)
9.    The Judge erred in imposing the sanction against the Appellant as excessive and extremely repressive to the Appellant Mr Zollo. The Appellant has been penalised by the Commissioner causing grave hardship since 1997 when his Building Work Contractors Licence and Builders Supervisors Licence were cancelled by the Commissioner.
The first ground was struck through, indicating it had been abandoned, however Mr Zollo wishes to pursue the balance of the grounds.
Under s 43(3) of the District Court Act 1991 (SA), in the case of an appeal against a final judgment of the District Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact. An appeal otherwise lies as of right.
It is convenient to address each of the grounds of appeal separately.
As mentioned, ground of appeal 1 has been abandoned.
Ground of appeal 2 is accurately characterised as raising a question of law; namely whether the Judge erred in law in holding that the Commissioner may proceed against Mr Zollo as a director of Built It despite the proceedings against Built It being stayed by reason of it being placed into liquidation and the operation of s 471B of the Corporations Act. As the Judge correctly identified in her reasons this issue turns upon the proper construction of the provision of Part 4 of the Act, and in particular s 21(4). The issue being one raising a question of law, an appeal lies as of right in respect of this ground.
Ground of appeal 3, despite being described by Mr Zollo as a question of law, turns on a question of fact. It is no more than a challenge to the Judge’s rejection of Mr Zollo’s evidence that he did not sign an undertaking in March 2000, and finding (on the basis of other evidence) that he did sign it. Mr Zollo’s submissions in support of this ground of appeal do not directly engage with her Honour’s reasons for this finding. In any event, they do not provide an arguable basis for impugning that finding. No basis for a grant of permission in respect of this ground of appeal has been established.
Ground of appeal 4 also turns on a question of fact. For much the same reasons as the previous ground, permission to appeal in respect of this ground of appeal should be refused.
Ground of appeal 5 challenges the Judge’s finding that Mr Zollo was a director of Built It for the purposes of the Act because he was a registered director or acting as a de facto director during the period of the conduct alleged in respect of grounds 1 to 5 of the complaint. The submissions in support of this ground appear to acknowledge that Mr Zollo was registered as a director for part of the relevant period, but then address matters related to the undertaking that the Judge found he gave. The submissions do not provide any basis for challenging the Judge’s finding the subject of this ground. No basis for a grant of permission has been established.
Ground of appeal 6 purports to challenge a conclusion that there is proper cause for disciplinary action against Built It in relation to grounds 1 to 5 of the complaint. This conclusion was a step in the Judge’s ultimate conclusion that because Mr Zollo was a director of Built It at the relevant times, there was proper cause for disciplinary action against him in respect of that conduct. Mr Zollo’s submissions in support of this ground state merely “I am informed and verily believe I do not have authority to speak for [Built It]”, referring to the fact it is in liquidation. To the extent that this ground of appeal is pressed, there is no identification of any question of law, and any question of fact sought to be raised has not been identified or established to have the threshold level of merit. Permission to appeal is refused in respect of this ground of appeal.
Ground of appeal 7 is a rolled up ground. While expressed as a challenge to the Judge’s conclusion in relation to ground 6 of the complaint, it is ultimately no more than a repetition of the balance of the grounds in the notice of appeal. It does not identify any additional issue that could properly be the subject of an appeal as of right. To the extent it is intended as a repetition of other grounds raising questions of fact, there is no basis for a grant of permission. It is appropriate to refuse permission to appeal on this ground.
Ground of appeal 8(i) is a repetition of ground of appeal 2, and so should be struck out. As to the ground of appeal 8(ii), the point sought to be made, and its relevance, is difficult to understand. It appears to raise a question of fact, the relevance and merit of which has not been established. Permission to appeal on that ground is refused.
Finally, ground of appeal 9 is a challenge to the penalty imposed by the Judge. The first sentence of that ground of appeal in effect alleges that the penalty was manifestly excessive. As this involves consideration of whether the penalty is legally unreasonable, an appeal lies as of right. However, that appeal is to be confined to the first sentence of ground 9. The second sentence of ground 9 appears to raise a factual matter that we do not consider should be the subject of a grant of permission to appeal.
Other matters
We note that Mr Zollo has brought an application for an extension of the time within which to appeal. This is a matter that can be addressed by the Full Court on the hearing of the appeal.
We also note that Built It Pty Ltd has been named as an appellant. As Mr Zollo now appears to acknowledge, as that company is in liquidation, he does not have the authority to bring proceedings in its name. It should not be named as an appellant.
Conclusion
For the reasons set out, the Court having noted that ground of appeal 1 has been abandoned, and that an appeal lies as of right in respect of grounds of appeal 2 and 9 (first sentence), permission to appeal is refused in respect of the balance of the proposed grounds of appeal.