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…

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.

Keep reading for free

Create a free CaseChat account to read Zollo v Commissioner for Consumer Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] SASCFC 39
Decision Date: 21 May 2020

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Zollo and the Commissioner for Consumer Affairs, heard by the Full Court of the Supreme Court of South Australia. Built It Pty Ltd was also named as an appellant, however, the Court noted that as the company was in liquidation, Mr Zollo lacked the authority to bring proceedings in its name, and it should not have been named as an appellant.

The Court was required to determine whether an appeal lay as of right in respect of certain grounds of appeal, and whether permission to appeal should be granted for the remaining grounds. This involved distinguishing between questions of law and questions of fact for the purposes of establishing a right of appeal.

The Court noted that ground of appeal 1 had been abandoned. It further determined that an appeal lay as of right in respect of grounds of appeal 2 and 9, based on the first sentence of the relevant legislation. For the remaining proposed grounds of appeal, the Court refused permission to appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.