Zollo v Commissioner for Consumer Affairs (No 2)

[2023] SASCA 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS (No 2)

[2023] SASCA 96

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton)

13 September 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

This Court refused the applicant's application for leave to appeal against the decision of a District Court Judge to uphold summary judgment. The respondent seeks an order that the applicant pay the respondent's costs of the appeal on a standard basis.

Held, per the Court, granting the application:

1.      There is no reason to depart from the usual approach that costs follow the event.

2. The appellant is to pay the respondent's costs of the appeal on the standard basis, such costs to be agreed or taxed.

Zollo v Commissioner for Consumer Affairs [2023] SASCA 72, considered.

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS (No 2)
[2023] SASCA 96

Court of Appeal – Civil: Lovell, Bleby JJA and Dalton AJA

1. THE COURT: On 29 June 2023, this Court dismissed the applicant’s application for leave to appeal.[1] The respondent sought an order that the applicant pay the respondent’s costs on a standard basis. Given the applicant was unrepresented, he was granted leave to file further written submissions on the question of costs.

   [1]     Zollo v Commissioner for Consumer Affairs [2023] SASCA 72.

2. The Court received the applicant’s written submissions in the form of an affidavit filed 11 July 2023 and a reply to the respondent’s written submissions on the question of costs filed 12 July 2023. The applicant submitted that the Court’s judgment was wrong and set out the reasons why he considered the judgment to be wrong. The applicant, as he did on the appeal, asserted that the findings of the primary Judge were wrong. The applicant sought an order deferring the question of costs until the “fresh evidence” was considered. None of the matters raised amount to “fresh evidence”. The applicant simply seeks to reagitate the same factual matters.

3. The Court has an unfettered discretion in relation to costs. Costs usually follow the event unless there are reasons to depart from the standard practice. The respondent was successful on the application for leave, which this Court found to be without merit. There is no reason to depart from the standard practice.

   Orders

4. The applicant is to pay the respondent’s costs in relation to the application on a standard costs basis, such costs to be agreed or taxed.