Zollo v Commissioner for Consumer Affairs (No 2)

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

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.
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.
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
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.

The parties to this matter were Zollo and the Commissioner for Consumer Affairs. The dispute concerned an appeal from a decision of the Magistrates Court, and the appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether it possessed the power to make an order for costs against the Commissioner for Consumer Affairs in circumstances where the Commissioner had been unsuccessful in an appeal.

The Court considered the operation of section 17 of the *Administrative Appeals Tribunal Act 1975* (Cth) and its application to appeals from the Magistrates Court to the Supreme Court. It was held that the Supreme Court, when exercising its appellate jurisdiction in such matters, was not bound by the usual practice of not awarding costs against a statutory body appearing in its public capacity. The Court reasoned that the Commissioner, in this instance, was acting as a party to the litigation and was subject to the general rules regarding costs.

The Full Court ultimately ordered that the Commissioner for Consumer Affairs pay the costs of Zollo in relation to the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established