Zollo v The Commissioner for Consumer Affairs
[2022] SASCA 32
•6 April 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ZOLLO v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2022] SASCA 32
Judgment of the Honourable President Livesey (ex tempore)
6 April 2022
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS - TO LOWER COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
By an amended Notice of Appeal dated 22 March 2022, the applicant sought to appeal against a decision of an auxiliary Master of the District Court.
By interlocutory application dated 25 March 2022, the respondent sought summary dismissal, or alternatively, striking out of the appeal, contending that the Notice of Appeal was materially deficient and that any appeal lay to a District Court judge. In the further alternative, the respondent invited the Court of Appeal to exercise its power in s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and determine the appeal as if the Court was sitting as a District Court judge.
Held (per Livesey P):
1.The Judge was sitting as a Master of the District Court. By s 43(2)(a) of the District Court Act 1991 (SA) the appeal therefore lies to a District Court judge and not to the Court of Appeal.
2. The appeal is transferred to the District Court.
3. The hearing on 29 April 2022 in the Court of Appeal callover is vacated.
4. The costs of the hearing and application are costs in the cause.
Building Work Contractors Act 1995 (SA); District Court Act 1991 (SA) ss 24(1)(b), 43(2)(a); Evidence Act 1929 (SA) s 35(d); Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5(1), referred to.
Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191, considered.
ZOLLO v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2022] SASCA 32
Court of Appeal: Civil – Livesey P
The appeal
By an amended Notice of Appeal dated 22 March 2022, the applicant appeals against a decision of Auxiliary Judge Roder dated 2 February 2022 to the Court of Appeal. I will return to whether that description of his Honour is an appropriate one. By that decision the Judge gave summary judgment against the applicant and dismissed the action in defamation which had been based on a media release published by the respondent on 27 March 2015.
The application
By an interlocutory application dated 25 March 2022, the respondent seeks summary dismissal, or alternatively, striking-out of the appeal. As a further alternative, the respondent invites the Court to exercise its power in s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and determine the appeal as if the Court was sitting as a District Court judge.
The affidavit of Mr Andrew Brooks sworn 25 March 2022 exhibits a letter dated 3 March 2022 in which the applicant was warned, amongst other matters, that the appeal lay to a District Court judge. After receiving that letter, the amended Notice of Appeal was filed. It appears that amendments were made to address some of the matters set out in the letter dated 3 March 2022.
Sitting as a Master
In fact, the Judge was sitting as a Master of the District Court, not as a judge of the District Court. I have, in the course of the hearing today, been handed an extract from the Gazettal dated 24 June 2021, which makes it clear that his Honour was appointed an auxiliary Master of the District Court. I was invited to take judicial notice of that extract pursuant to s 35(d) of the Evidence Act 1929 (SA).
By s 43(2)(a) of the District Court Act 1991 (SA), the appeal therefore lies to a District Court judge, not to the Court of Appeal. On that basis this appeal is incompetent and liable to be struck-out. Nonetheless, I do not propose to make that order.
Transfer to the District Court
The appellant is unrepresented and may be forgiven for not recognising, despite the letter dated 3 March 2022, that though the judicial officer was described on the judgment as an auxiliary Judge he was in fact an auxiliary Master.
It was in his capacity as auxiliary Master that the Judge found that the statement of claim disclosed a discernible case, even if it did not comply with the rules of court.
Summary dismissal was granted because the Judge took the view that the defence of justification was likely made out, based on the reasons given for a judgment made by a District Court judge on 17 December 2019, permanently disqualifying the applicant from being licensed or registered under the Building Work Contractors Act 1995 (SA).[1] That decision was upheld by the Full Court.[2]
[1] Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191.
[2] Zollo v Commissioner for Consumer Affairs [2020] SASCFC 39; Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118.
Whether reliance upon the reasons for decision in other proceedings is, or is not, an appropriate way to establish the defence of justification does not appear to have been addressed before the Judge. That is an issue which likely raises issues of some complexity. I have not heard submissions on these issues.
In the circumstances, I am not prepared to proceed as a District Court judge. However, I am prepared to order that the appeal be transferred to the District Court pursuant to s 24(1)(b) of the District Court Act 1991 (SA). It will then be a matter for the Registry to make the appropriate listing arrangements.
For the avoidance of doubt, I make it clear that I have formed no view about the merits of the action, of any defence or of the appeal. I have likewise formed no view about the balance of the respondent's application in this matter.
The orders of the Court will be that:
1.The appeal is transferred to the District Court.
2.The costs of today’s hearing are costs in the cause.
3.The hearing on 29 April 2022 in the Court of Appeal callover is vacated.
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