Zollo v The Commissioner for Consumer Affairs

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

1. 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

2. 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.

3. 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…