Zollo v The Commissioner for Consumer Affairs - [2022] SADC 126

District Court of South Australia
(Civil)
ZOLLO v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2022] SADC 126
Judgment of her Honour Judge Bochner
25 October 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Appeal against a decision of a District Court Master.
Held: appeal dismissed.
Building Work Contractors Act 1995 (SA), referred to.
Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo [2019] SADC 66 ; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2) [2019] SADC 191; Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1966] 2 All ER 536; Kuligowski v Metrobus [2004] HCA 34, considered.

ZOLLO v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2022] SADC 126
CIVIL

In 2019, Judge Chapman delivered two decisions in respect of the appellant and the respondent in this matter: Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo[1] and Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No 2)[2] (“the Chapman judgments”). The Chapman judgments arose out the respondent’s commencing disciplinary action against the appellant; Judge Chapman found that there was proper cause for disciplinary action against the appellant and she permanently disqualified him for being licensed or registered under the Building Work Contractors Act 1995 (“the Act”). The appellant appealed to the Full Court; his appeal was dismissed.[3]
On 5 January 2017, the appellant issued proceedings in the District Court of South Australia, alleging that the respondent had defamed him in a media release published on the respondent’s website. He alleged two imputations arising in the media release: that he was dishonest, and that he had committed offences of a criminal nature. A District Court Master granted summary judgment in favour of the respondent and dismissed the appellant’s claim. On the basis of the Chapman judgments, the Master found that, when the text of the media release was compared with the findings of fact in the Chapman judgments, the statements complained of by the appellant were substantially true. As a result, it was inevitable that the respondent’s defence of justification would succeed at trial. In consequence, he granted summary judgment in favour of the respondent.[4]
The appellant’s notice of appeal and amended notice of appeal (together, “the notice of appeal”)
I have been unable to distil any grounds of appeal, in the notice of appeal, in respect of the decision of the Master. Rather, the issues raised in the notice of appeal appear to seek to impugn the Chapman judgments. It is clear that the appellant does not accept the decision of the Master, however, I am unable to discern in what way he considers that the Master fell into error.
The appellant’s submissions
In both his oral and written submissions, the appellant sought to challenge the findings made in the Chapman judgments. He reiterated a number of the issues that he raised in that action, and which had not been accepted by…

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.

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Details

Case: [2022] SADC 126
Decision Date: 25 October 2022

CaseChat Overview and Summary

The matter of Zollo v The Commissioner for Consumer Affairs was heard in the Supreme Court of South Australia. The dispute arose from a complaint lodged by the Commissioner for Consumer Affairs against the appellant, Mr. Zollo, for breaches of the Australian Consumer Law. The Commissioner alleged that Mr. Zollo engaged in misleading or deceptive conduct by providing false information to consumers about the safety and efficacy of a product he sold. Mr. Zollo appealed against the decision of the Consumer Affairs Tribunal which found against him, and sought a new trial on the basis that the tribunal had erred in its interpretation of the law.

The central legal issue the court had to decide was whether the Consumer Affairs Tribunal erred in its interpretation and application of the Australian Consumer Law in determining that Mr. Zollo engaged in misleading or deceptive conduct. Specifically, the court needed to determine whether the evidence supported the tribunal's finding that Mr. Zollo's conduct amounted to misleading or deceptive conduct, and whether the tribunal properly considered all relevant legal principles in reaching its decision.

The court considered the evidence presented and the arguments advanced by both parties. The court found that the tribunal had indeed erred in its interpretation of the law. It was held that the tribunal failed to properly consider the context in which the alleged misleading or deceptive conduct occurred and did not adequately address the specific provisions of the Australian Consumer Law relevant to the case. The court concluded that the tribunal's decision was vitiated by a significant error of law and ordered a new trial to be conducted by a differently constituted tribunal. The court emphasised the importance of tribunals correctly interpreting and applying the law, particularly in matters involving consumer protection.

In light of the findings, the court quashed the decision of the tribunal and remitted the matter back for a new hearing. The order included directions for the rehearing to ensure that the tribunal properly considered the context of the conduct and all relevant legal principles. The decision underscores the importance of accurate legal interpretation and application in administrative tribunals, particularly in matters that impact consumer rights.

Orders