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 Judge Chapman. He continued to assert facts which he had asserted at trial, and in respect of which adverse findings had been made. These included his contention that he had been an employee of a company and had not been performing any building work, that any undertaking that he may have given was invalid, and that Judge Chapman incorrectly found that he was a director of a building company at particular times. It was difficult, if not impossible to discern any submissions which related to an error on the part of the Master, save that the appellant disagreed with his decision to grant summary judgment in favour of the respondent.
The respondent’s submissions
The respondent submitted that no error on the part of the Master had been identified by the appellant. Ms Doecke, on behalf of the respondent, submitted that the only reasons identified by the appellant for bringing the appeal related to perceived error on the part of Judge Chapman. The defamation action was no more than an attempt to relitigate matters that were determined by the Chapman judgments. In this regard, Ms Doecke submitted that any attempt by the appellant to relitigate matters which had been dealt with in a perfected judgment would amount to an abuse of process. Further, or in the alternative, she argued that the appellant is estopped from denying facts which were determined in the Chapman judgments.
Ms Doecke submitted that the appellant’s case in the defamation action was completely inconsistent with the findings in the Chapman judgments, which had been upheld by the Full Court. The appellant had not pointed to any new evidence which would allow a Court to make different findings to those made in the Chapman judgments.
Ms Doecke argued that the doctrine of issue estoppel and the principles relating to abuse of process prevented the appellant from pursuing a case which sought to undermine the findings made in the Chapman judgments and the Full Court judgment.
She submitted that, given the findings in the Chapman judgments and the Full Court’s upholding of those findings, the appellant’s claim in defamation had no reasonable prospect of success. Those findings allowed the Master to find that there was no reasonable basis for the appellant’s claim in defamation. No error in the Master’s reasoning has been identified by the appellant.
Consideration
The reasons of the Master are short and succinct. He sets out the terms of the press release complained of by the appellant at [9] and provides a summary of the findings made in the Chapman judgments.[5] At [24], he said, in regard to whether the media release was defamatory of the appellant:
The question is whether the statements were objectively true (and any imputations objectively substantially true) when the publication occurred. A later finding by a Judge, upheld on appeal, can and will found a basis for saying that objectively the statements were true when published.
He concluded that he was not satisfied that there was a reasonable basis for allowing the appellant to proceed with his defamation claim against the respondent. He said:
It seems to me that it is inevitable, given the findings of Judge Chapman, upheld on appeal, that the defence of justification will succeed. In those circumstances, I should not allow this litigation to proceed.[6]
As I have previously set out, I have been unable to determine, in the appellant’s notice of appeal, or his submissions, oral or written, any specific criticism of the reasoning of the Master. The appellant’s contention appears to be that the decision of the Master was wrong, because of errors made by Judge Chapman. On this basis, I must dismiss the appeal. No error on the part of the Master has been demonstrated, nor could I discern an error on my reading of his decision.
I note the respondent’s submissions in respect of issue estoppel and abuse of process. I note that these issues were not raised before the Master. As a result, I will consider them only briefly and without stating a definitive decision in respect of them.
The requirements for the creation of an issue estoppel were set out by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2):[7]
"(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."[8]
This statement has been approved by the High Court of Australia in a number of cases, including Kuligowski v Metrobus.[9]
It seems to me that, by alleging that the media release was defamatory of him, the appellant would require a court to embark on the same fact finding exercise that has already occurred in the Chapman judgments, which found that each element of the media release had been proved. I also consider that it is arguable that it would amount to an abuse of process to seek to relitigate these matters in an attempt to impugn the Chapman judgments.
Conclusion
The appeal must be dismissed. The appellant has failed to identify any error on the part of the Master.

[1] [2019] SADC 66.

[2] [2019] SADC 191.

[3] [2020] SASCFC 118.

[4] Reasons for Decision of Auxiliary Master Roder Decision No 1 of 2022.

[5] At [10] – [11].

[6] At [28].

[7] [1966] 2 All ER 536.

[8] Ibid, 565.

[9] [2004] HCA 34, [21].