McFarlane v Reffold - [2023] SASCA 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCFARLANE v REFFOLD
[2023] SASCA 44
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
27 April 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
The applicant filed an interlocutory application seeking, among others, orders setting aside a judgment of the District Court, McFarlane v Reffold (No 2) [2011] SADC 129 and a judgment of the Full Court, McFarlane v Reffold (2013) 116 SASR 83.
The application was predicated on the proposition that these decisions were procured by fraud.
The Court held (dismissing the application):
1. The applicant failed to establish any basis to suggest that he can ever demonstrate that the decisions of the District Court judge and the Full Court were procured by fraud which was engaged in by the respondent or his legal advisors or conveyancers.
2. The application is properly to be regarded as an abuse of process which ought be dismissed.

Uniform Civil Rules 2020 (SA) rr 85.1, 143.2, 186.1 and 214.4, referred to.
Flowers v Finlayson (No 2) [2023] SASCA 12; McFarlane v Reffold (No 2) [2011] SADC 129; McFarlane v Reffold (2013) 116 SASR 83, considered.

MCFARLANE v REFFOLD
[2023] SASCA 44
Court of Appeal – Civil: Livesey P and Bleby JA
THE COURT (ex tempore):
Introduction

By an application dated 1 February 2023, the applicant seeks to set aside two decisions made a decade or more ago, one by the District Court in 2011 after a trial in 2010,[1] and one by the Full Court in 2013.[2] The applicant also seeks to set aside various consequential orders, together with warrants of execution regarding the sale of real property in Andamooka which is owned by him.
[1] McFarlane v Reffold (No 2) [2011] SADC 129 (Judge Stretton), delivered 24 August 2011.
[2] McFarlane v Reffold (2013) 116 SASR 83, delivered 24 April 2013.
The application is made pursuant to rr 186.1 and 215.4(1) of the Uniform Civil Rules 2020 (SA). The Court of Appeal has sat as a bench of two because a decision of the Full Court is in issue.
As a result of the decisions referred to, the applicant’s claim for damages was dismissed and he was subjected to various orders, including orders for costs.
The applicant has not satisfied these orders and, eventually, warrants of execution were issued out of the District and Supreme Courts for around $65,000 and $14,000, respectively. Various stays have, from time to time, been ordered. In effect the applicant is seeking to set aside orders made in long-running litigation so as to free himself of the threatened sale of his property in Andamooka.
For the reasons that follow, the application must be dismissed.
Factual background
The applicant was in 2011 an opal miner. He contracted with the respondent, Mr Danny Reffold, to buy a house and land on the edge of Andamooka. Subsequently, Mr McFarlane noted that there was a septic system for which the requisite approvals had not been obtained. The contract of sale warranted that all works had received the requisite approvals. The applicant claimed that there was a breach of the land contract and tried to renegotiate the price. The respondent refused.
The applicant then nominated a different settlement date, claiming to have incurred costs. The respondent treated the delay as a refusal to settle and gave a notice to settle on a new date, demanding default interest. On that new date the applicant refused to pay the default interest and the settlement did not proceed. The respondent terminated the contract.
Subsequently, the applicant appeared to accept the termination but claimed to have suffered both financial loss and disappointment loss. He claimed damages.
The District Court judge found in favour of the respondent and dismissed the claim. In case he was wrong to do so, the District Court judge assessed damages. The judge refused to accept the applicant’s own calculations as well as an actuarial report purporting to calculate the loss of rental income. Ultimately, his Honour was not prepared to assess damages other than for disappointment at $20,000.
The claim was nonetheless dismissed and the applicant was ordered to pay costs.
The applicant appealed to the Full Court which, by a majority, dismissed the appeal. Again, the applicant was ordered to pay costs.
During 2014, the question of costs was adjudicated. Following the disclosure of the respondent’s legal advisors’ invoicing and fee notes, the applicant claimed to have discovered evidence of fraud associated with the conduct of the trial before the District Court judge during 2009 and 2010.
It is this allegation of fraud which underpins the present application.
The allegations of fraud
The applicant is not represented by a lawyer. His allegations of fraud are difficult to understand. He is presently in gaol, awaiting an appeal following a murder conviction.
Mr Esau was the solicitor acting for the respondent who retained Mr Manetta as counsel at the trial and on appeal. Ms Schreiber was the proprietor of the conveyancing firm that acted for the respondent. The conveyancer from that firm who represented the respondent was Ms Przibilla.
The applicant has been persistent in his criticisms of the respondent’s legal advisors. Some time ago he made a complaint of professional misconduct to the Legal Practitioners Conduct Board. The Court has not been supplied with the details of that complaint. In his supporting affidavit dated 12 January 2023, the applicant swore as follows:
11.The complaint [to the Legal Practitioners Conduct Board] made allegations of M Manetta and M Esau, aiding the witness J Schreiber to sit through hearings unidentified as an intended witness, concealment of confidential information in their custody, Schreiber conveyancing breaching client confidentiality, then using confidential material in surprise when examining the applicant at trial, the confidential information being obtained by A Przibilla during dual representation for the vendor and purchaser (applicant).
12.M Manetta provided misleading information claiming he had no knowledge of the documents contained in Schreibers File prior to their production at trial. Schreiber conveyancing acted for both parties and their file contained confidential information obtained by Schreiber when representing the applicant (Purchaser).
On 27 November 2020 a stay of execution was ordered in favour of the applicant after he sought orders concerning allegations of contempt committed by the respondent’s legal advisors. The dismissal of the contempt application on 11 November 2021 has been appealed and is before a Judge of the Supreme Court. The appeal was listed to be heard on 9 March 2023 but was vacated.
On 17 December 2021 the stay was revoked and an application for the review of that order was dismissed on 16 March 2022.[3] In February 2023 the respondent consented to a short stay so as to enable the hearing of the application which is before this Court.
[3] McFarlane v Reffold [2022] SADC 31 (Judge Dart).
The applicant contends that during the adjudication of costs in 2014 he discovered that during 2009 Ms Schreiber’s file was provided to the respondent’s legal advisors before the trial, and that she spoke with them before the trial.
The applicant also complains that he subpoenaed Ms Schreiber to provide evidence and documents but she did not provide evidence or documents at the outset of the trial but remained in the court room. The applicant did not suggest that the subpoena was called on at the start of the trial or that there was any order made as to witnesses.
The respondent submits that the applicant caused a subpoena to be issued, addressed to Ms Schreiber, when he was not represented. When the trial commenced, Ms Schreiber attended court with her file, but the applicant’s counsel did not call the subpoena on, possibly because he did not know about it. During the cross‑examination of the applicant, Ms Schreiber produced the file to the court and the parties were given leave to inspect it. Ms Schreiber was subsequently called as a witness by the respondent. The respondent contends that there is no fraud and the application must be dismissed as an abuse of process.
Determination of the application
It seems Ms Schreiber’s conveyancing firm initially represented both parties, though there is no documentary evidence to that effect. Nonetheless, the applicant explained during the callover in this Court on 6 April 2023 that he consented to Ms Schreiber’s firm continuing to represent the respondent. He was thereafter represented by Lyon Conveyancing.
It would seem that the applicant’s consent was not given in writing. That may explain the applicant’s reference to s 30 of the Land and Business (Sale and Conveyancing) Act 1994 (SA) in his affidavit, which prevents a conveyancer acting for both parties except as authorised by regulation. By reg 18 of the Land and Business (Sale and Conveyancing) Regulations 1995 (SA) where a conveyancer is subject to a conflict of interest, the conveyancer must notify both parties and cease to act. However, where both parties have agreed in writing, the conveyancer may continue to act for one of the parties.
The applicant’s point seems to be that Ms Schreiber’s firm ought not to have acted for the respondent where it did not receive the written agreement of both the respondent and the applicant, even though the applicant conceded that he consented to Ms Schreiber’s firm representing the respondent. Why this amounts to fraud was not explained by the applicant. In any event the issue of an absence of written consent is not a new issue. It must have been known to the applicant at the time of the trial. It can be put to one side.
If the complaint is that Ms Schreiber was allowed to remain in the courtroom during the hearing of evidence notwithstanding that an order was made excluding witnesses from the courtroom that may, conceivably, give rise to issues of professional conduct. However, even assuming this, why this conduct amounts to fraud was not explained by the applicant. Here again this is not a new issue, and it too may be put to one side.
This morning the applicant has made further allegations of fraud against the respondent’s conveyancers. These allegations concern the evidence they gave and the absence of documents from their file which would have prevented settlement in any event. These matters were known to the applicant by the time of trial or, at the latest on his estimate, around six months after the trial and likely well before the Full Court decision.
The only “new” issue raised by the applicant concerns his discovery of the provision of the conveyancing file and information by Ms Schreiber’s firm to the respondent’s legal advisors before the trial. It is unclear whether this occurred after the respondent, with the consent of the applicant, continued to retain Ms Schreiber’s firm.
This issue appears to have come to the applicant’s attention during the adjudication of costs some years ago. The applicant’s delay in making this application is not explained, apart from the inference that might be drawn from his desire to avoid the relatively recent steps taken towards execution.
The applicant’s unexplained delay is reason enough to dismiss the application.
Putting delay to one side, the applicant may be aggrieved that information confidential to him was provided to the respondent’s legal advisers without his consent. Though that inference is a possibility, the applicant has provided no particulars or evidence to support it. The evidence goes no further than that the respondent’s legal advisors saw documents from and spoke with a representative of Ms Schreiber’s conveyancing firm. The applicant has not demonstrated that he can prove that any of this impugned conduct involved actual fraud affecting the trial or the appeal.
In short, the applicant’s affidavit does not furnish any basis to suggest that he can ever demonstrate that the decisions of the District Court judge and the Full Court were procured by fraud which was engaged in by the respondent or his legal advisors or conveyancers.[4]
[4] See generally the discussion of these principles in Flowers v Finlayson (No 2) [2023] SASCA 12. The applicant’s failure to use the proper procedure, a separate action invoking this Court’s equitable jurisdiction represents a procedural impediment to the orders sought.
Conclusion
In circumstances where the applicant has not properly particularised fraud, nor adduced evidence to demonstrate that he will ever be in any position to prove that the judgments were procured by fraud, there is no basis to reopen or set aside the judgments of the District Court or of the Full Court.
In these circumstances, the application is properly to be regarded as an abuse of process which ought be dismissed.[5]
[5] Uniform Civil Rules 2020 (SA), rr 85.1 and 143.2.
Accordingly, the order of the Court will be that the application is dismissed.
Having heard from the parties, the applicant must pay the respondent’s costs fixed in an amount of $1,500.
The order earlier made by this Court that there be a stay of execution until this afternoon is discharged.