McFarlane v Reffold - [2025] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MCFARLANE v REFFOLD
[2025] SASC 43
Judgment of the Honourable Justice Stein
28 March 2025
COURTS AND JUDGES - CONTEMPT - GENERAL PRINCIPLES
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
Appeal against interlocutory decision of a Judge of the District Court.
Following lengthy litigation between the appellant and the respondent, the appellant brought an interlocutory application seeking a stay of execution of the judgment, orders and warrants pending the hearing and determination of a “contempt application” against the opposing solicitor, counsel, and two witnesses involved in the trial. The Judge dismissed the application on the basis none of the grounds raised amounted to what could be a contempt and refused an application to recuse himself.
The appellant appealed on grounds including that the Judge made errors of jurisdiction, failed to apply the doctrine of precedent and failed to apply the required level of scrutiny.
Held (refusing an extension of time, refusing leave to appeal, and dismissing the appeal):
1.There was no evidence put forward that could support reasonable grounds to suspect the alleged contempt. The appellant seeks via these proceedings to reagitate issues which have already been finally determined in different forums and on different occasions including by the Court of Appeal.
2.No persuasive or cogent submission or evidence was advanced in support any of the other grounds of appeal.

Conveyancers Act 1994 (SA) s 30; Uniform Civil Rules 2020 (SA) r 205.5, referred to.
McFarlane v Legal Profession Conduct Commission [2017] SASCFC 25; McFarlane v Reffold [2023] SASCA 44; Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115; Mane Market Pty Ltd v Temple [1998] SASC 6986; McDonald v South Australia [2008] SASC 309; Ebenezer v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re JRL; Ex parte CJL (1986) 161 CLR 342, considered.

MCFARLANE v REFFOLD
[2025] SASC 43
Single Judge Appeal: Civil
STEIN J.
Overview

The appellant, Mr McFarlane, has been engaged in lengthy litigation arising from an attempt to purchase land from Mr Reffold at Andamooka in December 2007. Although the dispute in relation to the purchase of the land was finalised many years ago, the litigation has continued in relation to steps taken by Mr Reffold to obtain a warrant for the sale of property to meet an order for costs made in favour of the respondent.
On 19 November 2020, Mr McFarlane filed an interlocutory application[1] seeking a stay of execution of the judgment, orders and warrants pending the hearing and determination of a “contempt application” against four people, namely the solicitor and counsel who acted for Mr Reffold in the trial and two conveyancers who were involved in the conveyancing work in relation to the sale and purchase of the property. The orders sought included “permission to prosecute”.
[1] FDN 84 on District Court file number DCCIV‑08-497.
On 11 November 2021, a Judge of the District Court dismissed the interlocutory application and ordered Mr McFarlane pay the respondent’s costs of the interlocutory application.
In January 2022, Mr McFarlane commenced an appeal. Progress of the appeal was slow for a range of reasons associated with Mr McFarlane’s personal circumstances.
I have determined to refuse the appeal for the reasons I set out below.
Background
In December 2007, Mr McFarlane entered into a contact for the purchase of land at Andamooka from Mr Reffold. Prior to settlement, Mr McFarlane asserted that a septic tank had been installed on the property without council approval. Until that point, Mr McFarlane and Mr Reffold had been using the same conveyancing firm. When the septic tank issue was raised, the conveyancing firm notified Mr McFarlane that it could not continue to act for both parties and arrangements would be made for his file to be transferred to another conveyancing firm. Settlement was scheduled. After there was no attendance, Mr Reffold served a notice to complete. A new settlement date was fixed at which Mr McFarlane tendered payment of the purchase price but refused to pay interest by reason of the delay. The respondent refused to accept the purchase price and settlement did not occur.
In 2013, after a trial, the Judge found in favour of Mr Reffold, concluding Mr Reffold was not in breach of the contract and was entitled to charge interest. An order for costs was made in favour of Mr Reffold in 2014. In February 2015, Mr Reffold sought the issue of a warrant in relation to the order for costs.
There was then some delay in the matter progressing. In May 2020, the parties were waiting for the market for sale of land at Andamooka to improve and the matter was adjourned to May 2021.
In November 2021, the applicant filed the interlocutory application which has given rise to the appeal. The interlocutory application stated:
This application is for a Stay of execution of the judgment, orders and warrants of ac no 497 of 2008 pending the hearing and determination of this contempt application against the defendant’s party M. Manetta, M. Esau, A. Przilliba and J. Schreiber for mischievous behaviour, aiding a witness, concealment, deception, contravention of the inadvertent disclosure rules and surprise in the face of the court.
On 27 November 2020, a Master of the District Court granted permission to issue the warrant and stayed the execution of the warrant pending determination of the interlocutory application.
On 11 November 2021, a Judge of the District Court dismissed the interlocutory application and ordered Mr McFarlane pay Mr Reffold’s costs of the interlocutory application.
Further orders were made in the District Court action on various dates which have had the effect of extending the stay of the execution of the warrant. That stay was discharged in mid 2023. Further orders have been made to extend the time within which the warrant may be executed in light of the value of land in Andamooka.
Both parties filed written submissions in advance of the first hearing of the appeal on 26 May 2022. Mr McFarlane was not represented and appeared in person with a support worker to assist him. Mr McFarlane had provided to the Court documents indicating that Mr McFarlane had been diagnosed with a speech and learning disorder which would impact on his ability to follow proceedings and articulate the issues he wished to raise. On 26 May 2022, the appeal hearing proceeded. Mr McFarlane made submissions for the whole morning. Towards the end of the hearing, Mr McFarlane became agitated and insistent that he required more time in order to properly present his submissions in light of his disability. The respondent did not object to the adjournment of the appeal proceedings to give Mr McFarlane a further opportunity to present his submissions.
On the adjourned occasion, Mr McFarlane informed the Court he was not able to proceed with the submissions. He was, by then, incarcerated following trial in a criminal matter. My chambers had arranged to ensure he was provided with copies of the materials he had sought so that he would be in a position to address the Court while in custody. The respondent did not object to a further adjournment. A lengthy adjournment was required as a consequence of Mr McFarlane needing to deal with the various proceedings in which he was involved. Without setting out a detailed chronology of all the steps taken thereafter, Mr McFarlane required more time and, without objection from the respondent, I adjourned the appeal on a number of occasions. In late 2023, I determined that I would allow the parties to file further written submissions and, once I had reviewed those written submissions, I would determine whether a further oral hearing was required. Those written submissions were finally filed in November and December 2024.
Having reviewed the transcript of the appeal hearing and all of the filed materials, I do not consider it necessary or reasonable to accede to Mr McFarlane’s request for another oral hearing taking into account a number of matters including the length of the first oral hearing, the multiple opportunities given to Mr McFarlane to put forward submissions, Mr McFarlane’s stated disadvantages in addressing oral hearings in the light of his disability, the significant and excessive delay in progressing the appeal, the numerous adjournments and opportunities given to Mr McFarlane to provide further submissions, both orally and in writing. I have therefore proceeded to address the appeal on the basis of all the filed materials and the submissions, both oral and written, filed by the parties.
Ground of appeal
Mr McFarlane appeals on the following basis.
1.The Judge made an error in jurisdiction in the contempt proceedings by refusing to deal with the matter of alleged fraud and fraudulent documents on the grounds that he did not have jurisdiction.
2.The Judge did not follow and apply the doctrine of precedent by proceeding to argument at a directions hearing, relying on false and extraneous information, failing to apply the general doctrine that fraud vitiates everything, failing to apply the doctrine of clean hands, failing to not reward fraud and failing to provide reasons for judgment.
3.The Judge failed to apply the level of scrutiny required by the legal test for apprehended bias.
4.The Judge refused to accept registry intervened by forwarding an email directed to the Chief Justice to the chambers of the Judge.
Mr McFarlane sought an extension of time to file the appeal. He sought various orders including that the Judge be recused for apprehended bias; the judgment be set aside and there be a rehearing.
Hearings prior to decision by the District Court Judge
At a hearing on 5 July 2021, the Judge asked Mr McFarlane for an explanation of who he wanted to prosecute for contempt and why. Mr McFarlane’s explanation related to the conduct of the trial. Mr McFarlane appeared to assert that at trial there was a conspiracy to mislead the Court. During the hearing the Judge indicated to Mr McFarlane the test which he needed to apply. That test was that the Judge had to be satisfied there were reasonable grounds to suspect the person in question committed the alleged contempt and then a charge must be formulated containing reasonable details of the alleged contempt. The Judge indicated to Mr McFarlane that the grounds upon which he sought to prosecute the alleged contempt did not appear to be a reasonable ground to suspect contempt of court. There was no material in the filed papers to support any detail of the alleged conspiracy to mislead the Court. The Judge endeavoured to explain to Mr McFarlane the distinction between matters which were addressed in the trial and the subsequent appeal and matters which could be the subject of a contempt charge. The Judge indicated to Mr McFarlane he thought the application was misguided and bound to fail but he was prepared to set aside time for a hearing and suggested Mr McFarlane obtain legal advice.
On 31 August 2021, the Judge adjourned Mr McFarlane’s interlocutory application to enable Mr McFarlane to obtain legal advice. On that occasion, his Honour noted that if Mr McFarlane was not in a position to deal with the application on the next occasion he would proceed to rule on the application. His Honour arranged for the transcript to be provided to Mr McFarlane.
On 28 September 2021 the Judge asked Mr McFarlane whether or not he had yet engaged a solicitor. Mr McFarlane indicated he had, but that he had not yet filed an application and he sought a further adjournment.
The matter was adjourned to 11 November 2021.
District Court decision
During the hearing on 11 November 2021, the Judge refused the interlocutory application and gave reasons for doing so. The Judge indicated he was sympathetic to Mr McFarlane’s personal circumstances, however, the application had been adjourned for a number of times. The Judge referred to the affidavit sworn by Mr McFarlane in support of the interlocutory application in which Mr McFarlane deposed to having made numerous attempts to file applications for contempt and judicial review which a Judge ordered be rejected on the grounds the application was vexatious and had no merit. The Judge referred to the fact that the application raised issues that were agitated in a trial in 2010 and had been the subject of complaints through the Legal Practitioners Conduct Board which were subsequently dealt in the Legal Practitioners Disciplinary Tribunal (“Tribunal”). The Judge indicated that he had read all of the material filed and that he was not satisfied there were reasonable grounds to ask the Registrar of the Court to formulate a charge. The Judge concluded that the matters raised were a repeat of things that had previously been dealt with.
Mr McFarlane sought to persuade the Judge that there was evidence of fraud. The Judge indicated that had nothing to do with the application for contempt and the matters raised had been agitated and addressed in the substantive trial.
The Judge explained to Mr McFarlane the potential grounds for contempt being a contempt in the face of the Court (that is, that the Court has been abused or disrespected) or that people had failed to comply with Court orders. The Judge asked a number of questions of Mr McFarlane to understand the basis upon which Mr McFarlane sought permission to lay the charge of contempt. The Judge concluded that none of the matters raised amounted to what could be a contempt.
During the course of the hearing Mr McFarlane asserted that the Judge was biased however, the Judge considered there was no basis for recusing himself. He considered the bias application was based on Mr McFarlane’s unhappiness with the fact the Judge disagreed with the submissions put by Mr McFarlane.
The Judge stated he had given Mr McFarlane previous opportunities to obtain advice and on a previous occasion had a lengthy discussion in which he sought to assist Mr McFarlane to understand the issues.
The Judge did not consider Mr McFarlane had articulated anything either in the papers filed or his oral submissions which would suggest that the Judge should be satisfied the Registrar should be directed to issue a summons for contempt against the four named persons.
It is apparent from a review of the transcript that the Judge did not consider Mr McFarlane should be given any further adjournment given the history of the matter and took into consideration the fact that, by 11 November 2021, the interlocutory application was nearly a year old. The Judge stated he did not think Mr McFarlane had articulated anything, whether in the papers which were filed in support of the application, or in his oral submissions, to satisfy the Judge that the registrar should be directed to issue a summons for contempt against the named persons. The Judge ordered Mr McFarlane pay the respondent’s costs.
Mr McFarlane’s submissions
I have reviewed all of the submissions filed by Mr McFarlane and the transcript of the hearing. I have reviewed the documents referred to by Mr McFarlane, including the affidavit in support of his application in the District Court.[2]
[2] FDN 85 on District Court file number DCCIV-08-497.
A significant theme and thrust of the submission related to assertions about the circumstances in which Mr McFarlane contends the settlement of the land took place and matters that occurred during the course of the trial. This included assertions such as that Mr Reffold’s counsel concealed evidence in the conveyancer’s handwritten notes and the circumstances in which a particular witness, Ms Schreiber, remained in court after the trial commenced and before she was called to give evidence. Mr McFarlane, in essence, alleged that the legal representatives for Mr Reffold intended to call Ms Schreiber and assisted her to attend the hearings and in turn aided Ms Schreiber in contravening orders by not answering the subpoena at the start of trial. Mr McFarlane submitted these steps were taken deliberately to deny Mr McFarlane a fair and just trial by engaging in “surprise, deception and mischievous behaviour”.
Mr McFarlane also made assertions to the effect that Mr Reffold’s legal representatives had engaged in deception in proceedings initiated by Mr McFarlane before the Legal Practitioners Conduct Board and the Tribunal. Mr McFarlane made submissions to the effect that Mr Manetta misled the Legal Practitioners Conduct Board by denying the allegations against him. Mr McFarlane implied that there was some irregularity in the way the Tribunal dealt with the charges laid against Mr Manetta before the Tribunal.
Mr McFarlane raised a number of criticisms that appeared to relate to the manner in which Ms Schreiber and Ms Przibilla dealt with the conveyance transaction. Initially, their conveyancing firm had acted for both Mr McFarlane and Mr Reffold. Ms Przibilla gave evidence that when the issue arose concerning the septic tank, Mr McFarlane was informed there was a conflict and they would pass the file on to another conveyancer.
In part, Mr McFarlane relied upon an itemised schedule of costs filed in the District Court proceedings and a fee note rendered by Mr Manetta. These documents were filed as part of the taxation of costs of the litigation. The costs schedule and fee note referred to a letter sent to Mr Manetta enclosing Ms Schreiber’s files and Mr Manetta attending a conference to proof Ms Schreiber (time recorded 0.25, that is, a 15 minute block).
During the hearing, Mr McFarlane made submissions as set out below:
·The Judge blatantly refused to give reasons for his judgment.
·The hearing was a directions hearing.
·The Judge did not refer to Mr McFarlane’s statement of claim.
·The Judge should have given Mr McFarlane an opportunity to adjourn and prepare further documents.
·The complaint against Mr Manetta and Mr Esau is still being dealt with by the Tribunal. There has been no trial in the Tribunal and it has been held up so Mr Manetta could become a Judge or a Tribunal member.
·The Judge accepted evidence and acted on hearsay and misleading statements by counsel.
Mr McFarlane asserted Mr Manetta provided false and misleading information in his response to the Legal Practitioners Conduct Board, which resulted in dismissal of the allegations. While Mr McFarlane accepted that the Legal Practitioners Conduct Board dismissed the complaints he brought against each of Mr Manetta and Mr Esau, he had sought reinvestigation by the Legal Profession Conduct Commissioner (the “Commissioner”) because, on Mr McFarlane’s position, he had fabricated reasons to dismiss the case. Mr McFarlane charged the Commissioner in the Tribunal for fabricating his reasons but that was struck out on the grounds that it was vexatious and an application to the Supreme Court was rejected.
Mr McFarlane stated that the subpoena documents were not bound and marked and were provided as a huge file with paperwork upside down and it was just a big set up so they could not find documents and so Mr McFarlane could be surprised.
When I asked Mr McFarlane to explain what was the contempt of which he complained, Mr McFarlane addressed submissions in relation to allegations that the notice to complete was fraudulent, Ms Przibilla acted in conflict or breached s 30 of the Conveyancers Act 1994 (SA), allegations that Ms Przibilla gave evidence at the trial in which she changed her story, that Ms Schreiber did not answer the subpoena and used surprise and Mr Manetta said he did not intend to call her and allowed Ms Schreiber to sit through the proceedings until it became evident she was going to give evidence. In answer to my question whether Mr McFarlane alleged there was a contempt because he said the document was fraudulent and Ms Przibilla gave false evidence, Mr McFarlane said “yes”. When asked what Mr McFarlane said was the contempt by Mr Esau and Mr Manetta, Mr McFarlane referred back to the production of the conveyancer’s file, failing to answer the subpoena, allowing Ms Schreiber to sit in the trial until she was identified as a witness, Mr Manetta’s cross-examination of Mr McFarlane on documents from the conveyancer’s file, allegations that Ms Przibilla concealed matters from her notes, allegations that Ms Schreiber lied to the Court in saying that the complete conveyancer’s file was dropped to the other conveyancer on the way to settlement and therefore that the legal practitioners used concealment and surprise when producing Ms Schreiber’s file to the Court. Mr McFarlane asserted that Mr Manetta and Mr Esau chose to sit and allow one of their main witnesses to see what was going on until she found out and then the file was dumped on him in the middle of cross-examination and this constituted surprise. Mr McFarlane alleged that Mr Manetta and Mr Esau had every intention of calling Ms Schreiber and concealing it but lied to Mr McFarlane’s solicitor.
The respondent’s submissions

The respondent contended that by the interlocutory application, Mr McFarlane was in effect seeking an order that certain persons to be charged with contempt under r 205.5(2) of the Uniform Civil Rules 2020 (SA) (“UCR”) together with a consequential order staying the execution of the judgment and the warrant of sale issued in the action.
The respondent submitted that Mr McFarlane had previously raised complaints arising out of the conduct of the trial with the Legal Practitioners Conduct Board. The Board found there had been no unsatisfactory or unprofessional conduct on the part of the practitioners in respect of whom Mr McFarlane complained. Those practitioners were two of the people against whom Mr McFarlane sought contempt orders. Mr McFarlane then laid a charge against the Commissioner alleging unprofessional conduct in relation to the Commissioner’s handling of the complaints against the two practitioners. That charge was the subject of an unsuccessful appeal by Mr McFarlane to the Full Court of the Supreme Court of South Australia.[3]
[3] McFarlane v Legal Profession Conduct Commission [2017] SASCFC 25.
The respondent submitted that the Judge provided Mr McFarlane with repeated opportunities to put forward evidence or submissions upon which Mr McFarlane relied in seeking the contempt order. In the absence of any proper evidence or submissions establishing the requisite grounds for making a contempt order, it was appropriate for the Judge to dismiss the application.
In written submissions responding to Mr McFarlane’s further submissions, the respondent submitted that Mr McFarlane was again seeking to agitate complaints concerning the trial in the District Court in 2010 and that essentially the same complaints were raised by Mr McFarlane in an application in February 2023 seeking orders from the Court of Appeal to set aside the District Court and Full Court judgments. The respondent contended that Mr McFarlane’s complaints were principally concerned with the events surrounding the subpoena issued by him to the conveyancer, Ms Schreiber, in the District Court action. The respondent pointed out that Mr McFarlane was represented by counsel at the trial in the District Court. At the commencement of the trial, Ms Schreiber attended court but Mr McFarlane’s counsel did not call on the subpoena. Ms Schreiber handed the file to the Court and the trial Judge gave the parties a full opportunity to inspect the file. Ms Schreiber was subsequently called as a witness.
The respondent submitted that the Judge provided Mr McFarlane with repeated opportunities to put forward evidence or submissions that he relied upon in seeking the contempt order. The respondent submitted there was nothing that Mr McFarlane had put forward to amount to any proper grounds to support the proposition there are reasonable grounds to suspect a contempt of court has occurred as required by r 205.5(2) of the UCR.
Court of appeal decision
Before turning to consideration of the issues on appeal, I refer to an application made to the Court of Appeal which is relevant background to this appeal.
After this appeal was commenced, in a separate application dated 1 February 2023, Mr McFarlane sought to set aside the decision of the District Court delivered in 2011 after the trial and of the Full Court in 2013 which dismissed Mr McFarlane’s appeal against the orders of the trial Judge. Mr McFarlane also sought to set aside various consequential orders, together with warrants of execution.
The application to the Court of Appeal was based on the proposition that the decisions of the trial Judge and the Full Court were procured by fraud.
In April 2023, the Court of Appeal dismissed Mr McFarlane’s application.
The decision of the Court of Appeal[4] referred to the allegations of fraud as follows:[5]
[4]     McFarlane v Reffold [2023] SASCA 44.
[5]     McFarlane v Reffold [2023] SASCA 44 at [15]-[16] and [19]-[21].
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).
…
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.
The Court of Appeal addressed each of the matters alleged by Mr McFarlane as giving rise to fraud. The Court of Appeal concluded that Mr McFarlane had not demonstrated that he could prove that any of the conduct he sought to impugn involved actual fraud affecting the trial or the appeal. Mr McFarlane’s material did not provide any basis to suggest he could ever demonstrate that the decisions were procured by fraud engaged in by the respondent or his legal advisers or conveyancers. The Court of Appeal considered the application was an abuse of process which ought to be dismissed.
Consideration of the appeal
Rule 205.5 of the UCR provides that if a party claims that another party, a witness or another person has committed contempt of court in relation to a proceeding, the party may apply by filing an interlocutory application for the accused to be charged with contempt and supporting affidavit containing reasonable details of the alleged contempt.
If the court is satisfied there are reasonable grounds to suspect that the accused committed the alleged contempt, the court may require the Registrar or permit the party who filed the interlocutory application to formulate a charge containing reasonable details of the alleged contempt to file an interlocutory application charging the accused with contempt.
The UCR does not define “contempt”.
Before a charge of contempt can be laid, Mr McFarlane must satisfy the court there are reasonable ground to suspect the accused committed the alleged contempt such that the Court should require the registrar or Mr McFarlane to formulate a charge containing reasonable details of the alleged contempt and file an application charging the persons with contempt.
In Maxilift Australia Pty Ltd v Donnelly,[6] Nicholson J said that in determining whether there are reasonable grounds to suspect a person of alleged contempt, the court must determine whether there is sufficient evidence which would prove the contempt if accepted.[7] His Honour accepted the explanation of the general principles set out by Debelle J in Mane Market Pty Ltd v Temple (“Mane Market”).[8]
[6]     Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 (Nicholson J).
[7]     Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [11] (Nicholson J).
[8]     Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [11] (Nicholson J), quoting Mane Market Pty Ltd v Temple [1998] SASC 6986 at [5] and [6] (Debelle J).
In Mane Market, Debelle J, by reference to a previous rule, explained the following matters:[9]
When determining whether a Registrar’s summons should issue, the court is exercising a screening function somewhat similar to that exercised by a magistrate in committal proceedings in respect of a criminal offence. To make an order that a Registrar’s summons should issue, the court must be satisfied that there is sufficient evidence which, if accepted, would prove the contempt. When determining whether there is sufficient evidence, it must be remembered that there is no longer any distinction between civil and criminal contempts. All contempts should be punished as if they are quasi-criminal in character and the burden of proof in civil proceedings is proof beyond reasonable doubt.
(citations omitted)
[9] Mane Market Pty Ltd v Temple [1998] SASC 6986 at [5] (Debelle J).
Justice Nicholson explained that the court is entitled to draw on inferences which are reasonably open on the evidence and most favourable to the party seeking the summons.[10] His Honour indicated there is some support for a residual discretion to decline to permit contempt proceedings even if a prima facie case is established. All the circumstances giving rise to the referral of the matter should be considered.[11]
[10] Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [12] (Nicholson J), quoting Mane Market Pty Ltd & Ors v Temple [1998] SASC 6986 at [17] (Debelle J).
[11] Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [13] (Nicholson J), quoting McDonald v South Australia [2008] SASC 309 at [16] (Sulan J).
Before I turn to the specific appeal grounds, I address factual matters raised by Mr McFarlane.
It is apparent that the schedule of costs and the fee note to which Mr McFarlane pointed do not support his contentions. Some of Mr McFarlane’s assertions may derive from a lack of understanding of the trial process or a misunderstanding of the entries in the schedule to the bill of costs and Mr Manetta’s fee note. Reference to a letter enclosing the file or a short meeting with Ms Schreiber does not establish that Mr Manetta’s assertions he was not aware of a particular document in the subpoena file, nor that he did not intend to call Ms Schreiber until a particular issue arose during the course of the trial, were untrue or misleading. It is readily evident from the trial transcript that Ms Schreiber was called only after particular matters were raised by the trial Judge. One would ordinarily expect counsel proofing a witness to give evidence to spend more than 15 minutes with them. It is clear on the transcript of the trial that the trial Judge questioned Ms Przibilla about the circumstances in which the decision to transfer the conveyancing file occurred, including the chronology and timing of various events. The trial Judge’s concern was whether or not settlement had proceeded without confirmation that the other conveyancer was in fact acting for Mr McFarlane. After the trial Judge questioned Ms Przibilla, notes made by Ms Schreiber became a focus of attention at which point the trial Judge then asked Ms Schreiber to wait outside. An order as to witnesses was not made at the start of the trial and Ms Schreiber had attended the trial and heard the evidence called to that point. These events lead to Mr Manetta then saying that he may need to call Ms Schreiber because both Ms Przibilla and Ms Schreiber had contributed to the documents on their conveyancer’s file. The fact that Ms Schreiber had attended the hearing prior to being called for evidence was a matter of which the trial Judge was aware. The transcript records that after Mr Manetta informed the Court that he intended to call Ms Schreiber, Mr McFarlane’s counsel then observed that there was a problem with calling Ms Schreiber because she had been sitting in court. Mr McFarlane’s counsel stated he had not intended to call Ms Schreiber and Mr Reffold’s counsel had indicated that he did not intend to call her either. His Honour thought there was nothing that could be done at that point, observing the wisdom of an order as to witnesses at the outset of trial. It is thus apparent that that transcript is consistent with Mr Manetta and Mr Esau’s explanations about the circumstances in which Ms Schreiber was called to give evidence in response to the allegations made against them by Mr McFarlane. It is clear from the transcript that the trial Judge was alive to the potential issues arising from the circumstances in which the conveyancers had initially acted for both parties to the transaction and then ceased to act for Mr McFarlane and the issues associated with Ms Schreiber having attended court.
The issues of which Mr McFarlane complains were thus addressed during the trial.
The Judge explained to Mr McFarlane the test which applied and considered whether the material in the filed papers supported the allegations made by Mr McFarlane. Despite my attempts to elicit from Mr McFarlane the basis upon which he asserted that the legal representatives of Mr Reffold or the conveyancers engaged in contempt, Mr McFarlane was not able to articulate any basis for that contention other than to reiterate that those individuals engaged in fraud and improper conduct in the manner in which he alleged that conduct had occurred. I have closely reviewed all of the submissions put forward by Mr McFarlane and the supporting material. I cannot identify any evidence at all which would be sufficient to give rise to satisfaction there are reasonable grounds to suspect the alleged contempt. Further, and in any event, Mr McFarlane’s application seeks via the avenue of contempt to reagitate issues which have already been reagitated in different forums and on different occasions. The Court of Appeal has dismissed Mr McFarlane’s application asserting fraud. The District Court Judge thus did not err in dismissing the application.
Turning to the other grounds of appeal, the Judge hearing the application was not obliged to adjourn the hearing to enable the parties to prepare. His Honour had granted multiple adjournments, encouraged Mr McFarlane to obtain legal advice and indicated at a previous hearing that on the next occasion he would proceed to hear the matter.
Mr McFarlane did not provide any evidence in support of the ground of appeal that his Honour placed considerable weight on false information or extraneous information provided by counsel. I have reviewed the transcript of the hearings before the trial Judge. There is nothing in the transcript to support Mr McFarlane’s ground of appeal.
Mr McFarlane’s ground of appeal to the effect that the trial Judge was obliged to apply the general doctrine that fraud vitiates everything is inapposite. It is apparent from a reading of the transcript that his Honour was alive to and properly differentiated between whether Mr McFarlane had raised sufficient grounds to suspect contempt and challenges to the findings made by the trial Judge and the Full Court reasons in the substantive proceedings. Further, allegations of fraud have been addressed and dismissed by the Court of Appeal.
Mr McFarlane complained that the Judge did not provide reasons for his judgment. While there is undoubtedly an obligation on a judicial officer to provide reasons for decision, the extent, nature, content and form of those reasons will depend on the circumstances. His Honour gave ex tempore reasons in the course of the hearing and those reasons are captured in the transcript. In essence, his Honour’s reasons were that he was not satisfied Mr McFarlane had put forward evidence to meet the test in r 205.5 of the UCR, that is, there was no sufficient evidence to give rise to reasonable grounds for suspicion that the legal advisers and conveyancers had committed contempt.
Mr McFarlane has failed to put forward any cogent reason why the Judge ought to have recused himself from hearing the application. Disagreeing with a judicial officer’s conclusion does not give rise to a reasonable or actual apprehension of bias sufficient to meet the test in Ebenezer v Official Trustee in Bankruptcy.[12] The test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide. The party complaining and seeking recusal must identify the factor which it is said might lead a Judge to resolve the question other than on its legal and factual merits. There must be an articulated, logical connection between that factor and why there is an apprehended deviation from deciding the question on its merits. In Re JRL; Ex parte CJL,[13] Mason J explained that the ground of disqualification is that there is a reasonable apprehension the judicial officer will not decide the case impartially or without prejudice rather than that the judicial officer will decide the case adversely to one party. His Honour emphasised that while justice must be seen to be done, judicial officers must discharge their duty to sit and not too readily accede to suggestions of apprehension of bias thus encouraging parties to believe by seeking disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour. Mr McFarlane failed to identify any factor that might have led the Judge to resolve the application other than on its legal and factual merits.
[12] Ebenezer v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
[13] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
Mr McFarlane did not put forward any submissions in relation to his assertion to the effect that a member of Registry had forwarded a letter addressed to the Chief Judge to the Judge’s chambers.
Mr McFarlane did not provide any submission which substantially addressed or supported the application for an extension of time to file the appeal. I note that the appeal was filed in January 2023 and accordingly was not significantly out of time. I therefore may have been minded to grant an extension of time for the filing of the appeal, taking into account Mr McFarlane’s disability. However, Mr McFarlane failed to provide any justification for the delay.
Leave to appeal is required against an interlocutory decision of a Judge of the District Court.[14] Mr McFarlane made no submissions on the question of leave but in any event, I would refuse leave to appeal for the reasons set out above.
[14] District Court Act 1991 (SA), s 43(3); Uniform Civil Rules 2020, r 213.1(1)(a).
A number of additional observations may be made about Mr McFarlane’s complaints concerning the events associated with the settlement and the conduct of the trial. The issues were addressed and dealt with in the trial and in the Full Court on appeal. Mr McFarlane’s application for special leave to appeal to the High Court was dismissed. The complaints are the very same complaints which formed the subject of the application by Mr McFarlane to set aside the judgments of the trial Judge and the Full Court on the basis of fraud. As set out above, that application was rejected by the Court of Appeal. It is therefore an abuse of process for Mr McFarlane to continue to agitate the same assertions again in another application.
Conclusion

I refuse the applications for an extension of time and leave to appeal and I dismiss Mr McFarlane’s appeal.