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…

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.

Continue reading McFarlane v Reffold

Details

AGLC: McFarlane v Reffold [2025] SASC 43
Case: [2025] SASC 43
Decision Date: 28 March 2025

CaseChat Overview and Summary

In the case of McFarlane v Reffold, the appellant, Mr. McFarlane, sought to appeal a decision of the District Court which dismissed an interlocutory application for contempt and ordered Mr. McFarlane to pay the respondent's costs. The primary legal issues before the Court of Appeal were whether the District Court erred in its assessment of whether there were reasonable grounds to suspect that contempt had been committed, and whether the appeal amounted to an abuse of process. The Court of Appeal found that the District Court had correctly exercised its discretion in dismissing the interlocutory application, as 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. The Court of Appeal concluded that the application was an abuse of process and dismissed the appeal. The Court of Appeal considered the relevant provisions of the Uniform Civil Procedure Rules and the established principles regarding contempt of court, holding that the District Court had correctly applied the legal principles in determining that there were no reasonable grounds to suspect that contempt had been committed. The Court of Appeal further found that the appeal itself amounted to an abuse of process, given the history of the matter and the lack of any evidence to support Mr. McFarlane's claims. The Court of Appeal dismissed the appeal and ordered Mr. McFarlane to pay the respondent's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STEIN J

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

Ratio Decidendi

Legal Principle Established

Established by: STEIN J

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).