McFarlane v Reffold
[2022] SADC 31
•16 March 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
MCFARLANE v REFFOLD
[2022] SADC 31
Judgment of his Honour Judge Dart
16 March 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Appeal from District Court Master - Master lifted a stay on the execution of a warrant for sale of land - no error on the part of the Master demonstrated.
Held:
1. Appeal dismissed.
2. Appellant to pay the respondent's costs.
House v The King (1936) 55 CLR 499, considered.
MCFARLANE v REFFOLD
[2022] SADC 31
This is an appeal from a decision of a Master. The appeal arises in a proceeding that should have been finalised about a decade ago.
The appellant, as plaintiff, commenced these proceedings on 7 April 2008.[1] It appears that the proceedings were finalised in 2014. The respondent obtained a costs order, which has subsequently been taxed. Since that time, the respondent has been seeking to enforce the costs order. He seeks to do so by selling land at Andamooka pursuant to a warrant of sale.
[1] McFarlane v Reffold, DCCIV-08-497.
The appellant seeks to prevent the sale and has obtained stays at various times to prevent the sale. The stay, the subject of this appeal, was made on 27 November 2020. It appears that the appellant filed an interlocutory application on 19 November 2020. The interlocutory application raised the issue of contempt. Because of the issues raised in the application, the Master stayed execution of the warrant on 27 November 2020. The stay was only for a period of approximately a month. It appears that the stay was extended thereafter.
The contempt proceedings continued in the original action. It might have been preferable for the contempt proceedings to have been prosecuted in a new action. This action was resolved by the making of final orders. It has been kept alive artificially by interlocutory applications.
The application in relation to the alleged contempt was dismissed by Judge Durrant on 11 November 2021. That decision is subject to an appeal to a Justice of the Supreme Court listed for hearing on 21 March 2022.
After Judge Durrant dismissed the contempt proceedings, the respondent asked the Master to lift the stay granted by him on 27 November 2020. On 17 December 2021 the Master did so on the basis that Judge Durrant had dealt with the contempt proceedings. The original purpose of the stay was to allow the contempt proceeding to be dealt with and, that application having been dismissed, the purpose for the stay was spent.
The principal argument on the appeal is that Master Blumberg should not have lifted the stay. The complaint is that the decision of Judge Durrant is wrong and, in the circumstances, the Master should have realised that and not lifted the stay.
That misunderstands the system by which the courts operate. A judge of the Court has dismissed an application. It is subject to an appeal. A Master cannot undertake a consideration of the merits of that judgment to determine whether it is correct or not. The Master was simply dealing with a situation where the application for contempt had been dismissed and the action finalised.
The decision to grant a stay, or to lift it, is discretionary. The Court is bound, on an appeal, by the decision in House v The King.[2] An error must be demonstrated. Unless that is done, the Court cannot interfere.
[2] (1936) 55 CLR 499
The appellant makes no submissions in respect to error by the Master, other than to say that he should have realised that Judge Durrant’s decision was wrong and therefore should not have lifted the stay. There is no substance to the appeal.
The appeal is dismissed and the appellant is to pay the respondent’s costs.
The dismissal of this appeal does not prevent the appellant from seeking a stay on the hearing of the Supreme Court appeal. It will be a matter for the judicial officer hearing the appeal to determine whether a further stay is warranted.
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