Allegations Against Counsel Dismissed as Abuse of Process by SA Supreme Court

This case concerns an appeal arising from an application to stay enforcement orders pending a contempt proceeding alleging serious misconduct by opposing counsel, including fraud and misleading the Court. The Court dismissed the appeal, finding that the allegations against the barrister and others lacked evidentiary foundation, had been previously considered by regulatory bodies, and constituted an abuse of process.

In McFarlane v Reffold [2025] SASC 43, the South Australian Supreme Court dismissed the appellant’s appeal against a District Court decision rejecting his interlocutory application to seek a stay of judgment, orders and warrants until the determination of a “contempt application” against the opposing solicitor and counsel and two conveyancers in relation to the purchase of a property several years prior.  

By way of background, the matter began with a contract for the sale of land in 2007. The appellant purchaser raised concerns about an unapproved septic tank on the property, which delayed settlement. After several attempts to resolve the issue, the respondent vendor refused to accept settlement without interest for the delay. The matter proceeded to a District Court trial and in 2013, judgment was awarded against the appellant. Enforcement orders were subsequently issued. In 2021, the appellant sought to stay execution of the costs order pending a “contempt application” alleging fraud, witness tampering, and improper conduct during the trial. The application was filed under r205.5 of the Uniform Civil Rules 2020 (SA), which empowers a court to direct the formulation of a contempt charge where there are reasonable grounds to suspect contempt has occurred.

The District Court Judge explained the legal threshold to the self-represented appellant over several hearings and granted multiple adjournments for him to seek legal advice. In November 2021, the Judge dismissed the application, noting it was nearly a year old, unsupported by evidence, and substantially duplicative of matters already raised in trial, appeal, and complaints to regulatory bodies. The Judge also dismissed an informal application for recusal, finding no reasonable apprehension of bias.

In the appeal, the appellant, still self-represented, submitted that opposing legal representatives (and conveyancers) had engaged in misconduct such as concealment of evidence, surprise tactics and improper conduct during trial, including misleading the Court and manipulating access to subpoenaed documents. He also alleged procedural unfairness, judicial bias, and systemic failure by regulatory bodies, such as the Legal Practitioners Conduct Board. He criticised the District Court for failing to refer to his statement of claim, denying further adjournment, and allegedly acting on misleading submissions from counsel. The respondent, in contrast, characterised the application as an impermissible attempt to re-agitate long-resolved issues. It was submitted for example, that the alleged misconduct had already been examined and rejected by the Legal Practitioners Conduct Board.

The Court found that the application was misconceived and abusive of the Court’s process. The Court emphasised that mere dissatisfaction with trial outcomes does not constitute contempt, that allegations of fraud or misconduct, when previously adjudicated and dismissed, cannot be revived through contempt proceedings, and that the application lacked any factual basis or evidentiary foundation capable of supporting a charge.

The decision can be found here.