Court slates lawyer’s ‘scandalous, outrageous’ allegations

At one point, and in reference to a failed adjournment application, Justice McElwaine said Martin had proposed “to proceed in a way that is distinctly unfair”, and sought to clarify that if Martin believed himself to be prejudiced, “it is, with respect, of your own making”.

Martin came before the Federal Court with an interlocutory application relating to proceedings concerning his wife, Victoria Martin, and brother-in-law, James Hillier. Victoria and Hillier have fought over a fast-food business in Adelaide known as Nordburger.

The court noted Martin was not a party to the proceedings.

Part of the interlocutory application concerned releasing Victoria and Nordburger from an undertaking preventing them from making payments out of the revenue, funds or assets except in payment of the expenses of the business. This application was dismissed.

Martin sought to rely on 57 documents, but no prior notice was given to the legal representatives for Hillier. Martin was also unable to provide the court with a “satisfactory answer” as to whether it would be fair and consistent with the overarching purpose to rely on them.

VIEW ALL

When Justice McElwaine said he would not permit Martin to rely on them, the solicitor became argumentative. It was then that he sought the adjournment of the hearing and was unsuccessful.

After a brief adjournment, Martin made an application that Justice McElwaine recuse himself from hearing the application, but the submissions were “unfounded, intemperate and scandalous in part”.

Martin alleged Justice McElwaine was “unjustly obstructive”, had expressed “displeasure” with certain matters he sought to raise in the past, that his wife’s submissions before other judges had been swept aside, and Hillier and his lawyers engaged in obstructive conduct.

In what he said were “very firm terms”, Justice McElwaine interrupted to tell Martin the submissions were “scandalous, outrageous and were not serving to advance the recusal application”. Further, Martin was informed his conduct was straying close to contempt.

“Undeterred, his submissions continued.

“He raised unparticularised, unsubstantiated and incoherent generalised allegations of serious misconduct by Hillier and his lawyers in this proceeding without a skerrick of evidence or coherent material in support,” Justice McElwaine said.

The submissions were brought to an end when Justice McElwaine informed Martin he had “abused his right of an audience before me”.

Referring to an accusation that other judges of the court had allowed the other parties and their legal practitioners to engage in serious misconduct, Justice McElwaine said it was “outrageous”.

“Martin is a qualified lawyer. He knows that allegations of that type must not be made. His conduct borders on contemptuous.

“I will not pay any regard whatsoever to those submissions. It is patently obvious that there is no basis I recuse myself,” he added.

Before moving on to dismissing the interlocutory application, Justice McElwaine said Martin should understand that contempt in the face of the court “extends to disrespectful conduct if it interferes with or tends to interfere with the administration of justice in this court”.

The case: Hillier v Martin (No 22) [2025] FCA 507