Classic Constructions (Aust) Pty Ltd v Shearman (No 3)
[2024] ACTSC 282
•12 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Classic Constructions (Aust) Pty Ltd v Shearman (No 3) |
Citation: | [2024] ACTSC 282 |
Hearing Date: | 16 August and 5 September 2024 |
Decision Date: | 12 September 2024 |
Before: | McCallum CJ |
Decision: | Leave to file the two applications referred to me by the Registrar on 26 July 2024 is refused. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where Registrar referred two applications sought to be filed by a self-represented litigant to a judicial officer under rule 6142 of the Court Procedure Rules for consideration as to whether applications should be accepted for filing – consideration as to whether litigant should have leave to file the documents – whether documents an abuse of process – where litigant had served numerous notices for non-party production and obtained numerous documents – failure to prove inadequate production or need for further documents |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 6142 |
Parties: | Classic Constructions (Aust) Pty Ltd (Plaintiff) Debra Shearman (Second Defendant) |
Representation: | Counsel B Buckland (Plaintiff) Self-represented (Second Defendant) |
| Solicitors MV Law (Plaintiff) Self-represented (Second Defendant) | |
File Number: | SC 417 of 2022 |
McCALLUM CJ:
EX TEMPORE REASONS (REVISED)
1․Sometime before 26 July 2024, the second defendant in the proceedings, Mrs Shearman, attempted to file two applications in the Registry seeking orders compelling compliance with 31 notices of non-party production she had previously served.
2․On 26 July 2024, I made an order in chambers directing the Registrar to reject those applications unless leave was granted pursuant to r 6142(3) of the Court Procedures Rules 2006 (ACT). That rule applies to a document filed in the Court which appears to the registrar on its face to be an abuse of the Court’s process or to be frivolous or vexatious.
3․The rule contemplates that one of the courses the Registrar may take in that circumstance is to refer the document to a judicial officer for directions about how to deal with it. The Registrar having formed the relevant view, she brought the documents to me for that purpose.
4․Rule 6142(3) provides:
If the registrar refers the document to a judicial officer, the judicial officer may direct the registrar—
(a) to accept the document; or
(b) to reject the document; or
(c) to reject the document unless the court gives leave to accept the document.
5․I took the view that, while I shared the Registrar’s impression that the documents appeared on their face to be an abuse of the Court’s process (for reasons I will explain), having regard to Mrs Shearman’s circumstances, it was appropriate to afford her an opportunity to seek leave to file the documents. I directed the Registrar accordingly. The proceedings were listed before me on 16 August 2024 to consider whether leave should be granted.
6․The applications distinguished between notices for non-party production served by Mrs Shearman on eight entities, as to which there has been no response, and notices served on a further 23 entities, as to which there has been a response but in respect of which Mrs Shearman contends that the party in question has failed to produce all the documents. In the case of the eight, the order sought is that the recipients comply with the notice for non-party production served on them. In the case of the 23, the order sought is also that the recipient comply with the notice of non-party production served on them.
7․The distinction from an evidentiary perspective is that, in respect of the 23, there is an affidavit relied upon by the plaintiff, Classic Constructions, sworn by the solicitor with carriage of the matter, Ms Hall, to the effect that, in respect of each entity, documents were produced to the plaintiff and either made available to Mrs Shearman promptly, within the time frame contemplated by the rules, or in some instances made available after applications to have those notices set aside were abandoned.
8․In that context, the Registrar had explained to Mrs Shearman that, when the proceedings came before me, she would need to satisfy the Court of one of two propositions (either that a party had not responded at all to a notice or that a party had failed to provide all documents) with appropriate evidence. In referring to that advice from the Registrar, I should clarify that I have not seen or heard that advice myself. Rather, that was something I understand Mrs Shearman to have told me the Registrar had explained to her at the time when Mrs Shearman was explaining the considerable bulk of the evidence that she was relying upon in support of the present application.
9․I note in that context that Mrs Shearman is labouring under several difficulties which she asks the Court to bear in mind. First, and perhaps most obviously, she is self-represented. That is always a difficulty for a person unfamiliar with the complexities of the legal system. Secondly, this is a complex case. It raises multiple issues that have to be proved in complex forensic ways. Thirdly, Mrs Shearman has informed the Court that she is a person with a disability and, fourthly, she has fairly intensive carer obligations towards her husband, who is the first defendant.
10․In respect of those last matters, Mrs Shearman has from time to time had assistance from a support person and indeed one such person assists her today. The Court notes its gratitude for the preparedness of such persons to support litigants facing the hurdles faced by a person in the position of Mrs Shearman. She also has a support dog, who is welcome in this Court but less helpful with managing the mountains of documents.
11․For those reasons, it is appropriate to give greater leeway and assistance to Mrs Shearman, to the extent that is not inconsistent with the Court's duty to remain impartial in the proceedings. That said, the Court must always be mindful of the imposition of such circumstances on an opponent including the increased costs and delay that often attend such cases, as well as the additional imposition on the Court's time when other litigants are waiting to have their cases heard. I wish to emphasise that, in referring to the impact on the Court’s time as an ”imposition”, I do not mean to suggest that it tries the Court’s patience or that a person in Mrs Shearman’s circumstance has any lesser entitlement to a fair hearing than any other litigant. The difficulty for a presiding judge in such a case to ensure that additional time does not become disproportionate having regard to the needs of other litigants and the finite resources of the Court.
12․This Court faces particular difficulties in that respect because, in the Territory, there is no intermediate court, only a Magistrates Court and a Supreme Court. The jurisdiction of this Court is accordingly wider than that of most Supreme Courts in the federation. Accordingly, we have a hybrid workload, at once dealing with the jurisdiction of a busy middle tier court such as a District Court with a high turnover of both criminal and civil matters and that of a superior court of record, which is expected to produce high quality, published judgments that will provide guidance to lower courts and to the profession.
13․I turn in that context to consider the non-party production notice process. It is, in my experience, peculiar to this jurisdiction; certainly, it is not one of which I have had experience in New South Wales. It is an unusual hybrid method of obtaining documents which does not carry the sanction of a subpoena but which nonetheless enables a party to obtain documents during the period of preparation before taking a hearing date.
14․In interpreting the provisions of the part of the rules of court that provides for the issue of non-party production notices, it is important to bear in mind that it is a process that imposes on strangers to the proceedings. It should not be used as a substitute for careful preparation and distillation of the real issues in the proceedings. Mr Buckland submitted that Mrs Shearman’s approach to obtaining documents by the mechanism of non-party production notices is akin to her undertaking a royal commission into the build in respect of which she sues. There is some force in that submission.
15․I turn to consider the application before the Court. The application is premised on an allegation of failure of the non-party production process to date. Mrs Shearman bears the onus of proof on that issue, failing which the Court can more readily infer that the further applications sought to be filed constitute an abuse of the Court's process. To a self-represented litigant, the word “abuse” appearing in the rule may appear to be a strong word, but in substance what it refers to is an occasion on which the Court’s processes are not being used for the purpose for which they were created.
16․In a case of this nature, and noting the difficulties faced by Mrs Shearman, the task of proving the matters Mrs Shearman understood she had to prove was difficult. I have endeavoured to make allowance for that. In short, Mrs Shearman sought to prove what had been produced to date and why she apprehended documents were missing from the production in the case of the 23 notices.
17․Even the attempt to prove what had been produced was difficult and cumbersome. The attempt to prove what was missing was based in part on the premise that certain documents should exist if everything had been done properly.
18․Mrs Shearman did not appear to appreciate that a failure to produce might in itself be a useful forensic fact and would not necessarily mean there were documents in existence that ought to have been produced that had not been produced. For example, if the licensed entity tasked with obtaining authority for a particular step in the construction did not produce a copy of that authority, it would not necessarily follow that a document exists and has not been produced. It may be the case that the licensed entity did not obtain the required authority.
19․The proceedings on 16 August 2024 were heard over more than three hours during which time Mrs Shearman was able to address 11 of the 31 components of her application. I listened carefully to her submissions and was not able to discern or understand any particular forensic need that had not been met by the non-production. Making due allowance for the shortcomings under which she was operating, however, the proceedings were stood over to 5 September 2024 to give Mrs Shearman a further opportunity to address the points.
20․It was mooted on 16 August that it might assist if Mrs Shearman produced a schedule of material that has been produced, material she apprehends has not been produced and some explanation of the basis for that apprehension. Mrs Shearman was unable to do that within the two weeks allowed. While I am sympathetic to her circumstances, the failure to do the task which was the very reason for the adjournment was emblematic of the problem and the disproportionate time these issues have consumed.
21․The context in which the application is brought is that, for a considerable period of time, the plaintiff has been pressing for progression of the proceedings. Separately, I must consider the position of a party which is currently not joined in the proceedings, that is, the certifier, as to whom Mrs Shearman has been granted leave to file a cross-claim but has not yet done so. Mr Bresler represents that party today and is waiting to know the fate of the proceedings as against his client.
22․Finally, I note that, as might be expected, the delays and attempts by Mrs Shearman to pursue the proceedings in the way she has attempted to have been productive of significant costs, particularly for the plaintiff, Classic Constructions. Those matters are addressed in the affidavit of Ms Hall to which I have referred.
23․During argument on the application, I asked Mrs Shearman whether her expert builder had now inspected the property. That question came in circumstances where another application which delayed the progress of the proceedings was a misconceived application by Mrs Shearman for access to her own property at a time when the plaintiff had made every attempt to return possession of it to her: see Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374.
24․Mrs Shearman informed the Court that the expert has now inspected the property but that she has not yet received his report. I asked Mrs Shearman whether the expert had identified any document without which he could not proceed to provide an opinion at all or in respect of any particular issue. Mrs Shearman's response was that she had not spoken to the expert since he had undertaken the inspection. That is because she has adopted the course of not communicating with him about the substance of the issues, so as to keep the exchanges clean, as she put it. There may be some merit in that approach but the upshot is that Mrs Shearman is not aware of any document the expert needs or without which he cannot provide his opinion.
25․In all the circumstances, I am not persuaded that it is appropriate to grant leave to file either application because I remain of the view I first formed, that they constitute an abuse of the Court’s process. It follows that the two applications must be rejected for filing.
Orders
26․For those reasons, I make the following order:
(1)Leave to file the two applications referred to me by the Registrar on 26 July 2024 is refused.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 22 November 2024 |
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