Classic Constructions (Aust) Pty Ltd v Shearman (No 4)
[2024] ACTSC 289
•20 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Classic Constructions (Aust) Pty Ltd v Shearman (No 4) |
Citation: | [2024] ACTSC 289 |
Hearing Date: | 20 September 2024 |
Decision Date: | 20 September 2024 |
Before: | McCallum CJ |
Decision: | (1) I make orders 1, 2 & 3 in the application in proceeding dated 21 August 2024: (a) Pursuant to r 6604 of the Court Procedures Rules 2006 (ACT), the subpoena issued to Jefferson Godfrey Architects Pty Ltd dated 7 August 2024 is set aside. (b) Pursuant to s 20 of the Supreme Court Act 1993 (ACT), the Notice to Produce issued to Classic Constructions (Aust) Pty Ltd dated 13 June 2024 is set aside. (c) The second defendant is to pay the plaintiff’s costs of this application. (2) The second defendant is to pay the plaintiff’s costs of the undated application determined on 12 September 2024. (3) I direct that the costs of the application in proceeding dated 21 August 2024 and costs of the undated application determined on 12 September 2024 not be payable until the conclusion of the proceedings. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside subpoena and notice to produce |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 6604 Supreme Court Act 1993 (ACT), s 20 |
Cases Cited: | Azzi v Volvo [2006] NSWSC 283 |
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․Before the Court is an application in proceeding dated 21 August 2024 by which the plaintiff seeks orders setting aside a subpoena issued to Jefferson Godfrey Architects, setting aside a notice to produce issued to the plaintiff and for the costs of the application. There is also before me the reserved question of the costs of an application I determined last week.
2․As to the subpoena, the subpoenaed party, Jefferson Godfrey Architects Pty Limited, previously complied with a notice for non-party production. In response to the subpoena, Jefferson Godfrey wrote a letter to the Court, which is Exhibit A before me, setting out the steps they had taken to comply with the notice for non-party production and stating that they have in effect produced all documents that they have been able to locate.
3․The letter concluded with some complaints about the imposition on that firm of Mrs Shearman’s repeated requests for documents, and some suggested sanctions. I do not propose to take any action against Mrs Shearman as requested in the letter, if for no other reason than that it is not appropriate for the Court to accede to a request made in correspondence. The proper process for invoking the Court’s jurisdiction is to file an application in the Registry. That is simply a consequence of the principle that the court conducts its business in open court, not by correspondence with chambers. In any event, however, I am satisfied by reference to the contents of the letter that the position of Jefferson Godfrey Architects is that they do not have anything further to produce.
4․Mrs Shearman has relied on several affidavits to support her central argument, which is that there should exist further documents which the architect has not produced. In short, her position is that she does not accept that its compliance with the notice for non-party production has been complete. There is a separate category of complaint, which is that, in respect of certain electronic links, Mrs Shearman says if the links no longer exists, it would be a simple matter for the architect to recreate them.
5․As I have endeavoured to explain to Mrs Shearman this morning, however, it is beyond the power of the court on an application of this kind to order a party to create a document for the purpose of production. All that a party can be compelled to do is to produce a document currently existing and in its possession. If Mrs Shearman wishes to have the links recreated, that is a matter of negotiation between her and the architect.
6․Returning to the substantive issue of the subpoena, I am satisfied that it is an abuse of process because there is, as is clear from the material before the Court, nothing further to produce. I do not accept the central contention made by Mrs Shearman that documents that she considers ought to exist must therefore exist and must therefore not have been produced. I apprehend that contention derives from a level of suspicion entertained by Mrs Shearman which I do not share.
7․Turning to the notice to produce, Mr Buckland has drawn the Court’s attention to a decision of Brereton J in Azzi v Volvo [2006] NSWSC 283 in which his Honour reviewed authorities relevant to the circumstance that arises here, namely, where a party that has given discovery is then served with a notice to produce. In substance, the position is the same with Classic Constructions as with Jefferson Godfrey Architects, that is, that verified discovery has been given, as a result of which it is the plaintiff’s position that they have produced everything that is discoverable.
8․Again, Mrs Shearman has endeavoured to demonstrate that there are documents that ought to exist which have not been discovered. The best example of that is Mrs Shearman’s statement that on 22 October 2020 she signed architectural drawings and those do not appear to have been included in the list of discovered documents, which is annexed to one of the affidavits of Ms Hall relied upon by the plaintiffs in the proceedings.
9․During the course of the hearing, at my request, Mr Buckland obtained instructions about that particular document. The response, as I understand it, is that if it has not been discovered, it does not exist or else is no longer in the possession of Classic Constructions. In any event, concerning that example, Mrs Shearman informed me that she herself took photographs of those plans. Accordingly, it would appear that, if she wishes to contend those were the operative contractual documents, she will have evidence of them for tender at the hearing.
10․By reference to the principles summarised by Brereton J in Azzi v Volvo, I am satisfied that the notice to produce is an abuse of process and that that too should be set aside.
11․It follows that Mrs Shearman should pay the costs of the application. She should also pay the costs of the unsuccessful application I heard last week following the Registrar’s referral to me of a question as to whether Mrs Shearman should have leave to file two applications concerning the compliance of 31 non-parties with notices of non-party production issued to them.
12․The central question concerning costs, this being a case attracting the usual rule that costs follow the event, is when those costs should be paid. The default position in the Territory is that the costs of interlocutory applications are payable forthwith unless the court orders otherwise. Mrs Shearman submits that the court should order otherwise in these proceedings because it is her contention that ultimately the plaintiff will be demonstrated to owe her money and not the other way round. Classic Constructions has submitted that these were discrete interlocutory applications which were a waste of time and that on that basis there should be no variation to the usual position.
13․I have found this a difficult issue to decide for the reason that it is almost impossible for the Court at this point in the proceedings to ascertain the strength of Mrs Shearman’s counterclaim against Classic Constructions. At this point, she does appear to be labouring under certain difficulties by reason of being self-represented. She asserts from the Bar table, but it is a proposition which it is not difficult to accept, that if she was in a better financial position now, she would be able to retain lawyers, and the fact that she is representing herself does pose some hurdles for her.
14․In all the circumstances, I am concerned that the default position that the costs be payable forthwith might pose further hurdles for Mrs Shearman in the prosecution of her counterclaim. Accordingly, I propose to order that the costs payable on the two applications to which I have referred be deferred to be payable after the conclusion of the proceedings.
Orders
15․For those reasons, I make the following orders:
(1)I make orders 1, 2 and 3 in the application in proceeding dated 21 August 2024:
(a) Pursuant to r 6604 of the Court Procedures Rules 2006 (ACT), the subpoena issued to Jefferson Godfrey Architects Pty Ltd dated 7 August 2024 is set aside.
(b) Pursuant to s 20 of the Supreme Court Act 1993 (ACT), the Notice to Produce issued to Classic Constructions (Aust) Pty Ltd dated 13 June 2024 is set aside.
(c) The second defendant is to pay the plaintiff’s costs of this application.
(2)The second defendant is to pay the plaintiff’s costs of the undated application determined on 12 September 2024.
(3)I direct that the costs of the application in proceeding dated 21 August 2024 and the costs of the undated application determined on 12 September 2024 not be payable until the conclusion of the proceedings.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 22 November 2024 |