Classic Constructions (Aust) Pty Ltd v Shearman (No 4) - [2024] ACTSC 289

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Classic Constructions (Aust) Pty Ltd v Shearman (No 4)

Details

AGLC: Classic Constructions (Aust) Pty Ltd v Shearman (No 4) [2024] ACTSC 289
Case: [2024] ACTSC 289
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the matter of Classic Constructions (Aust) Pty Ltd v Shearman (No 4), the court was called upon to adjudicate on an application to set aside a subpoena and a notice to produce. The primary applicant, Classic Constructions (Aust) Pty Ltd, sought the relief against Shearman, the second defendant, in relation to documents that were requested in the course of ongoing litigation. The case was heard by the Supreme Court of the Australian Capital Territory.

The legal issues before the court revolved around whether the subpoena and notice to produce were valid and properly served, and if there were any grounds for setting them aside. The applicant argued that the subpoena was improperly issued and the notice to produce was not in accordance with the relevant procedural rules, leading to potential prejudice against the applicant. The court had to consider whether the procedural fairness was maintained and whether the application complied with the relevant statutes and rules.

The court found that the subpoena issued to Jefferson Godfrey Architects Pty Ltd was indeed improperly served and did not comply with the relevant rules. It was set aside pursuant to rule 6604 of the Court Procedures Rules 2006 (ACT). Similarly, the Notice to Produce issued to Classic Constructions (Aust) Pty Ltd was found to be improper and was set aside pursuant to section 20 of the Supreme Court Act 1993 (ACT). The court further ordered that the second defendant was to bear the costs of the application and a subsequent application determined on 12 September 2024. The costs were to be deferred until the conclusion of the proceedings.

The court's orders included the setting aside of the subpoena and notice to produce, the imposition of costs on the second defendant for the applications, and a direction that these costs were not to be payable until the end of the litigation. This decision underscores the importance of adhering to procedural rules and the consequences for non-compliance in legal proceedings.

Orders

Orders of the court

(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.

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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