Classic Constructions (Aust) Pty Ltd v Shearman (No 5)

[2024] ACTSC 402

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Classic Constructions (Aust) Pty Ltd v Shearman (No 5)

Citation: 

[2024] ACTSC 402

Hearing Date: 

11 December 2024

Decision Date: 

16 December 2024

Before:

McCallum CJ

Decision: 

(1)    I refuse leave to issue subpoenas to the recipients listed in the application in proceeding dated 12 November 2024. 

(2)    I note that the defendants require leave to file any further expert evidence-in-chief after 31 January 2025.

Catchwords: 

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application by plaintiff for leave to issue subpoenas before allocation of hearing date – where plaintiff seeking production of correspondence with defendants’ expert – where defendant swore lengthy affidavit explaining the process undertaken by her to obtain expert reports – self-represented defendant of limited resources – undesirability of imposing requirement to comply with subpoena in addition to other steps required

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for guillotine order – complex building dispute conducted by self-represented litigant – undesirability of pre-emptively determining consequence of failure to comply with timetable  

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A

Court Procedures Rules 2006 (ACT), rr 1400, 1401, 6601A

Cases Cited: 

Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804

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․Classic Constructions moves the court by application in proceeding dated 13 November 2024 for leave to issue three subpoenas as follows:

(a)to Mr Edward Yin;

(b)to CSG Engineers Pty Limited; and

(c)to Thomson Geer Services Pty Limited. 

Leave is required under r 6601A of the Court Procedures Rules 2006 (ACT) because the proceedings do not yet have a hearing date.

2․The application also seeks, pursuant to rr 1400 and 1401 of the Court Procedures Rules, a direction imposing on the defendants a requirement for leave of the Court to file any further expert evidence-in-chief after 31 January 2025, and that any expert evidence-in-chief served after that date is not able to be relied upon in the proceedings. 

3․Dealing first with the first two subpoenas, the documents sought are the documents passing between Mr Yin and CSG Engineers in relation to the preparation of the CSG Engineers reports dated 18 October 2024 and 21 October 2024 and, in the case of CSG Engineers, any documents passing between that company and the defendants, Mr Yin, or two named entities in relation to the preparation of his report.  The basis for the application for leave to issue those subpoenas is that the expert reports have been served. 

4․Classic Constructions relies on the decision of the Federal Court in Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804 where the Court at [21] set out the principles to be applied in such an application. The plaintiff relies in particular on the fourth principle stated by Lindgren J in that decision, as follows:

Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents (citations omitted).

5․Classic Constructions’ solicitor wrote to Mrs Shearman, the second defendant who also represents the interests of the first defendant in the proceedings in accordance with a power of attorney, indicating that they proposed to issue subpoenas, or seek leave to do so, and enclosing drafts of the proposed subpoenas. 

6․In response to that correspondence, Mrs Shearman swore an affidavit dated 31 October 2024 setting out chapter and verse the process which she had applied in obtaining the expert report and annexing relevant documents, including a lengthy brief to the expert.

7․Mrs Shearman also explained in that affidavit that she had deliberately kept the process pristine by ensuring that all communications with the expert went through the barrister, Mr Yin, for the precise reason that she wanted to be able to show that there had been no attempted influence or basis for inferring influence of the kind referred to by Lindgren J in Southcorp. 

8․In my view, that affidavit is sufficient to address the forensic purpose identified for issuing the subpoena, which was so that Classic Constructions would know how the report was prepared and what they would have to meet in preparing their own expert report.  Based on my consideration of Mrs Shearman’s careful affidavit, I do not see how there is any gap in the forensic armoury that Classic Constructions might need to prepare their reports at this stage.  That is sufficient reason, in my view, to refuse leave to issue a subpoena at this stage of the proceedings. 

9․An additional reason is not to visit another procedural obligation on Mrs Shearman at a time when she is expected by the Court and the plaintiffs to be focusing all her attention on the preparation of any further expert reports which are due on 31 January 2025.  That disposes of the subpoenas addressed to the first two entities named above. 

10․The third subpoena is addressed the firm of solicitors that previously acted for the Shearmans, Thomson Geer Services Pty Ltd.  In an earlier procedural application in these proceedings, Mrs Shearman tendered email correspondence between her and Thomson Geer.  There was a narrow purpose for tendering that material.  However, doing so plainly waived privilege.  I attempted to explain that to Mrs Shearman at the time, but I accept that she did not appreciate that waiver for one purpose meant waiver for any purpose.  Indeed, I apprehend that she understood what I said to her at the time to mean that she was waiving privilege only in the documents that she was tendering.  Of course, the principle of waiver of privilege is broader than that. 

11․My determination in respect of the third application is to stand over the application for issue of the subpoena to a later date.  My reason for that conclusion is twofold.

12․First, I have not had the opportunity, in the short time between hearing the application and now, properly to consider whether the Court has any discretion not to give access to a document in respect of which client legal privilege has been waived in circumstances of the kind here, that is, where an unrepresented litigant has waived privilege not understanding that that was what was happening. 

13․Secondly, and more significantly for present purposes, again, I think the issue of the subpoena at this point will serve as a distraction to Mrs Shearman.  Although the subpoena is addressed to the law firm, I have no doubt that she will be anxious to participate in the process of production and inspection, and that is a distraction she does not need at this point in time, especially in light of the next issue to which I now turn. 

14․The last part of the application is to seek what is known as a guillotine order in respect of the service of expert reports.  As I explained to Mrs Shearman during the hearing, a guillotine order is an order the court might consider making in circumstances where a party has repeatedly failed to file evidence in accordance with the directions of the court.  It is an order made in effect by way of anticipatory sanction on the delinquent party making it plain that, if all of their evidence is not filed by a particular date, they will not be permitted to rely on any further evidence.

15․The precise form of the order in the present case sought is: “pursuant to rr 1400 and 1401 of the Court Procedures Rules, an order that the defendants require the Court’s leave to file any further expert evidence-in-chief after 31 January 2025, and that any expert evidence-in-chief served after this date is not able to be relied upon in these proceedings”.  On my reading of the rules, the Shearmans require leave in any event to file any further evidence after 31 January 2025, since that is the date that has been specified in a direction of the Court.  The operation of the rules would require the establishment of some particular special basis for serving additional material in those circumstances. 

16․In case that is wrong, however, I do think it is appropriate that the defendants should be required to obtain the leave of the court before filing any further expert evidence after 31 January 2025.  I do not propose to make the second part of the order, that is, the part that acts as a guillotine.  As I indicated during the hearing of the application, my view is that there are difficulties with orders in those terms because they require the court pre-emptively to determine that no reason that might be brought forward for serving further evidence could trump case management considerations.  That is a determination which cannot often be made.  It cannot be made in the present case because, for reasons well documented in Mrs Shearman’s many affidavits, she has encountered various difficulties in obtaining expert material.  However, Mrs Shearman should understand that leave will not be granted lightly to serve further expert evidence after 31 January 2025.  The Court must take case management considerations into account in considering any such application.  Mrs Shearman has had a lengthy period to prepare her expert evidence.

17․I accept that there have been a variety of causes of delay, but one cause of delay is Mrs Shearman’s persistent views in how the litigation should be conducted, which do not accord with the case management principles and, in particular, s 5A(4) of the Court Procedures Act 2004 (ACT), which imposes an obligation on the parties to a civil proceeding to help the court to achieve the objectives of timeliness, efficiency and proportionate cost specified in s 5A(2) of the Act.

18․Proportionality of cost to the interest at stake in these proceedings is a considerable concern.  I have had some evidence before me about the costs that have been incurred to date.  I do not have an accurate picture of that proportion, but these proceedings have been conducted, as Mr Buckland has previously submitted on behalf of Classic Constructions, as if the Court were required to conduct a Royal Commission into the build and without appropriate distillation of the real issues in dispute.  That said, for the reasons I have indicated, I do not think this is a case in which a guillotine order can properly be made. 

Orders

19․For those reasons, I make the following orders. 

(1)I refuse leave to issue subpoenas to the recipients listed on application in proceeding dated 12 November 2024. 

(2)I direct that the defendants require leave to file any further expert evidence-in-chief after 31 January 2025.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 14 April 2025