Classic Constructions (Aust) Pty Ltd v Shearman (No 6)
[2025] ACTSC 483
•29 October 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Classic Constructions (Aust) Pty Ltd v Shearman (No 6) |
Citation: | [2025] ACTSC 483 |
Hearing Date: | 13 to 29 October 2025 |
Decision Date: | 29 October 2025 |
Before: | Muller AJ |
Decision: | See [8]. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – non-appearance of self-represented litigant –contents of medical certificate insufficient – directions made regarding further detail of medical condition from medical practitioner |
Cases Cited: | UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 |
Parties: | Classic Constructions (Aust) Pty Ltd ( Plaintiff) Leigh Shearman (First Defendant) Debra Shearman ( Second Defendant) |
Representation: | Counsel WDB Buckland ( Plaintiff) Self-represented ( Defendants) |
| Solicitors MV Law ( Plaintiff) Self-represented ( Defendants) | |
File Number: | SC 417 of 2022 |
MULLER AJ:
Introduction
This matter was listed before me today for the continuation of a hearing that commenced on 13 October 2025.
There was no appearance by Ms Shearman. A short history in that regard is as follows:
(a)The matter was originally listed for a three-week hearing commencing on 13 October 2025.
(b)Prior to the hearing commencement, the defendants had indicated that although self-represented up until that time, there would be representation by Counsel at the hearing.
(c)On the first day of hearing Ms Shearman attended on behalf of the defendants, represented by Mr Yin of Counsel. At the commencement of the second day of hearing Mr Yin advised that his brief to appear had been withdrawn and he played no further active part in the hearing. Thereafter, Ms Shearman has conducted the defence of the claim as a self-represented litigant on behalf of both defendants.
(d)On 23 October 2025 in the course of her cross examination of Ms McNabb, one of the plaintiff’s witnesses, Ms Shearman notified me of her inability to continue as she was experiencing a migraine headache. She indicated that the headache had commenced on the prior day, forcing her to take medication immediately following the conclusion of that hearing day and to retire to bed. Ms Shearman asserted that she had then risen at 4am on 23 October 2025 to continue her preparation, but that she was too unwell to continue further on the day. I adjourned the Court until 10am on 24 October 2025.
(e)In the afternoon of 23 October 2025 Ms Shearman provided to the Court and to the plaintiff’s solicitor a medical certificate from Dr Cameron Evans who appears to be a General Practitioner at the Holt Medical Centre. Dr Evans certified that “Mrs Deborah Shearman has a medical condition and will be unfit for work/Court or any administration from 23 October 2025 to 24 October 2025, inclusive”.
(f)On that basis, I adjourned the hearing until 10am on Monday 27 October 2025. Ms Shearman attended court on that day and proceeded to engage in cross examination of two of the plaintiff’s witnesses throughout the course of the hearing day with no overt sign of incapacity.
(g)The hearing was scheduled to continue at 10am on 28 October 2025 with Ms Shearman to be cross examined by Counsel for the plaintiff. At 8:34am on 28 October 2025 Ms Shearman emailed the court and the solicitor for the plaintiff advising that she was unwell and would be unable to proceed with the hearing on that day. She advised that she had booked an urgent medical appointment for that morning and would send through the medical certificate when received. I adjourned the matter until 2pm on that day and requested that the medical certificate to be provided include further detail as to Ms Shearman's condition.
(h)Ms Sherman subsequently emailed a further certificate from Dr Evans that was in identical terms to the first certificate save that the asserted period of incapacity was from 28 October 2025 until 9 November 2025. That comprised the entirety of the remaining allocated period for the completion of the hearing, which was scheduled to conclude on 31 October 2025.
(i)On 28 October 2025, I made orders in chambers as follows:
(1) The matter is adjourned to 10am on 29 October 2025.
(2) The second defendant is to provide to the Court, in writing, prior to 10am on 29 October 2025, an explanation for her failure to appear at hearing today, and in respect of any medical incapacity that is asserted, a certificate from a medical practitioner that deals expressly with her capacity to give evidence in the hearing.
At hearing before me on 29 October 2025 Counsel for the plaintiff initially proposed that Dr Evans be contacted with a view to his giving further evidence in respect of the certificates provided thus far. After some discussion, that application was withdrawn on the basis that the hearing is adjourned until 10am on 30 October 2025 with these short reasons and further direction to be provided from the Court in the interim. Other than the provision of the identified certificates, the defendants have made no effort to take a further active part in the proceedings and has not made any application, for example, seeking an adjournment of the hearing.
I am proceeding on the basis that the second defendant presently considers that all that is required of her to prevent a continuation of the hearing in her absence is the provision of the medical certificates that are now in evidence. For that reason, I considered it apposite to publish these reasons.
Adequacy of Medical Certificates
In the course of the hearing Ms Sherman identified herself as being a person under a disability, however, the nature of that disability was not made known to me.
The medical certificates relied upon provide no understanding at all as to the nature of Ms Shearman's unfitness or as to how her present medical state may impede her continued participation in the hearing. The principles relevant to the content of medical evidence required to support an application for adjournment of proceedings or to explain a non-attendance were summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [42] to [51]:
42. While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why — and not just whether — the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
43. To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant’s participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.
44. Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.
45. In Bobolas, the appellants appealed against a series of decisions and orders made against them by this Court. One of the appealed decisions is relevant to the present application, namely, a decision by Pain J in Bobolas v Waverley Council (No 3)[2015] NSWLEC 100 to refuse to set aside orders made against the appellants by Sheahan J. The appellants sought to rely on affidavit evidence that they had “defences to council claims, but [they] were too sick to attend the hearing to voice them in any way.” Attached to the affidavit was a number of what purported to be medical certificates relating to each of the three appellants. Only three of the certificates were considered by the Court of Appeal to be relevant to the hearing before Sheahan J (at [210]). The first “certifie[d]” that the author of the certificate (whose name was redacted) had examined the first appellant and that, in the author’s opinion “she was/is suffering from A MEDICAL CONDITION [and] she was/will be unfit for work up to and including 1.5.15.” The remaining two certificates related to the second and third appellants and contained similar language, however, they specified the conditions suffered by the second and third appellants as “CONTUSED L FOOT/ANKLE” and “CELLULITIS FEET”, respectively. Pain J rejected all of the medical certificates as having no probative value.
46. On appeal, McColl JA held that Pain J’s rejection of the certificates was “unexceptionable”. In doing so, she opined that (at [221]):
A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.
47. McColl JA went on to conclude that the appellants’ medical certificates failed to address the “critical question” (at [222]).
48. In Pachkovski, in dismissing an application to adjourn a hearing based on the illness of the three applicants, Hodgson JA stated that (at [4]):
Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.
49. In this Court, medical evidence tendered in support of an application to vacate hearing dates in Ross (No 13) has been rejected because (at [2]):
…The medical certificate does not specify the condition said to render Mr Ross to be unfit to attend the remainder of today’s hearing in these proceedings, nor does it specify the nature of the medication and its effects. In addition, no explanation is given in the certificate as to the nexus between the unspecified medical condition Mr Ross is suffering from and his asserted inability to continue representing himself in these proceedings.
50. The difficulties that arise when medical evidence is given in vague and broad terms were summarised in Magjarraj (at [22]):
All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person’s health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
51. Finally, the Court of Appeal in Woodhouse considered an adjournment application arising from a factual matrix not dissimilar to the present case. There, an application was made by the applicant (a litigant in person) by way of an email to the Registrar attaching letters from the applicant’s treating doctor and a clinical psychologist. In holding not to grant the adjournment the Court determined that (at [23]):
The Court was not satisfied that the medical and other material provided by Mr Woodhouse to the Registrar justified an adjournment for reason of any medical condition from which he may suffer. The note from his treating doctor indicates that it would be “ideal” if the hearing of the case were delayed so as to avoid “stressors”. The psychologist’s letter suggests without further elaboration that any attendance by Mr Woodhouse in court would be “ineffective”. Neither, in the Court’s opinion, showed that Mr Woodhouse’s condition in any practical sense would prevent him from attending before the Court to support his current application or that his doing so would exacerbate that condition or otherwise put his health at risk.
I am not satisfied that the evidence of Dr Evans, comprising the two short certificates before me, is sufficient to address the critical question of whether, and if so, why, the medical condition of Ms Shearman prevents her from coming to court and from continuing to participate effectively in the hearing. The certificates also fail to address in any meaningful way Ms Shearman's capacity to otherwise communicate with the Court and indicate her intentions in relation to the continuation of the hearing. The evidence of Dr Evans in its present form does not provide a sufficient basis to warrant the court simply adjourning the hearing to a date to be fixed.
Orders
I therefore make the following orders:
(1) The hearing is adjourned until 10am on Thursday, 30 October 2025.
(2) Prior to that time, the defendants are to make any application they wish to make in relation to the further conduct of the hearing, with that application to be communicated to the Court and to the plaintiff’s solicitor by email.
(3) In the event that the defendants wish to rely upon any further written medical evidence concerning Ms Shearman's fitness to continue, that evidence must be emailed to the Court and to the plaintiff’s solicitor by 5:00pm today. Such evidence should address as a minimum:
(a)The nature of the medical condition from which Ms Shearman is suffering.
(b)The aetiology of the condition.
(c)Whether in the view of the medical practitioner the condition prevents her from giving evidence in the proceedings and if so, why.
(d)Whether the medical condition prevents her from otherwise attending court in person or remotely and participating effectively in that hearing and if so, why.
(e)The anticipated duration of the identified incapacity.
(4) Where further medical evidence is relied upon the author of the report will be required to make themselves available to give evidence to the court by telephone between 10:00am and 11:00am on 30 October 2025.
(5) In the absence of any application on the part of the defendants or further evidence the hearing will continue at 10:00am on 30 October 2025.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 29 October 2025 |
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