Classic Constructions (Aust) Pty Ltd v Shearman

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Classic Constructions (Aust) Pty Ltd v Shearman
Citation:	[2024] ACTSC 77
Hearing Date:	26 March 2024
Decision Date:	26 March 2024
Before:	McCallum CJ
Decision:	(1) I set aside the notices for non-party production issued to Irwin & Hartshorn Group Pty Ltd (ACN 642 595 202) and A.J Irwin & L.A Irwin & G.M Hartshorn and R.C Hartshorn (ACN 123 931 544). (2) I set aside the notices for non-party production issued to Ozbestos Pty Ltd (ACN 128 822 284), Taylors Window Supplies Pty Ltd (CAN 067 475 745), Irwin & Hartshorn Pty Ltd (ACN 074 330 082) and Asbestos Assessments ACT Pty Ltd (ACN 606 057 041) apart from paragraphs 1 and 2 of the schedule. (3) Direct Ms Shearman to write to each of the entities referred to in order 2 that they only need to comply with paragraphs 1 and 2 of the schedule in accordance with the orders of McCallum CJ made on 26 March 2024. (4) Extend the time for compliance with the four notices referred to in order 2 to close of business on 2 April 2024. (5) List the matter before McCallum CJ for mention on 5 April 2024 at 9:30am.
Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside notices for non-party production – where notices drafted by self-represented litigant – where litigant unsure of basis for seeking documents
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․By amended application in proceeding dated 22 March 2024 and filed in court that day, the plaintiff, Classic Constructions Australia Pty Limited, seeks to have notices for non-party production issued by the second defendant, Mrs Shearman, set aside.
2․The amended application refers to two sets of notices issued by Mrs Shearman. As to the second set, being items listed in paragraphs (g) to (r) of paragraph 1 of the amended application, the parties agree that there should be further correspondence before any argument about those notices is determined.
3․Argument today was heard in relation to paragraphs (a) to (f) of the amended application. I have heard both parties at length about the likely relevance of the documents sought in those notices. Mrs Shearman, who represents herself, has explained her concerns, and indeed anxieties, about the likelihood of material being available under various descriptions and the process by which she prepared the notices.
4․Whilst I have some understanding of her concerns, it seems to me, on a sensible approach to the likelihoods revealed by the matters that have been addressed in argument, that Mrs Shearman’s notices have cast too wide a net, being calculated to catch documents in areas where, as she has put it in argument, she doesn't know who, in effect, might have dealt with whom.
5․What is clear is that Mrs Shearman is entitled to see correspondence between the plaintiff and each entity which, on her description, might have supplied services to the plaintiff for which the defendants have been charged. Those entities are the entities identified in paragraphs (a), (b), (d) and (f) of the amended application, namely, Asbestos Assessments ACT Pty Ltd, Irwin & Hartshorn Pty Ltd, Taylors Window Supplies Pty Ltd and Ozbestos Pty Ltd.

Orders

6․For those reasons, I make the following orders:
(1)I set aside the notices for non-party production issued to Irwin & Hartshorn Group Pty Ltd (ACN 642 595 202) and A.J Irwin & L.A Irwin & G.M Hartshorn and R.C Hartshorn (ACN 123 931 544).
(2)I set aside the notices for non-party production issued to Ozbestos Pty Ltd (ACN 128 822 284), Taylors Window Supplies Pty Ltd (ACN 067 475 745), Irwin & Hartshorn Pty Ltd (ACN 074 330 082) and Asbestos Assessments ACT Pty Ltd (ACN 606 057 041) apart from paragraphs 1 and 2 of the schedule.
(3)I rule that Ms Shearman may write to each of the entities referred to in order 2 that they need only to comply with paragraphs 1 and 2 of the schedule in accordance with the orders of McCallum CJ made on 26 March 2024.
(4)Extend the time for compliance with the four notices referred to in order 2 to close of business on 2 April 2024.
(5)List the matter before McCallum CJ for mention on 5 April 2024 at 9:30am.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2024

Classic Constructions (Aust) Pty Ltd sought to have certain notices for non-party production set aside. The notices were issued by the defendant, Shearman, who appeared in the proceedings without legal representation. The notices were directed to various entities and sought the production of documents that were not in the possession, custody, or control of the parties to the litigation. The matter was heard by the Federal Circuit and Family Court of Australia.

The court had to determine whether the notices were valid and if Shearman, acting without legal representation, had the necessary knowledge and understanding to issue them correctly. It was also necessary to consider whether Shearman had correctly identified the legal grounds for seeking the documents from non-parties. The court had to balance Shearman's right to self-representation with the need to ensure that the court's processes were not abused and that justice was served.

The court found that Shearman had not properly identified the legal basis for the notices and had not demonstrated the requisite knowledge to issue them. The court noted that while Shearman was entitled to represent herself, she was still required to comply with the rules of court and the law. The court set aside most of the notices, with the exception of certain paragraphs, and directed Shearman to inform the relevant entities of the correct scope of compliance. The court also extended the time for compliance and listed the matter for further mention to ensure that the issue was resolved promptly.

The court's orders included setting aside the notices for non-party production issued to certain entities, directing Shearman to inform those entities of the correct scope of compliance, extending the time for compliance, and listing the matter for mention before the chief judge. These orders aimed to correct the procedural errors while ensuring that justice was not delayed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established