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Medical evidence relied upon by the Shearmans

12. Dr Allard has provided a number of reports and medical certificates over the period from December 2025 to date concerning his opinion as to Ms Shearman’s fitness to continue with the proceedings. He also gave oral evidence on 22 January 2026.

13. In his written report dated 19 December 2025 Dr Allard expressed the opinion the court proceedings had led to a deterioration in Ms Shearman’s mental health to the point she required inpatient hospitalisation for a period of approximately six weeks. Dr Allard noted Ms Shearman had been prior to the court hearing diagnosed with PTSD and major depression. In the course of her hospital admission in late 2025 her diagnosis was adjusted to include ADHD and autism spectrum traits. As at December 2025 Dr Allard assessed Ms Shearman to be mentally and cognitively impaired. He expressed the view her symptoms would have affected her ability to perform adequately during the legal proceedings. That opinion is in some contrast to my own observation of her in the course of the hearing whereby she was able, as a self-represented person with no legal training, to engage in extended cross examination of lay and expert witnesses about highly technical aspects of the property construction and to deal effectively with a vast volume of documentation that had been placed by the parties before the court extending to some 39 lever arch volumes of documents. She displayed no real difficulty in locating within that morass of material, particular documents on which she sought to rely. It is evident from Dr Allard’s initial report, Ms Shearman gave him the impression she was required to conduct the proceedings herself on very short notice and without being afforded sufficient time to seek independent legal advice on how to proceed. On the contrary, Ms Shearman elected to proceed without legal representation by withdrawing instructions of counsel retained by her in circumstances where she considered she was better able to conduct the proceedings than her legal representative.

14. Dr Allard indicated prior to Ms Shearman’s discharge from South Coast Private Hospital on 22 December 2025 he had strongly encouraged her to seek legal advice as to her circumstances, “including the implications of not having the capacity to self-represent at the trial dated October 2025.” It is not apparent to me whether Ms Shearman followed the advice of Dr Allard in that regard, but she and her husband remain without representation at this time.

15. The matter was again listed before me on 22 January 2026. There was no appearance for the Shearmans. Dr Allard provided a written report on 22 January 2026. He expressed the view Ms Shearman was unable to attend court “as participation at this time would be detrimental to her mental health”. Dr Allard observed: Debra has advised me that the courts expectation to attend the hearing, despite having a medical certificate, and the decision to proceed in her absence, has exacerbated her mental health condition. I also understand the court is seeking a firm timeline as to when Debra will be fit to return, and resume self-representation. Unfortunately, it is not medically possible to provide such a time line at this stage. Mental health recovery is not linear and only [sic] close supervision from myself, and in consultation with Debra’s GP and psychologist will that determination be made.

16. He expressed confidence that Ms Shearman would not be permanently unable to return to court if given time to recover. Dr Allard reviewed Ms Shearman again on 28 January 2026 and provided a further written report. He noted active treatment was continuing with the aim of returning Ms Shearman to functional capacity as soon as possible. He said the duration of her incapacity was “dependent on clinical progress.”

17. On 16 February 2026 Dr Allard expressed the opinion Ms Shearman was likely to regain sufficient functional capacity to self-represent in the proceedings within approximately three months. If recovery was slower than anticipated a timeframe of up to six months was anticipated. He noted some early positive responses to changes in Ms Shearman’s medication regime. I requested Dr Allard make himself available to give oral evidence on 20 February 2026. The Shearmans were not actively represented on that occasion and did not attend, although they were aware of the hearing continuing on that day.

18. Dr Allard said he had again consulted Ms Shearman on 19 February 2026 and there was no change to the opinion expressed in his report of 16 February 2026. He confirmed Ms Shearman and her treating psychologists were working towards her being in a fit state to self-represent within three to six months. He also confirmed his view she was unfit for court duties as at 19 February 2026. Dr Allard noted Ms Shearman was keen to have the court matter behind her. When pressed in response to questioning about issues of capacity at the time of the hearing Dr Allard observed: I would say that having depression and post-traumatic stress disorder, as well as some neurodivergence, some sort of ADHD and autism traits, she was overwhelmed and a symptom of depression and PTSD is difficulty with concentration and memory, and so I think she impaired from that perspective. (Transcript 20 February 2026, 1181.30 – 34 [sic])

19. In response to a question about Ms Shearman’s capacity to continue to represent herself in this litigation, Dr Allard said: So I think - and I think it's her intention to represent herself, so I think she will - I'm hoping that she will be able to represent herself and I guess what - I'm going by what she says what her psychologists say; a period of rest where she's not sort of obsessing about the court would help her sort of regain some emotional composure to continue with the court case. (Transcript 20 February 2026, 1183.34 – 39 [sic])

20. He reiterated his opinion that Ms Shearman was keen to return to court and, from a clinical point of view, he said it was better for the court process to be behind her rather than in front of her. Dr Allard also said it would be positive if Ms Shearman was able to get some legal support.

21. Since giving evidence Dr Allard has provided five further reports dated 17 March 2026, 8 April 2026, 29 April 2026, 20 May 2026 and 10 June 2026. In May he expressed the view that Ms Shearman remained medically unfit for substantive court participation and requested that she “be afforded the recovery period previously outlined”. I understand that to be a reference to the three to six month period Dr Allard indicated in February. He noted there had been further clinical improvements and the treatment was ongoing. He expressed the view on 20 May 2026 that further participation in the court process at that time was likely to impede recovery. Most recently on 10 June 2026 Dr Allard again said Ms Shearman remained medically unfit for substantive court participation and court related matters. He said requiring re-engagement in those matters at the present time was likely to “exasperate Debra’s medical condition and impede her recovery”. The gist of Dr Allard’s opinion is that re-engagement in the legal process at present would likely lead to a worsening of Ms Shearman’s mental state and an extension of her recovery period.

22. I note it is now four months since Dr Allard expressed the hopeful expectation that recovery for Ms Shearman would take between three and six months.

23. The Shearmans also rely on a medical certificate prepared by Dr Irwin Pakula, consultant psychiatrist, dated 18 February 2026. The certificate was prepared in relation to Mr Shearman’s mental health. Dr Pakula stated Mr Shearman was at the time of writing an inpatient at South Coast Private Hospital under his care for an anticipated three-week period with discharge scheduled for 12 March 2026. The reason for Mr Shearman’s admission was said to be overwhelming stress “related to a prolonged and complex housing dispute”.

24. Dr Pakula expressed the view Mr Shearman was also unfit to attend court.

25. Mr Shearman’s provision of a medical certificate arose from a directions hearing before me on 22 January 2026. On that occasion counsel for Classic Constructions provided copies of a series of emails received, seemingly from Mr Shearman. Those documents suggested an active engagement with, and capacity for understanding, the proceedings before the court.

26. After receipt of the emails, I made orders on 27 January 2026 for Mr Shearman to appear before the court on 20 February 2026 with leave for him to appear via AVL. On 28 January 2026, the court received an email from Ms Shearman attaching a medical certificate on his behalf. The email stated the certificate “is provided on an interim basis pending an appointment with his treating psychiatrist, Associate Professor Pakula”. The medical certificate was issued by Dr Cameron Evans on 28 February 2026 and stated, “Mr Leigh Shearman has a medical condition and will be unfit for any court administration or attendances from 28/01/2026 to 28/07/2026 inclusive.”

27. There has been no further communication from Mr Shearman and no further evidence of his active involvement in the proceedings. The future conduct of the proceedings

28. It is now some seven months since these part-heard proceedings were adjourned due to Ms Shearman’s incapacity to continue as a self-represented litigant. Regrettably, notwithstanding the hopeful expectation of her treating psychiatrist of a recovery to the point where Ms Shearman would be able to self-represent within a three to six month period, we are now two thirds of the way through that period without any clarity as to a timeframe within which her psychiatrist considers it would be reasonable for the proceedings to resume.

29. Although accepting the opinion of Dr Allard concerning the continuing impairment of Ms Shearman’s mental health and consequent impaired functional capacity, I must proceed in a way that achieves equity between all of the parties in the proceedings to the extent possible. As a matter of fairness to the plaintiff, it is not appropriate to allow an open-ended stay of the proceedings in circumstances where there can be no certainty about the timeframe required for Ms Shearman’s recovery.

30. In many cases the decision to self-represent is made voluntarily, albeit perhaps motivated by factors such as a desire to avoid the significant expense of legal representation. Although Ms Shearman has from time to time alluded to financial difficulties associated with legal representation, there is no evidence before me to indicate the Shearmans are unable to afford such representation. I am mindful they reside in rental accommodation while they are the owners of a property in Griffith that stands vacant and could be occupied (accepting the extant dispute in these proceedings as to their legal capacity to move in). There is no evidence before me otherwise as to the financial capacity of the Shearmans to engage legal representation. On each of the previous occasions where the Shearmans have ceased to be legally represented in the proceedings, they have elected to withdraw instructions. I must therefore proceed on the basis that it remains open to the Shearmans to engage some form of legal representation to assist them in finalising the proceedings. I am also mindful the legal assistance required is primarily in determining whether there are any additional documents to be tendered in support of the Shearman’s defence, the review of documentation already tendered, and the review of transcript and subsequent preparation of closing submissions.

31. In Rowe v Stoltze [2013] WASCA 92 Newnes JA (with whom Pullin and Murphy JJA agreed) observed at [51]: It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841 at 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26]–[27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant’s head for an undue period: see Aon [102].

32. I am satisfied it is in the interests of each of the parties for these proceedings to be brought to a conclusion. I accept at the present time, further engagement with the process may remain an overwhelming prospect for Mr and Ms Shearman, but, they remain at liberty to secure legal assistance to support them in managing the remainder of the case. As a matter of fairness to Classic Constructions the proceedings should not be left to languish pending the outcome of a medical treatment process to which Ms Shearman has now been subject for some seven months with no end in sight. As a matter of fairness to Ms Shearman the proceedings should be finalised noting her principal treatment provider agrees the best thing for his client would be for the legal process to be behind her. Upon reflection I have determined the orders that follow for the continued conduct of the proceedings do fairness to each of the parties in the circumstances.

Orders

33. For those reasons, I make the following orders: (1) The defendants are to file and serve by 4:00pm on 20 August 2026 any written submissions on which they wish to rely, limited to 30 pages [12 font, 1.5 line spacing] directed to the following matters: (a) The terms of the agreement entered into by the parties and their meaning; (b) The implied terms, if any, that are relied upon; (c) The variations to the agreement and the evidence of acceptance of the agreed variations; (d) The performance of the agreement; (e) The effect of the following matters on the terms of the agreement: (i) The levels or storeys comprising the building; (ii) The pool, the pool deck and the retention around the pool space; (iii) The driveway retaining walls; (iv) The suspended slab issue; (v) The certificate of occupancy and use. (f) Any other matters. (2) The plaintiff is to file and serve any written submissions in reply, limited to no more than 10 pages by 4.00pm on 3 September 2026. (3) The matter is listed before me for further oral submissions, with a one day estimate, on a date to be fixed.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.

Associate: Date: 18 June 2026