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[2025] ACTCA 33
respondent. Application for leave to appeal dismissed; appellants to pay the respondent’s costs of the application.
The ACT Court of Appeal considered whether the Shearmans could appeal three interim decisions in their building dispute with Classic Constructions, despite filing their leave application after the time limit. The Court accepted that the delay was affected by the first appellant’s self-represented circumstances and other pressures. It nevertheless found that the proposed appeal did not show a clear error, a sufficient reason to revisit the interim decisions, or a miscarriage of justice. The later expert and regulatory material could be relevant to future steps in the substantive case, but did not establish that the challenged decisions had caused substantial injustice. The Court also rejected the claims of prejudgment and procedural unfairness in the costs decisions. It refused both the extension and leave to appeal, and ordered the appellants to pay Classic Constructions’ costs of the application.
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3 cited instruments linked from this judgment.
In Shearman v Classic Constructions [2025] ACTCA 33, Muller AJ dealt with an application for an extension of time and leave to appeal from three interlocutory decisions made in the Supreme Court of the ACT. The decisions were Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374, No 3 [2024] ACTSC 282 and No 4 [2024] ACTSC 289 ([1]–[4]).
The underlying dispute arose from a building contract between Debra and Leigh Shearman and Classic Constructions. Classic Constructions maintained that practical completion had been achieved and possession returned to the Shearmans. The Shearmans disputed practical completion and alleged that the work was incomplete, defective or non-compliant. They also raised concerns about the certifiers involved in approving the work ([10]–[11]).
The appealed orders covered a range of procedural matters. They included costs orders; the treatment of an application for leave to file a counterclaim against CBS Residential Certifiers; applications about non-party production and access to the property; and orders setting aside a subpoena to Jefferson Godfrey Architects and a notice to produce ([4]–[5]). Seven of the ten orders were costs orders, which Muller AJ described as discretionary. The remaining orders were interlocutory ([5]).
The orders were made on 22 November 2024, while the application for leave was filed on 20 December 2024. The Shearmans therefore also sought an extension of time ([6]). At the hearing, Debra Shearman sought to appear for both appellants, although Leigh Shearman did not appear ([2]). The first appellant tendered a further affidavit shortly before the hearing. The Court treated it as further written submissions, and allowed the responding parties an opportunity to reply ([8]–[9]).
The appeal grounds were broad. Among other matters, the appellants alleged that evidence had not been considered, relied on fresh evidence about defects and certifiers, challenged the handling of subpoenas and production notices, disputed the treatment of practical completion and access, and alleged prejudgment and procedural unfairness ([22]–[26]). The Court refused an extension and leave to appeal, and ordered the appellants to pay Classic Constructions’ costs of the application ([70]).
The Court treated the extension question and the leave question as related but distinct. For an extension, it adopted the principles summarised in Kelly v Director of Public Prosecutions (ACT) [2015] ACTCA 55 at [14]. Those principles include the importance of time limits and finality, the need for an explanation for delay, possible prejudice, the merits of the proposed appeal and whether refusing an extension would produce a miscarriage of justice ([17]–[19]).
Muller AJ accepted that the delay was partly explained by the appellants’ lack of familiarity with procedure and by the difficulties faced by the first appellant as a self-represented litigant. The Court expressly made no criticism of the delay ([20]–[21]). But a sympathetic explanation did not resolve the application. The Court also had to consider whether the proposed appeal had sufficient merit and whether refusing an extension would cause a miscarriage of justice. It concluded that it would not ([21], [69]).
For leave to appeal, the Court applied the principles summarised in McKay v Paule [2022] ACTCA 72 at [24]. Leave is granted sparingly to avoid delay and fragmentation. The court is particularly cautious where the challenged decision concerns practice and procedure or involves discretion. Leave may be justified where the decision is wrong and causes prejudice, or where it is attended with sufficient doubt and significant consequences would follow if it were wrong ([31]). The Court also cited Findex Group Pty Limited v McKay [2023] ACTCA 36 at [20] for the particular reluctance appropriate to an interlocutory, procedural and discretionary decision ([32]).
A central problem was that the appellants’ material was extensive but did not identify specific errors with sufficient clarity. By the relevant time, at least 11 applications had been filed in the substantive proceeding and the appellants had filed 36 affidavits. The appellants asserted that the primary judge had failed to consider available evidence, but did not identify with sufficient specificity what particular evidence was before the Court, why it was relevant, and how it should have changed the outcome ([34]–[35]).
The Court separately considered the fresh evidence, including CGS Engineers reports dated 18 and 21 October 2024 and material from the Construction Occupations Registrar. That evidence was said to support allegations that the work was defective and did not comply with relevant requirements ([37]). It had not been before the primary judge at the hearings. Some material had been obtained before the decisions were delivered but had not been put before the Court ([38]–[41]).
The Court did not decide the underlying building dispute on this evidence. Its focus was whether the fresh material justified reopening the interlocutory decisions. It found that the material did not show that the appellants’ substantive rights had been affected by those decisions. Nor did the appellants establish that the evidence could not, with reasonable diligence, have been obtained earlier ([38]–[42]). Applying the interlocutory appeal approach discussed in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at [2], the Court found no sufficient doubt and substantial injustice warranting reconsideration ([42]).
The Court also noted that a hearing date had since been allocated. This mattered because the appellants could then issue subpoenas for production in the substantive proceeding without the leave that had been required when the earlier applications were heard. They could also make further, more targeted document requests if the later evidence provided a basis for doing so ([40], [47], [60]). The continued availability of those steps weakened the claim that the earlier decisions caused relevant prejudice ([61]).
The Court rejected the challenge to the Jefferson Godfrey Architects subpoena. The appellants said that architectural plans were missing and that the documents they had approved differed from the plans lodged with the Construction Occupations Registrar. But the material before the Court at the time did not provide a reasonable basis to conclude that the decision to set aside the subpoena was attended with sufficient doubt. If the later material supported the existence of withheld documents, a further subpoena remained possible ([45]–[47]).
The Court also considered the arguments about practical completion, possession and access to the property. Practical completion remained a live issue for the substantive proceeding, and the parties’ competing positions were not resolved in this application ([48]). The primary judge had made no order for access after an exchange in which the first appellant said she had acted on the understanding that access was available ([49]–[51]). Muller AJ found no proper basis to reconsider that decision ([51]–[52]).
Finally, the Court rejected claims of prejudgment and procedural unfairness in the costs orders. It stated that actual bias requires prejudgment or such partisanship or hostility that the decision-maker is not open to persuasion, referring to Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134 and Brisciani v Piscioneri (No 2) [2016] ACTCA 24 ([64]). The Court found no basis to conclude that the primary judge had prejudged the applications ([65]). It also held that costs outcomes in other applications were not relevant to whether the particular costs decisions under appeal were procedurally unfair. The challenged orders appeared consistent with the success or otherwise of the applications ([67]–[68]).
The judgment did not announce a new legal test or change a rule of appellate procedure. It applied existing principles governing extensions of time and leave to appeal from interlocutory decisions.
For extensions of time, the Court relied on the approach in Kelly, including the need to consider the explanation for delay, finality, prejudice, the appeal’s merits and the possibility of a miscarriage of justice ([17]–[19]). The Court emphasised that a reasonable explanation for delay is not, by itself, enough. The merits and justice of allowing the late application remain relevant ([20]–[21], [69]).
For interlocutory leave, the Court applied the established caution reflected in McKay v Paule and Findex. Decisions about procedure and discretion are not ordinarily appealed immediately unless the applicant demonstrates a recognised basis for intervention, such as error accompanied by prejudice, or sufficient doubt with significant consequences ([31]–[32]).
The judgment’s practical application is that a large record or broad allegations of error will not necessarily satisfy that threshold. The applicant needs to identify the specific material or decision said to be wrong, explain its significance, and connect the alleged error to a relevant consequence. Here, that was not done sufficiently ([33]–[35]).
The judgment also illustrates the limited role of fresh evidence in an application concerning interlocutory decisions. The Court did not treat later evidence as an automatic reason to reopen earlier procedural rulings. It asked whether that evidence demonstrated sufficient doubt and substantial injustice, and whether the same practical objective could still be pursued in the substantive proceeding ([38]–[42], [60]–[63]). The decision therefore applied existing principles to the circumstances; it did not determine the ultimate merits of the building dispute or the alleged defects.
At [21], Muller AJ wrote: “I have reached the view that it does not.” The preceding sentence asked whether refusing the extension would result in a miscarriage of justice. In plain English, the Court accepted the explanation for delay but concluded that refusing the late application would not create the kind of injustice that justified extending time.
At [35], the Court said that the appellants had not established “particular evidence” that was available, relevant and should have altered the earlier decisions. This captures the difference between pointing to a large collection of documents and identifying a concrete omission by the primary judge. A general assertion that the court overlooked evidence was not enough.
At [40], the Court observed that the fresh evidence might support a further application for access to documents, but that the earlier decisions were “no obstacle” to that occurring. The practical point was that refusing leave to appeal did not prevent the appellants from pursuing appropriate document-production steps in the continuing proceeding.
At [42], the Court said fresh evidence mattered in this interlocutory appeal only if it supported a conclusion that the decisions were attended with sufficient doubt and that substantial injustice would result if leave were refused. The Court found that threshold had not been met.
At [69], the Court linked its conclusions on the merits to the extension application: “it is appropriate to refuse an extension of time”. This shows that the extension decision was not based only on the length of the delay or the explanation for it. The assessment of the proposed appeal was also important.
The formal result appears at [70]: the application for leave to appeal from all three interlocutory judgments was dismissed, and the appellants were ordered to pay the respondent’s costs of the application.
The decision is most relevant to applications seeking leave to appeal before the final determination of the substantive case, particularly where the challenged orders concern procedure, document production or costs. It is especially pertinent when the decision under challenge involves discretion, because the Court identified those features as reasons for caution ([31]–[32]).
It may also be relevant where an applicant seeks an extension of time to bring an interlocutory appeal. The decision demonstrates that courts may consider a litigant’s explanation and circumstances while still refusing an extension if the proposed appeal does not demonstrate merit or a possible miscarriage of justice ([17]–[21], [69]).
The decision is relevant where an appeal ground asserts that the primary judge failed to consider evidence but does not identify the evidence precisely. The Court’s treatment indicates that an applicant needs to connect the particular evidence to the decision under challenge, rather than relying on the size of the record or a general claim of oversight ([34]–[35]).
It may also be relevant where fresh evidence is obtained after an interlocutory hearing. The judgment asks whether that evidence justifies appellate reconsideration and whether the applicant can still pursue the practical objective through further steps in the ongoing proceeding ([38]–[42], [60]–[63]). The decision does not say that fresh evidence can never justify leave. Its conclusion was tied to the record and procedural circumstances before it.
The judgment should not be treated as deciding whether the building works were practically complete, whether they were defective, whether the certifiers were liable, or whether the appellants could ultimately obtain particular documents. Those substantive questions were not decided in this leave application ([10]–[11], [48], [53]–[60]).
The judgment supplies no information about how later courts have treated Shearman v Classic Constructions. It was delivered on 11 August 2025, and the supplied text contains no later judicial consideration of the decision. It would therefore be unsupported to describe it as followed, distinguished or applied by any subsequent court.
The judgment itself does explain its use of earlier authorities. It adopts the extension-of-time summary from Kelly and notes that the approach was traced to R v Meyboom ([17]–[19]). It applies the interlocutory leave principles summarised in McKay v Paule and refers to Findex Group Pty Limited v McKay as apposite to the application before it ([31]–[32]). It also uses Décor Corporation in considering fresh evidence and the threshold for reconsidering an interlocutory decision ([42]).
Those references establish the authorities Muller AJ relied on in this case. They do not establish how later courts have treated the Shearman judgment itself.
The judgment leaves the substantive building dispute unresolved. It does not decide whether practical completion was achieved, whether the works were defective or non-compliant, or which party was entitled to possession under the building contract. The Court records the parties’ opposing positions and observes that practical completion remained a live issue ([48]).
It also does not decide whether any certifier, including CBS, had responsibility for the building works or owed a relevant duty. The Court noted that no counterclaim had been filed against CBS or another certifying entity by the time of the appeal hearing, despite leave having been granted to file a counterclaim against CBS ([53]–[57]). The possible claims against certifiers were not determined.
The judgment does not determine whether the fresh expert and Registrar material is admissible or persuasive at the substantive hearing. It considers that material only in assessing whether the earlier interlocutory decisions should be reopened ([37]–[44]). The Court’s observation that further subpoenas or production requests could be pursued is not a finding that any particular document exists or must be produced ([47], [60]).
Nor does the decision resolve the eventual costs of the substantive proceeding or determine costs issues arising from other applications. It addresses the costs orders that formed part of the challenged decisions and orders the appellants to pay Classic Constructions’ costs of the leave application ([67]–[70]).
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Shearman v Classic Constructions (Aust) Pty Ltd Citation: [2025] ACTCA 33 Hearing Date: 24 June 2025 Decision Date: 11 August 2025 Before: Muller AJ Decision: See [70] Catchwords: APPEAL – APPEAL FROM THE SUPREME COURT – Civil law – application for leave to appeal – appeal from three separate interlocutory decisions – appeal to set aside judgments – leave refused Legislation Cited: Building Act 2004 (ACT) s 19A Court Procedures Act 2004 (ACT) Court Procedures Rules 2006 (ACT) rr 5312, 6604 Supreme Court Act 1933 (ACT) s 37E Cases Cited: Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTCA 21 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Brisciani v Piscioneri (No 2) [2016] ACTCA 24 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 Construction Occupations Register v Bates [2017] ACTCA 15 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 Donohue v Volanne Pty Ltd (No 2) ACTSC [2021] ACTCA 11 Findex Group Pty Limited v McKay [2023] ACTCA 36 House v The King [1936] HCA 40; 55 CLR 499 Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44 Kelly v Director of Public Prosecutions (ACT) [2015] ACTCA 55 Kenny v Ritter [2009] SASC 139 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 McKay v Paule [2022] ACTCA 72 Mulley v Manifold [1959] HCA 23; 103 CLR 341 Piscioneri v Brisciani & Reardon [2017] ACTSC 237 R v Meyboom (2012) [2012] ACTCA 2; 256 FLR 450 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Talada Investments v Rovera Scaffolding [2017] ACTSC 160 Parties: Debra Shearman (First Appellant) Leigh Shearman (Second Appellant) Classic Constructions Pty Ltd (Respondent) CBS Residential (Interested Party) Representation: Counsel Self-represented (Appellant) WDB Buckland (Respondent) S Onitiri (Interested Party) Solicitors Self-represented (Appellant) MV Law (Respondent) Lander & Rogers (Interested Party) File Number: ACTCA 39 of 2024
Decisions Under Appeal: Court/Tribunal: Supreme Court of the ACT Before: McCallum CJ Date of Decision: 14 June 2024 Case Title: Classic Constructions (Aust) Pty Ltd v Shearman (No 2) Citation: [2024] ACTSC 374 Court File Number(s): SC 417 of 2022
Court/Tribunal: Supreme Court of the ACT Before: McCallum CJ Date of Decision: 12 September 2024 Case Title: Classic Constructions (Aust) Pty Ltd v Shearman (No 3) Citation: [2024] ACTSC 282 Court File Number(s): SC 417 of 2022
Court/Tribunal: Supreme Court of the ACT Before: McCallum CJ Date of Decision: 20 September 2024 Case Title: Classic Constructions (Aust) Pty Ltd v Shearman (No 4) Citation: [2024] ACTSC 289 Court File Number(s): SC 417 of 2022 MULLER AJ: Introduction
This is an application to the Court of Appeal for leave to appeal from a series of interlocutory decisions made by a single Judge (the primary judge).
The appellants in these proceedings are the defendants in the substantive proceedings, Debra Shearman (the first appellant), and Leigh Shearman (the second appellant) (together, the appellants). The respondent in these proceedings is the plaintiff in the substantive proceedings, Classic Constructions (Aust) Pty Ltd (the respondent). The second appellant did not make an appearance at the hearing of the application. On this occasion, the first appellant sought to appear for both appellants.
The decisions under appeal are: a) Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374; b) Classic Constructions (Aust) Pty Ltd v Shearman (No 3) [2024] ACTSC 282; and c) Classic Constructions (Aust) Pty Ltd v Shearman (No 4) [2024] ACTSC 289.
For ease I will refer to them as ‘No 2’, ‘No 3’ and ‘No 4’. The orders appealed from in each matter are set out below. a) No 2, as set out at [60]: 1․ As to the application in proceeding dated 3 May 2024 filed by the second defendant seeking leave to file a counter claim against CBS Residential Certifiers, order the second defendant to pay the plaintiff’s costs. 2․ As to the application in proceeding dated 3 May 2024 filed by the second defendant seeking leave to file a counterclaim against CBS Residential Certifiers, order the second defendant to pay the costs of CBS Residential Certifiers. 3․ Grant leave to the second defendant to apply to vary that order in the event that the counterclaim is served on CBS Residential Certifiers. 4․ As to the plaintiff’s further amended application in proceeding filed in court on 6 May 2024 concerning non-party production notices, each party is to bear its or her costs. 5․ As to the amended application in proceeding filed by the 2nd defendant on 10 May 2024 seeking access to her property, order the second defendant to pay the plaintiff’s costs. b) No 3, as set out at [26]: 1․ Leave to file the two applications referred to me by the Registrar on 26 July 2024 is refused. c) No 4, as set out at [15]: 1․ I make orders 1, 2 and 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 section 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 plaintiffs costs of this application. 2․ The second defendant is to pay the plaintiffs costs of the undated application determined on 12 September 2024. 3․ I direct the costs of the application in proceeding dated 21 August 2024 and the costs of the undated application determined on 12 September 2024 not be payable until the conclusion of the proceedings.
Of the 10 orders appealed from, seven relate to costs and are by their nature discretionary. The balance of the orders are clearly interlocutory.
Grounds for seeking extension of time
Respondent’s submissions on extension of time
The respondent contended that there was no proper basis for granting an extension of time. They highlighted the failure of the submissions and material relied upon to squarely address the relevant criteria including: a) the history of the proceedings; b) the conduct of the parties; c) the nature of the litigation; d) the consequences of granting or refusing leave; and e) the explanation for the delay.
In relation to those criteria the respondent identified the lengthy and convoluted history of the matter with multiple interlocutory steps, the failure of the appellants to conduct the matter with efficiency, the lack of any special or general importance attaching to the matter or the application and the failure of the appellants to provide any compelling explanation for the delay in filing the application.
Noting that the orders appealed from, insofar as they were referrable to CBS, dealt only with issues of costs, CBS did not specifically address the extension of time issue in its submissions.
Whether to grant leave to appeal out of time
The approach to be taken in respect of an application seeking leave to appeal out of time was summarised by Refshauge ACJ in Kelly v Director of Public Prosecutions (ACT) [2015] ACTCA 55 at [14]: That approach may be summarised as follows: 1. Time limits are important and must, prima facie, be obeyed. 2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion. 3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so. 4. There should be an explanation for the delay, and as to any action (other than to appeal) that has been taken by the applicant which is relevant. 5. The court must consider any prejudice to the respondent in defending the proceedings as caused by the delay and any such prejudice will tell against the extension. 6. The mere absence of prejudice is not enough to justify the extension of time. 7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted. 8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case. 9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with broad judicial discretion and not by the mere application of the verbal formula. 10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
His Honour was there referring to his analysis of the approach to be taken that was set out in R v Meyboom (2012) [2012] ACTCA 2; 256 FLR 450. Although both of those decisions were in the context of criminal proceedings, Refshauge ACJ observed that the authorities relied upon were largely drawn from the consideration of extension of time matters in the civil jurisdiction of the Court.
As Refshauge ACJ observed, the overriding consideration for the Court in whether to grant leave to appeal out of time is whether the refusal to do so will result in a miscarriage of justice.
I accept in this case that the failure of the appellants to file documentation in a timely manner was in part due to a lack of understanding of the applicable court procedure. I accept also that there were pressures upon the first appellant in dealing with the matter as a self-represented litigant that made it difficult to comply with the short time frame for lodgement of an application for leave in the context of an interlocutory matter.
I therefore make no criticism of the appellants for the delay in lodgement. However, an important consideration in whether to grant leave to appeal out of time is whether the appeal itself has merit, and viewed as a whole, whether a miscarriage of justice follows from the refusal. For the reasons that are developed below I have reached the view that it does not.
Proposed grounds of appeal
Submissions of the appellants
The grounds are further developed in the draft notice of appeal, the application for leave to appeal, and in the appellants’ various written submissions including the lengthy written submissions handed up in court on the day of the hearing. The totality of the argument contained in those documents extends to some hundreds of pages, includes very high levels of repetition, and is at times very difficult to follow. I have therefore endeavoured below to summarise the substantive grounds relied upon.
In relation to No 3, the appellants contend: a) There was a failure by the primary judge to consider all of the available evidence; b) Fresh evidence is now available (and more is anticipated) which bears on the determination of the applications, and on the determination of the substantive hearing; c) Additional evidence has identified inconsistencies in documentation relevant to the substantive hearing; d) Additional evidence raises the prospect of instituting proceedings against at least one “Certifier” entity that may not be CBS, the party previously nominated; e) Expert and other evidence relied upon by the appellants is supportive of their case in the substantive proceedings; f) That in respect of the Jefferson Godfrey subpoena, excessive weight was placed on the letter written by the respondent to the subpoena. The appellants were not afforded the opportunity to object to the letter; g) That the inability to produce documents responsive to a subpoena ought not to have led to the conclusion that the documents were not available; h) That the architectural plans which were the approved plans are pivotal in the dispute and must be in the possession of the respondent and therefore ought to be discoverable; i) That the failure to award the appellants costs in respect of other applications was a breach of procedural fairness and natural justice in the context of the willingness to award costs to parties in respect of these applications; j) That the appellants are now aware that deficiencies in respect of the building works were known to her previous legal representatives and not communicated to her; k) That there have been non-compliances by the respondents in respect of court orders for the service of expert evidence; and l) The primary judge should have found that in view of the inability of the respondent to secure practical completion of the works that the status quo should have remained and the respondent should have been found to remain in possession of the land.
In relation to No 4, the appellants contend: a) The availability of fresh evidence ought to have resulted in a different outcome on the question of orders for enforcement of 31 notices for non-party production previously served; b) The prior orders of the Senior Deputy Registrar on 21 June 2024 in respect of the filing and service of notices for non-party production ought to have led to a different outcome on the applications relating to leave to issue notices; c) The primary judge’s approach to the notice for non-party production issue reflected pre-judgment; and d) Fresh evidence now available demonstrates that multiple certifiers were involved in the building works and had that evidence been available at the time it would have affected the outcome of the decision and allowed for orders facilitating issue of new proceedings against the identified certifiers.
Submissions of the respondent on leave to appeal and the appeal
Submissions of CBS Residential Certifiers
CBS made the following submissions: a) The only orders of the primary judge that are relevant to the position of CBS are orders 2 and 3 of the No 2 judgment. b) The appellants are at liberty to commence separate proceedings against CBS (and any other relevant entity) at any time. c) In respect of the order as to costs, the appellants have not demonstrated a basis upon which the exercise of discretion by the primary judge can be questioned. d) In essence, the contention of the appellants is that in making the costs order the primary judge was not aware of all of the evidence in the proceedings. However, in making the order as an interlocutory decision, it was not necessary for the primary judge to consider all evidence in the proceeding. e) There is no evidence of any error of law or fact as alleged. f) No doubt arises from the primary judge’s decision. g) Despite the effluxion of time, no counter claim has been served, and no proceedings have been commenced against CBS or its related entities. h) There is no new evidence as it pertains to the costs order.
I received further written submissions from the respondent and CBS in accordance with the order I made on 24 June 2025 granting leave to each of those parties to file any submissions in reply to the applicant’s further submissions received on the day of hearing. I have taken those further submissions into account. I also received a document purporting to be further lengthy submissions on behalf of the appellants. I have not had regard to that document.
Relevant principles governing grant of leave
In McKay v Paule [2022] ACTCA 72 at [24], Mossop J summarised the principles to be applied by the Court of Appeal in determining whether or not to grant leave to appeal from an interlocutory decision: Adopting and consolidating the summaries of the principles upon which the Court of Appeal approaches a decision as to whether or not to grant leave to appeal from an interlocutory decision identified by Refshauge J in Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 at [28]-[29] and the additional principles identified by his Honour in Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36; 269 FLR 182 at [13], a summary of the principles to be applied is as follows: a) Leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases. b) A court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion. c) Decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave. d) The party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave. e) The court will ordinarily grant leave where the decision is wrong and prejudice (sometimes referred to as “substantial prejudice”) will be suffered by the appellant. f) Leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is “attended with difficulty and [its] correctness is open to dispute” (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants. g) It may be a factor favouring the grant of leave that: i. the decision involves a matter of public importance; or ii. the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
The observation of the Court of Appeal in Findex Group Pty Limited v McKay [2023] ACTCA 36 at [20] is apposite to this appeal: The application before the court is an application for leave to appeal from an interlocutory judgment on a discretionary matter involving a question of practice and procedure. Each of the integers of this concept mean that the court should be reluctant to grant leave: a) the decision is interlocutory; b) the decision is on a matter of practice and procedure; and c) the decision involves the exercise of discretion. See In re the will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323. Should leave be granted
There is little utility in seeking to address the 9 specific grounds of appeal set out at [9] of the appellants’ draft notice of appeal. The sheer breadth of the matters raised by the appellants on appeal, and the form in which they are raised, renders that exercise nugatory. An attempt to discern the import of not only the draft notice of appeal but the range of different documents relied upon by the appellants, often involving extensive repetition, requires the Court to engage in an exercise of distillation to identify the important or essential arguments that the appellants seek to make. Each of the arguments I have identified through that process are dealt with below. Failure to consider all of the available evidence
Evidence now available that was not available at the time of hearings
The critical evidence identified by the appellants comprises the expert opinions now relied upon by them in the substantive proceeding, being those contained in the expert reports of CGS Engineers dated 18 October 2024 and 21 October 2024, and documentation produced by the Construction Occupations Registrar. That material in concert is asserted to be supportive of the proposition that the subject building works were completed in a defective manner and the improvements on the land are presently in a form where they are not compliant with relevant regulations so as to enable a “certificate of occupancy and use” to be issued.
There is no contest that the material in question was not available at the time of the hearings of the subject applications and was therefore not available to be considered by the Court in the determination of those applications. That is of significant relevance in assessing this aspect of the appeal. Even accepting, for the purposes of the argument, that the additional material now sought to be relied upon might have changed the outcome of the subject applications, there is no evidence to suggest that the substantive rights of the appellants have been affected as a result of the interlocutory decisions that have been made by the primary judge.
No application was made, despite the availability of some of the evidence relied upon, to present further evidence to the Court, after the hearing dates and prior to the delivery of the subject decisions.
The fresh evidence may well be relevant to the capacity of the appellants to now seek by way of further application some greater access to documentation relevant to the substantive proceeding, but the interlocutory decisions made by the primary judge present no obstacle to that occurring. More importantly, in respect of the issuing of subpoenas for production, leave was required at the time of the hearing of the subject applications because no hearing date had been set. A hearing date having now been allocated in this matter, means that the appellants are at liberty to proceed to issue subpoenas for production in the substantive proceeding without the leave of the Court. It is therefore difficult to see what if any disadvantage accrues to the appellants as a consequence of the prior decisions refusing leave in respect of the issuing of the subpoenas for production.
The appellants have not established that the fresh evidence could not, with reasonable diligence, have been obtained prior to the handing down of the judgments under consideration. Some of the evidence was obtained before the date of judgment but not made available le to the Court. In the circumstances the appellants have not demonstrated a proper basis for review of the decisions of the primary judge with reference to the fresh evidence; see Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [34].
In any event, given the interlocutory nature of the decisions, the fresh evidence only has relevance where it leads to a conclusion that the subject decisions are attended with sufficient doubt to require reconsideration, and substantial injustice would result if leave was refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at [2], see also Donohue v Volanne Pty Ltd (No 2) ACTSC [2021] ACTCA 11 at [13]. The appellants have not established this to be the case.
Evidence now available identifies inconsistencies that bear on issues in the substantive proceeding
The existence of evidence of inconsistency between documents, that are now available and were not available at the time of hearing of the subject applications, and that are intended to be relied upon by the appellants at the hearing of the substantive proceeding is not a matter that casts doubt on the decisions of the primary judge so as to require reconsideration. Jefferson Godfrey subpoena - excessive weight placed on letter
This argument relates to the reliance that the primary judge placed on a letter provided by the proposed recipient of a subpoena to the effect that they had no further documents to produce. The appellants contend that excessive weight was placed on the correspondence in the decision made by the primary judge to set aside the subpoena pursuant to rule 6604 of the Court Procedures Rules. That occurred in circumstances where the appellants assert that there were “serious unanswered and unresolved inconsistencies in regard to the architectural plans and associated documentation in which Jefferson Godfrey architects were responsible for compiling”: (p2 DS01, annexure to affidavit of Debra Shearman affirmed on 23 June 2025). In short, the appellants contend there are plans which are missing, and the plans executed and approved by them are different to the plans that were lodged with the Construction Occupations Registrar in the context of gaining approval for the subject building works. The primary judge was not satisfied that the failure of Jefferson Godfrey to produce the documents that the appellants contended “must exist” demonstrated the fact of their existence such that leave should be granted to pursue the subpoena for production directed to that entity. On the material before the Court at the time there was no reasonable basis to conclude otherwise.
With reference to the current pleadings in the substantive proceeding, and the documentation available to the court at the time of the subject hearings, there is no reasonable basis on which to conclude that the decision to set aside the subpoena to Jefferson Godfrey is attended with sufficient doubt to require reconsideration.
In the event that the appellants consider the additional documentation now produced, and falling within the category described in the appellants’ submissions as fresh evidence, provides a reasonable basis to conclude that there are documents that have been excluded from production by Jefferson Godfrey, there is no obstacle to the appellants now proceeding by way of further subpoena for production.
Practical completion and possession issues
A significant part of the appellants submissions was directed to the issue of practical completion and legal possession of the land. The appellants contend that practical completion was never reached and, as a consequence, in accordance with the terms of the building contract the respondent remains in possession of the property. In contrast, it is the position of the respondent that practical completion was achieved and in those circumstances possession of the land (and improvements) reverts to the appellants as owners without further order of the Court. It is apparent from the exchange that occurred on the hearing dates before the primary judge and in oral submissions that both parties accept that practical completion remains very much a live issue in the substantive proceedings. The first appellant expressed concern in the hearings before the primary judge about gaining access to the property for the purposes of securing expert evidence and also in terms of the impact of such access on insurance arrangements. The respondent maintains that there is no restriction on the appellants having access to the property, but the appellants have reasons for maintaining the position that they do not wish to assume occupation of the property until the matters the subject of the proceedings are determined.
The primary judge ultimately made no order for the appellants to have access to the property on the basis that the application in that regard was not pressed by the appellants. At the hearing before me, the first appellant appeared to contend that she felt pressured to take that course.
A review of the transcript reveals the following exchange: HER HONOUR: Has the expert attended site yet? MS SHEARMAN: He has. One expert has attended site, and he has advised me that the list is - he needs other experts to attend. He’s got significant concerns. HER HONOUR: Does that follow that you no longer require a judgment in respect of the application seeking access to the site? Are you now accepting that you can access the site? MS SHEARMAN: I took your advice. As soon as you said to me last hearing ‘you have access to the site,’ that’s the second I said ‘come on’. HER HONOUR: So you’ve acted on that. All right. MS SHEARMAN: Yes. Yes, I’ve acted on that.
With reference to the exchange extracted above I am not satisfied that the appellants have demonstrated any proper basis for reconsideration of the decision of the primary judge in respect of possession of, and access to, the land.
This ground of appeal is not made out.
Fresh evidence establishes need to join at least one certifier
The appellants contend that the evidence now available demonstrates that certification of the subject building works was carried out by a number of different certifiers. As a consequence, it is asserted as a possibility that there will be a need to institute proceedings against one or more of the identified certifiers. It was not entirely clear from the oral submissions of the appellants before me, whether the state of the evidence was such that the appellants had now determined that there remained a need to institute proceedings, by way of counterclaim or otherwise, against CBS residential certifiers as one of the identified entities and the one that has played a part in the proceeding to date as an interested party.
On 14 June 2024 leave was granted to the appellants to file a counter claim against CBS: a) Leave is granted to the second defendant to file the counterclaim against CBS Residential Certifiers. b) Pursuant to rule 217 of the Court Procedures Rules 2006 (ACT), I order that there be a separate trial of that counterclaim.
Over objection by the appellants an order was also made that the counterclaim be tried separately. It is self-evident that at the time of the hearing of the appeal no counter claim had been filed against CBS or against any other certifying entity.
The only relevance of the prospect of further litigation against certifiers now identified, is to the part of this appeal that is concerned with the costs order that followed the order giving leave for a counter claim to be filed, as opposed to the order giving leave itself.
Noting that the primary judge, in making the order for costs in respect of the application seeking leave to file the counterclaim, qualified that order by giving leave to the appellants to revisit it should a counterclaim be filed, it is difficult to identify any proper basis on which it could be asserted that the Court’s exercise of discretion in respect of costs miscarried. That is particularly so when, on any view of the decision to grant leave to introduce a counter claim at this stage of the proceeding, it constituted the provision of some indulgence to the appellants.
This ground is not made out.
Appropriate for claim against certifier/s to be heard together with substantive claim
Fresh evidence establishes basis for further subpoena/non-party production notices
Relevant to this appeal, the evidence relied upon as fresh evidence was not before the primary judge at the time of hearing of the various applications, nor was it placed before her at any time prior to the delivery of the decisions under appeal. To the extent that the additional evidence now relied upon provides a basis for the issuing of subpoenas for production, or notices for non-party production, there is, in the context of a hearing date now set, no barrier to the appellants proceeding to issue further subpoenas or notices, perhaps with the capacity to be more directed in the information now sought.
The existence of a residual capacity to pursue further requests for documents nullifies any prejudice to the appellants as a consequence of the orders previously made. That is, with the exception of the costs orders. In that regard the orders involved an exercise of discretion in the context of the material that was then before the Court, that did not include the “fresh evidence”.
There is no utility in the context of this appeal to assess whether, armed with that evidence, the Court may have reached a different decision as to further subpoenas.
As to costs, the Court exercised its discretion in the context of the evidence that was before it at the time, and there is nothing arising from the ”fresh evidence” to indicate that the exercise of the discretion by the primary judge miscarried in any way.
Decisions reflected pre-judgment
The appellants additionally contended that the primary judge’s approach to the notice for non-party production issue reflected pre-judgment. To show such bias or pre-judgment, a party must show that a judicial officer has an antagonism or pre-judgment which prevents a fair hearing of a case. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134, North J set out that actual bias exists: where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (see also Brisciani v Piscioneri (No 2) [2016] ACTCA 24).
There is no basis upon which to conclude that any of the decisions of the primary judge under appeal reflected pre-judgment.
This ground is not made out.
Lack of procedural fairness/denial of natural justice regarding costs orders
The argument put by the appellants was that in respect of other applications in this proceeding where the appellants had been successful, or at least partially successful, the Court had declined to make, or had failed to make, any orders in respect of costs. Issues arising out of costs orders in respect of other applications in this proceeding were not matters before the Court in the context of this appeal. Nor could the decisions in respect of those other matters have any relevance in the determination of whether there was any procedural unfairness or denial of natural justice in the approach taken by the primary judge to the exercise of her discretion in respect of the awarding of costs on the subject applications.
There is no indication in the material before me that the exercise of the discretion in respect of the costs of the subject applications was undertaken in such a way as to warrant interference on appeal. On the contrary, the orders appear to have been made after careful consideration of the material that was then before the Court, and were consistent with the success or otherwise of the various applications that were made.
With reference to the conclusions I have reached as to the merits of the appeal it is appropriate to refuse an extension of time within which to bring the appeal.
Orders
I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 11 August 2025
Shearman
Classic Constructions
(1997) 81 FCR 71
(1991) 33 FCR 397
Application for leave to appeal dismissed; appellants to pay the respondent’s costs of the application.
Leave to appeal is therefore required: s 37E(4) Supreme Court Act 1933 (ACT). An extension of the time within which to bring the application for leave is also sought, given that the subject orders were made on 22 November 2024 and the application for leave to appeal was filed on 20 December 2024: r 5312 Court Procedures Rules 2006 (ACT).
The extension of time application and the leave application were both heard concurrently with the appeal.
Shortly after the commencement of the hearing the appellants sought to file in Court a further affidavit of the first appellant. The document was only provided to the responding parties very shortly prior to the hearing commencement and, noting that it comprised in excess of 100 pages, there had not been an opportunity for them to closely consider its contents.
A review of the affidavit demonstrated that it was in substance simply annexing some additional and lengthy written submissions. Notwithstanding the previous orders made for the filing and service of written submissions by each of the parties, I received the document as further written submissions of the appellants and I allowed each of the responding parties until 8 July 2025 to provide any further written submissions in reply and also to address an oral submission made by the first appellant to the effect that there were other applications in proceeding that had been filed by her and not determined by the Court. Background
The substantive proceedings arise out of a building contract entered into between the appellants and the respondent for building works on residential land owned by the appellants. Those works were completed to a stage whereby the respondent asserts that “practical completion” was, within the contractual meaning of that term, achieved, and possession of the property was subsequently returned to the appellants.
The appellants dispute that practical completion was achieved, and they assert that the building works were either incomplete or were performed defectively, such that they were non-compliant. A range of other allegations are made in respect of the adequacy of the building works, and in respect of the certifiers who approved those works at various stages of the build. At hearing before me in the course of oral submissions, the first appellant indicated that her investigation into the certification process since the time of the hearings before the primary judge had revealed that a number of different certifiers had been involved in the process of approving the building works, and that prospective actionable rights may lie against one, or all of them. One of the certifying entities, CBS Residential Certifiers Pty Ltd (CBS) was represented at the hearings before the primary judge as an interested party and appeared and made submissions on the application and appeal hearing before me.
On any view of the material before the Court the dispute is attended with some considerable complexity. The complexity is accentuated by the fact that the first appellant is conducting the proceeding, and attempting to articulate at times complex legal propositions, as a self-represented party. Whilst it is appropriate in those circumstances to approach her conduct of the proceeding with greater flexibility than might otherwise be the case, the Court retains its duty of impartiality: see Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 at [65]; see also Kenny v Ritter [2009] SASC 139 at [17].
In relation to No 2, the appellants contend: a) The failure to engage certifiers in writing in compliance with the requirements of the Building Act 2004 (ACT) was a matter that should have been taken into consideration; b) The evidence from ACAT proceeding XD935 of 2022 that was not available at the time of the hearing, but is now available, should have been considered, including admissions made by the respondent in the course of those proceedings; c) It was not reasonably open to conclude on the evidence that practical completion of the works had been achieved; d) The lack of compliance of the building works was a matter that should have been taken into account in assessing whether practical completion had in fact been reached; e) The primary judge should have taken into account documentation released from the Construction Occupations Registrar on 30 August 2024 and the appellants expert reports obtained in October 2024 together with FOI documentation obtained in January 2025 (all being material not available at the time of the relevant hearing); f) The reports of Peak Consulting that are relied upon by the respondent to support their contention that practical completion was achieved, were not reports prepared in accordance with the Court Procedures Rules; g) Pre-judgment was displayed by the primary judge in dealing with the consequences of taking possession of the property; h) The fresh evidence now available from the Construction Occupations Registrar identifies that the requirement to issue notices for non-party production was legitimate, targeted and necessary; i) The overlap in the cause of action against the respondent and the foreshadowed action against the certifier or certifiers was such that it was appropriate that both matters be heard together; j) The primary judge erred in concluding that the appellants were not pressing the application in respect of orders regarding possession of the property, in relation to which the appellants contend that there was simply agreement offered reluctantly to access the site for the specific purpose of compiling expert evidence; k) The primary judge should have identified that deferral of the filing of a counter claim against the certifier was due to the appellants waiting for the judgment to be handed down; and l) The primary judge’s related finding that the application was a waste of time was not reasonably open on the whole of the evidence.
The following authorities were cited: a) Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] This decision of the High Court was the result of an appeal of an interlocutory decision granting an injunction to prevent the ABC broadcasting a television program that contained potentially defamatory imputations. The decision to grant the interlocutory injunction was overturned on appeal. The passage pointed to by the appellants at [65] sets out the relevant principles that apply to a consideration of whether to grant an interlocutory injunction, namely that the applicant has identified a prima facie case, and whether the injury or inconvenience to be suffered by the plaintiff outweighs that to be suffered by the subject of the injunction. b) Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 This decision of a single judge of the High Court exercising the original jurisdiction was made in proceedings regarding the impact of the 15-cent container deposit refund in South Australia on interstate trade. This case set out a three-part test for the imposition of an interlocutory injunction, namely that there is a serious question to be tried, that the plaintiff will suffer irreparable injury for which damages will not be an adequate remedy and that the balance of convenience favours the granting of an injunction. c) Construction Occupations Register v Bates [2017] ACTCA 15 This Court of Appeal decision is an appeal of a decision of Burns J, which was itself an appeal of a decision of the Appeal Tribunal in ACAT regarding the appointment of a building certifier. Ultimately, the appeal of the decision of Burns J was upheld on the basis that his Honour had made his decision using an erroneous interpretation of s 19A of the Building Act, which relates to the ability of a land owner to appoint a certifier after the commencement of construction of a building, and whether such an appointment requires compliance with the balance of pt 3 of the Building Act. d) Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44 This is a decision of Mossop J in relation to an action brought by a land owner against a builder and certifier. The dispute between the plaintiff and the builder was settled prior to the commencement of the hearing of this matter. In relation to the claim against the certifier, Mossop J found that the certifier was liable to the landowner on the basis that they had breached their contractual duty by failing to exercise reasonable care and skill in issuing a certificate following various inspections at various times during the build. The decision was subsequently appealed, with the appeal dismissed in Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTCA 21. e) Piscioneri v Brisciani & Reardon [2017] ACTSC 237 This is a decision of McWilliam AsJ (as her Honour then was), in relation to various applications filed by both the plaintiff and the defendants to a defamation proceeding. The issues subject of the judgment were applications for the strikeout of the defences, a plaintiff application for default judgment, the failure of the defendant to respond to interrogatories filed by the plaintiff, an application for the plaintiff to be compelled to answer a request for further and better particulars, and the defendants’ application for either summary judgment or summary dismissal. Ultimately, her Honour deemed that the applications for summary dismissal or judgment were made good on the facts as an Anshun estoppel arose due to previous proceedings in the Court.
The substantive proceedings were commenced on 2 November 2022. From the commencement of the proceedings up until the date of determination of the subject applications there had been no less than 11 separate applications in proceeding filed in this matter. In support of those applications some 36 affidavits had been filed by the appellants. The contention of the appellants appear to be that within that enormous body of material there are matters that ought to have been taken into account by the Court in the determination of the subject applications. The difficulty for the appellants is that notwithstanding the prolix written submissions relied upon in this appeal, there has been a failure to identify with any specificity the particular evidence that it is asserted was before the Court at the time of the hearing of the subject applications, was relevant to the determination of those applications and was not considered by the Court.
In those circumstances the appellants have failed to establish that there was particular evidence available to the Court at that time that was relevant and, after due consideration, should have altered the outcome of the subject applications.
It is a different matter when the Court comes to consider evidence that the appellants now seek to rely upon that has come into the possession of the appellants since the time of the hearing of the subject applications. That issue is dealt with below.
This ground is therefore not made out.