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[2026] NSWSC 1174
Supreme Court of NSW
2026-09-25
Sirtes J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Eleftheriou v The Trustee for Southern Han Construction Unit Trust t/as Southern Han Construction Pty Ltd [2026] NSWSC 1174
Hearing dates: 21–23 September 2026
Date of orders: 24 September 2026
Decision date: 25 September 2026
Jurisdiction: Common Law
Before: Sirtes J
Decision: See [31]–[32]
Catchwords: CIVIL PROCEDURE – hearings – where additional issue arises during cross-examination – where plaintiff seeks to obtain additional expert evidence mid-hearing – where additional evidence would occasion delay – whether proceedings could conclude in 2026 – adjournment allowed – whether plaintiff’s treating psychiatrist should participate in expert psychiatric conclave – he should not
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Uniform Civil Procedure Rules 2005 (NSW), r 31.26
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716
Category: Procedural rulings
Parties: Antonakis Eleftheriou (Plaintiff)
The Trustee for Southern Han Construction Unit Trust trading as Southern Han Construction Pty Ltd ABN 69 464 259 918 (First Defendant)
Plumb & Level Group Pty Limited (Second Defendant)
Representation: Counsel:
P Mooney SC / J Thompson (Plaintiff)
H Chiu SC / M Algie (First Defendant)
J Hart (Second Defendant)
Solicitors:
Masselos & Co Lawyers (Plaintiff)
Mills Oakley (First Defendant)
Gair Legal (Second Defendant)
File Number(s): 2023/00143433
Pursuant to his Third Amended Statement of Claim, the Plaintiff seeks, inter alia, damages for psychiatric injury alleged to have arisen from an incident on a development site in Botany on 14 May 2016.
The First Defendant was undertaking the building and construction work on the site. The Plaintiff was employed by the Second Defendant as a foreman at the site.
While the Plaintiff was passing beneath scaffolding on the site, an “object” fell onto his head. The Plaintiff claims that, in consequence of that incident, he suffered psychiatric injury due to the negligence of the First and/or Second Defendant.
The hearing commenced before me on 21 September 2026. It was estimated to run for 10 days.
On the second day of the hearing, Mr Chiu SC, who appeared with Mr Algie for the First Defendant, extensively cross-examined the Plaintiff by reference to his bank records, which had been obtained on Friday 18 September 2026. That cross-examination principally concerned money the Plaintiff spent gambling on poker machines from the time of the alleged incident to the present date (or thereabouts).
At the end of the second day and in the absence of the Plaintiff, Mr Mooney SC, who appeared with Mr Thompson for the Plaintiff, foreshadowed an application, to be made the following morning, by which the Plaintiff would seek to obtain further expert evidence as to whether what Mr Mooney SC described as a “gambling addiction” could be connected to the injuries the Plaintiff claims to have suffered.
At 10am on the third day of the hearing, Mr Mooney SC made that application ore tenus. In support, he read an affidavit of his instructing solicitor, Mr Gregory Masellos, affirmed 23 September 2026.
Mr Masellos’ affidavit disclosed a discussion he had with Dr Grace as to whether there could be a connection between the Plaintiff’s poker machine use and the injuries he attributes to the incident. Dr Grace expressed the tentative view that there could be a nexus between them, but said that it had not been explored in any depth. Nor was he aware of the extent to which the Plaintiff used poker machines.
Mr Mooney SC submitted that the Plaintiff’s legal representatives did not know of the Plaintiff’s “gambling addiction” until it was exposed during cross-examination. Had his instructing solicitors been aware of the true extent of the problem, they would have raised it with the Plaintiff’s experts. It was submitted that a causal connection between the “gambling addiction” and the injury allegedly sustained from the incident could have significant consequences for damages. Furthermore, any damages awarded might need to be protected to ensure they are not frittered away on poker machines.
Mr Chiu SC, as coryphaeus for both Defendants, opposed the application. Their opposition rested principally upon two arguments:
the issue of a gambling problem was not new. It ought to have been appreciated by the Plaintiff’s legal representatives before the second day of the hearing; and
the Defendants would suffer prejudice from both the adjournment and the introduction of new evidence.
In support of the first argument, Mr Chiu SC handed up a document titled “Schedule of references to gambling and poker machines”. The document contained, in tabular form, references to parts of the court book where the Plaintiff’s use of poker machines was mentioned.
The earliest reference contained in the Schedule is in a letter Dr Grace sent to Dr Kypros Koutsoullis, the Plaintiff’s GP, on 7 March 2019. In a later letter to Dr Koutsoullis, dated 13 October 2025, Dr Grace said that he had provided the Plaintiff with a link to a rating scale related to “pathological gambling”.
Expert reports authored this year refer to “a gambling problem” and a “possible… gambling habit”.
Mr Chiu SC accepted, correctly in my view, that those references did not telegraph gambling problems as acute as those which emerged during cross-examination. This concession must be married with Mr Mooney SC’s submission that the Plaintiff’s legal representatives were not aware of the nature and extent of the Plaintiff’s gambling problems. That submission is easy to accept given that the bank statements that revealed the extent of the problems were produced only on Friday, 18 September 2026, and span 861 pages.
As to prejudice, Mr Chiu SC submitted that the new evidence would require the First Defendant to recalibrate its own evidence and the forensic decisions it has made in defending these proceedings. Those decisions were informed by both the lay and, especially, the expert evidence on which the Plaintiff has relied to date.
Although the First Defendant, naturally, did not disclose the forensic decisions that were made, I accept that the First Defendant may need to revisit its approach in defending the claim if the Plaintiff adduces further expert evidence that links the Plaintiff’s gambling problems to the alleged injury.
The Court’s power to adjourn proceedings, contained in s 66 of the Civil Procedure Act 2005 (NSW) (the CPA), is broad. The power is discretionary. In deciding whether to exercise its discretion, the Court must seek to give effect to the overriding purpose, being the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the CPA. The Court must have regard to the objects of case management contained in s 57 of the CPA, including, relevantly, the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources.
The Court may also have regard to the degree of injustice that would be suffered by all the parties to the proceedings: s 58(2)(b)(vi) of the CPA. Furthermore, it is not only the interests of the parties which must be considered. Adjourning a hearing necessarily delays the finalisation of other proceedings: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] (Davies J), applying the principles discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
One factor I consider to be of particular importance is whether these proceedings could be concluded within the 2026 law term. Delay into 2027 would add weeks of needless pendency.
For the proceedings to conclude in the 2026 law term, the Plaintiff’s psychiatric expert, Dr Howard Napper, would need to confer with the Plaintiff; an expert psychiatric conclave would need to take place thereafter; and the Court (and Counsel) would need to be available to hear the remainder of the proceedings.
Before I made my determination, the parties informed me that, as they had agreed on certain issues, only three further days were required for evidence and a single day for closing submissions. Both the Court and Counsel were available during the last week of the 2026 law term.
For the following reasons, I consider it appropriate to adjourn these proceedings:
the matter can be concluded during the 2026 law term;
I accept that the extent of the Plaintiff’s gambling emerged only during cross-examination on the second day of the hearing, although there were “footprints in the sand” suggesting that he may have gambling problems;
I accept that the Plaintiff’s gambling habit must be explored in the evidence. If the Court is minded to award damages, it must at the very least understand whether a financial manager needs to be appointed over any lump sums awarded so as to preserve that money from the Plaintiff’s gambling problems;
I accept that the quantum of the Plaintiff’s claim could be affected by evidence that his gambling problems are causally connected with the psychiatric injury he alleges;
the prejudice occasioned to the Defendants does not appear to be irremediable. The Plaintiff has not closed his case and the Defendants have a reasonable period of time before the hearing resumes in which to give mature consideration to the foundational aspects of their case; and
it is in the interests of justice that this new issue be considered by the Plaintiff’s legal representatives and experts.
The Plaintiff sought an order that Dr Grace be included in the future expert psychiatric conclave with Dr Alan Jager (the expert psychiatrist qualified by the Defendants) and Dr Napper. The First Defendant opposed that order.
Mr Chiu SC submitted that Dr Napper should be involved in the future conclave, not the Plaintiff’s treating psychiatrist. Mr Chiu SC drew the Court’s attention to r 31.26 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that if expert witnesses prepare a joint report, an affected party may not adduce evidence from any other expert witness on the issues dealt with in the joint report.
For the following reasons, I decline to include Dr Grace in the future conclave.
First, the Plaintiff submitted that Dr Grace’s participation would assist the Court in identifying and resolving all the issues in dispute. This was said to be part of the parties’ duty to assist the Court to further the overriding purpose: s 56(3) of the CPA.
I reject that submission. The future conclave is necessary to address a narrow question: whether there is a causal connection between the Plaintiff’s gambling problems and the psychiatric injury he alleges. That single issue has already been identified and the conclave, without Dr Grace, will be of assistance in resolving it. Moreover, there adding a Dr Grace to the conclave creates the risk that he and Dr Napper might disagree. If that were to happen, the conclave would have multiplied, rather than reduced, the issues.
Secondly, the Plaintiff submitted that he had intended to include Dr Grace in the initial psychiatric conclave, but Dr Grace was not available when invited (seemingly at short notice). The Plaintiff made forensic decisions to qualify Dr Napper as an independent expert psychiatrist, to have him participate in the initial conclave, and not to provide a copy of the joint expert psychiatric report to Dr Grace for comment. The adverse consequences of those decisions are not to be visited upon the Defendants. They are the Plaintiff’s alone.
Thirdly, the Plaintiff submitted that Dr Grace’s role as the Plaintiff’s treating psychiatrist does not preclude him from participating in the future conclave. That much is true. However, the mere fact that a course is not precluded is not a reason to take that course.
For those reasons, I make the following orders and notation. The Court orders:
The dates listed for hearing on 24 September 2026 to 2 October 2026 are vacated.
The hearing is adjourned part-heard to 15 December 2026 with an estimate of four days.
The Plaintiff is to serve updated reports from Dr Napper and Dr Grace by 21 October 2026.
The Defendants are to serve an updated report from Dr Jager by 11 November 2026.
The parties are to provide a joint Schedule of Objections to the chambers of Sirtes J, setting out the Plaintiff’s objections to the reports of Dr Dalton, Professor Watson and the jointly-authored report of Dr Henricks and Ms Atteya, and the Defendants’ responses to those objections, by 4.00pm on 27 November 2026.
The matter is listed before Sirtes J on 4 December 2026 at 9.30am for directions and for the Court to hear and rule upon the Plaintiff’s objections to the reports of Dr Dalton, Professor Watson and the jointly-authored report of Dr Henricks and Ms Atteya.
The Defendants’ application for costs, made in court on 23 September 2026, is reserved. Those costs will include the costs of the listing on 25 September 2026, which was solely for the purpose of determining whether Dr Grace should be included in the future conclave.
Liberty to apply on three days’ notice.
The Court notes:
For the purposes of their respective assessments of the Plaintiff and their corresponding reports, each of Dr Napper, Dr Grace and Dr Jager is to be provided with a copy of the transcript of the Plaintiff’s oral evidence concerning the Plaintiff’s use of poker machines.
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Corrections to counsel in coversheet and [7].
Eleftheriou
The Trustee for Southern Han Construction Unit Trust t/as Southern Han Construction Pty Ltd