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[2026] NSWSC 33
General information, not legal advice.
Supreme Court of NSW
2026-02-06
Chen J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jason Smith v Haslin Constructions Pty Ltd [2026] NSWSC 33
Hearing dates: 6 February 2026
Date of orders: 6 February 2026
Decision date: 06 February 2026
Jurisdiction: Common Law
Before: Chen J
Decision: See [16]
Catchwords: CIVIL PROCEDURE − non-compliance with case management orders designed to ensure readiness for hearing – failure to relist matter in a timely manner following significant non-compliance with Court’s orders – extensions of time ordered
Cases Cited: Lam v Liu [2025] NSWCA 254
Category: Procedural rulings
Parties: Jason Robert Smith (Plaintiff)
Haslin Constructions Pty Ltd (ABN 85 051 102 124) (Defendant)
Makibe Australia Pty Ltd (ABN 69 614 572 191)
Representation: Counsel:
W Lidden (Plaintiff)
Solicitors:
Stacks Law Firm (Plaintiff)
Carter Newell (First Defendant)
Turks Legal (Second Defendant)
File Number(s): 2020/351969
Publication restriction: Nil
This matter, which is listed for hearing for 7 days commencing on 30 March 2026, arises out of an accident that occurred on a building site on 23 January 2018. On that day, the plaintiff, an employee of the second defendant working on a building site controlled by the first defendant, alleges that he was injured whilst slinging a pipe from under the bucket of an excavator which was being operated by an employee of the second defendant.
His principal case is that the person spotting the operation, an employee of the first defendant, was inattentive and thereby negligent and, separately, that the equipment used, either at the direction or with the approval of the first defendant, was inappropriate for that task.
The matter was fixed for hearing when it was first judicially case managed on 28 February 2025. On that occasion, orders were made, inter alia, for the completion of service of the evidence. A second case management hearing occurred on 27 August 2025. At that listing, further orders were made, inter alia, to ensure the readiness of the matter for trial.
The re-listing of the matter today was at the request of the first defendant and arises in consequence of non-compliance with a number of procedural directions and orders made on 27 August 2025.
The orders then made, relevantly, included:
2 The parties agree upon the composition of conclaves, as well as organise dates for those conclaves to occur, by 23 September 2025.
3 Letters of instruction (including material to be provided) to those expert conclaves be exchanged by 30 September 2025, and agreed upon by 14 October 2025.
4 Experts are to confer and engage in conclaves by 19 December 2025, with joint reports to be provided by no later than 30 January 2026.
5 The usual order for hearing in Annexure A to Practice Note SC CL1 is made. Order (c), in the usual order for hearing in Annexure A to Practice Note SC CL 1 is extended to apply to all expert evidence.
6 The plaintiff is to serve a schedule of loss and damage, in Scott schedule and word form by 2 February 2026, and in a form that is compliant with the Explanatory Notes to Practice Note SC CL 7.
7 The defendants are to respond to that schedule (and in that schedule) by 9 February 2026, noting agreement or disagreement on the heads of damage or the amount claimed. Where there is disagreement, the defendants must indicate the basis of the disagreement and state what amount, if any, they consider appropriate and why.
8 The plaintiff is to file and serve the final schedule of loss and damage by 16 February 2026.
9 Liberty to apply on 48 hours’ notice.
The non-compliance relates to the expert conclaves (orders 2-4 inclusive) – across a number of disciplines – and, following on from that, the plaintiff’s preparation of a schedule of loss and damage (order 6). The first defendant argues that, largely, the default is the responsibility of the plaintiff.
Before addressing the various issues that arise, two matters warrant emphasis.
First, as will become apparent, the non-compliance with the orders relating to conclaves and the preparation of joint reports is significant. It is measured in many months, and involves several of the disciplines involved, yet no liberty was exercised until Wednesday of this week. Secondly, the non-compliance with the orders is itself highly unsatisfactory. Compliance with them is a matter of obligation, not discretion. Given what has occurred, it is appropriate to repeat what the Chief Justice has recently said in this context in Lam v Liu [2025] NSWCA 254 at [1]:
…Procedural directions, whether made, as in the present case, as part of case management, or made in applicable Practice Notes or rules of court, such as, for example, prescribing page limits for written submissions on appeal or the preparation of a chronology, are not optional and must be strictly adhered to. If a party seeks to depart from such directions, leave may be sought timeously and will be considered on the merits of the application. Otherwise, the Court expects compliance with its directions, procedural rules and the requirements of its Practice Notes. So much is necessary for the efficient and expeditious disposition of litigation in this Court. Compliance with procedural directions, court rules and Practice Notes is not only part of a practitioner’s professional obligations but also his or her statutory duty.
Despite the orders made, conclaves are yet to occur across a number of expert disciplines, including the liability expert conclave.
Following the re-listing of the matter, some efforts have been made to organise at least some of those conclaves. For example, the expert liability conclave is to occur on 27 February 2026, albeit that, even at this late stage, the joint letter of instruction (including the material to be provided to the experts participating in that conclave) has yet to be prepared.
There is some controversy regarding two conclaves, namely the neurological conclave and the psychiatric conclave.
The neurological conclave has not occurred because the plaintiff has since advised that the expert qualified by him passed away some years ago. That is a matter that should have been raised at any of the earlier case management hearings, but was not. Given those circumstances, I will vacate the order for there to be any neurological joint report.
The psychiatric conclave has not occurred because, so the plaintiff has now advised, his qualified expert has retired and has some difficulties with participating. Precisely what they are is not the subject of evidence. I was advised that it was not known whether a subpoena has issued for his attendance to give evidence. I do not regard this as a satisfactory explanation for why the conclave has not occurred, nor do I regard it as a sufficient reason to dispense with the requirement for there to be one, and for a joint report to be prepared.
The prescriptive order made for the plaintiff to serve a schedule of loss and damage was designed to ensure that the parties would be well placed to further explore a resolution of the matter following completion of the conclave process, noting that a mediation had occurred shortly prior to the second case management hearing.
The utility of that order has now been entirely subverted by the failure to comply with the orders relating to conclaves and the preparation of joint reports.
For the above reasons, I make the following orders:
Noting the plaintiff’s qualified neurologist passed away in 2024, vacate the order requiring there to be a conclave and preparation of a joint report in relation to that specialty.
Extend the time for the parties to organise dates for the conclaves to occur between the orthopaedic surgeons, psychiatrists and vocational assessors to 13 February 2026, 5pm.
Extend the time for the letters of instruction (including material to be provided) for the liability expert conclave taking place on 27 February 2026 to be exchanged to 11 February 2026, 5pm, and to be agreed upon to 18 February 2026, 5pm.
Extend the time for the letters of instruction (including material to be provided) to the orthopaedic surgeons, psychiatrists and vocational assessors to be exchanged to 16 February 2026, 5pm, and to be agreed upon to 20 February 2026, 5pm.
Order that the liability experts are to confer and engage in a conclave on 27 February 2026, with a joint reported to be provided within 48 hours of the conclave occurring.
Extend the time for the orthopaedic surgeons, liability experts, psychiatrists and vocational assessors to confer and engage in conclaves to 9 March 2026, 5pm, with joint reports to be provided within 48 hours of the conclaves occurring.
Extend the time for the plaintiff serve a schedule of loss and damage in Scott schedule and word form, as well as a form that is compliant with the explanatory notes to Practice Note SC CL 7, to 13 March 2026, 5pm.
Extend the time for the defendants to respond to the plaintiff’s schedule (and in that schedule), noting agreement or disagreement on the heads of damage or the amount claimed to 18 March 2026, 5pm. Where there is disagreement, the defendants must indicate the basis of the disagreement and state what amount, if any, it considers appropriate and why.
The plaintiff is to serve a final schedule of loss and damage by 19 March 2026, 9am.
Note that, subject to these orders, each party has confirmed that they have served all evidentiary statements and expert evidence upon which they rely and have confirmed their readiness for the hearing commencing 30 March 2026.
Grant liberty to apply on 48 hours’ notice.
Order the plaintiff to pay the costs of, and incidental to, the relisting of the matter.
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Jason Smith
Haslin Constructions Pty Ltd [2026] NSWSC 33