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[2026] NSWSC 915
Supreme Court of NSW
2026-07-30
Chen 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: Warren v The Trustees of the Sydney Grammar School [2026] NSWSC 915
Hearing dates: 30 July 2026
Date of orders: 30 July 2026
Decision date: 30 July 2026
Jurisdiction: Common Law
Before: Chen J
Decision: (1) Vacate the hearing commencing 31 August 2026.
(2) Order the costs of, and incidental to, the vacation of the hearing be each party’s costs in the cause.
(3) Grant leave to the defendant to file and serve an amended defence pleading the operation of Part 3 of the Civil Liability Act 2002 (NSW) by 6 August 2026, 4pm.
(4) List the matter for directions on 7 August 2026 with a view to fixing the matter for hearing.
(5) Grant liberty to apply on 48 hours’ notice.
Catchwords: CIVIL PROCEDURE – application to adjourn – where issues regarding expert evidence necessitate the adjournment – no question of principle
Legislation Cited: Civil Liability Act 2002 (NSW)
Category: Procedural rulings
Parties: Hartley Warren (plaintiff)
The Trustees of the Sydney Grammar School (defendant)
Representation: Counsel:
Mr P Mooney SC (plaintiff)
Solicitors:
Masselos & Co (plaintiff)
Moray & Agnew (defendant)
File Number(s): 2023/00341840
Publication restriction: Nil
These reasons deal with the consequences of non-compliance with procedural orders against the backdrop of an impending hearing date.
The issues are several. There is late-served and outstanding evidence – both evidentiary statements and expert evidence; each party claims that they are unable to respond, prior to the trial, to the late-served expert evidence; and the defendant seeks leave to amend its defence to raise the “nervous shock” provisions under Part 3 of the Civil Liability Act 2002 (NSW) (‘CLA’).
The plaintiff’s initial position was that the Court should refuse to extend time to permit the defendant to rely upon the late-served evidence (evidentiary or expert), refuse the defendant leave to serve any further evidence and refuse the defendant leave to amend its defence. The defendant’s position is that the hearing date should be vacated to remedy the non-compliance by both sides and enable each side to fully prepare their case.
I will briefly outline the proceedings and their procedural history in order to explain how and why things are as they are.
These proceedings involve a claim for damages arising out of an incident that occurred on 27 October 2020 whilst the plaintiff was a high school student. The plaintiff’s case is that, as a consequence of this incident, he suffered physical, psychological and neurological injuries – the last being an aggravation of an underlying neurological condition, apparently first detected after the incident – which have resulted in a significant diminution of his earning capacity, particularly given his age.
When the matter was listed for directions on 28 November 2025, it was listed for hearing for five days commencing 31 August 2026. Additionally, a range of orders were made to ensure the orderly preparation of evidence by the parties. Relevantly, those orders included:
“(3) Order the plaintiff to serve all evidentiary statements, expert liability and medical and quantum evidence by 27 February 2026.
(4) Order the defendant to serve all evidentiary statements, expert liability and medical and quantum evidence by 30 April 2026.
(5) Order that the parties engage in a mediation by 22 May 2026, with such mediation to be conducted in accordance with Part 4 of the CPA and rr 20.1-20.7 of the Uniform Civil Procedure Rules 2005 (NSW).”
The matter was listed for further directions on 12 June 2026. At that time, a number of instances of non-compliance on both sides were raised.
In relation to the plaintiff, contrary to the orders made on 28 November 2025, he had only just served the evidentiary statements relied upon (on 2 and 4 June 2026) and, additionally, an expert report from a vocational assessor had only just been served. In relation to the defendant, it had not yet served evidentiary statements, and foreshadowed a need to serve further expert medical evidence.
Presented with the above, I expressed a measure of concern about the readiness of the matter for trial. I was assured by the parties, and I accept, that they were working co-operatively to remedy the non-compliance and address each other’s case in order to maintain the hearing date. Given these matters, I extended the time for the plaintiff to complete service of all evidence to 12 June 2026 and ordered the defendant to serve all further evidentiary material relied upon by 24 July 2026, whilst reserving the rights of each party to object to any late-served material if it unreasonably disadvantaged them. The matter was listed for further directions today to, inter alia, deal with the objections each side has to the late-served evidence.
I will deal first with the issues relating to the medical evidence.
Each party had, well before the matter was listed for hearing, served neurological or neurosurgical evidence. The plaintiff relied upon evidence from Professor Noel Dan, consultant neurosurgeon, and the defendant relied upon evidence from Professor Paul Spira, consultant neurologist. Since those reports were served by the parties, Professor Dan has retired and Professor Spira passed away.
The defendant, on 15 July 2026, served a report from a consultant neurologist, Dr John O’Neill. The issue that arises is that Dr O’Neill advances a somewhat different thesis in connection with the plaintiff’s pre-existing spinal cord condition to Professor Spira’s. The difficulty for the plaintiff now is that Professor Dan has retired, and he does not have an appropriately qualified expert available to respond.
There is a further complication in relation to the medical evidence. The defendant, again on 15 July 2026, served a report from a consultant psychiatrist, Dr Geoff McDonald. It had not, prior to that time, served any psychiatric evidence. The plaintiff argued, and the defendant accepted, that this report seeks to establish that the constellation of symptoms the plaintiff alleges arises out of the incident (or the physical injuries suffered in that incident) may instead be explicable as the manifestation of one or more neurocognitive conditions.
The plaintiff’s qualified psychiatrist has, apparently, indicated (or those representing the plaintiff consider) that some of the issues raised in Dr McDonald’s report go beyond their area of expertise. The plaintiff’s solicitor has taken steps to qualify a psychiatrist with appropriate expertise to address Dr McDonald’s report, but he has been unable to do so.
The proposed amended defence arises out of the above. A copy of the revised pleading is not presently available, but, as explained, the thrust of it is to plead the operation of s 32 of the CLA.
The next issue relates to the evidentiary statements and vocational assessment report served by the plaintiff. At the directions hearing on 12 June 2026, it was suggested that the vocational assessment report was fairly benign evidence, and largely factual. A copy of that report was not then available for me to review. It has been provided on the current application, and I have reviewed it. It is unnecessary to address the report in detail, other than to note that it includes opinion evidence across a range of matters designed to establish the various factual integers to prove that the plaintiff has suffered a diminution in his earning capacity that is productive of significant economic loss.
The defendant’s essential submission was that the plaintiff’s claim for economic loss is unusual and far from straightforward, given that, on the face of it, he excelled during high school and in his HSC. The defendant argues that the late service of evidentiary statements has delayed responsive evidence, although it accepts that there are evidentiary statements relating to “liability” that are outstanding.
As ought to be apparent, the matter has had something of a troubled case management history. It is important to emphasise, however, that the parties have worked co-operatively and endeavoured to assist the Court in remedying the defaults – with the ultimate aim of preserving the hearing date.
However, in the end, I am satisfied that the combination of the above matters demonstrates that the matter is not ready for trial, as Mr Mooney SC, who appeared for the plaintiff, fairly conceded. I am also satisfied that, to a material degree, the matter is unable to progress to trial, at the scheduled time, as a consequence of matters beyond the control of the parties – specifically, Professor Spira’s passing and Professor Dan’s retirement. Even if Dr O’Neill’s report was served in accordance with the order that I made on 28 November 2025, the probabilities are that the plaintiff would be unable to respond to that report given Professor Dan had retired. I am also satisfied that the late-served evidence – expert and lay – that each party seeks to rely upon is important evidence, and it would be contrary to the dictates of justice to preclude reliance upon it, again as Mr Mooney SC very fairly conceded.
For the above reasons, I make the following orders:
Vacate the hearing commencing 31 August 2026.
Order the costs of, and incidental to, the vacation of the hearing be each party’s costs in the cause.
Grant leave to the defendant to file and serve an amended defence pleading the operation of Part 3 of the Civil Liability Act 2002 (NSW) by 6 August 2026, 4pm.
List the matter for directions on 7 August 2026 with a view to fixing the matter for hearing.
Grant liberty to apply on 48 hours’ notice.
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Warren
The Trustees of the Sydney Grammar School