Jason Smith v Haslin Constructions Pty Ltd

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:

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]:

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: