Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

The appeal failed because the trial judge did not miscarry in dismissing the appellant's very late motion on case management grounds under ss 56-58 of the Civil Procedure Act 2005 (NSW). The motion was brought on the morning of trial after the matter had been prepared for 12 months on liability and damages, the delay was not satisfactorily explained, hearing the motion would likely have caused loss of the trial dates and wasted public and private resources, and costs would not adequately address the prejudice. In any event, the motion would have failed on its merits because the appellant's solicitors had agreed that the respondent could serve a Pre-Filing Defence on all issues by 30 June...

Jurisdiction
Australia
Judgment Date
14 August 2012
Procedural Posture
Appeal in Work Injury Damages Negligence Proceedings / Appeal From District Court Judgment of Robison Dcj, Including Challenge to Dismissal of Notice of Motion
Outcome
Appeal dismissed.
Legal Topics
['late Application to Strike Out Defence' 'pre Filing Statement and Pre Filing Defence' 'case Management Under Civil Procedure Act 2005 (nsw)' 'employer Duty of Care and Safe System of Work' 'skiing Accident at Ski Resort' 'admission of Evidence Under S 318(1)(d) Workplace Injury Management and Workers Compensation Act 1998']
['practice and Procedure' 'tort' 'workers Compensation' 'employment Negligence'] ['late Application to Strike Out Defence' 'pre Filing Statement and Pre Filing Defence' 'case Management Under Civil Procedure Act 2005 (nsw)' 'employer Duty of Care and Safe System of Work' 'skiing Accident at Ski Resort' 'admission of Evidence Under S 318(1)(d) Workplace Injury Management and Workers Compensation Act 1998']

Case Brief

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Procedural Posture

Appeal in Work Injury Damages Negligence Proceedings / Appeal From District Court Judgment of Robison Dcj, Including Challenge to Dismissal of Notice of Motion

Legal Issues

  1. 1 ["Whether the trial judge erred in refusing, on case management grounds, to entertain the appellant's late Notice of Motion seeking to prevent the respondent from disputing liability under s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998." 'Whether, if the motion were considered on its merits, the respondent was precluded from disputing liability because its Pre-Filing Defence was served outside the 42 day period.' "Whether the parties' correspondence constituted an enforceable agreement permitting service of the Pre-Filing Defence by 30 June 2010." 'Whether the respondent breached its duty of care by placing the appellant, a mountain awareness officer, on the ski slope rather than using the alternative system proposed by the appellant.' 'Whether causation was established between the alleged unsafe system of work and the collision.' 'Whether the trial judge erred in admitting evidence from Mr Fearnside about systems of work and their effectiveness.']

Ratio Decidendi

The appeal failed because the trial judge did not miscarry in dismissing the appellant's very late motion on case management grounds under ss 56-58 of the Civil Procedure Act 2005 (NSW). The motion was brought on the morning of trial after the matter had been prepared for 12 months on liability and damages, the delay was not satisfactorily explained, hearing the motion would likely have caused loss of the trial dates and wasted public and private resources, and costs would not adequately address the prejudice. In any event, the motion would have failed on its merits because the appellant's solicitors had agreed that the respondent could serve a Pre-Filing Defence on all issues by 30 June...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal, including any costs incurred by the respondent as a result of the filing of the Summons for Leave to Appeal by the appellant on 27 September 2011."]