Wilkinson v Perisher Blue Pty Ltd - [2012] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250
Hearing dates: 4 July 2012
Decision date: 14 August 2012
Before: Campbell JA; at [1]
Barrett JA; at [2]
Hoeben JA; at [3]
Decision:
(1) The appeal is dismissed.
(2) 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.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - Application on morning of trial for order pursuant to s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) that respondent not entitled to dispute liability - refusal by Trial Judge to entertain motion - motion dismissed pursuant to sections 56 - 58 Civil Procedure Act 2005 - no error in Trial Judge's treatment of motion - had motion been considered on its merits, would still have been dismissed - relevant discretionary considerations - agreement by parties for late filing of defence - parties should be held to such agreements made in the course of litigation - whether principles of waiver and estoppel applied - respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power - TORT - negligence - collision between skier and snowboarder at ski resort - skier in the course of his employment by ski resort - whether breach of duty by employer - whether unsafe system of work - causation - PRACTICE AND PROCEDURE - admission of evidence - whether witness qualified to give evidence - whether evidence rendered inadmissible by s 318(1)(d) WIM Act.
Legislation Cited: Civil Procedure Act 2005 (NSW) - ss 56, 57, 58
Workers Compensation Act 1987 - ss 66, 67, 151C, 151H
Workplace Injury Management and Workers Compensation Act 1998 - ss 105, 313 - 318, 364, 366, 368, 370, 371, 375
Workers Compensation Commission Rules 2006, rule 17.7
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226
Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 482-484
Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; 62 NSWLR 427
Grundt and Other Plaintiffs v The Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; 59 CLR 641
JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; 70 NSWLR 704
House v The King [1936] HCA 40; 55 CLR 499
In Re: the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318
Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867
The Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category: Principal judgment
Parties: Anthony David Wilkinson - Appellant
Perisher Blue Pty Ltd - Respondent
Representation: Counsel:
Mr B McManamey - Appellant
Mr JE Maconachie QC/Mr B Odling - Respondent
Solicitors:
Stacks Goudkamp - Appellant
DLA Piper Lawyers - Respondent

File Number(s): 2010/382630
Decision under appeal

Jurisdiction:

9101

Before:

Robison DCJ

File Number(s):

2010/382630

Judgment

CAMPBELL JA: I agree with Hoeben JA.

BARRETT JA: I agree with Hoeben JA.

HOEBEN JA:

Nature of proceedings

The appellant was employed by the respondent as a mountain awareness officer. On Sunday 15 July 2007 in the course of his work, he was involved in a skiing accident when struck by a snow boarder. The appellant suffered serious injuries and brought proceedings in negligence against the respondent. The proceedings were heard before Robison DCJ and by judgment dated 1 August 2011 his Honour found in favour of the respondent.

The appellant challenges the decision of Robison DCJ on two bases:

(i) Having regard to Division 3 of Part 6 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) the respondent (as the defendant employer) was not entitled to dispute its liability to the appellant (as plaintiff) so that the only issue that should have been entertained was the assessment of damages.

(ii) If the question of the respondent's liability was properly entertained on the merits, it should have been determined in favour of the appellant.

The first basis for challenging his Honour's decision arises from the judgment of Robison DCJ of 26 July 2011 in which his Honour dismissed the appellant's Notice of Motion to strike out that part of the respondent's Defence which disputed liability. As well as raising that matter in his Notice of Appeal by Summons filed 27 September 2011 the appellant also seeks leave to appeal against his Honour's dismissal of the Notice of Motion.

By Notice of Contention directed at the appellant's challenge to his Honour's dismissal of the Notice of Motion, the respondent contends that if the Court decides to re-exercise his Honour's discretion, his Honour should have held that the appellant waived any default by the respondent under s 316(2) and s 318(1) of the WIM Act, or had elected to compromise by agreement interlocutory disputes about pre-filing requirements arising from those sections or was estopped from insisting upon the respondent being held to those sections but does not seek a discharge or variation of any part of the orders made by his Honour.

Summons for leave to appeal

Objection was taken by the respondent to the appellant filing the Summons for Leave to Appeal on 27 September 2011 when a Notice of Appeal, including the same issue, had been filed on 23 August 2011. The point taken by the respondent is correct. The appellant had an appeal as of right, following his Honour's judgment on 1 August 2011. It is trite law that in an appeal from a final order, an appellate court can correct any interlocutory order which affected the final result (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 482-484 per Gaudron, McHugh and Hayne JJ and pp 494-497 Kirby and Callinan JJ).

Accordingly, the filing of a separate Summons by the appellant was unnecessary and an abuse of process. To the extent that the filing of that Summons caused the respondent to incur additional costs, those costs should be paid by the appellant.

Motion to strike out liability parts of Defence

In order to understand the rationale behind the motion, it is necessary to set out the relevant provisions of the WIM Act. These sections are to be found in Part 6 of Chapter 7 of the WIM Act:

"313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings

If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7.

314 What constitutes threshold dispute

(1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

(a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or

(b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable.

(2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:

(a) the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or

(b) an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.

315 Requirement for pre-filing statement before commencing court proceedings

(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a "pre-filing statement" setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.

(2) The pre-filing statement cannot be served unless:

(a) the person on whom the claim is made wholly disputes liability for the claim, or

(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or

(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.

316 Defendant must respond to pre-filing statement

(1) The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by:

(a) accepting or denying liability (wholly or in part), and

(b) (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Rules may require.

(2) If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages.

317 Defective pre-filing statement

(1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant.

(2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination.

(3) The Registrar may give a direction to the claimant as to the action necessary to cure any defect in the pre-filing statement served by the claimant. If the claimant fails to comply with the Registrar's direction within the time allowed for compliance, the pre-filing statement served by the claimant is taken not to have been served.

(4) If the documents and information that comprise the pre-filing statement are furnished to the defendant at different times, the pre-filing statement is not considered to have been served on the defendant until the last of the required documents and information is served.

318 Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages:

(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant's pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that:

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party's case.

(3) The regulations may provide for exceptions to this section."

Rule 17.7 of the Workers Compensation Commission Rules 2006 (WCCR) (now repealed) is also relevant. It provided:

"17.7 (Defective pre-filing statement)

(1) A claimant who has been notified in accordance with section 317(1) of the 1998 Act in respect of the claimant's pre-filing statement must, within 7 days of being so notified, serve on the defendant advice as to whether the claimant accepts or denies that the pre-filing statement is defective, and in what detail and to what extent.

(2) Where a claimant has served advice in accordance with sub-rule (1) and has not, within 7 days of that service, been notified by the defendant that the defendant no longer alleges that the pre-filing statement is defective, the claimant must lodge:

(a) a copy of the pre-fling statement, and

(b) a copy of the defendant's notification and the claimant's advice referred to in sub-rule (1), and

(c) a request that the dispute be referred to the Registrar for determination under s 317(2) of the 1998 Act,

and on the same day serve the request on the defendant.

(3) Where a claimant does not comply with sub-rule (1), or, where sub-rule (2) applies, the pre-filing statement is taken not to have been served.

(4) Where a claimant requests in accordance with this rule that a dispute be referred to the Registrar for determination under s 317(2) of the 1998 Act, and lodges a certificate certifying service of the request on the defendant within 2 working days of that service, the dispute is so referred.

(5) Where a dispute is referred for determination in accordance with sub-rule (4), and the Registrar determines that the pre-filing statement is defective, the pre-filing statement is, in accordance with s 317(4) of the 1998 Act, considered to have been served on the date of service on the defendant of the last document or information required to cure the defect.

(6) Where a dispute is referred for determination in accordance with sub-rule (4), and the Registrar determines that the pre-filing statement is not defective, the Registrar may direct that the pre-filing statement be considered to have been served on the date when it was in fact served or a subsequent date.

(7) Where a defendant has given notification in accordance with s 317(1) of the 1998 Act, and subsequently in respect of the same claim serves a pre-filing defence as referred to in rule 17(5):

(a) despite any application of sub-rule (3) the pre-filing statement is taken to have been served, and

(b) the defendant is taken to have waived any objection to the defects alleged in the notification."

The general scheme of Part 6 of Chapter 7 of the WIM Act is for the Commission to control various preparatory steps before proceedings are commenced in a court. That is why proposed pleadings, with their supporting documents, are referred to as "pre-filing statements" and "pre-filing defences". It is only when all of the steps have been satisfactorily completed and a mediation has taken place pursuant to s 318A, that a Statement of Claim can actually be filed in a court. The purpose of Part 6 is to ensure full disclosure of the position of the parties so that by mediation and otherwise the prospects of settlement can be fully explored.

WCCR 17.7 is part of a comprehensive set of rules commencing with WCCR 17.1 up to WCCR 17.12 which set out requirements as to "threshold disputes, the pre-filing statement, material to be served with the pre-filing statement, the pre-filing defence, material to be served with the pre-filing defence, directions for access to information and premises and referral to mediation".

As a result of the collision with the snowboarder on 15 July 2007 the appellant suffered a fracture of the proximal shaft of the right humerus. He also ruptured the long head of the right biceps tendon. In or about October 2007 the appellant was found to have an abscess in his cervical spine. It was his case at common law that the abscess in the cervical spine was due to the accident. It was the effects of the abscess which significantly disabled the appellant causing spasticity in his legs and reduced strength in his arms.

The appellant made a claim under the Workers Compensation Act 1987 (WCA) against the respondent, pursuant to ss 66 and 67 of that Act. That claim was resolved on the basis of a 70 percent whole person impairment (WPI).

By letter dated 22 December 2009 the appellant's solicitors sent by way of service, pursuant to s 315 of the WIM Act a proposed statement of claim, a proposed statement of particulars and documents referred to in the proposed statement of particulars. This collection of documents was intended to be the appellant's Pre-Filing Statement. The appellant's solicitors required a response within 28 days in accordance with s 316 WIM Act.

By letter dated 29 December 2009 the respondent's solicitors replied that the respondent was not prepared to accept, for the purposes of the damages claim, that the degree of permanent impairment resulting from the injury was at least 15 percent. The letter went on to say:

"In view of the above and given that our client has not accepted that the plaintiff has sustained a 15 percent WPI, we consider there to be a dispute (under s 314 of the WIM Act 1998) as to whether the plaintiff's degree of permanent impairment is sufficient for an award of damages.

As resolution of the "threshold issue" is a condition precedent for the service of a Pre-Filing Statement, we place you on notice that we consider there to be a defect in the Pre-Filing Statement you have served. This notice is provided to you for the purposes of 317(1) of the 1998 Act."

By letter dated 8 January 2010 the appellant's solicitors referred to Operational Instruction 1.24 from WorkCover to the effect that because the appellant's assessment for lump sum compensation had been above the 15 percent WPI, he was not required to undergo another assessment of permanent impairment for the purposes of claiming work injury damages. The respondent's solicitors were requested to reconsider their position.

By letter dated 15 January 2010 the respondent's solicitors advised that the issue which they were exploring was causation. As a result, they did not require the appellant to undergo another assessment of permanent impairment.

By letter dated 9 February 2010, the solicitors for the appellant repeated their position that there was no genuine "threshold issue" and enclosed by way of service an Application for Mediation. A sealed copy of an Application for Mediation of Work Injury Damages filed in the Workers Compensation Commission was served on the solicitors for the respondent by letter dated 18 February 2010.

By letter dated 22 February 2010 the solicitors for the respondent replied as follows:

"We note that on 29 December 2009 we wrote to you to put you on notice that we considered your Pre-Filing Statement defective, on the basis that a threshold issue had emerged. That notice was provided to you for the purposes of s 317(1) of the 1998 Act, and we note you did not respond within the 7 day period prescribed by rule 17.7(1) of the Workers Compensation Commission Rules 2005.

Accordingly by rule 17.7(3) your Pre-Filing Statement is taken not to have been served and your Application for Mediation (of the work injury damages claim) is premature in the circumstances."

It would seem that the point taken by the respondent's solicitors had merit because it caused the solicitors for the appellant to start the process again. By letter dated 26 February 2010 the solicitors for the appellant again served a Proposed Statement of Claim, a Proposed Statement of Particulars and documents referred to in the Proposed Statement of Particulars. The letter concluded as follows:

"We place you on notice that if your response to the Pre-Filing Statement is identical in terms to the contents of your letter dated 29 December 2009 we deny that the Pre-Filing Statement is defective and we rely upon the contents of our letters dated 8 January 2010 and 9 February 2010."

By letter dated 4 March 2010 the solicitors for the respondent maintained their position that the Pre-Filing Statement was defective for the reasons set out in their letter of 29 December 2009 and requested the solicitors for the appellant to confirm that they had also withdrawn the Application for Mediation.

By letter dated 10 March 2010 the solicitors for the appellant responded. By reference to Workers Compensation Commission Rule 17.7(1) (WCCR) they denied that the Pre-Filing Statement was defective. They raised the same issues as they had previously and said:

"It is accordingly incorrect for you to state that your client has not been able to accept that the degree of permanent impairment resulting from the injury on 15 July 2007 is at least 15 percent.

It follows that there cannot be a dispute as to whether our client has sustained 15 percent whole person impairment and as to whether our client's degree of permanent impairment is sufficient for an award of damages. ..."

By letter dated 19 March 2010 the appellant's solicitors wrote:

"We note that a period of 7 days has elapsed since we wrote to you disputing that the Pre-Filing Statement is defective. We have not received notification from you that the defendant no longer alleges that the Pre-Filing Statement is defective.

We accordingly enclose by way of service a copy of our letter of today's date to the Registrar of the Workers Compensation Commission requesting that the dispute be referred for determination under s 317(2) of the 1998 Act."

By letter dated 30 March 2010 the solicitors for the appellant wrote:

"We enclose by way of service Application to Cure a Defective Pre-Filing Statement dated 23 March 2010 which we have filed in the Workers Compensation Commission on 23 March 2010."

It is not clear what, if anything, happened during the following months. In early June 2010 Mr Medak, the solicitor for the respondent, received instructions to withdraw the objection to the appellant's Pre-Filing Statement. It is, however, clear from Mr Medak's evidence and from the surrounding documents that he continued to have instructions to contest liability. Mr Medak had a conversation with Mr Chipchase, the solicitor for the appellant, on 3 June 2010.

There was a diary note by Mr Chipchase, dated 3 June 2010, which he interpreted when he gave evidence (Black 28R) as follows:

"3 June, Medak tel" - meaning he telephoned me - "you concede threshold - need to file PF defence" - meaning pre-filing defence - "contest liability - any settlement offer would be heavily discounted"."

On the same day, the following letter was sent by the solicitors for the respondent:

"We refer to your Application to Cure a Defective Pre-Filing Statement dated 23 March 2010.

Our client is prepared to withdraw the allegation of a defect in the Pre-Filing Statement on the proviso that you consent to the employer serving a Pre-Filing Defence (on all issues) by 30 June 2010.

We look forward to hearing from you."

By letter dated 8 June 2010 the solicitors for the appellant replied as follows:

"Thank you for your letter dated 3 June.

We consent to the employer serving a Pre-Filing Defence by 30 June 2010.

Would you kindly provide us with a copy."

In accordance with that correspondence, by letter dated 15 June 2010, the solicitors for the respondent wrote to the Workers Compensation Commission and advised that "the respondent withdraws its allegation of a defect for the purposes of s 317 of the Workplace Injury Management and Workers Compensation Act 1998". The solicitors for the respondent served a Pre-Filing Defence by 30 June 2010. This was outside the 42 days prescribed by s 318(1)(c) WIM Act. That period expired on 9 April 2010.

Thereafter, the appellant's claim for work injury damages was prepared by both sides on the basis that both liability and damages were in issue. On 1 December 2010 the respondent filed its Defence. The matter was fixed for hearing in the District Court with an estimate of 5 days commencing 25 July 2011. It is not clear from the evidence when that hearing date was allocated, but it would have been at least three or four months before the hearing date.

By letter dated 22 July 2011 the solicitors for the appellant raised with the solicitors for the respondent paragraph 4 of the Defence which pleaded reliance upon s 151H WCA, i.e. that the injury had not resulted in a degree of permanent impairment for the injured worker that was at least 15 percent. (From the earlier correspondence I infer that in paragraph 4 the respondent was continuing to raise the issue of causation.) In that letter, the solicitors for the appellant submitted that the effect of the withdrawal of the objection to the Pre-Filing Statement precluded the solicitors for the respondent from relying upon s 151H and they invited the respondent's solicitors to withdraw that paragraph of the Defence or they would apply to the court to have it struck out.

By letter dated 22 July 2011 the solicitors for the respondent replied:

"We maintain the threshold dispute under s 151H of the Workers Compensation Act 1987.

We reject any suggestion that the defendant has waived its entitlement to agitate the threshold issue, nor can we understand why it has only now come to your attention that the defendant intends to resist the claim on that basis.

Bearing in mind that this matter is listed for hearing for 5 days commencing Monday 25 July 2011 your belated notice of surprise may have grave consequences. In this regard you will no doubt be aware that arrangements have been made for the attendance of witnesses (expert and lay) in order to give evidence during the course of the trial.

In the event that you wish to proceed with your proposed application, please ensure we are served with a Notice of Motion and supporting affidavit by no later than 3pm today."

By letter dated the same day, the solicitors for the appellant said:

'We enclose by way of service Notice of Motion which will be filed in Court on Monday next. Affidavit in Support of Ian Chipchase will be provided in due course but is based on our letter to you of earlier today.

We will also be relying upon the provisions of s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998."

A motion as foreshadowed was duly filed by the solicitors for the appellant. In support of the motion, Mr Chipchase swore an affidavit on 26 July 2011. Paragraphs 2 and 3 of that affidavit were as follows:

"2 In June 2010 I had not turned my mind to the question of the Pre-Filing Defence being out of time. Up until that time, I had been concentrating on the dispute about whether the threshold pursuant to s 151H had been conceded.

3 When I wrote to the defendant's solicitors on 8 June 2010 I was not making any concession about the Pre-Filing Defence being served more than 42 days after the service of the Pre-Filing Statement because the significance of this fact had not occurred to me."

There were other matters set out in that affidavit which are not material.

Mr Medak, on behalf of the respondent, swore an affidavit in reply on 26 July 2011. In paragraphs 5 and 9 of that affidavit he said:

"5 The 42 day period under s 318(1)(c) of the 1998 Act expired on 9 April 2010. I did not serve a Pre-Filing defence by that time given the effect of Rule 17.7(7) of the former Workers Compensation Commission Rules 2006...."

9 Had I not received the plaintiff's solicitor's letter of 8 June 2010, or had the plaintiff's solicitor objected to the proposal contained in my letter of 3 June 2010, I would have sought a direction from the Registrar deeming service of the Pre-Filing Statement on a date that would have permitted me to serve a Pre-Filing Defence in accordance with s 316 of the 1998 Act."

The effect of r 17.7(7), to which Mr Medak referred, was that during the currency of the threshold dispute concerning the Pre-Filing Statement, he could not serve a Pre-Filing Defence. If he did, under the rule, he would have waived any objection to the defects which he alleged in respect of the Pre-Filing Statement.

The motion came before his Honour for hearing as a preliminary issue on 25 - 26 July 2011. Each of the deponents was cross-examined. The following evidence from the cross-examination of Mr Chipchase is relevant:

"Q. Did you take that telephone conversation with Mr Medak to indicate that at the very least the question of negligence or liability would be an issue?

A. Yes.

Q. When he was seeking your consent to put the service of a pre-filing defence, did you conclude from that that without your consent he wouldn't be able to serve a valid pre-fling defence?

A. Yes, that's right.

Q. In fact the request for that consent was confirmed by a letter of the same date, 3 June 2010, which in effect confirmed what was said in the telephone message. That is annexure M to your affidavit of yesterday.

A. Yes, that's right." (Black 28T-29B)

In the course of submissions before his Honour on 26 July counsel for the respondent agreed not to rely upon paragraph 4 of the defence, i.e. the

s 151H WCA issue.

His Honour's treatment of the Notice of Motion (Red 64-70)

His Honour noted that although the defence had been filed on 1 December 2010 no notice of any challenge to it had been provided by the appellant until 22 July 2011. His Honour noted that apart from the issues raised in the motion, the matter was ready to proceed both as to liability and damages.

His Honour outlined his approach to the motion as follows:

"In any event one must step back and look at all of this and I'm being careful not to make a determination either way when it comes to the substantive merits of this application. The threshold point if I could use that terminology, really is whether this Court should entertain this application for relief at all given the very late filing of the notice of motion." (Red 66P-T)

It is clear from what follows that his Honour decided the motion on what he described as "the threshold issue". This is despite some remarks in passing that it may well be that the appellant had waived any rights which it had to rely on s 318(1)(c) WIM Act.

His Honour accepted the assertion by Mr Chipchase that the delay in raising the s 318(1)(c) issue was an oversight on his part. Nevertheless, his Honour did refer in general terms to what he described as a number of concessions by Mr Chipchase in cross-examination (Red 675V).

His Honour invoked s 56 of the Civil Procedure Act 2005 (CPA) and referred to the public interest in matters before the courts proceeding in an orderly way. While his Honour was prepared to accept Mr Chipchase's explanation, he left open the question of whether it satisfactorily explained the delay. His Honour took account of the substantial expense which had been incurred in the preparation of the case up to the hearing of the motion before him. He noted that if the motion had been filed earlier, such expense could have been avoided or at least substantially reduced. In those circumstances, his Honour determined that the appellant had not complied with the provisions of s 56 CPA and that the motion had been brought too late. Accordingly, his Honour dismissed the motion.

Submissions on the motion

The appellant accepted that s 318(1)(c) WIM Act was not a section which operated independently of the actions of the parties. For the section to operate, the point had to be taken by the appellant. In that regard, it operated analogously to a limitation provision (The Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 456 per Dawson J).

The appellant submitted that the orders sought in the motion were of great importance to him since if the motion had been successful, the matter would have proceeded only on the issue of damages. He submitted that s 56 CPA favoured the success of his motion in that the hearing would have been considerably shortened if damages were the only issue to be decided. He noted that when the case had run, damages were agreed on the second day of the hearing and liability was the only issue in dispute.

The appellant submitted that the explanation for the delay by Mr Chipchase had been accepted by his Honour. The appellant submitted that this explanation had not been challenged by the respondent. He submitted that the respondent did not assert any prejudice occasioned by the delay in bringing the motion. The appellant submitted that all of the evidence relevant to the motion had been called and had his Honour dealt with the motion on its merits by taking full submissions, the motion could have been quickly dealt with. Accordingly, case management issues did not arise, in particular, considerations relating to the just, quick and cheap resolution of issues before the court did not arise.

The appellant submitted that although his Honour referred generally to

s 56, he did not indicate how its application led to the conclusion which he reached. In particular his Honour made no reference to ss 57 and 58 CPA which inform the application of s 56. Had he done so, the appellant submitted, it would have been obvious to his Honour that contrary to the conclusion that he reached, ss 56, 57 and 58 required that he hear and determine the motion before him.

The appellant submitted that the decision in Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175 did not assist the respondent. He submitted that apart from the fact that his Honour made no reference to this case, it went no further than to confirm that considerations of case management and delay to other litigants were relevant when deciding whether to allow an amendment to pleadings but that those considerations had to be weighed together with other matters, such as the nature and importance of the amendment to the party applying, the explanation for the delay, the effects of the delay on the other party and prejudice. The appellant submitted that had his Honour taken those matters into account, as he was required to do, he would have heard the motion on its merits.

By way of anticipation of submissions likely to be put by the respondent, the appellant submitted that the principles of waiver and estoppel would not assist the respondent. There was no evidence that Mr Medak and therefore the respondent, had relied upon any representation by the appellant's solicitors and even if they had, there was no evidence of any detriment suffered. The appellant submitted that for such principles to apply, Mr Medak should have alerted the appellant's solicitors to the fact that he was out of time in relation to the filing of the service of the Pre-Filing Defence. The appellant submitted that the fact that the respondent was out of time had not been induced by him, but was the result of a conscious decision made by the respondent's lawyers. The appellant submitted that there was nothing unconscionable in him taking the s 318(1)(c) point shortly before the commencement of the hearing.

On the issue of whether the respondent had suffered any detriment as a result of his solicitor's letter of 8 June 2010, the appellant submitted that it would not have been possible for the respondent to have obtained a direction from the Registrar of the Workers Compensation Commission that the Pre-Filing Statement be considered to have been served on a later date because rule 17.7 WCCR was beyond the rule-making power in s 364 WIM Act. The appellant submitted that this meant that the respondent had suffered no detriment by relying upon the letter which could not be adequately satisfied by an award of costs.

Consideration of submissions on motion

In order to understand the submissions, it is necessary to set out s 56 CPA and its cognate sections.

"56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

..."

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case."

It is clear that his Honour did not decide the merits of the motion, but dealt with it by reference to s 56 CPA and on case management grounds generally. In that regard, his Honour's decision with respect to the motion was discretionary. The grounds upon which such a decision may be challenged are confined to those identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-5. The difficulty for the appellant is that his Honour's decision involved a matter of practice and procedure, an area into which appellate courts have shown a marked reluctance to intervene (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177).

The plurality in Philip Morris quoted with approval the following statement of principle by Sir Frederick Jordan in In Re: the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318:

"... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal."

The challenges made by the appellant to his Honour's decision are as follows:

(i) His Honour should have decided the motion on its merits.

(ii) His Honour wrongly applied s 56 CPA.

(iii) His Honour did not provide adequate reasons for his decision.

I do not propose to consider the merits of the motion at this stage. That is better done when considering the respondent's Notice of Contention. As a matter of principle, however, I do not accept that his Honour erred in declining to hear the motion on its merits. The courts have always drawn a distinction between the right to raise issues by amendment and deciding the merits of those issues if the amendment is allowed.

Implicit in the appellant's submissions is the assumption that had his Honour heard the motion on its merits, the appellant would have been successful and as a result, the hearing time for the trial would have been substantially reduced. That assumption has not been made out.

Section 56 CPA with its statement of overriding purpose expresses an obligation and confers a discretion. The overall intention of ss 56-58 is to permit courts to exercise their powers so as to reduce delay and costs, both public and private, in the conduct of proceedings. In order to achieve that, Courts are directed to "have regard" to particular matters.

Apart from the express directions given in ss 56-58, considerable guidance as to how a court should go about its task of implementing those sections, has been provided by the High Court in Aon. In that regard, the High Court had before it the ACT equivalent of ss 56-58.

French CJ made the following observations:

"5 In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried."

"24 ...The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502."

"27 ... However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn."

"30 It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."

The reasons of the Chief Justice in Aon were endorsed by the plurality at [116] where Gummow, Hayne, Crennan, Keifel and Bell JJ said:

"116 ... There may be some point of distinction in our views as to what J L Holdings holds. We do not understand there to be any difference between us as to the principles which should now be applied in relation to applications for amendment."

The plurality also provided guidance as to the application of case management principles.

"93 Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected:

"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."."

"96 An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.

97 The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.

98 Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs."

His Honour's approach to the motion needs to be considered against that statutory and case law background.

The subject matter of the motion is somewhat difficult to characterise. It is most analogous to an amendment to a defence where the amendment, if allowed, would have a decisive effect on the litigation. Such applications were considered in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 and in Verwayen.

The situation which confronted his Honour was this. A work injury damages claim by an employee against his employer had been listed for hearing before him with an estimate of five days. Liability and damages were in issue. On the morning of the first day of the hearing, i.e. 25 July 2011, his Honour was advised for the first time of the motion. The motion was not ready to proceed on that day and went over to the next day when evidence was taken from the two solicitors and some submissions were made.

The appellant submitted that the explanation by his solicitor was not "challenged" and was accepted by his Honour. That is not how I read what happened and his Honour's reasons. The appellant's solicitor was cross-examined so that he made the admission at Black 28V to the effect that he realised that without his consent the respondent would not have been able to serve a valid Pre-Filing Defence. It is also clear that the solicitor appreciated that in accordance with his consent, the appellant's claim would go forward with liability and damages in issue. As his Honour appreciated, that admission sat rather uneasily with pars 2 and 3 of the solicitor's affidavit of 26 July 2011 (Blue 168K-O). This was particularly so given the extensive experience which the solicitor had in this area of the law. In the event his Honour accepted that some kind of oversight had occurred on the part of the solicitor.

Put at its highest, however, the explanation by the appellant's solicitor is that he made a mistake in giving consent to the service of the Pre-Filing Defence out of time because he did not fully appreciate the implications of that consent. Because this explanation was accepted as true, it does not necessarily follow that the explanation was adequate or satisfactory in the sense of explaining the delay in raising the s 318(1)(c) WIM Act point until late on a Friday afternoon when the hearing was to commence on the following Monday. Accordingly, his Honour was entitled to take the unsatisfactory nature of that explanation into account in reaching his decision.

His Honour was aware of, and referred to the fact, that substantial costs had been incurred in preparing the issue of liability. He noted that all evidence and witnesses were available on that issue so that the hearing was ready to proceed. He was also aware that the first day of the hearing had already been lost because of the motion and that a substantial part of the second day had been taken up with the solicitors giving evidence and with some but not full submissions having been made. No doubt his Honour had in mind that if the merits of the motion were argued, that second day would be lost as well.

It is true that his Honour did not refer in detail to the provisions of s 57. Nevertheless, the matters which his Honour took into account were the very considerations set out in s 57. Accordingly, I do not regard his Honour's failure to refer in terms to s 57 amounted to error on his part.

The appellant's submissions assume that after hearing full submissions on the motion, his Honour would have been in a position to hand down judgment so that at the latest, the substantive hearing could have commenced on the Wednesday. There is no basis for that assumption. As the discussion of the matters raised in the Notice of Contention makes clear, the issues raised by the motion were complex. The motion not only potentially raised issues of election, estoppel and waiver but discretionary issues such as were referred to by the High Court in the Berowra Holdings case. The strong likelihood (which his Honour was in the best position to assess) was that he would have to reserve on the motion which would inevitably mean that the hearing dates would have been lost with a commensurate further waste of time and costs.

Alternatively, if his Honour had been able to deliver judgment on the merits of the motion within a short time, and if the outcome of the motion had been in favour of the appellant, there would almost certainly have been an application for adjournment by the respondent to allow it to seek leave to appeal from his Honour's decision. Such an application for adjournment by the respondent had good prospects of success since his Honour would have been reluctant to allow the matter to proceed as an assessment if there were a prospect of his decision on the motion being overturned and the matter having to proceed later as a hearing both as to liability and damages, i.e. the time spent hearing the damages claim would have been substantially wasted.

In those circumstances, by reference to the matters in ss 56-58 CPA and the principles explained in Aon, his Honour was entitled to dismiss the motion on the basis which he did.

The explanation for the delay in bringing the motion was not satisfactory. The hearing of the motion on its merits would have almost certainly led to what was left of the hearing dates being vacated. The motion was not brought with appropriate expedition. That lack of expedition was not due to any circumstance beyond the control of the appellant's solicitors. The respondent had done everything required of it under s 56(3) to prepare the matter for hearing but such was not the case with the appellant. Leaving aside the issue raised by the motion, the matter was ready to proceed to a hearing on the basis upon which it had been prepared over the preceding 12 months. The respondent was entitled to expect that the matter would proceed on the allocated hearing dates and that the costs which it had expended in preparing the case would not be thrown away by the matter not proceeding.

As explained in Aon, an order for costs in favour of the respondent was not an answer to the appellant's late application. A substantial delay in the hearing of the matter was almost inevitable if the motion proceeded. There would be a waste of court resources if the matter did not proceed. There was a public interest in matters listed before the courts proceeding in an orderly and principled way and in legal costs not being wasted. Delays of this kind adversely affect other litigants waiting to have their cases heard.

The detriment suffered by the appellant was the possible loss of an opportunity to prevent the respondent contesting liability. Serious as this was, it was a problem of his own making. Had that issue been raised when it should have been, the appellant's position would have been considerably stronger. As it was, the issue had been raised very late as a result of a deliberate tactical change by his legal advisors. In any event, as the plurality made clear in Aon, a "just resolution" is to be understood by reference to the overall purpose of sections such as ss 56-58 CPA.

While it would have been preferable for his Honour to have gone into greater detail in his reasons for refusing to hear the appellant's motion, I am not persuaded that error of the kind set out in House v The King has been established. In that regard, his Honour's exercise of discretion did not miscarry. Even if his Honour's discretion had miscarried, and this Court had to re-exercise the discretion, the above considerations retain their validity and force. Accordingly, I would reach the same conclusion as his Honour and dismiss the appellant's motion.

Notice of Contention

The respondent's Notice of Contention related to the motion. In it the respondent relied upon a form of waiver or estoppel, as explained by the High Court in Berowra Holdings. That was a case concerning s 151C(1) WCA. The section provided that a worker was not entitled to commence court proceedings for damages against his employer until six months had elapsed since the notice of injury was given to the employer. It was common ground that the worker commenced action in the District Court, without complying with s151C and that the employer did not take any point (in pleadings or otherwise) regarding the failure to comply until the day before the matter was listed for hearing in the District Court, some 18 months later. At that time an offer of compromise had been made by the employer which still had some time to run before it expired. The employer applied to amend its defence to raise s151C and to withdraw its offer of compromise. Before those motions were heard, the worker purported to accept the offer of compromise.

Although this argument was raised by the respondent in support of its Notice of Contention, and was argued as indicating a form of waiver or estoppel, the reasons of the High Court make clear that the respondent's submission involves similar discretionary matters as those referred to above when considering ss 56-58 CPA and the decision in Aon. The plurality (Gleeson CJ, Gummow, Heydon and Crennan JJ) said:

"13 There also is a very real difficulty in characterising proceedings as "invalid". The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.

14 Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

15 In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it."

Although those observations are couched in terms of the rights of a plaintiff to bring proceedings, they are equally applicable to the right of a defendant to defend proceedings. The choice which was offered to the appellant as plaintiff in these proceedings, was one which is typically to be made by the parties and not by the court, i.e. would he consent to service of a document by a particular date. Such consent was given unconditionally.

Just as the statement of claim filed contrary to s 151C WCA operated effectually as a statement of claim until dismissed or set aside, the Pre-Filing Defence and ultimately the defence filed in December 2010 operated effectively until it was set aside. The procedural law to which the plurality referred includes not only the offer of compromise, but the law relating to the right to make late amendments, i.e. to rely upon s 318(1)(c) WIM Act.

The plurality went on to say:

"28 Counsel for the employer expressly eschewed a "jurisdictional analysis" of s 151C, and conceded that in terms the section is not addressed as a command to the court but to the litigants. However, the question of statutory construction cannot easily be severed from that of jurisdiction because s 151C concerns the submission of contested rights to a court for curial adjudication in an adversarial system."

The same considerations apply to the operation of s 318(1)(c) WIM Act. The section refers to service of the defence which is fundamentally a matter between the parties to the litigation.

Their Honours resolved the issue before them as follows:

"34 The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.

35 The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The "right" which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court."

The same considerations apply to the "right" which was conferred upon the appellant in this case. For the appellant to be able to rely upon it, it had to be raised before the court and then decided in accordance with the procedural rules of that court.

Their Honours continued:

"36 Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a "nullity". Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject-matter with which the statute deals is "rights" in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.

37 The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms."

Apart from the case management considerations, which would be a relevant factor and to which reference has been made above, there is also the consideration that not only did the appellant fail to take the s 318(1)(c) point until shortly before the hearing commenced, but through his solicitor he had consented to service of the Pre-Filing Defence, and therefore the actual defence, out of time. As their Honours said:

"39 It is one thing to speak of the waiver of a legal, equitable or statutory right or privilege. However, once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as "waiver" (and acquiescence and estoppel) are confusing and imprecise. This was pointed out by Dawson J in Verwayen and Lord Browne-Wilkinson in Roebuck v Mungovin. The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors. ..."

At [52] the plurality referred to the decision of the Court of Appeal and in particular, the judgment of Mason P (with whom Sheller and Beazley JJA agreed). The plurality characterised the basis for the decision of Mason P as follows:

"It is clear that his Honour took the view that the section 151C point had been raised so late that an award of costs in favour of the worker would not be adequate to prevent injustice to him".

What Mason P actually said was:

"60 The offer of compromise made by the defendant on 6 May 2003 represented what it considered at the time to be a fair compromise of the litigation. The Rules gave the plaintiff 28 days within which to consider acceptance, absent an order preventing withdrawal. Nothing happened during the currency of the Offer except the defendant realising the application of s 151C to the particular case and signalling its intention to move the court for leave to withdraw the Offer. At all material times the defence stood unamended, without invocation of s 151C. This is not the sort of new situation considered in any of the earlier cases or within the principles they expound.

61 At best for the defendant, it belatedly realised the possibility of raising a statutory defence that was only a knock out blow if the plaintiff failed ultimately to establish waiver. The point is hardly meritorious when it is recalled that the whole purpose of s 151C is to enable a defendant to consider its settlement options before litigation. The defendant had had well over a year, including the arbitration to assess its prospects. The fact that it made the Offer indicates its ability to do so.

62 The defendant needed to amend to raise the s 151C point. Such leave should be refused (cf Verwayen at 456, 464-5). I would also refuse leave to withdraw the Offer." (Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; 62 NSWLR 427)

While the plurality doubted that the application of waiver principles provided a proper basis for overturning the decision of the trial judge, they endorsed the basis upon which Mason P had re-exercised the trial judge's discretion.

The second point made by Mason P also has application to the facts of this case. The point taken by the appellant is hardly meritorious when regard is had to the purpose of s 318 WIM Act and its related sections which is to ensure that complete and full disclosure is made by both sides at an early point in time. By the time the appellant sought to take this point, a mediation had taken place and 12 months had passed during which the matter had been fully prepared by both sides for hearing. Each side was fully aware of the case which he or it had to meet.

It follows that the decision in Berowra Holdings provides an alternative basis for the endorsement of the approach followed by Robison DCJ in this case. His Honour did no more than apply the procedural rules which were applicable and it was open to him to decide that an award of costs would not be adequate to prevent injustice to the respondent.

There is another basis upon which the appellant's motion could have been dismissed. The exchange of correspondence between the solicitors by the letters of 3 and 8 June 2010 constituted an agreement that in exchange for the respondent withdrawing its allegation of a defect in the Pre-Filing Statement, the appellant would consent to the respondent serving a Pre-Filing Defence on all issues by 30 June 2010. There was consideration for that agreement. The respondent agreed to withdraw its objection to the Pre-Filing Statement in exchange for which it obtained the appellant's consent to serve the Pre-Filing Defence by 30 June.

The withdrawal of the objection to the Pre-Filing Statement by the respondent conferred a real benefit on the appellant. The objection previously taken had already caused a delay and the appellant had been forced to start again by re-serving his Pre-Filing Statement in February 2010. The referral to the Registrar to decide whether the objection to the Pre-Filing Statement by the respondent had been properly taken, was going to cause further delay regardless of the outcome. By agreeing to the service of the Pre-Filing Defence by 30 June, the appellant achieved the removal of that source of delay which was potentially substantial and it enabled his claim to proceed.

In other words, what occurred was a legally enforceable agreement between the parties entered into on their behalf by the solicitors. Such an agreement was not precluded by the terms of s 318(1)(c) WIM Act which required action by the appellant to activate it. Such an agreement went considerably beyond the representation relied on in Verwayen.

This characterisation was challenged by the appellant on the basis that no agreement took place because the solicitor for the appellant had overlooked the effect of s 318(1)(c) WIM Act. The appellant submitted that, for an enforceable agreement to have been entered into, it was necessary for the solicitor for the respondent to have fully explained to the solicitor for the appellant what were the consequences of him consenting to the service of the Pre-Filing Defence by 30 June.

There is no substance in that submission. Put at its highest, the solicitor for the appellant may not have appreciated the implications of consenting to the service of the Pre-Filing Defence out of time, but he clearly knew exactly what he was doing. His diary note of 3 June, followed by the respondent's solicitor's letter of 3 June, made it clear that the Pre-Filing Defence which it was intended to serve, raised issues of liability. The terms of the letter of 3 June made it clear that the respondent believed that it needed the consent of the appellant to serve the Pre-Filing Defence by the nominated date. One only seeks consent when it is needed, i.e. when the document sought to be served is out of time. The response in the letter of 10 June was clear and unequivocal. The author of that letter knew that he was granting an extension of time for the service of the Pre-Filing Defence, even if he may not have appreciated the implications of granting that consent.

In the adversarial system of justice, decisions as to whether or not to accept service and as to how to accept service, rest primarily with the parties. Agreements are made between solicitors as to those matters, as well as other matters of practice and procedure all the time. Without such agreements, the conduct of litigation would be needlessly expensive and in practical terms, almost impossible to manage. There is a public interest in solicitors being held to their agreements in the course of litigation. This is particularly so when the solicitors concerned are experienced and know exactly what they are agreeing to.

Before this Court, senior counsel for the respondent characterised what happened as follows:

"All that happened here was that one party had accrued to it a procedural point, that is, "Your pre-filing statement is defective" and the other party had then various choices. Ultimately that took the parties to a point of decision pursuant to s 317(2) before the Registrar.

They determined to compromise the procedural disagreement between them, that's a choice they made. Accordingly, they agreed that they wouldn't bother the Registrar to make any determination, they would, as between themselves, determine how the case could go forward and they did so by becoming to an agreement which permitted the defendant, respondent to do that which otherwise it could not do without an order from the Registrar and that concession having been made, that choice having been exercised, the matter went forward right up until the point where my learned friend came into it a day or two beforehand, and to say that this point could be taken because it was a statutory right and of course, with respect, it's nothing of the kind." (Appeal Transcript 49.35)

Had Robison DCJ considered the motion on its merits, it could and should have been dismissed on that basis. The appellant should be held to the agreement as to service entered into by his solicitors.

In its Notice of Contention the respondent raised generally waiver, estoppel and election. It did so in case the Court re-exercised his Honour's discretion if it found that his Honour was in error in refusing to hear the applicant's motion on its merits. In the event, I have decided that his Honour did not err in that respect and that there is no occasion for this Court to re-exercise his Honour's discretion in that regard.

This creates something of a difficulty in that considerable time was spent arguing this issue and the argument raised important considerations as to the application of WCCR 17.7, which in turn would have a significant effect on the application of ss 313 - 318 WIM Act. In deference to the detailed arguments which were put, I propose to indicate my conclusions on that issue.

Before doing so, it is necessary to say something about the concepts of waiver, estoppel and election generally. These concepts were considered in considerable detail in Verwayen. For the reasons already indicated, the factual circumstances in Verwayen were similar to, but not identical, to those in this case. In Verwayen the Commonwealth having over a considerable period of time advised the plaintiff that liability would not be in issue and that it would not rely on a limitation defence, raised those issues shortly before the matter came on for hearing. The plurality (Deane, Dawson, Toohey and Gaudron JJ) were divided in their approach. Deane and Dawson JJ decided in the plaintiff's favour on the basis of estoppel, whereas Toohey and Gaudron JJ decided in his favour on the basis of waiver.

An important consideration for the plurality in Verwayen was the extent to which the detriment suffered by the plaintiff as a result of the Commonwealth's change of position, could be adequately compensated by costs, or whether he could be otherwise returned to his pre-estoppel position, if the Commonwealth was not held to the position which it had previously adopted.

Deane and Dawson JJ placed considerable emphasis on the health of the plaintiff and the emotional distress which he would suffer, which was not capable of being compensated by an award of costs. Toohey and Gaudron JJ focused on the change in the relationship between the parties which had been brought about by the position previously adopted by the Commonwealth and how it would be unconscionable for that position to be reversed. Although Toohey and Gaudron JJ did not refer to concepts such as detriment, their description of the change in the relationship between the parties brought about by the conduct of the Commonwealth, implicitly raised that concept.

What appears to have been fundamental to the decision of the plurality was that there were certain situations where costs were not an adequate remedy. This was so in litigation when one of the parties had not taken a point which was otherwise available to it and had asserted that it would not take that point and the other party had acted in reliance upon that assertion. The application of such an approach is clear when the party disadvantaged by the proposed change of position is an individual. The application is less certain when the party so disadvantaged is a corporate defendant, such as we have here. Can it be said that such a corporate entity through its officers has suffered a similar loss of expectation such as was held to establish estoppel and waiver and Verwayen.

The issues of waiver and estoppel were not argued in that way before this Court and it would not be appropriate to examine those issues further.

Similarly, estoppel by convention on the basis of what was said in Grundt and Other Plaintiffs v The Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; 59 CLR 641 at 676-677 and in Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 at 224 was not raised or argued before the Court. Accordingly, it would not be appropriate for the Court to consider that issue.

In this Court waiver and estoppel were argued in a more restricted way. The respondent submitted that the point which it raised in correspondence with the appellant's solicitors concerning the existence of a threshold dispute about the appellant's Pre-Filing Statement was open to it. It relied upon the decision of this Court in JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; 70 NSWLR 704. In that case Tobias JA (with whom Campbell and Bell JJA agreed) held that an assessment of WPI for the award of lump sum compensation under ss 66 and 67 WCA did not preclude an employer requiring that a further assessment of WPI be made for the purposes of determining whether s 151H WCA was satisfied and therefore whether a threshold dispute, as envisaged by s 314(1) WIM Act, existed. As the correspondence revealed, it was the issue of causation which the respondent wished to have assessed.

I am satisfied that this part of the respondent's submission should be accepted. The point taken by the respondent in correspondence was open to it. It was not answered by the appellant's response that his claims under ss 66 and 67 WCA had been agreed and that he had been paid lump sum compensation on the basis of a 70 percent WPI.

The next step in the respondent's argument was that the exchange of correspondence between the solicitors, by the letters of 3 and 8 June 2010, constituted an agreement that in exchange for the respondent withdrawing its allegation of a defect in the Pre-Filing Statement, the appellant would consent to the respondent serving a Pre-Filing Defence on all issues by 30 June 2010. The respondent submitted that in entering that agreement, it was suffering a detriment and changing its position in that it was giving up the opportunity of making an application to the Registrar, pursuant to WCCR 17.7(6). Such application would have been for a direction that the Pre-Filing Statement be considered to have been served on "a subsequent date" to enable the respondent's Pre-Filing Defence to be served in time.

The appellant's response was that the respondent had not suffered a detriment in that WCCR 17.7(6) was invalid because it was beyond the rule-making power in s 364 WIM Act.

In order to understand this argument, it is necessary to set out some further provisions of the WIM Act.

"105 Jurisdiction of Commission and Compensation Court

(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.

(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act."

A. Potentially, yes."(Black177H-Q)

RE-EXAMINATION

"Q. Just in relation to your last answer dealing with paragraph 56. your answer was, "Potentially, it may not be necessary to have an on-snow presence." Specifically looking at Front Valley and specifically looking at a situation where levels of concentration of skiers can vary during the day, does that have a bearing on your view as to the need for on-snow presence?

A. Yeah, particularly when you get the mix of skiers. During the day, predominantly you've got beginners going up and down there, so an on-snow presence is probably not required. Indeed, you've probably got a lot more risk then, because you've got a lot more beginners falling over. At the end of the day, you get the mix of skiers. You get the skiers coming back in; you get the experienced skiers mixed with the beginners. And that's when you have the potential problem, and that's when they need to be more directly regulated to remove that immediate risk. That's why I say it's not permanent, but it's a horses for courses approach. As I said, it was location. It's all different. It's also time different. Front Valley at the end of the day is different to Front Valley for the middle of the day." (Black 177G-178B).

Decision of District Court

His Honour determined the appellant's claim on the basis that breach of duty had not been established. In reaching that conclusion, his Honour accepted that the appellant was a "truthful and honest witness".

As his start point, his Honour found that skiing was a potentially dangerous recreational activity in that it involved speed. There was always a risk of a collision with other skiers or with immovable objects. There was also the unexpected, such as persons described by his Honour as "hoons" who did not have regard for authority or rules.

His Honour noted that the function of a mountain awareness officer was of a quasi-police kind in that he was required to prevent skiers and snowboarders descending too quickly. By doing so, he endeavoured to protect other skiers and to reduce the likelihood of collisions between skiers. His Honour found that this required a mountain awareness officer to be mobile and not remain stationary in a fixed immovable position. Even when located near a slow sign, his Honour found that it was not necessary for a mountain awareness officer to remain stationary.

His Honour found that because he had a free rein, the appellant was very much in control of what he did and when and where he did it. His only constraints were of a general kind, i.e. the need to be at particular locations at the beginning of the day and at the end of day, such as Front Valley. His Honour also took into account that the appellant was a very experienced skier who must have built up considerable knowledge and experience as a mountain awareness officer over the years.

In relation to how the accident occurred, his Honour found that the appellant had detected the snowboarder moving at an excessive speed when he was about 50 or 60 metres away and that when he initially called to him, there was no immediate risk of a collision. The collision occurred when the snowboarder appeared to lose control unexpectedly when he was close to the appellant in such a way that the appellant was unable to get out of his way. His Honour accepted that everything must have happened very quickly.

His Honour considered the alternative systems of work which had been suggested in the trial - close circuit television, a public address system, the use of a safe haven and the positioning of mountain awareness officers, both at the base of the slope and at the top of the slope, but not in between. In relation to a public address system, his Honour noted that if skiers had difficulty in hearing a mountain awareness officer because of wearing helmets or using iPods, they would have the same difficulty in hearing a public address system. His Honour also noted that a public address system would do no more than that which was achieved by the slow signs which were positioned all over the resort and which were highly visible.

His Honour rejected the assumption implicit in Ms Armour's report that mountain awareness officers were expected to be immobile or immovable when positioned near a slow sign. His Honour found that this did not accord with the evidence, nor did it accord with the "free rein" which such persons had as to where they should position themselves and as to how they should perform their jobs.

His Honour expressed reservations about the effectiveness of a CCTV system and setting up safe havens. His Honour doubted whether the CCTV system would be effective in preventing dangerous conduct on the slopes and for a safe haven to be effective, it might itself become a source of danger by becoming an obstruction on the slopes.

Apart from the expert evidence, his Honour thought it was a matter of common sense that having a mountain awareness officer on a slope between the top and the bottom would be more effective in slowing people down and in reducing the danger to other users of the particular ski field. His Honour noted that this accorded with the evidence of Mr Fearnside and of Mr Johnston that it was much easier to identify somebody who was moving too quickly from a position midway down the slope, rather than at the top. His Honour also noted that it was not possible at the top to identify which persons were likely to break the rules in relation to speed and that it would be more difficult, if not impossible, to assess the speed of skiers and snowboarders if the mountain awareness officer was positioned at the top of a slope.

His Honour had regard to the evidence of Mr Johnston as to the value of having a visible deterrence to persons likely to speed on the slopes, rather than at the top or the bottom. He noted Mr Johnston's evidence that such a presence was not only desirable but, from a safety point of view, essential.

Generally speaking, his Honour reviewed the evidence of the four witnesses and discussed the areas where they joined issue.

In relation to principle, his Honour noted that an employer was required to act reasonably in devising and implementing a safe system of work with the emphasis on reasonable care being taken to avoid the risk of injury. His Honour noted that liability was not strict. In relation to foreseeability, although his Honour accepted that a collision between two skiers, or a skier and a snowboarder, on the slopes was always foreseeable, he thought that it was significant that there was no evidence of any injury having been suffered by a mountain awareness officer as a result of such a collision until this incident. This was despite the fact that mountain awareness officers had been used at the resort for many years.

His Honour's conclusions are set out at Red 41 and following. His Honour accepted that the system of placing a mountain awareness officer in a visible location near a slow sign on a slope was one which worked and had stood the test of time without previous accidents. He noted that sometimes accidents could happen for reasons which went beyond the scope of the responsibility of an employer. He accepted the evidence of Mr Johnston of a need for a presence to discourage unreasonable behaviour due to the likely risk of being detected and reprimanded, in other words, an element of deterrence. He concluded that the opinions of Mr Johnston accorded with logic and common sense.

His Honour accepted that visibility and mobility were part and parcel of the role of a mountain awareness officer. In that regard, it was better for such an officer to deal with things sooner rather than later when dealing with speed. His Honour said:

"Positioning a mountain awareness officer in the location of the plaintiff, although not completely without some risk, I suppose, was in any event an essential part of his role as an officer. It is not the law that every single possibility of an injury to any employee should be completely eliminated. The law does not go that far. One cannot rule out that accidents sometimes can and do happen without the fault of anybody." (Red 42R-V)

His Honour noted that there was no evidence of any complaint by the appellant to anyone in authority concerning any element of his employment.

In reaching his conclusion, his Honour had particular regard to the statement of principle by Windeyer J (with whom McTiernan, Kitto, Taylor and Owen JJ agreed) in Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316 at 319:

"For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."

His Honour concluded:

"I am of the view that the defendant effectively did all that it could do given the circumstances of the nature of the employment of this particular employee." (Red 48P)

Appellant's submissions on liability

The appeal was in somewhat unusual form. Grounds of Appeal 2 - 6 and 8 - 11 were expressed in terms of his Honour "failing to properly consider" particular pieces of evidence. Not only were the findings challenged not identified but the findings contended for, were not identified. A more fundamental difficulty was that neither in the Grounds of Appeal nor in the submissions was there any precise identification of the error by the trial judge. The position was not clarified during the conduct of the appeal which consisted primarily of the Court being taken to pieces of evidence and being invited to use that evidence in a way which was different to how his Honour used it. This made it particularly difficult for the court to carry out the rehearing task which it is obliged by statute to undertake.

One matter, however, which was clarified in the course of the appeal was what the appellant submitted should have been the response by the respondent to the foreseeable risk of injury. He submitted that a mountain awareness officer should not have been placed on a ski slope, but at the top of the slope where people exited from a chairlift and approached the slope. Another mountain awareness officer should have been placed at the bottom (Appeal transcript 9.15-.32). This was because positioning a mountain awareness officer mid-slope was not only dangerous but it was ineffective. The alternative systems of work raised at trial were expressly eschewed.

The thrust of the appellant's oral submissions was that the only reliable evidence as to the effectiveness of the existing system of having a mountain awareness officer located midway down the slope near a slow sign came from the appellant. The appellant said that he found this to be ineffective because skiers could not hear him and because they did not pay attention to him. He found it more effective to speak to skiers and snowboarders at the top of the slope as they were getting off the chairlift and commencing their run. It was submitted that the appellant's evidence on this issue should have been preferred by his Honour because he was the only person with actual experience.

There are a number of difficulties with that proposition. On a factual basis, there was contrary evidence. It came from Mr Johnston and from Mr Fearnside. Mr Fearnside had practical experience as a mountain awareness officer. Both he and Mr Johnston produced cogent reasons why positioning a mountain awareness officer midway down a slope was more effective. An important consideration which they both stressed was the importance of having a mountain awareness officer clearly visible, near a slow sign, to act both as a deterrence to those who would break the rules and as a visible reminder to other skiers and snowboarders that they should slow down.

Accordingly, on a purely factual basis, it was open to his Honour to accept the evidence of Mr Fearnside and of Mr Johnston that positioning a mountain awareness officer on a slope was more effective than having him at the top or bottom of a slope with no one in between. This is particularly so when that evidence accorded with his Honour's own appreciation of the circumstances surrounding the accident, having heard all the evidence.

There is another more fundamental conceptual difficulty with the appellant's submission. It moves immediately from the premise of the occurrence of an accident to the concept of how the accident could have been avoided. There is no analysis of the nature of the foreseeable risk of injury and whether a response was required and if so, what kind, of response was required to that foreseeable risk.

The error in such an approach has been pointed out in a number of decisions. As early as Vozza, Windeyer J said at 318:

"It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that by some means the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils."

In Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [25] McHugh J (with whom Gleeson CJ, Gummow and Callinan JJ agreed) said:

"25 His Honour and counsel seem to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it."

McHugh J made a similar observation in Tame v NSW [2002] HCA 35; 211 CLR 317 where his Honour said:

"97 But the test of reasonable foreseeability was not always so undemanding. Nor was the content of reasonable care anywhere near as high as it has become in recent years. Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised. A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action.

...

98 Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law.

99 Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.""

The failure by the appellant to carry out those fundamental steps as originally stated by Windeyer J and as elaborated by McHugh J led to submissions being made as to the adequacy or otherwise of an alternative system without the essential anterior analysis of whether a response was necessary.

The obligation of an employer to an employee has been stated on many occasions. Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 made it clear that a court should not approach the issue of negligence on the part of an employer on the basis of some principle that there was a heavy obligation on the part of the employer to protect the worker. It reiterated that the employer's duty was to take reasonable care for the safety of its employee and that what is reasonable is a question of fact to be judged according to the standards of the time.

There is nothing in the statement of principle in Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839 at [12] upon which the appellant placed such reliance, which is contrary to the statements of principle in Vozza and Braistina. There the court said:

"12 An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."

That was a statement of principle applicable to an industrial accident involving repetitive work to be performed in a diminishing space. While the statement of principle is unexceptionable, it was expressed in the way in which it was, to illustrate the obligation of the employer on the particular facts of that case.

In this case the employer had dual obligations. It had an obligation to its employees to exercise reasonable care for their safety. It also had an obligation to the users of the ski fields to exercise reasonable care for their safety. As part of that latter obligation, it employed mountain awareness officers, such as the appellant, to work in a mobile and on occasions static capacity to reduce the likelihood of collisions. This was done by endeavouring to reduce the speed at which persons descended the slopes and where such persons were recalcitrant or repeat offenders, sanctions were imposed which included removing the right to ski at the resort.

The system of work for mountain awareness officers was to employ highly skilled and experienced skiers in the task. Such persons were given a broad discretion as to how and where they were to perform their task. There was a constraint on their initiative in that for an hour or so at the beginning and for approximately the last hour of the day, they were positioned in locations where experienced skiers and beginners, or less experienced skiers, were likely to come together. In the case of the appellant, the location allocated for him was approximately halfway down Front Valley, shown on exhibit A, near a slow sign. He was not required to be immobile or stationary but had to be within the vicinity of the slow sign. Front Valley, as exhibit A makes clear, was a fairly gentle slope designed for use by beginners. The appellant was working with another mountain awareness officer at the bottom of the slope and was equipped with a whistle, a radio and a highly visible fluorescent green top.

The first question is whether it was reasonably foreseeable that if he were so positioned at Front Valley, there might be a collision between him and another user of the slope? The answer is clearly yes. An affirmative answer to that question would be given if it were addressed with respect to anyone skiing on that slope. The foreseeable risk of injury to the appellant was no greater than that to which any other user of the Front Valley slope for skiing purposes was exposed. The appellant, however, had advantages which a normal skier did not. He was highly visible, he was positioned near a slow sign, he was highly skilled and he was watching for potential sources of danger.

The next question is that posed in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48. It is the consideration of the magnitude of the risk and the degree of probability of its occurrence. Given the appellant's experience, the nature of his job, the fact that there had been no previous accidents and his high visibility near a slow sign on a comparatively gentle slope, the degree of probability of a collision was extremely low. The magnitude of the risk, given the nature of the slope, was also low.

It is true that if the appellant had been positioned at the top of the slope or at the bottom of the slope, the risk would have been even lower, but as the evidence accepted by his Honour made clear, his ability to perform his important job involving the safety of others, would have been significantly reduced.

Approaching the matter prospectively and not in hindsight, what response to that foreseeable risk of injury was required of a reasonable employer? In my opinion, and clearly in the opinion of the trial judge, no response was required. By using the appellant with his special skills in the way in which it did, the employer was not unreasonably exposing him to a risk of harm. Breach of duty was not established.

The facts of this case also raised a causation issue. Although his Honour did not direct his attention to that issue, he made factual findings which enable it to be considered.

The appellant was not struck by the snowboarder because he was positioned on the Front Valley slope as some kind of immovable target. He had the snowboarder under observation at all times. When he initially called to the snowboarder, there was no risk of a collision. It was only when the snowboarder suddenly lost control and veered towards him that the collision occurred. The accident appears to have occurred as a result of random chance and could have happened to anyone who was skiing on Front Valley at the time. Causation as a result of the system of work was not established.

With one exception, that is sufficient to dispose of the appeal. But for completeness, I should say something about the particular grounds of appeal which have been pleaded.

Ground of Appeal 1 - His Honour erred when he found mountain awareness officers ought to be able to expect that persons using ski fields comply with the rules of the field such as signs warning skiers and snowboarders to slow down when that was contrary to the evidence.

This was not a primary finding of his Honour. In any event, it was a finding open to him. It went no further than an assertion that most people tend to obey the rules, a proposition with which there can be no argument.

Ground of Appeal 2 - His Honour erred when he failed to properly consider the evidence of the appellant which he accepted, that the system of work was ineffective in controlling the speed of skiers.

It is incorrect to say that his Honour accepted that evidence of the appellant. His Honour found the appellant to be honest and truthful. It does not follow that his Honour accepted the appellant's opinion as accurate. This is particularly so when his Honour found to the contrary, i.e. that the system was effective in controlling the speed of skiers for the reasons given by Mr Fearnside and Mr Johnston.

Ground of Appeal 3 - His Honour erred when he failed to properly consider the evidence of Mr Johnston that there was a safe alternative system of work.

This is an illustration of the conceptual error already referred to. Just because there was an alternative system of work which may not have exposed the appellant to the same risk of injury, is not indicative of negligence. Moreover, the ground does not accurately record the evidence of Mr Johnston. While he conceded the existence of an alternative system, he did not concede that such a system would be as effective as that which the respondent was using.

Ground of Appeal 4 - His Honour erred when he failed to properly consider the evidence that the system of work was for the appellant to stand on the slope.

This has been dealt with in the primary analysis of breach of duty.

Ground of Appeal 5 - His Honour erred when he failed to properly consider the evidence that Mr Fearnside would not have allowed a mountain awareness officer to perform his work other than in accordance with the usual practice.

This proposition misstates the evidence. The evidence of Mr Fearnside was that he would not change the existing system of work, unless and until an alternative system was trialled and proven to be superior.

Ground of Appeal 6 - His Honour erred when he failed to properly consider the evidence that there had been collisions with ski instructors.

His Honour did properly consider this evidence. The evidence was that there had been collisions by skiers with lift attendants and ski instructors teaching classes, because those persons had been stationary. There had been no instance of a collision involving a mountain awareness officer. As his Honour correctly appreciated, the functions of lift attendants and a ski instructor teaching a class were quite different from those of a mountain awareness officer.

Ground of Appeal 8 - His Honour erred when he failed to properly consider evidence that the respondent knew the system of work involved a risk of injury.

This has already been dealt with in the analysis of breach of duty.

Ground of Appeal 9 - His Honour erred when he failed to properly consider the evidence that there had been no formal risk assessment.

During the course of the appeal, the appellant properly conceded that this was not indicative of negligence on the part of the respondent.

Ground of Appeal 10 - His Honour erred when he failed to properly consider the evidence that the alternative system of work described by the appellant as effective had never been trialled.

This has already been dealt with in the analysis of breach of duty.

Ground of Appeal 11 - His Honour erred when he failed to consider the evidence of Mr Johnston that the system of work should be monitored to see if it is effective.

The only evidence of Mr Johnston which seems to bear upon this ground of appeal was that any new system should be monitored to see if it was effective. That evidence is irrelevant to any issue raised in the appeal.

Ground of Appeal 12 - His Honour erred when he found the system worked when the only direct evidence was that it did not.

This has been dealt with in the analysis of breach of duty.

Ground of Appeal 13 - His Honour erred when he considered the provision of a safe haven would have inhibited the appellant from carrying out his duties when there was no evidence to that effect.

This ground of appeal does not accurately reflect the evidence. Ms Armour, Mr Johnston and Mr Fearnside gave evidence to that effect.

Ground of Appeal 14 - His Honour erred when he failed to find there had been a failure to devise and implement a safe system of work.

This has been dealt with in the analysis of breach of duty.

Ground of Appeal 15 - His Honour erred when he found there had been no breach of duty.

This has been dealt with in the analysis of breach of duty.

Ground of Appeal 7 - His Honour erred when he allowed Mr Fearnside to give evidence about the effectiveness of systems of work when Mr Fearnside was not an expert, the evidence had not been disclosed as required by s 318(1)(d) of the Workplace Injury Management and Workers Compensation Act 1998.

The first objection taken by counsel for the appellant to the evidence of Mr Fearnside occurred at Black 131F. Objection was taken to the following question:

"Q. It's been suggested that it would be more effective to have mountain awareness officers stationed either just at the bottom of the slope or at the top from the bottom. Do you have any comment to make to that?"

The appellant took objection, pursuant to s 318(1)(d) WIM Act, on the basis that the evidence should not be admitted unless that evidence was disclosed by the respondent in its Defence, or with the leave of the court. The section went on to provide that the court was not to grant leave unless satisfied:

"a) The material concerned was not reasonably available to

the party when the Pre-Filing Statement or Defence was served; and

(b) The failure to grant leave would substantially prejudice the party's case."

In the course of argument, counsel for the appellant also included in his objection a challenge to the expertise of Mr Fearnside to answer the question.

His Honour dealt with the expertise of Mr Fearnside in a separate judgment. By reference to Mr Fearnside's experience at the resort since 1986 and the various positions which he had held, his Honour was satisfied that he had the necessary expertise to provide an answer to the question. His Honour was of the opinion that the question related not so much to expertise generally, but to a particular knowledge of this resort and how it operated. His Honour noted that the evidence was being adduced to answer evidence of the appellant as to an experiment which he had carried out and as to his preference for a system of work which had a mountain awareness officer located at the top of the slope. This was evidence which had not been included in the appellant's Pre-Filing Statement and had been given for the first time during his evidence-in-chief.

On that basis, his Honour allowed the question (Red 71-72).

His Honour dealt with the s 318(1)(d) WIM Act objection in a separate judgment. His Honour overruled that objection on the basis that Mr Fearnside had provided a statement as part of his pre-filing material, which dealt specifically with alternative systems of work insofar as mountain awareness officers were concerned. His Honour was of the opinion that compliance with s 318(1)(d) did not require a verbatim statement of evidence, but rather a disclosure of the nature and substance of the evidence proposed to be given. In that regard, his Honour was of the opinion that there had been sufficient compliance with s 318(1)(d). (Red 73-74)

As a result of his Honour's ruling, the following question and answer was allowed:

"Q. You have been asked if you cold make a comment or express an opinion as to whether the alternative - that is, to have a mountain awareness officer at the offload point and one other mountain awareness officer at the bottom, with no mountain awareness officer in the middle - you're being asked if you could make a comment about that. So I allow the question.

A. To answer that scenario, no, it would not be as effective as what we currently do." (Black 141U-W)

Interestingly, that was the only evidence of that kind which was given in chief. All of the other evidence (and it was substantial) from Mr Fearnside, concerning his opinion as to the disadvantages of the system proposed by the appellant, was given in cross-examination in answer to specific questions put on behalf of the appellant.

The rulings by his Honour as to the admissibility of the evidence were correct. The experience of Mr Fearnside in relation to the resort was substantial. He was in as good a position as the appellant to express an opinion as to the advantages and disadvantages of the alternative system of work proposed by the appellant for the first time at the hearing. The basis for his opinion was set out in his earlier evidence and in his statement.

The statement of Mr Fearnside is to be found at Blue 130-138. In it Mr Fearnside analysed in considerable detail the system of work of mountain awareness officers at the resort and expressed an opinion as to the impracticality and disadvantages of the alternative systems of work proposed in Ms Armour's report. This was dealt with at pars 27, 28, 29, 34, 35, 38, 40, 42, 44, 45, 46, 47, 48 and 49 of the statement. The only reason the statement did not address a system which had a mountain awareness officer at the top of the slope and one at the bottom, but no-one in between, was because such an alternative system was not advanced on behalf of the appellant until the trial.

His Honour's interpretation of s 318(1)(d) was correct. I do not read that section as requiring a verbatim transcript of the evidence which will be given at trial, but rather a disclosure of the nature and substance of the evidence to be given. The statement of Mr Fearnside satisfied that requirement. The statement did not specifically deal with the alternative system of work advanced by the appellant at trial because at the time the statement was served, that was not part of the appellant's case. In that respect, it could fairly be said that this evidence "was not reasonably available to the party when the pre-filing defence was served". It was common ground that the evidence was important, otherwise the objection would not have been taken.

It follows that there was no error in his Honour's approach to the application of s 318(1)(d) WIM Act and that the question was correctly allowed.

This ground of appeal has not been made out.

Conclusion

It follows from the above that the appellant's Notice of Motion was properly dismissed by his Honour. His Honour was entitled to do so on case management grounds and by application of ss 56-58 CPA. Had the motion been heard on its merits, it should also have been dismissed. In relation to the substantive appeal, not only has no error been shown in his Honour's approach and conclusion, but the application of principle to the facts found, makes it clear that his Honour's conclusion as to breach of duty was correct.

The orders which I propose are as follows:

(1) The appeal is dismissed.

(2) 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.

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Decision last updated: 15 August 2012

Medium Neutral Citation:	Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250
Hearing dates:	4 July 2012
Decision date:	14 August 2012
Before:	Campbell JA; at [1] Barrett JA; at [2] Hoeben JA; at [3]
Decision:	(1) The appeal is dismissed. (2) 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. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - Application on morning of trial for order pursuant to s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) that respondent not entitled to dispute liability - refusal by Trial Judge to entertain motion - motion dismissed pursuant to sections 56 - 58 Civil Procedure Act 2005 - no error in Trial Judge's treatment of motion - had motion been considered on its merits, would still have been dismissed - relevant discretionary considerations - agreement by parties for late filing of defence - parties should be held to such agreements made in the course of litigation - whether principles of waiver and estoppel applied - respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power - TORT - negligence - collision between skier and snowboarder at ski resort - skier in the course of his employment by ski resort - whether breach of duty by employer - whether unsafe system of work - causation - PRACTICE AND PROCEDURE - admission of evidence - whether witness qualified to give evidence - whether evidence rendered inadmissible by s 318(1)(d) WIM Act.
Legislation Cited:	Civil Procedure Act 2005 (NSW) - ss 56, 57, 58 Workers Compensation Act 1987 - ss 66, 67, 151C, 151H Workplace Injury Management and Workers Compensation Act 1998 - ss 105, 313 - 318, 364, 366, 368, 370, 371, 375 Workers Compensation Commission Rules 2006, rule 17.7
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 482-484 Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; 62 NSWLR 427 Grundt and Other Plaintiffs v The Great Boulder Proprietary Gold Mines Limited [1937] HCA 58; 59 CLR 641 JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43; 70 NSWLR 704 House v The King [1936] HCA 40; 55 CLR 499 In Re: the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 The Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category:	Principal judgment
Parties:	Anthony David Wilkinson - Appellant Perisher Blue Pty Ltd - Respondent
Representation:	Counsel: Mr B McManamey - Appellant Mr JE Maconachie QC/Mr B Odling - Respondent Solicitors: Stacks Goudkamp - Appellant DLA Piper Lawyers - Respondent
File Number(s):	2010/382630
Decision under appeal	Jurisdiction: 9101 Before: Robison DCJ File Number(s): 2010/382630