Wilkinson v Perisher Blue Pty Ltd

The appeal concerned a collision between a skier and a snowboarder at a ski resort, where the skier was an employee of the resort. The primary dispute involved whether the employer, Perisher Blue Pty Ltd, had breached its duty of care to the employee by failing to implement an adequate system of work, and whether this breach caused the employee's injuries. The appeal was heard in the Court of Appeal of New South Wales.

The court was required to determine several legal issues. Firstly, it had to consider whether the Trial Judge erred in refusing to entertain an application made on the morning of the trial for an order that the respondent was not entitled to dispute liability, and whether this refusal was justified under sections 56-58 of the Civil Procedure Act 2005. Secondly, the court needed to assess whether, had the application been considered on its merits, it would have been dismissed, taking into account relevant discretionary considerations and the parties' agreement regarding the late filing of the defence. The court also had to consider the applicability of principles of waiver and estoppel, and whether the respondent could rely on a specific rule of the Workers Compensation Commission Rules 2006 that was argued to be beyond the Commission's power. Finally, the court was to consider issues relating to the admission of evidence, including witness qualifications and admissibility under section 318(1)(d) of the Workplace Injury Management and Workers Compensation Act 1998.

The court reasoned that the Trial Judge had not erred in refusing to entertain the application on the morning of the trial, as it was brought at a late stage and the parties had previously agreed to the late filing of the defence. The court held that parties should be held to such agreements made during litigation. Furthermore, even if the application had been considered on its merits, it would have been dismissed due to the discretionary considerations involved. The court found that the respondent was not entitled to rely on rule 17.7(6) of the Workers Compensation Commission Rules 2006, as it was beyond the Commission's power. The court dismissed the appeal.