Court of Appeal
New South Wales
Case Title: StateCover Mutual Ltd v Smith Medium Neutral Citation: [2012] NSWCA 27 Hearing Date(s): 7 February 2012 Decision Date: 05 March 2012 Jurisdiction: Before: Beazley JA at [1]
Campbell JA at [2]
Macfarlan JA at [13]Decision: (1) Order that the appeal be dismissed.
(2) Order that the appellant pay the second respondent's costs of the appeal.
(3) Order that the appellant pay the first respondent's costs of the appeal incurred up to and including the date upon which the first respondent filed a submitting appearance.
[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: WORKERS COMPENSATION - appeal - whether Commission erred in point of law - whether any evidence capable of supporting finding that nature and conditions of employment constituted a substantial contributing factor in relation to worker's injury
WORKERS COMPENSATION - whether insurer who was not formally a party to proceedings before Commission entitled to appeal under s 353 Workplace Injury and Workers Compensation Act 1998
COSTS - appeal costs - whether party who filed submitting appearance entitled to costs of appearing at hearing to seek costs order when had not previously sought consent to such an order
Legislation Cited: Civil Procedure Act 2005
Workplace Injury Management and Workers Compensation Act 1998Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 85 ALJR 694
ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18
Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; 241 CLR 390
Steinberg v Federal Commissioner of Taxation [1975] HCA 63; 134 CLR 640
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377Texts Cited: Category: Principal judgment Parties: StateCover Mutual Ltd (Appellant)
Dennis Alfred Smith (First Respondent)
QBE Workers Compensation (NSW) Ltd (Second Respondent)Representation - Counsel: Counsel:
S G Campbell (Appellant)
L Morgan (First Respondent)
I D Roberts SC/E Wood (Second Respondent)- Solicitors: Solicitors:
Bartier Perry (Appellant)
White Barnes (First Respondent)
Sparke Helmore (Second Respondent)File number(s): CA 2011/12888 Decision Under Appeal - Court / Tribunal: - Before: Deputy President Roche - Date of Decision: 17 December 2010 - Citation: Smith v Parkes Shire Council [2010] NSWWCCPD 130 - Court File Number(s) A1-2597/10 Publication Restriction:
JUDGMENT
BEAZLEY JA : I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his Honour's reasons and orders save as to his Honour's reasons in respect of the costs of the first respondent's application made on 7 February 2012.
Macfarlan JA has…
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- AGLC
- StateCover Mutual Ltd v Smith [2012] NSWCA 27
- Case
- [2012] NSWCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were: firstly, whether the Workers Compensation Commission had erred in point of law by making a finding that the worker's employment conditions were a substantial contributing factor to the injury, and secondly, whether an insurer, not formally a party to the proceedings before the Commission, possessed a right of appeal under section 353 of the *Workplace Injury and Workers Compensation Act 1998*. A further issue related to costs, specifically whether a party who filed a submitting appearance was entitled to the costs of appearing at the hearing to seek a costs order when they had not previously sought consent for such an order.
The Court of Appeal dismissed the appeal. It reasoned that there was evidence before the Commission capable of supporting its finding regarding the substantial contribution of the employment conditions to the worker's injury, thus no error of law was demonstrated. Furthermore, the Court held that StateCover Mutual Ltd, as the insurer, did have a right of appeal under section 353 of the Act. The Court also made orders regarding the costs of the appeal, directing the appellant to pay the costs of both respondents, with specific conditions for the first respondent's costs.
Orders
Orders of the court
(1) Order that the appeal be dismissed.
(2) Order that the appellant pay the second respondent's costs of the appeal.
(3) Order that the appellant pay the first respondent's costs of the appeal incurred up to and including the date upon which the first respondent filed a submitting appearance.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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