MERCANTILE MUTUAL INSURANCE (WORKERS COMPENSATION) LTD v DI CECCO [2003] NSWCA 141

New South Wales Court of Appeal

CITATION : MERCANTILE MUTUAL INSURANCE (WORKERS COMPENSATION) LTD v DI CECCO [2003] NSWCA 141 HEARING DATE(S) : 13 May 2003 JUDGMENT DATE : 13 May 2003

JUDGMENT OF : Spigelman CJ at 1, 9; Mason P at 2; Santow JA at 10 DECISION : Appeal dismissed.

PARTIES : MERCANTILE MUTUAL INSURANCE (WORKERS COMPENSATION) LTD v Mario DI CECCO FILE NUMBER(S) : CA 40522/02 COUNSEL : Appellant: R Stitt QC/ J de Greenlaw Respondent: A Leslie QC/ D Toomey SOLICITORS : Appellant: McCulloch & Buggy Respondent: Turner Freeman

LOWER COURT Dust Diseases Tribunal JURISDICTION : LOWER COURT DDT 472-2001 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40522/02

SPIGELMAN CJ MASON P SANTOW JA

Tuesday 13 May 2003 MERCANTILE MUTUAL INSURANCE (WORKERS COMPENSATION) LTD v MARIO DI CECCO JUDGMENT

1 SPIGELMAN CJ: I invite Justice Mason to deliver the first judgment. 2 MASON P: This appeal is brought by leave granted by Meagher JA and Santow JA on 24 September 2002. It was a condition of the grant of leave that the claimant, Mercantile Mutual Insurance (Workers Compensation) Ltd pay the costs of the opponent of 24 September, and the opponent's costs of the appeal. The opponent was Mr Di Cecco. 3 The appeal having been launched, the WorkCover Authority representing NEM intervened in the proceedings in this court. It is now common ground that the appeal is moot because the matter that triggered the legal issue turned upon whether or not NEM's policy at the relevant time was limited to $50,000. 4 The solicitors for WorkCover Authority had represented by letter of 25 July 2001 that the level of cover was limited to $50,000. Searches recently carried out have disclosed that this view was mistaken and, on 1 May this year, the solicitors notified all parties that the policy documents show a limit of $200,000. As I have indicated it is now common ground that this makes the appeal in this particular matter of no moment. 5 The first matter to be determined is whether, in confirming the order for costs in the worker's favour we should order that those costs be paid on the indemnity basis now claimed by the worker. In my view it is appropriate that we do so, given that the worker was embroiled in this litigation and the matter should have been properly explored at an earlier stage. It seems to me it is appropriate that full indemnity in relation to the costs of the proceedings in this court be given. 6 The matters I have already recounted also mean, in my view, that it is appropriate that the costs awarded against the appellant in favour of the worker should, in turn, be awarded against the intervener, given that it is through the conduct of the intervener that the appeal was launched and it is on discovery that the intervener made a mistake of materiality that the appeal is now abandoned. 7 Accordingly I propose the following orders. That, in lieu of any orders made by the court on 24 September 2002 in relation to costs, the appellant pay the costs of the respondent in the appeal on an indemnity basis, those costs including any costs referable to the grant of leave to appeal. 8 I would further order the intervener to pay the appellant's costs of the appeal including the costs which the appellant has just been ordered to pay to the respondent. Finally, I would order that the appeal be dismissed. 9 SPIGELMAN CJ: I agree. 10 SANTOW JA: I agree. 11 SPIGELMAN CJ: The orders are as indicated by Justice Mason. **********