StateCover Mutual Ltd v Smith [2012] NSWCA 27

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: StateCover Mutual Ltd v Smith [2012] NSWCA 27 Hearing dates: 7 February 2012 Decision date: 05 March 2012 Before: Beazley JA at [1] Campbell JA at [6] 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 1998 Cases 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 377 Category: Principal judgment Parties: StateCover Mutual Ltd (Appellant) Dennis Alfred Smith (First Respondent) QBE Workers Compensation (NSW) Ltd (Second Respondent) Representation: Counsel: S G Campbell (Appellant) L Morgan (First Respondent) I D Roberts SC/E Wood (Second Respondent) Solicitors: Bartier Perry (Appellant) White Barnes (First Respondent) Sparke Helmore (Second Respondent) File Number(s): CA 2011/12888 Decision under appeal Citation: Smith v Parkes Shire Council [2010] NSWWCCPD 130 Date of Decision: 2010-12-17 00:00:00 Before: Deputy President Roche File Number(s): A1-2597/10