STATE TRANSIT AUTHORITY OF NEW SOUTH WALES v FRASER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 23 May 1995, 23 May 1995 [1995] NSWCA 450 WORKERS COMPENSATION — TRANSPORT AUTHORITY ACT — ELECTION — LIMITATION ACT FACTS: The respondent worker remained in the employment of the appellant employer after having suffered an injury on 14 April 1986. She then sought compensation. The worker was unaware of CLS of schedule 5 of the Transport Authority Act 1980 which proposed a defence of payment unless an election had been made by the worker. The trial judge granted leave to file and serve a statement of claim. HELD: (1) (By Meagher JA, Handley and Powell JJA agreeing) Under s58(2)(a) of the Limitation Act the worker had to demonstrate before the District Court that material facts of a decisive nature had been brought to her attention and knowledge after 14 April 1991. There are no facts which the worker could prove were material facts for the purposes of the section of which she was ignorant. Meagher JA This is an appeal by the State Transit Authority of New South Wales against Ms Vera Fraser. With some regret we are compelled in law to find that the appeal must succeed. Indeed, Mr Harris who appears for the respondent has very properly indicated to us the result of this is inevitable. Ms Fraser, whilst in the employ of the appellant, suffered an injury for which she now seeks compensation. However, she remained in the employment of the appellant. This raised questions under CLS of schedule 5 of the Transport Authority Act 1980 which proposed a defence of payment unless an election had been made by Ms Fraser. Ms Fraser did not know of this section, nor did her solicitors know of it. She did not know of the necessity to elect. She did not know that the continued seeking of a salary amounted to some election. She had never been informed of any of these things by her solicitors. By the time she had been illuminated there were then problems with the Limitation Act because the accident in respect of which she sued took place on 14 April 1986. The limitation period expired on 14 April 1992. Under s58(2)(a) of the Limitation Act she therefore had to demonstrate before the District Court that material facts of a decisive nature had been brought to her attention and knowledge after 14 April 1991. Three are no facts which she could prove were material facts for the purposes of the section of which she was ignorant. The most she could demonstrate was she was ignorant of some fairly obscure section of the law. In those circumstances his Honour's decision to grant leave to file and serve a statement of claim cannot be upheld and the appeal in that regard must be accepted. For these reasons I am of the view that this court should make the following orders: 1. Appeal allowed. 2. Decision of Bell DCJ be set aside. 2 UNREPORTED JUDGMENTS 3. That the respondent pay the costs of this appeal subject to the provisions of the Suitors Fund Act under which she should have a certificate. 4. There should be an extension of time until 30 May for the respondent, if she is so advised, to file an application for leave to appeal against the decisions of Holt DCJ and Bell DCJ striking out the action. Handley JA I agree. Powell JA I also agree. Meagher JA: The orders of the court are as I have proposed. (1) Appeal allowed. (2) Decision of Bell DCJ be set aside. (3) That the respondent pay the costs of this appeal subject to the provisions of the Suitors Fund Act under which she should have a certificate. (4) There should be an extension of time until 30 May for the respondent, if she is so advised, to file an application for leave to appeal against the decisions of Holt DCJ and Bell DCJ striking out the action. COUNSEL: Appellant: M THOMPSON Respondent: JM HARRIS SOLICITORS: Appellant: GORDON AND JOHNSTONE Respondent: FIRTHS