Uniting Church In Australia Property Trust (NSW) t/as Woodfield Retirement Village v Judith Lea [2002] NSWCA 55

New South Wales Court of Appeal

CITATION : Uniting Church In Australia Property Trust (NSW) t/as Woodfield Retirement Village v Judith Lea [2002] NSWCA 55 revised - 14/03/2002 FILE NUMBER(S) : CA 40037/01 HEARING DATE(S) : 5 March 2002 JUDGMENT DATE : 14 March 2002

PARTIES : Appellant: Uniting Church In Australia Property Trust (NSW) t/as Woodfield Retirement Village Respondent: Judith Lea JUDGMENT OF : Powell JA at 1; Beazley JA at 4; Ipp AJA at 5

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9387/99 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: C Hoeben SC/ W Austron Respondent: S Norton SC/ A Healey SOLICITORS : Appellant: Hicksons Respondent: Brydens CATCHWORDS : Workers Compenation - leave to revoke election - Workers Compensation Act 1987 s 151A(5) - whether judge had wrongly exercised discretion under s 151D - whether prejudice results from respondent's delay - onus of proof - test for what justice of the case requires - whether inability of the appellant to call witnesses due to respondent's delay would cause prejudice. D LEGISLATION CITED : Limitation of Actions Act 1974 (Qld) Workers Compensation Act 1987 (NSW) Itek Graphix Pty Limited v Elliott (2001) NSWCA 442 Salido v Nominal Defendant [1993] 32 NSWLR 524 CASES CITED: Cowie v State Electricity Commission (Vict) (1964) VR 788 Campbell v United Pacific Transport Pty Ltd (1966) QdR 465 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : (1) Appeal upheld (2) Set aside the orders made by Dodd DCJ and order that the respondent's application for an order that she be granted leave to file an ordinary statement of claim pursuant to s 151A(4) of the Workers Compensation Act and for an order that time be extended for the commencement of proceedings against the appellant claiming damages at common law be refused (3) Respondent to pay the appellant's costs of the proceedings below and the costs of the appeal (4) Respondent to be granted a certificate under the Suitors Fund Act if she is otherwise entitled thereto.