20 Ultimately, the summons for leave to appeal from the decision of Judge Robison came before a bench of this Court constituted by Beazley and Giles JJA and Cripps AJA on 7 February 2003. It is common ground that the appeal (which was to be heard concurrently with the application for leave to appeal) was confined to an application for extension of time under s151D of the WC Act and, therefore, proceeded upon the assumption that there was a relationship of employer/employee between the parties. An issue estoppel point with respect to that relationship was raised and argued before the Court but was unsuccessful (see [11] of the judgment of Beazley JA and [13] of that of Giles JA).
21 So far as the merits of the appeal were concerned, the Court determined in an ex tempore judgment that it was not open to Judge Robison to exercise his discretion in the manner in which he did and that there was no proper basis upon which he could have refused the claimant's application for leave. Accordingly, the Court allowed the appeal and made, relevantly, the following orders:
"1. Pursuant to s151D of the Workers Compensation Act 1987 (NSW) the Plaintiff have leave to commence proceedings out of time against the Defendant in respect of the incident which occurred on 7 July 1994.
2. Pursuant to s151D of the Workers Compensation Act 1987 (NSW) the time to commence proceedings in respect of the incident of 7 July 1994 be extended to one month after the date of making these orders."
22 Although Order 2 contemplated that proceedings could be commenced by the filing of an ordinary statement of claim on or before 7 March 2003, this did not occur. No doubt the explanation for this is that any such proceedings would be subjected to the amendments to the WC Act which took effect on 27 November 2001. The claimant contended that it was unnecessary to comply with Order 2 by instituting new proceedings as Order 1 was itself sufficient to regularise the commencement of the 2001 proceedings out of time.
23 In the foregoing context, and in relation to proceedings which were commenced before leave was granted pursuant to either the WC Act or the Limitation Act, it is to be observed that there was and is no dispute between the parties that an order may be made retrospectively granting leave to commence out of time , and that such an order will have the effect of curing what would otherwise be only a procedural irregularity: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286-290; Whisprun Pty Ltd v Sams (2002) NSWCA 394 at [14], [15] and [19]; Mealing v P Chand t/as Fastfix (2003) 57 NSWLR 305; Trpenoski v BHP Flat Products [2003] NSWCA 176 at [26] and [28].
24 Although Judge Bowden had dismissed the claimant's notice of motion for an extension of time pursuant to the Limitation Act, he did not, nor was he requested to, strike out the 2001 proceedings. Accordingly, those proceedings remained on foot. This fact apparently prompted the opponents to file a notice of motion to dismiss those proceedings which came before Judge Balla on 28 May 2004. Her Honour noted the claimants' submission that Judge Bowden had been informed that the claimant was only making an application in respect of that part of the 2001 proceedings that described him as an independent contractor. She also observed that it was made clear at the hearing before Judge Bowden that the claimant was seeking to preserve that part of the pleading that was the subject of the decision of Judge Robison and the summons for leave to appeal from that decision and which had proceeded on the basis of an employee/employer relationship between the parties.
25 Her Honour observed that this attempt to preserve only part of the pleading somewhat complicated the matter as it would involve dividing the pleading into two parts. This, she said, would make the opponent's application to strike out the whole of the 2001 proceedings "somewhat difficult".
26 The second reason advanced by her Honour in dismissing the opponent's strike out application was that, subject to any question of an abuse of process, it would prima facie be open to the claimant to make another application for leave to commence proceedings out of time under the Limitation Act, notwithstanding the decision of Judge Bowden. Her Honour recognised that to strike out the 2001 proceedings before providing the claimant with that opportunity would cause him significant prejudice by reason of the changes brought about by the amendments to the WC Act that took effect on 27 November 2001, together with the enactment of the Civil Liability Act in 2002. Accordingly, with reluctance, her Honour dismissed the opponent's application to strike out the 2001 proceedings. However, she directed the claimant to file any application for an extension of the limitation period under the Limitation Act in respect of the non-employment component of the 2001 proceedings by 28 June 2004.
27 Such a notice of motion seeking leave to continue the 2001 proceedings out of time under the Limitation Act was filed on 15 July 2004 and was heard by the primary judge on 15 February 2005.
28 It would seem that an issue arose before her Honour as to the then "status" of the 2001 proceedings. Because the claimant was unavailable for cross examination by the opponents on that day, the parties agreed that her Honour should determine the status, if any, of those proceedings as a preliminary issue. The opponents advanced the argument that the proceedings were no longer on foot. The claimant argued that although not expressed in these terms, the first order made by this Court on 7 February 2003 had the effect of retrospectively granting leave to the claimant to commence proceedings against the opponents out of time by the filing of the statement of claim on 26 November 2001.
29 On the other hand, the opponents argued, as they do before this Court, that it is clear from the terms of the Court of Appeal's orders that they were intended to be prospective in their effect for two main reasons. First, the matter was only argued before that Court upon the basis that the application was being made under the WC Act, which assumed an employer/employee relationship between the parties. Second, there was no reference during the course of the hearing to the 2001 proceedings so that, as far as the Court was concerned, it had no knowledge that there were already proceedings on foot. It was contended that that would obviously explain the terms of Order 2 made by the Court.
30 During the course of the hearing before the primary judge on 15 February 2005, the claimant' counsel made a concession which, by letter to her Honour dated 16 February 2005, he corrected so that it read as follows:
"Because the Limitation Act 1969 (NSW) makes a limitation period barred cause of action not maintainable (as opposed to extant) even if the employer component of the ordinary statement of claim filed 26 November 2001 was not regularised by the Court of Appeal's orders as advanced by the plaintiff and remains not maintainable and liable to be struck out, the non-employer component of that ordinary statement of claim remains until such time as that ordinary statement of claim is dismissed and until such dismissal an order could be made operating nunc pro tunc, pursuant to the Limitation Act 1969 (NSW) regularising the non-employer component and making it maintainable."
31 The letter then foreshadowed that the opponents would file a notice of motion seeking the dismissal of the 2001 proceedings with respect to its non-employer component.
32 The primary judge determined that the 2001 proceedings were "no longer in existence" as they related to a cause of action that was different to that dealt with by the Court of Appeal, and because a motion for extension of time with respect to that cause of action had been dismissed by Judge Bowden. More specifically, her Honour said this:
"26. Having considered the arguments in respect of the status of proceedings it seems to me that I should accept the submission that there is not currently before the court any statement of claim in respect of the employment claim as the plaintiff did not exercise the order made by the Court of Appeal in respect of that claim. The plaintiff appears to have ignored orders which have been made.
27. There was a holding appeal in respect of the orders from the motion which Bowden J dismissed, but the holding summons issued in respect of that decision was not pursued and on that basis it seems to me the statement of claim was no longer on foot noting the orders of Bowden J.
28. The proceedings in the Court of Appeal are a different claim to that set in the statement of claim filed 26 November 2001 (13421/01)."
33 As I understand her Honours' reasoning, which is not entirely clear, her decision that the 2001 proceedings were "no longer in existence" was based upon two factors. The first was that the Court of Appeal's orders of 7 February 2003 were prospective and not retrospective in nature and, therefore, did not apply to overcome the irregularity constituted by the filing of the statement of claim on 26 November 2001 insofar as to do so required leave under the WC Act. Second, Judge Bowden had already dismissed an application under the Limitation Act for an extension of time in respect of the non-employment allegations contained in the 2001 proceedings and the holding summons for leave to appeal against that decision had not been pursued. Accordingly, the whole of those proceedings were "no longer on foot".
34 The claimant accepted that after the Court of Appeal's judgment on 7 February 2003 it remained procedurally necessary for him to obtain an extension of time in respect of the non-employer allegation contained in the 2001 proceedings, so as to ensure that the alternative non-employment allegations were before the court. That was the reason for the notice of motion heard by the primary judge in the present case. On the other hand, he submitted that the orders of this Court on 7 February 2003 did have the effect of curing the irregularity with respect to the employment component of the 2001 proceedings having been commenced out of time. He submitted that the orders of this Court were declaratory in nature so that as proceedings had in fact been commenced by filing of the statement of claim on 26 November 2001, the effect of the Court's orders was to provide for a retrospective extension of time in the sense described in Whisprun and the other authorities referred to in [23] above.
35 Accordingly, it was submitted that the 2001 proceedings were at all material times in existence, and that the claim against the opponents as employers of the claimant had been procedurally regularised by this Court's orders on 7 February 2003.
36 The claimant further submitted that Judge Bowden's dismissal of the notice of motion seeking limitation relief with respect to the non-employer component of the 2001 proceedings under the Limitation Act was to the effect that such an application was "premature" given the pending hearing before the Court of Appeal. There is some substance in this submission considering that Judge Bowden apparently understood that it was not possible to have concurrent claims by the claimant against the opponents alleging a employer/employee relationship on the one hand and a principal/independent contractor relationship on the other. It seems to me that his Honour dismissed the notice of motion upon the basis that it was impossible to allege alternative causes of action in the 2001 proceedings, given that the claimant was pursuing his appeal before the Court of Appeal from Judge Robison's decision with respect to the application for leave to commence proceedings out of time under s151D of the WC Act.
37 The opponent submitted that her Honour was correct to dismiss the notice of motion as the Court of Appeal's orders did not operate retrospectively. Furthermore it was open to her Honour, as a matter of discretion, to dismiss the application for an extension of time under the Limitation Act given that a similar application had been dismissed by Judge Bowden and an appeal against that decision had not been pursued.
38 The first question that arises is whether, taken severally or jointly, the terms of the orders made by this Court on 7 February 2003 were sufficient to constitute a grant of leave to the commencement of the 2001 proceedings out of time. As I have observed, the opponent contended that those orders took effect only from the date they were made and that they therefore operated only prospectively and not retrospectively, unless expressly made to take effect from a prior date: cf Uniform Civil Procedure Rules 2005, Pt 36 r36.4; Supreme Court Rules Pt 40 r3.
39 The opponent placed reliance on a passage from the joint judgment of Stephen, Murphy and Wilson JJ in Wilde v Australian Trade Equipment Co Ltd (1981) 145 CLR 590 at 603, but I do not find it of any assistance except to the extent that it emphasises that the essential question relates to how the order operates. This is to be answered by reference to its proper construction.
40 On the other hand, the claimant referred to the judgment of this Court in Athens v Randwick City Council (2005) 64 NSWLR 58. The issue in that case related to whether an order of the Land and Environment Court was sufficiently clear, certain and unambiguous as to be enforceable by way of proceedings for contempt. This, according to Hodgson JA (at 69-70 [27]), involved two inter-related questions of which the first was: what does the order require on its true construction?
41 With respect to this question, his Honour (at 70 [28] and [29]) considered that regard could be had to the judgment and to other surrounding circumstances, including the pleadings. However, it was relevant to keep in mind that orders are
"generally framed with a view to their being self-contained and self-explanatory."
42 In the same case, Santow JA observed (at 79 [136] and [138]) that:
"136. The making of orders is not always a mechanical extrapolation from the originating judgment. There may be room for a range of possible orders, and possible meanings of those orders, which would conform. Then the wider context of the proceedings can have an important bearing, particularly the pleadings which should identify the orders sought. When the meaning of an order is ambiguous, and that ambiguity is not able to be resolved solely by reference to the judgment itself, resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context. Thus it can be highly relevant to know what the successful claimant sought by way of relief. The judgment may need to be understood by reference to how the parties put their cases.
…
138. That leads to the question, can and should orders be completely self-contained and self-explanatory? Given that ambiguity is inherent in all language, it would be too much to expect that orders can be expected to be self-explanatory, though that be a worthy ideal."
43 In the present case, the Court only had the benefit of the notice of motion before Judge Robison and this Court's judgment of 7 February 2003. The former merely set out the orders sought which, relevantly, were those the Court made: see [21] above. The judgment, like the notice of motion, makes no reference to the 2001 proceedings. Furthermore, it was common ground between the parties that the existence of those proceedings was not brought to the Court's attention, apparently, so it was said, because all counsel appearing on the appeal were unaware of them.
44 Nevertheless, the question remains as to whether, on their true construction, the orders set out in [21] above were capable of being applied to the 2001 proceedings. In my opinion, they were. Taken on its own, Order 1 speaks of leave being granted "to commence proceedings out of time" against the opponents. The 2001 proceedings were commenced out of time and there was no good reason why this order should have been construed so narrowly as to only apply to the future commencement of proceedings. In the context of these proceedings the Court, must be taken to have ordered that such leave be given as was necessary for any action to proceed, whether already commenced or still to commence. The parties could not have cavilled at that outcome once judgment had been given, and that outcome is able to be accommodated by the broad language of the orders.
45 Do the terms of Order 2 require a different construction? In my opinion they do not. It is true that Order 2 speaks of time being extended for a month within which time proceedings may be commenced. In that sense it has a prospective operation. But it does not necessarily assume that proceedings have not already been commenced out of time before the order was made. It merely makes provision for the commencement of such proceedings if they have not already been commenced. Accordingly, I do not detect any inconsistency between the two orders.
46 Nor do those orders offend the rule of court that an order takes effect as of the date on which it is made. Until 7 February 2003 the 2001 proceedings had been irregularly commenced. As and from 7 February 2003 that irregularity was cured by the grant of leave to commence proceedings out of time.
47 It is true that Order 1 could have been framed to expressly apply to the 2001 proceedings. Thus, for example, the order may have been in these terms:
"Order that pursuant to s151D of the Workers Compensation Act 1987 the plaintiff have leave to commence proceedings out of time against the defendant on the statement of claim filed in the District Court on 26 November 2001"