While the proposed order 2A is directed to the orders made in the appeal, the other two orders relate to the proceedings begun pursuant to leave granted by the statement of claim filed on 29 December 1998 (CL 20504/98). However, the appellant State of New South Wales took no point about this. It was accepted that if the Court was minded to make such orders they could be made in those proceedings.
9 On their face the three orders now sought are unusual if not unprecedented and of little, if any, utility in overcoming the effect of Mr Connor's election to commence proceedings to recover common law damages. That election was made when Mr Connor commenced those proceedings. The irrevocable election springs from Mr Connor's act in doing so on 29 December 1998. Those proceedings presumably remain undefended and have not been disposed of. No application has been made in the common law division to have them dismissed or struck out. One consequence of the orders made by this Court was that Hidden J's orders no longer provided the lawful justification for further action, in this case filing a statement of claim commencing proceedings; see generally Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 at 603. However, for the reasons given in the High Court in that case that does not mean that so long as Hidden J's decision stood and no stay was operative it was not a lawful decision and action taken in reliance upon it lawful. If the statement of claim had been filed without leave being first obtained, it would have been an irregularity which would have enabled the defendant to have the proceedings dismissed unless the plaintiff successfully applied to the Court for leave and thereby regularised the filing of the statement of claim; see Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394 and Jol v State of New South Wales (1998) 45 NSWLR 283. In Whisprun s151D of the Act was treated in the same way as s52(4) (of the Motor Accidents Act 1988), which provided that a claimant was not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident or the making of the claim "except with the leave of the Court in which the proceedings are to be taken". It did not impose a procedural condition precedent to be satisfied before litigation could begin but a condition subsequent which could be satisfied after proceedings had begun.
10 Mr Gross QC, who appeared for Mr Connor, put his submissions in two ways. First he said that the Court would never permit its own orders to be a source of injustice; see Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 25. Mr Gross pointed out that Mr Connor commenced proceedings in the Common Law Division only after Hidden J had made an order granting him leave to do so. The Court of Appeal subsequently held that Hidden J had erred in making that order and set it aside. Had Hidden J correctly dismissed the appeal from Master Greenwood, Mr Connor would not have commenced the Common Law proceedings for damages and accordingly could not have been said to have elected to claim for those damages.
11 Section 151A requires a person to whom compensation is payable under the Act in respect of an injury to elect whether to claim that permanent loss compensation or damages in respect of the injury from the employer liable to pay that compensation. The injured person is not entitled to claim both. Subsection (3) provides that the person makes that election, inter alia, by commencing proceedings in a court to recover those damages or by accepting payment of permanent loss compensation. The election is irrevocable except that an election to claim permanent loss compensation may be revoked with the leave of the court pursuant to subs (4) or if, after the election is made, the injury causes a further material deterioration to the person's medical condition, again with the leave of the court pursuant to subs (5). In no circumstance does the Act allow revocation of an election to claim damages in respect of the injury from the employer.
12 If a person commences proceedings as contemplated by s151D within three years after the date on which the injury was received, that person runs the risk that the proceedings may fail on grounds that would not have precluded recovery of permanent loss compensation. In that case, the election having been made, permanent loss compensation, even if otherwise available, cannot be recovered. If the three-year period passes and the person then decides to claim damages, there is the additional risk that the Court may refuse to give leave to commence proceedings. In that case it may be that, the proceedings not having been begun, the injured person can seek leave to bring a claim for permanent loss compensation, without making an election. If leave is granted the injured person is put in the position that proceedings to recover damages from the employer may be commenced although out of time. Again, a decision has to be made. If the proceedings are begun there has been an irrevocable election and the right to claim permanent loss compensation is lost. No doubt, the three year limitation period having expired, there is the additional risk that the order granting leave may be set aside on appeal. That happened in the present case. The risk of that happening might have been avoided by an application to extend the time within which proceedings were to be commenced to allow any appeals to be determined. But, however that may be, once the person injured commences proceedings in a court to recover damages in respect of the injury, that person elects to follow that course and loses the right to claim permanent loss compensation.
13 As I have suggested, the proceedings to recover damages (CL 20504/98) can and should be dismissed or struck out. But in my opinion, the fact remains that those proceedings were commenced by Mr Connor and that fact and the election that flows from it cannot be avoided and indeed should not be avoided by any order of the Court.
14 The second way in which Mr Gross put Mr Connor's case relied upon the power of the Court to declare null and void decisions of an administrative body which follow a denial to one of the parties of natural justice. He referred to the decision of the Court in Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 and particularly those passages at 718 and 729 which consider whether an act done, without compliance with the applicable principles of natural justice in circumstances where the relevant decision makers were obliged to comply with such principles, is to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. In that context, Aicken J in Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277 said:
"Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio."
15 In Macksville & District Hospital v Mayze at 730 Mahoney JA, with whom Priestley JA agreed, referred to what Aicken J said in Forbes and then quoted as follows from the judgment of Lord Wilberforce in Calvin v Carr [1980] AC 574 at 589-90:
"This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The decision of the stewards resulted in disqualification, an effect with immediate and serious consequences for the appellant. This was a fact: the appellant's horses could not run in, or be entered for, any race; the appellant lost his membership of the Australian Jockey Club and could be excluded from their premises. These consequences remained in effect unless and until the stewards' decision was challenged, and, if so, had sufficient existence in law to justify an appeal. An analogous situation in the law exists with regard to criminal proceedings."