(Subrule (1) provides that a court order takes effect on the day it is made: (subr (1)(a)) or entered (subr (1)(b)). Subrule (2) relates to costs).
50 It might be possible that an appropriately provisioned rule of court could permit an extension of the secondary limitation period after that period had expired. However, courts have always exercised caution in making orders nunc pro tunc. An order nunc pro tunc is classically made where procedural matters are involved. It should not be used where to do so would affect the vested rights of third parties: Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 at 53, 55. A limitation provision such as is involved here involves substantive rights and r 36.4(3) does not, of its own force, assist Mr Turaga.
51 An example of the appropriate use of a nunc pro tunc order is where the leave of the court is required before the commencement of proceedings. Examples of this are frequently found in corporations and bankruptcy cases. In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 the Court was concerned with the Corporations Law (Cth), s 459P. Section 459P(5) specified that persons not listed in s 459P(1) could not apply for a company to be wound up except by leave of the court. The relevant leave was not obtained. Dawson, Toohey and Kirby JJ each held that a failure to obtain leave to commence proceedings was a mere defect or irregularity which did not affect the validity of the order. The defect could be "cured" by granting leave nunc pro tunc, even by an appellate court.
52 Dawson J, in a short judgment, stated at 125:
"Since the failure to obtain leave was procedural and did not go to jurisdiction, there was no reason why the Full Court of the Federal Court should not have cured the defect or irregularity by granting leave nunc pro tunc . There is ample authority, which is examined by Sholl J in Re Testro Bros Consolidated Ltd [1965] VR 18 at 33-35, for its having taken that course."
53 Toohey J, in his judgment, at 128, also adopted the approach of Sholl J in Re Testro Bros Consolidated Ltd.
54 Kirby J, at 152, referred to the reluctance of the courts to invalidate acts "done pursuant to a statutory provision because of a failure to comply with a prior procedural condition" (emphasis added).
55 In Re Testro Bros Consolidated, Sholl J was concerned with the Companies Act 1961 (Vic), s 199. That section provided that, except with the leave of the Court, an action or proceeding could not be proceeded with or commenced against a company under the control of an official manager. Sholl J said:
"Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like a statute of limitations.'
56 This approach was followed by McLelland CJ in Eq in Re Sydney Formworks Pty Ltd [1965] NSWR 646.
57 There are a series of decisions in this Court dealing with limitation provisions under the Workers Compensation Act 1987 and the Motor Accidents Act 1988, in which it has been held that an order may be made so as to operate retrospectively: see, for example, Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported); Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394; Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305; and Trpenoski v BHP Flat Products [2003] NSWCA 176. The Workers Compensation Act and the Motor Accidents Act under consideration in those cases each contained provisions that proceedings could not be commenced after a specified limitation period without the leave of the Court. The leave provisions were construed as condition precedents of a procedural nature, so that an order could be made to operate retrospectively.
58 These cases were relied upon in Sandrin as supporting the entitlement to an order nunc pro tunc in an application under s 60C. Both the circumstances and the question in issue in Sandrin were different from those that apply here and require a little explanation as the matter was procedurally complex. In Sandrin, the statement of claim was filed notwithstanding that leave to commence proceedings under the Workers Compensation Act had been refused, but before an appeal from that refusal had been heard and determined.
59 The facts were as follows. The plaintiff sustained injuries whilst undertaking work for the defendant. As the matter evolved, the status in which he sustained injury, that is, as an employee or as a person retained to do work for the defendant, was uncertain. His claim, if properly brought as an employee, was governed by the Workers Compensation Act and the limitation period under s 151D had expired. Under s 151D(2), a potential plaintiff needed leave of the court to commence proceedings if the limitation period had expired. If he was not an employee, the limitation period was governed by the Limitation Act. The primary limitation period under that Act had also expired. As already discussed above, under s 60C the court could extend the limitation period for a further five years.
60 Having failed to commence proceedings within either limitation period, the plaintiff filed a notice of motion seeking leave to commence proceedings out of time under the Workers Compensation Act 1987 (the notice of motion for leave to proceed under the Workers Compensation Act). The plaintiff did not, at that time, seek to contend that his injury was non-employment based. The notice of motion for leave to proceed under the Workers Compensation Act was dismissed. The plaintiff sought leave to appeal.
61 Prior to the determination of the application for leave to appeal and the appeal, (which I will refer to as the workers compensation appeal) the plaintiff filed a statement of claim in which he pleaded alternatively that his injuries were suffered in his capacity as an employee of the defendant or whilst otherwise retained to do work for the defendant. Next, the plaintiff filed a notice of motion seeking an extension of the limitation period, pursuant to the Limitation Act, s 60C. That application was made in respect of the alternative, non-employment basis upon which the plaintiff was seeking to advance his claim. That application was also dismissed.
62 The secondary limitation period, which was relevant to the non-employment basis of the claim, then expired.
63 Thereafter, the Court heard the workers compensation appeal from the dismissal of the notice of motion for leave to proceed under the Workers Compensation Act and granted leave under s 151D to commence proceedings out of time. The Court ordered that the time to commence proceedings be extended to one month from the date of the Court's orders. That order was made in ignorance that a statement of claim had been filed. The plaintiff did not file a fresh statement of claim, his position being that the extension granted by the Court of Appeal under s 151D was sufficient to regularise the proceedings commenced by the statement of claim already filed. In other words, he contended that Court of Appeal's order was, in effect, an order nunc pro tunc.
64 An application to strike out the statement of claim was then filed, but was dismissed and the plaintiff was directed to file any application for an extension of the limitation period. This of course was the second such application. That application came before a different trial judge. During the course of the hearing of that application, a question arose as to the status of the proceedings constituted by the filing of the statement of claim. The trial judge held that the proceedings commenced by the statement of claim were no longer in existence, as the court considered that the Court of Appeal's orders in the workers compensation appeal were prospective in nature and, therefore, did not apply to overcome the irregularity constituted by the filing of the statement of claim. The trial judge also considered that the first refusal of the extension of the limitation period for the non-employment claim meant that there was no proceeding that could be pursued by the plaintiff.
65 In that context, Tobias JA (with whom I and Santow JA agreed) noted, at [23], that the parties did not dispute that where proceedings had been commenced before leave was granted pursuant to either the Workers Compensation Act or the Limitation Act, "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 at [14], [15] and [19]; Mealing v P Chand t/as Fastfix; Trpenoski v BHP Flat Products.
66 Strictly, the language in which the finding was made insofar as it related to the Limitation Act was not apt. Under the workers compensation legislation, leave is required to commence proceedings out of time. There is no secondary limitation period as is the case with the Limitation Act. Under the Limitation Act, s 60C, leave is not required to commence proceedings out of time. Rather, the limitation period may be extended by order of the court for a period of up to five years after the expiration of the primary limitation period.
67 The question then arose whether such an order could be made where the secondary limitation period itself had expired. Again, the respondent conceded that it would be open to it to order that the limitation period be extended up to and including 26 November 2001 (the date on which the statement of claim was filed) and if that order was made, it would have the effect that the proceedings commenced by the statement of claim were commenced within the extended limitation period. As the date to which the period was thereby extended would be less than five years from the expiration of the primary limitation period, the limit contained in s 60C(2) would not thereby be offended.
68 As I have indicated, the question in this case is different from that in Sandrin. Here, the plaintiff did not file a statement of claim within the secondary limitation period. Given the different facts and also given that concessions were made in Sandrin that orders nunc pro tunc could be made, that case is not properly to be regarded as authority for the question in issue in this case.
69 There are a number of decisions to the effect that an order extending the limitation period cannot be made nunc pro tunc, although, as the discussion in those cases demonstrates, the caselaw is inconsistent and the legislation under consideration in the cases was various.
70 In Clarke v Bailey (1993) 30 NSWLR 556, the court was concerned with the Limitations Act, s 60G. Pursuant to that Act, Sch 5, cl 4.4, the court was empowered to make an order under s 60G or s 60H in relation to a cause of action within, relevantly, the period of three years commencing on 1 September 1990. The trial judge had refused a declaration that the court had power to antedate an order made after 1 September 1993, where the application for extension under that Act was made prior to 1 September 1993.
71 On appeal, the trial judge's refusal of the declaration was upheld. The argument advanced on appeal was that where proceedings were commenced before 1 September 1993, but an order was not made on or before that date, the court was empowered to grant an extension at some later time and it could do so by antedating such order to take effect nunc pro tunc. By so doing, the court was thereby able, in effect, to " 'make' its order within the period specified by the statute" (at 568).
72 Kirby P (Mahoney and Sheller JJA agreeing) rejected this argument, stating, at 569, that by its terms, Sch 5, cl 4(4)(b) required that "any order made by the court should be made within the period ending on 1 September 1993". His Honour considered that the terms of Sch 5, cl 4(4)(b):
"… would be contradicted, and its purpose defied, by an order made after that date if the court were to purport to extend time under s 60G … The paragraph limits the power of the court to make orders under the [section]. As the power to extend time affects the rights and liabilities of parties and opens some parties to liability which otherwise would be extinguished by the Limitation Act 1969, it is essential for the court to bring itself within the powers conferred by parliament before making such an order. Any order made otherwise than on or before 1 September 1993 (unless within the time provided by cl 4(4)(a)) would have no foothold in the Act. It would not be a lawful order."
73 Schedule 5, cl 4 has since been amended so as to permit the court to make an order extending time under, relevantly, s 60G, if an application for such an order is made within a specified time. I will return to this wording when considering the proper construction of s 60C.
74 In Bestobell Overseas Ltd v Carden [1988] VR 891, the Full Court of the Supreme Court of Victoria (Young CJ, Murray and Fullagar JJ) was concerned with the Limitations of Actions Act 1958 (Vic), s 23A. Subsection (2) provided, relevantly:
"Where on an application to a court by [a claimant] claiming to have a cause of action for damages for negligence … in respect of personal injuries … [and material facts relating to the cause of action were not known] … until a date later than two years after the cause of action accrued … the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the [two year period] or, provided that application was made to a court before the expiration of one year after that date, on such later date, if any, as is specified in the order."
75 The Court held that s 23A did not empower a court to make an order nunc pro tunc extending the period within which an action on the cause of action may be brought. The Court held, at 894, that the section "contemplates an action to be commenced in the future and commenced pursuant to an order made under the section". The Court rejected the argument that s 23A was directed to an action already commenced. Rather, the section:
"… enacts a procedure which enables a claimant to make application to a court to obtain an order extending the time within which he may commence an action."
76 In Bingham v England (1996) 23 MVR 331, the Court was concerned with a cause of action conferred on relatives of a deceased person by the Fatal Accidents Act 1959 (WA). Section 7(1) provided that the cause of action brought under the Act:
"… shall be commenced within twelve months after the death of the person in respect of whose death the cause of action arose."
77 Section 7(2)(c) provided for an extension of that period in the following terms:
"… [an] application may be made to the Court for leave to bring an action at any time before the expiration of six years from the date of the death of the person in respect of whose death the cause of action arose."
78 The proposed plaintiff under the Fatal Accidents Act commenced proceedings by way of summons three days before the expiration of the limitation period seeking an extension of time under s 7(2)(c). The application was refused. The plaintiff appealed, but the appeal was filed after the expiration of the six year period.
79 Kennedy ACJ considered that the Court should follow the decision of this Court in Clarke v Bailey, as well as the decision of the Victorian Full Court in Bestobell Overseas Ltd v Carden to the effect that the power to grant an extension of time under the Fatal Accidents Act, s 7 was a power to grant leave to bring an action that had not yet been brought. His Honour further held that an order could not be made nunc pro tunc.
80 Ipp J (as his Honour then was), in expressing his agreement with Kennedy AJC, added, at 345-346:
"Section 167(1)(a) of the Supreme Court Act 1935 (WA) entitles the judges of the Supreme Court to make rules of court for regulating and prescribing the procedure and the practice to be followed in the Supreme Court, including the manner in which, and the time within which, any applications (which under the Act or any other Act are to be made to the court) may be given. Order 42 r 2 provides that a judgment or order of the court 'shall be dated as of the day on which it is pronounced, given or made, unless the court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day'.