Sandrin v W&M Riggs Mechanical Repairs

[2006] NSWCA 194

New South Wales

Court of Appeal

CITATION:	Sandrin v W&M Riggs Mechanical Repairs [2006] NSWCA 194
HEARING DATE(S):	23 June 2006
JUDGMENT DATE:	20 July 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Tobias JA at 3
DECISION:	(a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal is filed within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Ashford on 21 June 2005; (d) Remit to the District Court the notice of motion filed on 15 July 2004 in proceedings No 3030/04 for determination of that notice of motion upon its merits; (e) The costs of the notice of motion before Judge Ashford to abide the costs of the rehearing; (f) The opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified
CATCHWORDS:	PROCEDURE – miscellaneous procedural matters – orders of the Court – form – construction – effect – whether orders capable of retrospective effect – limitation periods – whether proceedings brought out of time – whether proceedings still on foot
LEGISLATION CITED:	Civil Liability Act 2002 Limitation Act 1969 Suitors’ Fund Act 1951 Supreme Court Rules Pt 40 r3 Uniform Civil Procedure Rules 2005, Pt 36 r36.4 Workers Compensation Act 1987
CASES CITED:	Athens v Randwick City Council (2005) 64 NSWLR 58 Jol v State of New South Wales (1998) 45 NSWLR 283 Mealing v P Chand t/as Fastfix (2003) 57 NSWLR 305 Trpenoski v BHP Flat Products [2003] NSWCA 176 Whisprun Pty Ltd v Sams (2002) NSWCA 394 Wilde v Australian Trade Equipment Co Ltd (1981) 145 CLR 590
PARTIES:	Denis Sandrin W&M Rigg t/as W&M Riggs Mechanical Repairs
FILE NUMBER(S):	CA 40593/05
COUNSEL:	A: E G Romaniuk R: J Fernon SC / M Vincent
SOLICITORS:	A: Beilby Poulden Costello, Sydney R: S&T Lawyers, Canberra
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3030/04
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	21 June 2005

CA 40593/05

BEAZLEY JA
SANTOW JA
TOBIAS JA

Thursday 20 July 2006

DENIS SANDRIN v W & M RIGG t/as W & M RIGGS MECHANICAL REPAIRS

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 SANTOW JA: I agree with Tobias JA.

3 TOBIAS JA: On 7 July 1994 the claimant was performing work as a mechanic and auto-electrician at the workshop premises of the opponent at Orange in the State of New South Wales. On that day he slipped and fell from an elevated turret some ten feet above the ground, sustaining serious injuries to his spine, back and neck.

4 For reasons which are presently immaterial, the claimant did not commence proceedings against the opponents within the limitation period respectively provided by the Workers Compensation Act 1987 (the WC Act) or the Limitation Act 1969 (the Limitation Act). Ultimately, however, his condition became such that he decided to seek damages against the opponents alleging that they had breached their duty of care to him.

5 Although there appears to have been no dispute that the claimant was working at the opponent’s premises for the purpose of their business at the time of the accident, there was an issue as to whether he was, at that time, an employee of the opponents or an independent contractor. If the relationship between them was one of employer and employee, then the limitation period under s151D(2) of the WC Act applied. If the relationship was that of principal and independent contractor, then the limitation period under s18(2) of the Limitation Act applied. In either event, the limitation periods under both statutes had expired and, as a consequence, it was necessary for the claimant to seek leave to commence proceedings out of time pursuant to s151D(2) of the WC Act (if he was an employee) or under s60C(2) of the Limitation Act (if he was an independent contractor).

6 Accordingly, by Notice of Motion filed in the District Court of New South Wales on 9 August 2000 (which was given the file number 6179/00), the claimant sought leave to commence proceedings out of time against the opponents pursuant to s151D(2) of the WC Act in respect of the injuries he sustained on 7 July 1994.

7 The claimant did not at that time seek leave to commence proceedings out of time under the Limitation Act to cover the situation if he was found not to be an employee of the opponents but an independent contractor. However, earlier unrelated proceedings involving an outstanding payment owed by the opponents to the claimant had been brought in the Local Court at Orange on the basis that the claimant was an independent contractor rather than an employee. The claimant deposed in an affidavit dated 20 March 2002 that he did not appreciate the significance of the distinction at that time. It is apparent that the distinction became much clearer to the claimant and his solicitors once legal action had commenced.

8 The Notice of Motion was heard by Judge Robison, who ordered that it be dismissed on 12 March 2001. At that point of time the claimant had not, by the filing of an ordinary statement of claim, commenced any proceedings against the opponents seeking damages for the injuries sustained by him on 7 July 1994. He had, however, commenced proceedings 4098/00 on 1 June 2000 in which parties other than the opponents were named as defendants; but these proceedings related to injuries sustained by the claimant in an unrelated accident on 3 June 1997. They can therefore be put to one side.

9 Judge Robison dismissed the claimant’s notice of motion for leave to commence proceedings out of time under the WC Act. His Honour accepted that the claimant had given an acceptable explanation for his delay in bringing proceedings, that no issue had been raised by the opponents in relation to that delay and that there was no prejudice to the opponents on the issue of liability. However, his Honour nevertheless considered that there was actual prejudice to the opponents with respect to medical issues as they had never had an opportunity to have the claimant examined by medical experts of their choice.

10 In April 2001 the claimant filed a summons for leave to appeal against the orders of Judge Robison in this Court. That application originally came before a Bench constituted by Powell JA, Davies AJA and Fitzgerald AJA on 11 October 2001. On that occasion, Powell JA raised with the parties the possibility that an issue estoppel may have arisen as a consequence of some orders made in Orange Local Court. It was alleged that those orders proceeded upon the basis that the claimant was not an employee of the opponents at any material time. By contrast, the application for leave to commence proceedings out of time before Judge Robison, having been made pursuant to s151D of the WC Act, assumed that there was an employer/employee relationship between the parties. Accordingly, the summons before the Court of Appeal was adjourned to a date to be fixed.

11 Before the summons for leave to appeal was re-fixed for hearing before this Court, a series of amendments to the WC Act were proposed that would have prejudiced the claimant in respect of the quantum of damages which he might otherwise have recovered against the opponents. As those amendments were to take effect as and from 27 November 2001, on 26 November the claimant commenced proceedings against the opponents by filing an ordinary statement of claim in the District Court which was given the file number 13421/01 (the 2001 proceedings). As will be apparent, that statement of claim was filed without leave being granted for it to be filed out of time.

12 The 2001 proceedings pleaded the following allegations:

“2. At all material times the Plaintiff was employed and/or otherwise retained by the Defendants as a mechanic and auto-electrician at their workshop premises at Leighwood Estate, Orange in the State of New South Wales.
3. On or about 7 July 1994 the Plaintiff was required by the Defendant, their servants and/or agents in the course of his employment to work upon an elevated platform forming part of a turret of a slewing crane upon which the Plaintiff was performing mechanical and electrical works at which time the Plaintiff by reason of grease and oil upon the platform slipped and fell from the elevated turret some ten feet to the ground below and thereby causing injury to the Plaintiff’s spine, back and neck, thereby suffering severe personal injury.
4. At all material times the Defendants, their servants and agents owed to the plaintiff a duty to take reasonable care for the safety of the plaintiff and/or a duty not expose the plaintiff to an unnecessary risk of injury and/or duty to provide a safe system of work.
5. In breach of the duties the Defendants owed to the Plaintiff, the Defendants, their servants and/or agents negligently failed to take reasonable care for the safety of the Plaintiff and/or negligently exposed the Plaintiff to an unnecessary risk of injury and/or negligently to provide a safe system of work.”

Extensive particulars of negligence were then provided.

13 It is plain from the allegations so pleaded that the claimant was alleging a duty of care owed to him by the opponents upon the basis that he was either employed by the opponents or, alternatively, “otherwise retained” by them. It is common ground that this allegation was intended to cover the situation were it to be found that the relationship between the parties was that of principal and independent contractor rather than that of employer and employee.

14 Having commenced the 2001 proceedings out of time, it was apparent that the claimant needed the District Court’s leave to commence so much of those proceedings as alleged a duty of care on the part of the opponents arising out of a non-employment situation.

15 Accordingly, in April 2002 the claimant filed a notice of motion in the District Court in proceedings No 13421/01 for an extension of time under the Limitation Act. That notice of motion came on for hearing before Judge Bowden on Friday, 14 June 2002. By that time, the summons for leave to appeal against the decision of Judge Robison had been fixed for hearing and was to commence before this Court on the following Monday, 17 June 2002.

16 In a two page judgment, Judge Bowden noted that the claimant currently had on foot an action against the opponents in which it was alleged that the claimant was their employee. His Honour observed that in each case, whether or not the claimant had been an employee at the time of his injuries, the claimant required leave of the Court to commence proceedings out of time under either the WC Act or the Limitation Act.

17 His Honour noted that Judge Robison had determined the application under s151D of the WC Act for leave to commence proceedings out of time on its merits and that the claimant had appealed against the dismissal of that application to the Court of Appeal, which had raised some issues in relation to the question of whether the claimant was a worker or contractor (no doubt being a reference to the earlier hearing in this Court on 11 October 2001). Judge Bowden observed that this was the context in which the claimant had made an application for leave under the Limitation Act. He then noted that it was “interesting” that the 2001 proceedings made allegations “of employment”.

18 Judge Bowden then disposed of the application before him in the following terms:

“It seems to me that it is quite inimicable (sic) for the two sets of proceedings to be concurrent. The plaintiff asks me to examine and make findings to the effect that the applicant is an independent contractor but at the same time the plaintiff has before the Court of Appeal, an action in which the plaintiff was maintaining that he was an employee. I do not see how these two things can possibly stand together.
One can sympathise with the situation in which the plaintiff now finds himself in not having brought proceedings in the alternative in the first place. It is possibly, I suppose, too late to try and amend the proceedings in the Court of Appeal but whichever way it is it seems to me that the two separate actions certainly just cannot stand together.
That being the circumstance, and the matter being listed before the Court of Appeal on Monday, I believe this notice of motion should be dismissed with costs.”

19 On 10 July 2002 the claimant filed a holding summons for leave to appeal from the orders of Judge Bowden but this was never pursued. Nevertheless, looking to his Honour’s reasons, three points become clear. First, it is apparent that there was no reason why alternative claims could not be made in the 2001 proceedings alleging a duty of care owed by the opponents to the claimant arising either from an employer/employee relationship or from a non-employment relationship. Second, his Honour was factually wrong when he said that the claimant “now finds himself [in the position he was in] in not having brought proceedings in the alternative in the first place”. In my view, the 2001 proceedings did just that. That said, the drafting of paragraph 3 of the allegations could have more clearly picked up the language of “otherwise retained” in paragraph 2. Third, his Honour was, in my opinion, wrong when he said that “the two separate actions certainly just cannot stand together”, if by that he intended that in the one statement of claim alternative claims could not be made against the same defendant based on a relationship of employer/employee or, alternatively, on one of principal/independent contractor.

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”

cf: Mealing at 308 [19].

48 However, I do not see any difference in substance between that more precise form of order and Order 1 made on 7 February 2003 in more general terms. The terms of the latter were sufficiently general to constitute a grant of leave with respect to the commencement of any proceeding out of time in respect of the incident which occurred on 7 July 1994. It therefore encompassed the 2001 proceedings.

49 It follows that, in my opinion, the primary judge erred in finding otherwise. Accordingly, the 2001 proceedings remained, and still remain, on foot with respect to claims based on the relationship between the opponents and the claimant being one of employer and employee.

50 Furthermore, in my opinion so much of the 2001 proceedings as alleged a duty of care owed by the opponent to the claimant arising out of its non-employment relationship also remains on foot. Accordingly, her Honour erred in finding to the contrary and thereby dismissing the notice of motion on that basis. It certainly does not follow from the fact that Judge Bowden dismissed the notice of motion for an extension time under the Limitation Act before him and that the holding summons for leave to appeal from that decision was not pursued, that the 2001 proceedings were “no longer on foot”, whatever that might mean.

51 The fact that Judge Bowden dismissed the notice of motion before him may be relevant to the exercise of any discretion when dealing with the merits of the notice of motion that the primary judge dismissed. Judge Balla referred to the possibility that a further application for an extension of time under the Limitation Act might give rise to an abuse of process, given Judge Bowden’s dismissal of the previous application for the same relief. I make no comment whatsoever upon the merits of that possibility. But it has to be observed that Judge Bowden did not determine the notice of motion before him on its merits although he recognised, correctly, that the merit considerations relevant to the claimant seeking the Court’s indulgence for commencing proceedings out of time were the same under s151D of the WC Act as they are under s60C of the Limitation Act. Accordingly, the findings of Judge Robison and the Court of Appeal would no doubt carry a deal of weight in any reconsideration of the current notice of motion.

52 It follows from the foregoing that, in my opinion the primary judge erred in dismissing the claimant’s notice of motion filed on 15 July 2004 upon the basis that the proceedings constituted by the 2001 proceedings were no longer extant. They were, and are, in existence. Accordingly, it will be necessary for the notice of motion to be remitted to the District Court for determination on the merits.

53 However, the opponents submitted that the making of a further application under the Limitation Act, or the determination of the present application if remitted to the trial Court, would be futile in any case. This was because, under s60C of that Act, the limitation period of three years may only be extended for a further five years, and that period expired on 7 July 2002.

54 Although the notice of motion determined by the primary judge was filed after that date (on 15 July 2004) it is properly conceded by the opponents that if the court on remittal was otherwise prepared to grant the application, it would be open to it to order that the limitation period be extended up to and including 26 November 2001. Such an order would have the effect that the 2001 proceedings commenced on that date were so commenced within the extended limitation period. The relevant extension would, of course, be less than five years and would not, therefore, offend the limits contained in s60C(2).

55 I would therefore propose the following orders:

(a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal is filed within seven days of the date of these orders.

(b) Appeal allowed.

(c) Set aside the orders made by Judge Ashford on 21 June 2005.

(d) Remit to the District Court the notice of motion filed on 15 July 2004 in proceedings No 3030/04 for determination of that notice of motion upon its merits.

(e) The costs of the notice of motion before Judge Ashford to abide the costs of the rehearing.

(f) The opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.

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