SMITH v GRANT [2006] NSWCA 244

SMITH v GRANT [2006] NSWCA 244

The respondent's explanation for delay, including her reliance on her solicitor's advice that the claim could be resolved through the CARS process and not foreseeing the limitation issue, amounted to a full and satisfactory explanation under s 66(2) and s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW); the appeal was therefore properly dismissed.

Jurisdiction
Australia
Judgment Date
05 September 2006
Procedural Posture
Civil Appeal / Determination of Application for Leave to Appeal and Substantive Appeal
Outcome
Leave to appeal granted (conditioned on insurer filing notice within seven days); appeal dismissed.
Legal Topics
['extension of Limitation Period' 'motor Accidents Compensation Act 1999 (nsw)' 'claims Assessment and Resolution Service (cars)' 'onus of Proof in Extension Applications' "solicitor's Delay" 'reasonable Explanation for Delay']
['limitation of Actions' 'motor Accident Compensation' 'civil Procedure'] ['extension of Limitation Period' 'motor Accidents Compensation Act 1999 (nsw)' 'claims Assessment and Resolution Service (cars)' 'onus of Proof in Extension Applications' "solicitor's Delay" 'reasonable Explanation for Delay']

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Procedural Posture

Civil Appeal / Determination of Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['Who bears the onus of proof in an application for extension of time under s 109(3)(a)?' "What constitutes a 'full and satisfactory explanation' for delay under s 66(2) of the Motor Accidents Compensation Act 1999 (NSW)?" "Does the explanation need to include the conduct of the applicant's solicitor?" "Did the respondent provide a 'full and satisfactory explanation' for the delay in commencing proceedings?"]

Ratio Decidendi

The respondent's explanation for delay, including her reliance on her solicitor's advice that the claim could be resolved through the CARS process and not foreseeing the limitation issue, amounted to a full and satisfactory explanation under s 66(2) and s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW); the appeal was therefore properly dismissed.

Court Disposition

Leave to appeal granted (conditioned on insurer filing notice within seven days); appeal dismissed.

Orders

  • ['Leave to appeal granted subject to insurer filing notice of appeal within seven days of judgment.' 'Appeal dismissed.' "Appellant to pay the Respondent's costs of the appeal and of the application for leave to appeal."]