As to this last matter see generally Moran v McMahon (1985) 3 NSWLR 700 at 714 and following, particularly 723. Kirby J dissented and would have allowed the appeal.
22 In Mancini v Thompson [2002] NSWCA 38 Rolfe AJA, with whom both Beazley and Stein JJA agreed, said at [46], when considering s43A(7) of the Act:
"[46] … What was required was a full explanation for delay and, in order for the explanation to be full, it had to include 'the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation'. In other words, the requirement that the explanation be full focussed upon the period from the date of the accident until the date of providing it, and the necessity to set out fully 'the conduct, including the actions, knowledge and belief of the claimant'. The purpose of this is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant, therefore, cannot 'pick and choose' the information to be given relevant to the delay and which the Court has to decide is 'satisfactory'."
23 These remarks were endorsed by this Court (Handley and Stein JJA and Davies AJA) in Laidlaw v Touma [2002] 36 MVR 388. Stein JA said at 391 [19]:
"The word 'full' must be given some meaning and content. In its context in the Act, I think that it means complete - that is, that a complete explanation is required. This full explanation is of course necessary before one turns to consider whether it is a satisfactory explanation."
24 Diaz v Truong was a majority decision (Hodgson JA and Foster AJA, Giles JA dissenting) dismissing an appeal from a District Court judge's decision to grant leave to commence proceedings. At 165 [40-42] Giles JA said:
"[40] When asking whether the full account of the conduct is a satisfactory explanation, satisfactoriness is not confined to whether a reasonable person et cetera. That a reasonable person et cetera is a necessary condition, but it is not stated as a sufficient condition.
[41] The purpose of 'unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been notified in experiencing the same delay' in the second sentence is tolerably clear. It is intended to set an objective standard of conduct which the full account of the conduct to which the first sentence refers must achieve. That does not necessarily make the explanation satisfactory, although it is not easy to see why a full account of conduct meeting the objective standard would not generally be a satisfactory explanation.
[42] The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being 'justified in experiencing' a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay."
25 At 177 [92] Hodgson JA referring to s52(4B) said that it seemed clear that the explanation must be provided by persons acting on the claimant's behalf.
"[92] … Turning to s40(2), it would be curious if, where the claimant is a very young child and/or brain damaged, all that had to be addressed pursuant to the first sentence of that subsection was the conduct of the claimant himself or herself. In my opinion, what is necessary is a full account of acts and omissions of the claimant and of persons acting on behalf of the claimant, in so far as those acts and omissions are relevant to the explanation for the delay. When one comes to the second sentence of s40(2), the specific reference to 'a reasonable person in the position of the claimant' means, in my opinion, that the focus there is directed solely at the acts and omissions of the claimant himself or herself, and must be judged as against what would have been the actions and omissions of a reasonable person in the position of the claimant, that is having the relevant characteristics of the claimant, in this case a 9 year old girl suffering brain damage."
26 Hodgson JA continued:
"[94] Turning to the question whether there has, in this case, been a full explanation given, there is force in Mr Shore's submission that there is a deficiency in the explanation of how Mr Reetov [a solicitor] in particular could have remained of the belief that the 3 years did not run until the opponent turned 18, in the face of the correspondence and telephone conversation. There is also force in the submission that there is not a full explanation of why ss48 and 50A particulars had not been given, and in the consideration, referred to by Giles JA, that there is no explanation of why, even given the misapprehension, proceedings were not commenced earlier. However, it could be considered that the true explanation of why proceedings were not commenced within time, but only sought to be commenced 4 months later, was just the misapprehension; and if, as I believe to be the case, the primary judge has both accepted the existence of the misapprehension and that this was the true explanation of the delay, I do not think this court should interfere with that finding. If other matters had contributed to the delay in some significant sense, then an explanation would have been required of those other matters; but there is no finding by the primary judge to that effect, and the tenor of the primary judge's judgment is to the contrary.
[95] Turning to the question of whether the explanation is satisfactory , in my opinion there can be no shortcoming attributed to the acts or omissions of the opponent herself, and in those circumstances I do not think there is any error in the finding of the primary judge that the explanation was satisfactory.
[96] The complaint may be made that, on the approach I have taken, there will rarely be cases where a claimant under the Act who is a young child and/or is brain damaged will fail to pass the first threshold for obtaining an extension of time. Even if the explanation is one of total neglect by persons acting on his or her behalf, if that is the full explanation, then normally there will be no deficiency in the conduct of the claimant that would prevent the explanation being both full and satisfactory. I do not see that result as contrary to the purposes of the Act. Even in such a case, the court will then have a discretion, and will grant the extension only if the interests of justice require it. Such an approach is not an unreasonable balance between the desirability of an early resolution of such matters, on the one hand, and the philosophy of the Limitation Act, postponing the running of time during minority, on the other hand. It also avoids the unsatisfactory prospect of subsequent claims brought by injured minors against their (uninsured) parents, in those cases where the parents caused the delay and have no satisfactory explanation for it, a prospect unlikely to have been intended by the legislature."
27 Foster AJA agreed with the orders proposed by Hodgson JA. At 181-2 Foster AJA referred to cases involving applications for extension of time to bring action against the Nominal Defendant including Hall v Nominal Defendant where Barwick CJ, whose views did not prevail, said of a section in the Tasmanian legislation which enabled the court to extend the time for instituting proceedings:
"But the ends which the section seeks to serve require that the time limitation shall not stand in the path of justice. A very short time is set by the statute within which an action against the nominal defendant may be brought, and therefore a power to extend that time is given to a court of law so that justice may be done according to the circumstances. No doubt this extension of time is not as of course. Some acceptable explanation for the failure of the appellant to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension. The door, as it were, must first be opened. No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained. However much in some fields the client must suffer for his solicitor's acts done on his behalf, in this field the litigant is not necessarily, in my opinion, to be saddled with responsibility for all that his solicitor does or does not do. It seems to me to be implicit in the views of the Court in Sophron's case [(1957) 96 CLR at 474], where it says that the blamelessness of the client and the responsibility of the solicitor are material considerations, that the client's reasonable acceptance of a solicitor's advice, the solicitor having been properly apprised by the client of all the materials, relevant facts and circumstances within his knowledge, may be a sufficient explanation of the failure to take action within time."
28 Foster AJA said at 182 [116] that it had frequently been said that it might be unfair to relegate the client to a far less satisfactory claim against his solicitor, when, through no fault of his own, he would lose a superior right to sue the actual tortfeasor. Even less satisfactory, as Hodgson JA has remarked, is it for a child to be relegated to a claim against a parent or guardian.
29 Foster AJA said that he took a somewhat different approach to the construction of s40(2) and its effect upon the operation of s52(4) and (4B)(a) to that taken by Hodgson JA. At 183 his Honour said:
"[122] The first sentence of the subsection appears to equate a 'full and satisfactory explanation' with 'a full account of the conduct, including the actions, knowledge and belief of the claimant' which is to be provided 'from the date of the accident until the date of providing the explanation'. Assuming for the moment that the 'conduct' referred to is conduct not only of the claimant personally but also of those acting for him, those words could be construed as requiring a point by point account of all steps taken in relation to the claim by all those involved in it from its very outset until the provision of the explanation contemplated in s51(4B)(a). If this were its correct interpretation, it could lead to explanations of considerable and unnecessary prolixity, unreasonably burdensome to both the author and the reader. I do not think that that is the legislative intention. The 'full account' required is one focussed on 'the delay', a phrase, which, in my view, can refer only to the time which has relevantly elapsed since the expiry of the limitation period. What is required is a full account of the conduct which has resulted in the action being out of time, that is, one which is complete and not simply a selection of facts likely to assist the application for extension. Facts which relate only to ordinary preparatory steps taken well within the limitation period need not, in my view, be the subject of detailed exposition, although the section would seem to require some reference to them, because of the time-frame it prescribes.
[123] In terms of the 'fullness' of the account, I regard this case as fairly borderline. I am, however, in respectful disagreement with Giles JA. I consider that the admittedly exiguous and compendious references to the activities undertaken by the solicitors handling the case are, in the circumstances where the primary judge has found the cause of the delay to be their misapprehension of the time limit, sufficiently 'full' to comply with the section.
[124] I do not agree, with respect, with Hodgson JA, that the section confines the question of the satisfactoriness of the explanation to its second sentence. In my opinion, the 'account of the conduct' referred to in the first sentence must also be 'satisfactory', in the sense referred to by Studdert J, whose view I respectfully adopt. It must form part of the satisfactory explanation, if s54(4B)(a) is to be engaged in favour of an applicant. "
30 Foster AJA was there referring back to para [118] at 182 of his judgment which was as follows:
"[118] The legislative provisions in question in these proceedings, namely s52(4) and (4B) were inserted in the Act in 1995, as was s40(2). Earlier provisions had required 'a full and satisfactory explanation for … the delay', a concept which was undefined and unelucidated by second reading speech or parliamentary debate. It is possible that s40(2), which now offers a definition or exposition of this phrase, may have been enacted in response to decisions such as Nicholas v Webb [No 2] (1993) 19 MVR 65, in which it had been held that the words 'full and satisfactory' were conjunctive and related to the quality of the explanation offered for the delay, but not to the conduct responsible for the delay. This interpretation had been rejected by Studdert J in Guest v Southern (unreported, SC (NSW), Studdert J, No 19154 of 1993, 22 September 1995, BC9505406) where his Honour had held that 'full' meant 'complete' and 'satisfactory' meant the claimant was required to persuade the court that the delay should, in all the circumstances, be excused. This decision preceded the amendments. However, the explanatory note to the Motor Accidents Amendment Act 1995, the second reading speech and the parliamentary debate cast no light."
31 In his judgment in Guest v Southern of 22 September 1995 Studdert J quoted from the reasons for judgment of Master Malpass from whose decision the appeal, which Studdert J was dealing with, came. The Master had said, as quoted by Studdert J,:
"Because there has been a breach of a time limitation, the claimant is required to explain the delay. In many cases (if not most), the delay will have been occasioned by some lack of diligence on the part of the claimant and/or his advisers. The function of the provision is to require the claimant to explain that conduct in the course of the providing of a full and satisfactory explanation for the delay. It is not to provide a weapon which may enable an insurer to defeat the claim because of such conduct. It may be defeated if the Court decides that the claimant has failed to provide a full and satisfactory explanation for the delay. Since the coming into force of the Act, the Court has dealt with a veritable landslide of applications pursuant to s52(3). During those years, a consistent approach has been adopted in dealing with these applications. The applicable law has become settled and the provision has failed to generate much excitement for some years. The defendant wishes now to disturb such torpor. The Court has consistently adopted the approach that the words 'full' and 'satisfactory' relate to the explanation offered for the delay and not to the conduct which has been responsible for the delay. This has been the approach followed by the Court since the Act came into operation. It was foreshadowed as early as Flower v Fitzgerald and Anor (6 November 1990)."
32 Studdert J said at 16:
"Earlier in this judgment I referred to the part of the master's judgment which disclosed his approach to the meaning of the expression 'full and satisfactory explanation for the delay'. He considered it relevant address the adjectives 'full' and 'satisfactory' to the 'explanation' but, as I understand it, he did not consider it relevant to make an assessment of the conduct accounting for the delay. Hence even though he regarded the conduct of the plaintiff's solicitors to display 'incompetence and neglect of the highest order', this did not bear on his decision, satisfied as he was that the evidence placed before him accounted for the delay.
If that construction of the subsection is correct then the subsection has but dubious utility, achieving no more than to call upon the claimant to give an account for the delay. Provided he does so, then no matter how dilatory he has been and no matter how indifferent he has been towards the pursuit of his claim, once the claimant has placed before the court what the court is satisfied is a full account of what he has done or failed to do and his reasons for the default, the requirements of the subsection have been met, however unsatisfactory those reasons may be. The subsection has to be looked at in the framework of Pt5. One of the aims of Pt5 is to have claims processed as quickly as possible. S52 itself excludes the operation of the Limitation Act of 1969 and sets its own time constraints. If s52(3) is to be construed so as to have the possible effect of tolerating a delay for which there has been no exculpatory cause shown, then the subjection would not address this objective.
It is to be observed that the subsection not only requires that the claimant give a 'full' (or complete) 'explanation', but also an 'explanation' that is 'satisfactory'.
It seems to me in the context that before an explanation can be 'satisfactory', it must persuade the court that the delay ought to be excused in all the circumstances. It is to be noted that s43(3) expressly provides that delay in the onset of symptoms relating to an injury may be given as an explanation for delay in giving notice of a claim within six months. One can readily understand the inclusion of such a subsection notwithstanding Parliament's aim to have the claim brought to finality as expeditiously as possible. That subsection does not, of course, exclusively define circumstances in which a 'satisfactory' explanation for delay may exist, and a comprehensive list of such circumstances cannot be exhaustively defined; however, what s43(3) does is to instance a circumstance affording a satisfactory explanation which is consistent with the meaning of a 'satisfactory explanation' as I perceive the subsection to bear."