Pursuant to the Motor Accident Injuries Act 2017 (MAI Act) and Schedule 2 of the MAI Act, the Personal Injury Commission determines:

1. The claimant has not provided a full and satisfactory explanation within the meaning of s 6.13(3) of the MAI Act for the delay in making the claim for statutory benefits.
2. By operation of Schedule 2, cls 3(h) and 3(k), the insurer is entitled to refuse payment of statutory benefits by reason of that delay.
3. For the purposes of s 7.33 of the MAI Act the claimant has not provided a full and satisfactory explanation for the delay in referring the claim for assessment.
4. The Commission does not grant leave for the late claim to be made.
5. Legal costs in this matter are assessed at $2,234.10 inclusive of GST in accordance with the Motor Accident Injuries Regulation 2017.

1. On 13 March 2020, Jack Heron (the claimant) was a passenger in a motor vehicle being driven by his father (insured driver). It is alleged that vehicle in which the claimant was travelling was in the right-hand lane travelling along the M5 motorway when the insured driver attempted to merge onto the exit ramp at Bexley Road. Not being able to exit directly, the insured driver abruptly stopped whilst trying to reposition the vehicle to an area marked with striped lines. The vehicle travelling behind it then struck the rear left side of the motor vehicle the claimant was travelling in. The claimant contends he sustained injuries in this accident.
2. On 7 February 2024, the claimant through his solicitors lodged an Application for Personal Injury Benefits along with an Application for Damages under Common Law on State Insurance Regulatory Authority (SIRA).
3. The claims were allocated to AAI limited t/as AAMI (the insurer) on 13 February 2024.
4. On 16 February 2024 the insurer issued breach letters in respect of the claim for statutory benefits and the claim for common law damages, seeking further information.
5. The insurer denied liability in the damages claim on the basis that the claimant sustained a threshold injury and this dispute is before the Personal Injury Commission (Commission) bearing proceedings numbered M5863/25-01-1. The medical application has not been determined.
6. This determination relates to a miscellaneous claims assessment for a late claim for statutory benefits and common law damages under ss 6.13 and 6.14 and 7.33 of the Motor Accident Injuries Act 2017 (MAI Act).
7. The statutory payments dispute arises from the claimant's failure to lodge a claim for statutory benefits within the three-month period prescribed by s 6.13(1). The issues for determination as it related to statutory payments are:

(a) whether the claimant has provided a full and satisfactory explanation for the delay in lodging the claim within the meaning of s 6.13(3) and s 6.2 of the MAI Act, and

(b) if not, whether the insurer is entitled to refuse payment of statutory benefits, both retrospectively and prospectively, by operation of Schedule 2, cls 3(h) and 3(k) of the MAI Act.

1. A short chronology of communication between the claimant and the insurer follows:

(a) on 18 July 2024, after obtaining relevant medical and evidentiary material, Carroll & O'Dea Lawyers submitted the claimants Statutory Declaration dated

17 July 2024 with Annexures;

(b) on 25 July 2024, the insurer requested evidence of the meeting with Slater & Gordon in August 2020;

(c) on 31 July 2024, Carroll & O'Dea Lawyers provided the insurer with an appointment reminder the claimant has received from Slater & Gordon Lawyers;

(d) on 31 July 2024, the insurer advised that the claimant's explanation was not full and satisfactory, issuing a request for particulars dated 31 July 2024;

(e) on 17 September 2024, Carroll & O'Dea submitted a response to the insurer's request for particulars dated 10 September 2024;

(f) on 23 September 2024, the insurer maintained their decision that the claimant's explanation for the delay is neither full nor satisfactory;

(g) on 16 October 2024, the insurer maintained their decision that the claimant's explanation for the delay is neither full nor satisfactory;

(h) on 12 December 2024, Carroll & O'Dea Lawyers provided an unsigned Statutory Declaration of the claimant together with medical records in support of the claim;

(i) on 13 December 2024, Carroll & O'Dea Lawyers provided a sworn Statutory Declaration of the claimant dated 13 December 2024;

(j) on 31 January 2025, the insurer maintained their decision that the claimant's explanation for the delay is neither full nor satisfactory and decline liability for the claimant's common law claim for damages;

(k) on 13 March 2025, Carroll & O'Dea Lawyers requested an internal review of the insurer's decision notice's, enclosing all available evidence including a further Statutory Declaration dated 17 July 2024, and

(l) on 15 April 2025, the insurer maintained their decision as to the full and satisfactory explanation of the late claim. On 17 April 2025, Carroll & O'Dea Lawyers notified the insurer that we had exhausted all evidentiary avenues with respect to the lodgement of the late claim and advised of its intentions to file a Miscellaneous Application in the Commission.

1. On 23 May 2025, the claimant's solicitor lodged an on-line application for a miscellaneous claims assessment.
2. The dispute that comes before me is to determine whether the claimant has provided a full and satisfactory explanation for delay in both matters. Whether the claimant can make a late claim and whether the insurer is entitled to refuse payments of statutory benefits by reason of the delay.

1. Prior to the determination of the application, the matter came before me on three occasions for preliminary conferences.

1. The insurer considered the explanation of the claimant neither full nor satisfactory as it was unknown what advice was given by Slater & Gordon and there was a gap in the explanation for the period 4 August 2020 and 19 December 2023, the period between the services of Slater & Gordon and the attendance on current solicitors.
2. I issued a direction that the claimant serve on the insurer and upload a copy to the Commission's portal a statement, statutory declaration, information and response to any material produced from Slater & Gordon by 29 July 2025.
3. The insurer was given approval to upload a Notice for Production to be issued upon Slater & Gordon. I granted approval for the document to be issued by the Commission.
4. The insurer was to serve on the claimant and upload to the portal any further concessions or additional submissions by 5 August 2025.

1. The insurer provided further submission in accordance with my earlier directions.
2. The claimant did not produce anything further pursuant to my directions of 23 June 2025. The claimant during the conference advised that he held evidence of the communication, in particular and email he issued to Slater & Gordon, which was not contained in the records produced by Slater & Gordon pursuant to the Notice for Production.
3. The claimant was given a final opportunity to provide the following material no later than

(a) final submission as to full and satisfactory explanation for delay;

(b) statutory declaration / statement of the claimant;

(c) email dated 4 August 2020, and

(d) further particulars to support delay.

1. Confirmation from the parties was received that final submissions had been provided by both the claimant and the insurer and no further information was to be relied upon.
2. The insurer maintained the claimant explanation for delay was neither full nor satisfactory and the application was to proceed to determination.

1. The claimant provided the following submissions in support of his application. I note the claimant refers to "Mr Arthurshen" and the insurer "Mr Jeyakumaran". He is one and the same person as the material produced by Slater & Gordon refers to "Arthurshen Jeyakumaran Lawyer":

"1. The claimant's final submissions are reproduced as follow in support of his claim that a full and satisfactory explanation for the late lodgement of the claim for statutory benefits and the claim for common law damages has been provided pursuant to Sections 6.13 and 6.14 of the Motor Accident Injuries Act 2017 (NSW) - 'the Act'.

1. The subject motor vehicle accident occurred on 4 March 2020; the claimant's father was driving the motor vehicle that the claimant was travelling in as a passenger at the time of the accident.
2. An explanation for the delay will be a 'full' explanation if it provides a complete account of the actions, knowledge and belief or beliefs of the claimant from the date of collision until the date of providing the explanation (Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 at [16]).
3. In Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394, Brereton JA, with whom Meagher and Leeming JJA agreed, observed (at [33]) that '...the content of a 'full' explanation is informed by its purpose, namely, to enable a judgment as to whether the explanation is a 'satisfactory' one.'
4. An explanation for delay in commencing proceedings will be 'satisfactory' if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay (Dahdah v Witte [2023] NSWCA 304 [58]-[68] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).
5. It is not dispute that the claimant did not bring a claim for either common law damages or statutory benefits until nearly 4 years after the date of the subject motor vehicle accident on 7 February 2024.
6. The delay in lodging the claim was in circumstances where the claimant was clearly cognizant of the fact that he had sustained injuries in the accident that might have warranted a claim for compensation at a much earlier time. This is evidenced by the fact that the claimant first attempted to make contact with a reputable law firm specializing in personal injury compensation, Slater & Gordon lawyers in late July 2020, eventually speaking to a lawyer at the firm on 4 August 2020.
7. However, infecting the claimant's actions following the accident, even at the time that make a claim for compensation or damages against his father's compulsory third party motor accident insurer.
8. It is submitted that the concept of bringing a claim for compensation against the insurer of the driver of a motor vehicle that you are travelling in as a passenger is one which those familiar with the motor accident compulsory third party insurance system take for granted however the lay person does not necessarily know such a right exists.
9. The claimant had formed an opinion following the accident that his father was primarily responsible for the collision that had occurred.
10. The claimant's interaction with Slater & Gordon Lawyers on 4 August 2020 by way of telephone conversation and subsequent follow up email only served to solidify the claimant's mistaken preconception in regard to the strength of his prospects of seeking compensation in relation to his accident.
11. As the Claimant states;

'When I sent the follow up email to Mr Athurshen and I received no response, to my' mind it confirmed that there was nothing that could be done in regard to getting compensation for my injuries in the accident as it was my father's fault'.

1. The claimant does not recall receiving any information about how to go about making a claim for compensation in his telephone conversation with Slater & Gordon or any time limit associated with doing so.
2. As is evidenced by the email from Mr Arthurshen of Slater & Gordon to the claimant following the telephone conversation, Mr Arthurshen had still not been able to properly grasp the circumstance of the accident and asked for further information. As the claimant provided in the form of a statement his father had provided in regard to a claim for damage to his motor vehicle.
3. As the claimant sets out in his evidence there was nothing that changed that occurred that changed his belief in relation to whether action could be taken in regard to his injuries until he first spoke to Carroll & O'Dea lawyers regarding the accident on 19 December 2023.
4. The claimant's consultation with Carroll & O'Dea was prompted by a conversation with a friend who had recently resolved her own claim in relation to a motor vehicle accident and had utilized the legal services of Carroll & O'Dea.
5. Following the consultation with Carroll & O'Dea Lawyers steps were taken in a timely fashion to lodge claims for statutory benefits and common law damages.
6. It is submitted that the claimant's explanation for the late claim is full in that it explains the primary reason for the claim being late, that is that the claimant did not think that he could bring a claim for his injuries in the specific circumstances in which the accident happened and nothing occurred to change his belief in that regard until his conversation with Carroll & O'Dea Lawyers on 19 December 2023.
7. It is submitted that the explanation is for the late claim is satisfactory in that one hypothetical person within a spectrum of reasonable persons would have experienced the same delay in the circumstances."

The insurer's final submissions dated 18 September 2025

1. The insurer's submissions are reproduced below:

"1.1 These submissions are lodged in compliance with the directions of Member Radnan dated 12 August 2025, and should be read together with the insurer's prior submissions, dated 18 June 2025 and 1 September 2025.

• 1.2 It is noted that the claimant has now provided the following:

• Statutory declaration dated 29 August 2025; and
• Email sent by the claimant to Mr Jeyakumaran of Slater & Gordon on 4 August 2020;
• Submissions dated 1 September 2025.

• 1.3 AAMI maintains its position that the claimant has failed to provide a full and satisfactory explanation for the late lodgement of the claim for statutory benefits and the claim for common law damages.

• 1.4 By way of summary, AAMI notes that in his statutory declaration dated 29 August 2025 the claimant says that during his consultation with Mr Jeyakumaran of Slater & Gordon on 4 August 2020, there was never any advice sought by him (nor any advice given by Mr Jeyakumaran), in respect of the following (para 6):

• His right to make a claim (either against his father's CTP insurer, or against the CTP insurer of the other vehicle involved);
• What claim forms he would need to lodge a claim, and
• Any applicable time limits for bringing a claim.

• 1.5 In terms of his knowledge of the CTP scheme generally, the claimant goes on to state that he held the belief that he could only make a claim against the insurer of another vehicle involved in the accident, and not the insurer of the vehicle he was travelling in as a passenger (para 17).
• 1.6 The claimant also asserts that as he never received a response from Mr Jeyakumaran to his email dated 4 August 2020, his mistaken belief that he could not bring a claim was confirmed (para 15). Further, the claimant states he never received the voicemail message said to have been left by Slater & Gordon on 31 August 2020 (para13).
• 1.7 Finally, the claimant has addressed why he subsequently sought legal advice from Carroll & O'Dea in December 2023, despite his alleged mistaken belief he could not make a claim (para 16, however, note this paragraph of the statutory declaration incorrectly refers to December 2024 instead of 2023). The claimant states that he had discussed his claim with his friend Ashleigh Rake shortly after her claim had resolved, and that Ms Rake "persuaded me to call Carroll & O'Dea Lawyers to at least enquire as to whether anything could be done". Following that discussion, the claimant says he then contacted Carroll & O'Dea.

It is submitted the Member would not accept the claimant's evidence as to his knowledge of the CTP Scheme generally, and/or that he held a mistaken belief that he was not entitled to make a claim against the CTP insurer of the vehicle he was travelling in as a passenger.

• 1.8 AAMI notes that the claimant's statutory declaration dated 29 August 2025 and the claimant's submissions dated 1 September 2025 do not elaborate at all on the reasoning underpinning the claimant's alleged mistaken belief. It is unclear why the claimant had formed the impression that he had a right to make a claim against the CTP insurer of another vehicle, and not the CTP insurer of his father's vehicle (which he was travelling in as a passenger). In those circumstances, an assessment of whether a reasonable person in the position of the claimant would have possessed the same knowledge of the CTP Scheme generally and/or would have also held the same mistaken belief cannot be undertaken.
• 1.9 It is further submitted that the alleged mistaken belief is inconsistent with the fact that the claimant did not specifically seek advice from Mr Jeyakumaran during the meeting on 4 August 2020 as to whether he could bring a claim against the CTP insurer of the vehicle he was travelling in as a passenger (allegedly as it 'did not occur' to him - para 12). The claimant had obtained access to a lawyer at Slater & Gordon for the very purpose of obtaining advice as to whether he could make a claim (para 4), noting he concedes in his statutory declaration that at the time he spoke to Mr Jeyakumaran he held the mistaken belief that he could not make a claim (para 17). AAMI submits that the reasonable person in the position of the claimant would have asked Mr Jeyakumaran to clarify whether the alleged mistaken belief was correct - either during the meeting on 4 August 2020 or in the follow up email of the same date - even in circumstances where speaking to a lawyer was 'quite an overwhelming experience' (para 10).
• 1.10 Moreover, it is submitted that the claimant's explanation as to why he subsequently sought legal advice from Carroll & O'Dea in December 2023, in circumstances where he allegedly had held the mistaken belief that there was no entitlement to make a claim, is not plausible. The precise content of the claimant's discussion with Ms Rake in December 2023 has not been outlined in the statutory declaration. It is therefore unclear what information received by the claimant from Ms Rake what persuaded' him to contact Carroll & O'Dea to obtain further legal advice (para 16). This is particularly significant given that the circumstances of Ms Rake's motor accident did not involve a claim against the CTP insurer of the vehicle Ms Rake was travelling in, but the CTP insurer of a vehicle driven by another person.
• 1.11 The claimant has also asserted that he did not receive the call from Slater & Gordon on 31 August 2025. However, the documents produced by Slater & Gordon, a reputable law firm, do record the following:

• That a telephone call was made to the claimant on 31 August 2020 following up the 'LCA' (legal costs agreement) and a voice mail message left asking the claimant to call back;
• There was no response from the claimant, subsequent to which the file was closed on 6 September 2020.

• 1.12 AAMI submits that the Member would accept that the documents produced by Slater & Gordon establish that Slater & Gordon did telephone the claimant on 31 August 2020 and left a voicemail message asking the claimant to call back, and that the claimant did not call Slater & Gordon back, or contact the firm again at all.
• 1.13 As noted in the prior submissions, AAMI also relies on the case of Figliuzzi v Yonan [2005] NSWCA 290, and submits that a reasonable person in the claimant's position (who held the belief that they were not able to make a claim against the CTP insurer of the vehicle they were travelling in as a passenger) would have:

• Enquired with Mr Jeyakumaran during the meeting on 4 August 2020 as to whether they could make a claim against the CTP insurer of the vehicle they were travelling in as a passenger, or made this enquiry in the follow-up email of even date;
• Expected to receive some advice from Slater & Gordon, even if that advice was that there was no right to make a claim, and would not have assumed that no response to the email sent to Slater & Gordon on 4 August 2020 meant that they were not eligible to make a claim;
• Followed up Slater & Gordon either by telephone or email when they received no response to the email dated 4 August 2020;
• Followed up Slater & Gordon either by telephone or email after having received the follow-up voicemail on 31 August 2020;
• Sought advice from another lawyer (in the absence of a response to the email dated 4 August 2020) about whether they had a right to make a claim, either in late 2020, or in any event, far earlier than December 2023.

1.15. Notably, the documents produced by Slater & Gordon confirm that the claim was funded by a third party funder, 'Fair Go Funding'. AAMI submits that a reasonable person in the position of the claimant, who was experiencing "very severe" pain which required him to ceased working (CLA, pg. 21, para 13), would have attended to making a simple enquiry of Slater & Gordon (or indeed, another lawyer) by way of a further email or telephone call."

1. The 96 pages of information contained in the claimant's application dated 15 May 2025 which included clinical records of Medicross Helensvale Surgery printout of patient health summary.
2. The claimant's further submissions dated 1 September 2025 and statutory declaration of the claimant dated 29 July 2025. (I note the submission record an incorrect accident date of "4 March 2020" and an incorrect statutory declaration date of "29 August 2025" which was in fact 29 July 2025.)
3. The insurer's initial reply of 29 pages which included breach letters of various dates and liability notice dated 31 January 2025 and initial submissions dated 18 June 2025.
4. Insurer's further submissions dated 5 August 2025 and 18 September 2025.

1. The claimant provided three statutory declarations in support of his application. In the declaration dated 17 July 2024, the claimant stated:

"3. My highest level of education was completed in 2016 whereby I completed year 12.

1. Immediately following high school, I commenced employment in the retail sector.
2. I have not been involved in any accidents prior to the motor vehicle accident. I have never been involved in any legal proceedings in relation to an injury claim and have never had any dealings with lawyers in relation to an injury claim.
3. I have not made any prior or subsequent injury claims for compensation of any kind.

1. Immediately following the collision, I felt pain in my back and hips. I was not taking to a hospital following the accident and the Police did not attend. My father exchanged details with the driver of the vehicle that struck our vehicle.
2. The pain was so very severe, and I struggled to go to work. I would force myself to go when I physically could. I needed to pay for rent and just general cost of living however, I was in pain the entire time. Initially I would call in sick on the days I physically could not get out of bed. Eventually in or around late March, I ceased employment with Total Pipe Repair as a result of the pain.
3. Following the accident, I consulted with a doctor in Sydney. I was told to go home and rest. I followed the doctor's instructions and took Panadol and Nurofen to manage the pain.
4. Even with rest, I was still having experiencing pain. I was struggling to walk, to lift things and some days I was not able to leave bed.
5. I did not see an improvement in my symptoms, so I consulted with Dr Luisa Busato, GP, of Medicross Helensvale who arranged for me to have a CT scan on or around February 2021. The CT scan showed that I had a bulging disk.
6. I was referred to a physiotherapist and chiropractor following the results of the abovementioned scans to manage the pain. However, the conservative treatment I have been receiving has only provided short term relief.

1. I first made contact with Slater and Gordon lawyers about my rights and entitlements surrounding the accident. I had a preliminary conference with a lawyer at Slater and Gordon on or around 4 August 2020. I felt as though they did not really understand what I was telling them regarding the circumstances of the accident, and despite emailing requesting for an update, I did not receive a response.
2. I do not specifically recall the solicitor at Slater and Gordon mentioning any statutory time limitation periods to me regarding any motor accident claims that I may make. Nor was I sent any paperwork that would lodge to preserve my rights.
3. After I initially consulted Slater and Gordon Lawyers and I did not receive a response I did not pursue my legal rights any further. I figured that as the lawyers had not responded I had no legal rights in relation to the injuries I sustained in the accident.
4. I first consulted with Tim Gauci of Carroll & O'Dea Lawyers on 19 December 2023 in a telephone call.
5. I was referred to Carroll & O'Dea through a family friend.
6. I decided to consult a lawyer due to the ongoing nature of my injuries.
7. At this time Tim Gauci provided me with some verbal advice about my rights and entitlements.

1. I was previously unaware that I could not make a claim for my injuries on my father's third-party insurer as I was a passenger in the vehicle and did not know that my father's third party insurance could cover injuries that I sustained in the accident"
2. In the claimant's statutory declaration dated 13 December 2024, the claimant attempts to provide further information of which I take note of the following paragraphs in particular:

"4. I did not follow up my initial contact with Slater & Gordon. As I explained in my original statutory declaration, I did not pursue my rights further after my initial consultation with Slater & Gordon as I did not think I had any right to pursue a claim based on the lack of response from Slater & Gordon and my own mistaken belief that I could not bring a claim against my father's third party motor accident insurer as a passenger in his vehicle."

1. In the claimant's declaration of 29 July 2025, he provides further details of his interaction with Slater & Gordon of which I note in particular the following paragraphs:

"5. I had a telephone conversation with a lawyer from Slater and Gordon on 4 August 2020, Arthurshen Jeyakimaran. Most of that conversation was about trying to make Mr Jeyakumaran understand how the accident happened.

1. I do not recall receiving specific advice or information about whether I had a claim for compensation that I could make, or the process involved with making a claim from Mr Jeyakumaran during the conversation. To my recollection I was not told of specific forms used for making a claim or any time limits in bringing a claim.

1. At the time of the accident, I was 20 years of age, and I did not have any experience in dealing with lawyers or the legal system or insurance claims of any kind. It was quite and overwhelming experience to speak to the lawyer at Slater and Gordon about the accident.""

1. The legislation relevant to a late claim for damages is briefly summarised as follows.

(a) a claim for damages must be made within three years after the date of the motor accident, sub-section 6.14 (2) of the MAI Act;

(b) a claim for damages may be made after the time required by sub-section 6.14 (2) (a late claim), if the claimant provides a full and satisfactory explanation for the delay in making the claim, sub-section 6.14 (3) of the MAI Act;

(c) if a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless,

"(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, subsection 6.14 (5)(b) of the MAI Act."

(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless -

(a) the insurer has lost the right to reject the claim on the ground of delay, or

(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6, and

(e) the meaning of "full and satisfactory" is set out in section 6.2 of the MAI Act as:

"6.2 Meaning of 'full and satisfactory explanation' by claimant

(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.

(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."

1. Because ss 6.14 and 6.2 both appear in Part 6 of the MAI Act and sub-section 6.2(1) refers to "this Part**",** the definition of "full and satisfactory" set out in s 6.2 applies to a claim for damages made under s 6.14.
2. A party to a claim cannot refer a claim for assessment under Division 7.6 more than three years after the motor accident unless he/she provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission's rules, s 7.33 of the MAI Act.
3. A claim for damages may be referred for assessment under Division 7.6 and an assessment of the amount of damages may be made, sub-sections 7.32 (1) and 7.36 (1)(b) of the MAI Act.
4. Whether a late claim may be made in accordance with s 6.14 is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (l) of the MAI Act.
5. Accordingly, a "late claim" for damages can be made in accordance with the provisions of sub-sections: 6.14 (2), 6.14 (3) ,6.15 (5), 7.32 (1) and 7.33. A "full and satisfactory" explanation, as defined in s 6.2, must also be given. When considering whether a "late claim" for damages assessment can be made those sections should be read together to make sense of the process to be followed. Before a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim.
6. The relevant legislation in relation to statutory benefits can be found in s 6.13 the MAI Act.
7. Sub-section (1) requires that such a claim be made within three months of the motor accident, on the fact of this claim the relevant date would be 13 June 2020. For the relevant period of lateness would be 14 June 2020 to date application was received, that being

7 February 2024. 8. Sub-section (2) imposes a consequence for claims lodged after 28 days: weekly payments are not payable for any period before the claim is made. 9. Sub-section (3) provides a saving mechanism, permitting claims outside the three-month period where two conditions are satisfied:

(a) first, that the claim is made within three years;

(b) second, that the claimant provides a "full and satisfactory explanation" for the delay, and

(c) Schedule 2, cls 3(h) and 3 (k) provide the statutory basis for the insurer to refuse payment of statutory benefits by reason of delay.

1. Sections 6.2, 6.13 ,6.14 and 7.33 of the MAI Act require a full and satisfactory explanation for the delay in making the claim - be it statutory or common law.

1. There is considerable case law about the meaning of the phrase "full and satisfactory_"_. Karambelas' case discussed the meaning of sub-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to s 6.2 of the MAI Act.
2. The NSW Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:

"An explanation is 'full and satisfactory' within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until 'the date of providing the explanation'. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant 'would have been justified in experiencing the same delay'. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer."

1. In Rahman v Al-Maharmeh [2021] NSW31 Brereton JA, with whom Meagher and Leeming JJA agreed, observed (at [33]) that,

"the contents of a 'full' explanation is informed by its purpose, namely to enable a judgment as to whether the explanation is a satisfactory one."

1. An explanation for delay in commencing proceedings will be "satisfactory" if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay (Dahdah v Witte [2023] NSWCA 304[58]-[68] White JA; [114] Mitchelmore JA; [115] (Griffiths AJA).

1. Sections 6.2, 6.14 and 7.33 require that the claimant provide a full and satisfactory explanation for the delay in making the claim for damages. The legislation requires that a "full" account must include an account of the conduct, actions, knowledge and belief of the claimant.
2. The meaning of "full" in a previous version of the Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a "full and satisfactory explanation" in the Motor Accidents Act 1988, his Honour stated at [4]:

"The word 'full' takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant."

1. In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: "The provision does not call for perfection, or ... for prolix or burdensome recounting of every moment that has elapsed."
2. Clarification of the meaning of "full" meaning complete was dealt with in Mancini v Thompson [2002] NSWCA38, where Rolfe AJA (with whom Beazley and Stein JJA agreed) said at [46]-[47] that a claimant cannot "pick and choose" convenient facts but must disclose the whole of the conduct relevant to delay. Stein JA (with whom Handley and Davies AJA agreed) in Laidlaw v Touma [2002] NSWCA 190 at [19] expressed the same: "full must be given some meaning ... it means complete - that is, that a complete explanation is required."
3. The Court of Appeal in Rahman held that a claimant's explanation is not deficient merely because it lacks evidence from the solicitors as to why they failed to act. Brereton JA at [39] - [44] (Meagher and Leeming JJA agreeing) said that it is sufficient if the claimant's account narrates the solicitors' conduct insofar as it bears on delay; the claimant is not required to include the solicitors' "actions, knowledge and belief."
4. In Rahman, Brereton JA added (at [43]) that it suffices if some reasonable persons in the claimant's position would have experienced the delay. Unanimity of all reasonable persons is not required.
5. A full explanation should cover the period from the date of accident to the date of providing the explanation, which in this matter is a period between 13 March 2020 to

5 September 2025 for the common law claim. 6. The insurer's scrutiny of the claimant's applications and declarations highlight the discrepancies in the claimant failing to provide an explanation of how he initially formed the view he held no entitlement to claim and why if he received the email from Mr Jeyakumaran at 11.52am on 4 August 2020 seeking additional information and subsequently responded with a copy of the accident diagram and his father's incident description, at 12.08pm the same day why did not follow the solicitor up for information and advice. I note the claimant's submission he sent the email in the evening, however the date stamp on his record indicates shortly after the initial email from the solicitor issued. 7. Also the submission that there was never any advice sought by him nor any advice given by Mr Jeyakumaran in respect of his right to make a claim, what forms he needed to lodge a claim and any applicable time limits appears inconsistent to the Slater & Gordon enquiry entries On-line triage - further details provided by the client directly:

"I was a passenger in a car accident about four months ago and ever since I've had back pain and shoulder pain. I've been to the doctors and now seeing a Chiropractor. My dad got hit from behind on the highway as he was stopped in emergency lane."

1. Clearly the claimant was seeking advice as a passenger injured in a motor vehicle accident and seeking information to make a claim for his injuries. I also note the contents of the email issued by Mr Jeyakumaran recorded the following:

""As discussed, I'm still having trouble understanding how the accident happened.

If you can send through your dad's statement and information on his version of how things played out, I would be in a better position to get back to you about your potential entitlements.. Many thanks".

1. I accept the claimant's evidence that he does not recall receiving any voicemail. This of itself does not mean a message was not left.
2. I also accept the insurer's submission that there is evidence in the records of Slater & Gordon that a message was left to return their call on 31 August 2020. Upon having no further communication and no costs agreement executed the matter was closed.
3. The claimant made no reference to receipt of any costs agreement or any letter of disclosure of what the agreement related to. The claimant did not provide any information about the receipt of a costs agreement. It may have been the case upon receipt of the Costs Agreement the claimant made a decision not to pursue further advice from the solicitors at that time after he made initial enquiries with them. He was silent on this issue.

What was actually discussed at the first interview?

1. The insurer submitted that the alleged mistaken belief is inconsistent with the fact that the claimant did not specifically seek advice from Mr Jeyakumaran during the meeting on

4 August 2020 as to whether he could bring a claim against the CTP insurer of the vehicle he was travelling in as a passenger (allegedly as it "did not occur" to him - [12]). The claimant had obtained access to a lawyer at Slater & Gordon for the very purpose of obtaining advice as to whether he could make a claim [4], noting he concedes in his statutory declaration that at the time he spoke to Mr Jeyakumaran he held the mistaken belief that he could not make a claim [17]. 2. The insurer went on to submit that a reasonable person in the position of the claimant would have asked Mr Jeyakumaran to clarify whether the alleged mistaken belief was correct - either during the meeting on 4 August 2020 or in the follow up email of the same date - even in circumstances where speaking to a lawyer was "quite an overwhelming experience". 3. I did not have any information on why the claimant had formed this view and why he did not seek clarification of his understanding of his entitlements as it related to third party claims. 4. I note that the entries contained in the material produced by Slater & Gordon pursuant to a Notice for Productions included a printout at page 29 of the insurer's bundle.

• Enquiry refer date 2 August 2020
• Enquiry bearing number: E-033751
• Enquiry name: Jack Heron
• Owner: Arthurshen Jeyakumaran
• Read Privacy Policy - ticked
• Enquiry and referral source - new client services
• The matter had initially been booked as face to face in NSW and was changed to a telephone consultation to occur at 11:30am on 4 August 2020
• Online Triage - Further details provided by client directly

Comments: "I was a passenger in a car accident about four months ago and ever since I've had back pain and shoulder pain. I've been to the doctors and now seeing a Chiropractor. My dad got hit from behind on the highway he was stopped in emergency lane". P30

• The follow up on 31 August 2020 comment recorded "Called client - no pick up - LMTCB".

1. The above record suggests that the claimant made contact to pursue rights for personal injury as a passenger injured in a motor vehicle accident. This was made approximately five months after the accident. He did not say how he came undertake this exercise of calling a referral source.
2. The insurer notes that the claimant's statutory declaration dated 29 August 2025 and the claimant's submissions dated 1 September 2025 do not elaborate at all on the reasoning underpinning the claimant's alleged mistaken belief. It is unclear why the claimant had formed the impression that he had a right to make a claim against the CTP insurer of another vehicle, and not the CTP insurer of his father's vehicle (which he was travelling in as a passenger). In those circumstances, an assessment of whether a reasonable person in the position of the claimant would have possessed the same knowledge of the CTP Scheme generally and/or would have also held the same mistaken belief cannot be undertaken.
3. There was no material produced to confirm what if any advice or information was given by Arthurshen Jeyakumaran in the first telephone contact. The claimant merely records his lack of recollection and a generalised statement that they discussed the circumstances of the accident. He did not give details of actual conversation between himself and the solicitor or details of the length of the consultation.
4. Having regard to the relevant authorities and the submission received there are matters that the claimant did not address and renders his explanation incomplete:

(a) what information he received in the first interview, and

(b) why he came to the mistaken belief

(c) he had some knowledge of the third party system to have made an enquiry in the first place he did not elaborate on this.

(d) There was no statement from Mr Jeyakumaran

1. Inconsistencies have been found in the claimant's evidence:

(a) what the claimant has asserted in his statutory declaration dated 17 July 2024 and the letter dated 10 September 2024, and

(b) what the claimant has asserted in his statutory declaration dated

13 December 2024, and the documents produced by Slater & Gordon.

1. The insurer correctly highlighted that at paragraph 19 of the statutory declaration that after the first conference on 4 August 2020 with Slater & Gordon, the claimant had "email[ed] requesting for an update", but he "did not receive a response" (CLA, pg. 22). The letter of

10 September 2024 also asserts that the claimant "did not receive anything further correspondence from Slater and Gordon Lawyers after his initial consultation with them..." (CLA, pg. 42). 2. Yet, in the statutory declaration of the claimant dated 13 December 2024 the claimant states "I did not follow up my initial contact with Slater & Gordon... I did not pursue my rights further after my initial consultation with Slater & Gordon...." (CLA, pg. 50). This clearly conflicts with what was stated in the earlier statutory declaration and the letter dated 10 September 2024. 3. It is also noted that the documents produced by Slater & Gordon pursuant to the Direction for Production: * does not contain an email from the claimant requesting an update after the initial consultation with Slater & Gordon; * instead, the documents confirm that after the initial consultation on

4 August 2020, Slater & Gordon telephoned the claimant on 31 August 2020 to follow up. It is recorded that the claimant did not answer the call, and that the caller "LMTCB" - meaning 'left message to call back' (INR, pg. 29), and * Slater & Gordon then closed their file on 6 September 2020 (INR, pg. 29). 4. The insurer submits that the claimant's explanation as to why he subsequently sought advice from Carroll & O'Dea in December 2023, in circumstances where he allegedly had held the mistaken belief that there was no entitlement to make a claim, is not plausible. The precise content of the claimant's discussion with Ms Rake in December 2023 has not been outlined in the statutory declaration. It is therefore unclear what information received by the claimant from Ms Rake what "persuaded" him to contact Carroll & O'Dea to obtain further legal advice [16]. This is particularly significant given that the circumstances of Ms Rake's motor accident did not involve a claim against the CTP insurer of the vehicle Ms Rake was travelling in, but the CTP insurer of a vehicle driven by another person. 5. In combination, those deficiencies mean the explanation does not meet the "full" limb. Even allowing that s 6.13(3) of the MAI Act does not require prolix recitation, the account must be complete on matters central to delay. The claimant's explanation whilst submitting he has no recollection of the contents, makes a general statement he did not recall what was said yet provides no details of the actual conversations with the solicitor, the statement of the friend and the reason why no action was undertaken in the interval between 4 August 2020 and some time in December 2023. Considering the extensive symptoms he reported since January 2021 to various general practitioners the claimant leaves material gaps in his explanation as to what was mentioned about the motor vehicle accident to any doctors and any advice as to his rights given at those consultations which were directly associated with the motor vehicle accident related injuries. 6. I am not satisfied that a full account has been given of his knowledge and belief over the relevant period. The gap impedes proper evaluation of his explanation and weighs against a finding that it is "full" within the meaning of s 6.13(3). 7. Upon review of the information before me, I accept the submissions of the insurer that the claimant has not provided a full explanation for his delay. Whilst the claimant contends he has provided all the details available to him, I consider the claimant failed to provide details of the following:

(a) how he came to the belief that he could not make a claim;

(b) how he came to the belief his father was at fault;

(c) what was the contents of the actual conversation held with Mr Arthurshen Jeyakumaran of Slater & Gordon;

(d) what information if any was given to him in relation to his injuries and a right to make a claim for injuries sustained in a motor vehicle accident noting the following entries:

(i) clinical records of Medicross Helensvale Surgery, the first given history of back pain on 15 January 2021 recorded by Dr Luisa Busato records:

Been getting ?sciatica pain past 6/12 on and off gets f:lare (sic) ups of pain every couple of weeks says has been to GP-not here, reports never had LX/Scan goes to chiro regularly but relief does not seem to last long...

Due to work night shift tonight but feels unwell...

(ii) in an attendance with Dr Busato on 23 January 2021 the motor vehicle accident was discussed:

was fine for 2/7 after the accident, but the started having low back pain, and has been on and off since then

o/e: some tenderness lower lumbar spine, limited ROM (antalgic)

Imaging request printed: CT Scan - Lumbar spine. (1 year h/o lower back pain

discussed would benefit from Care Plan - see physio

(iii) the records of Dr Walker Chiropractor confirm his presentation on

5 May 2020 with a history of "MVA 3 months prior. He was experiencing mid/lower thoracic and lumbar pain due to the MVA...Mr Heron has attended 16 visits at the clinic between the dates of 5 May 2020 and 23 December 2023", and

(e) noting he was reporting his symptoms to doctors as motor vehicle accident related, did any doctor or chiropractor he visited advise him to seek legal advice?

1. The insurer submits the statements of the claimant contain inconsistencies as follows:

(a) The assertions in his declaration dated 17 July 2024 and the letter dated

10 September 2024:

(ii) the insurer highlighted at [19] of the statutory declaration that after the conference on 4 August 2020 with Slater & Gordon he emailed requesting an update but did not receive a response, and

(iii) the letter of 10 September 2024 also assets that the claimant did not receive any further correspondence from Slater & Gordon after his initial consultation with them.

(b) The assertions in his declaration dated 13 December 2024 and the documents produced by Slater & Gordon:

(i) the declarations states "I did not follow up my initial contact with Slater & Gordon.. I did not pursue my rights further after my initial consultation with Slater & Gordon". This conflicts with what was stated in the earlier statutory declaration and the letter dated 10 September 2024, and

(ii) relying on the documentation produced by Slater & Gordon pursuant to Notice for Production:

"1. There was no email from the claimant requesting an update after initial consultation

1. Documentation produced by Slater & Gordon confirmed that after the initial consultation on 4 August 2020, Slater & Gordon telephoned the claimant on 31 August 2020 to follow up. The records not a call was made and claimant did not answer and the caller 'LMTCB' - left message to call back,
2. Slater & Gordon closed their file on 6 September 2020.
3. The claimant produced a copy of email confirming his appointment with Slater & Gordon, and later provided a copy of what he sent to Slater and Gordon on 4 August 2020. He did not produce a copy of the alleged email he sent after the initial consultation requesting an update."
4. The insurer submitted that I would not accept the claimant's evidence that he sent a follow-up email - for the same reason outlined at [46] of Member Plibersek's decision of Natale v Allianz [2021] NSWPIC539.
5. I note the claimant provided an initial response to the solicitor attaching the information he requested but there is no evidence of a further email follow up seeking information of the solicitor.

1. Sections 6.2, 6.14 and 7.33 require that the claimant provide a full and satisfactory explanation for the delay in making the claim for damages. The definition in the legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
2. The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:

"Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay."

1. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:

"[19] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17]."

1. In its Reply the insurer submitted that the claimant's explanation is not satisfactory. As noted in its prior submissions, it also relied on the case of Figliuzzi v Yonan [2005] NSWCA 290, and submitted that a reasonable person in the claimant's position (who held the belief that they were not able to make a claim against the CTP insurer of the vehicle they were travelling in as a passenger) would have:

(a) enquired with Mr Jeyakumaran during the meeting on 4 August 2020 as to whether they could make a claim against the CTP insurer of the vehicle they were travelling in as a passenger, or made this enquiry in the follow-up email of even date;

(b) expected to receive some advice from Slater & Gordon, even if that advice was that there was no right to make a claim, and would not have assumed that no response to the email sent to Slater & Gordon on 4 August 2020 meant that they were not eligible to make a claim;

(c) followed up Slater & Gordon either by telephone or email when they received no response to the email dated 4 August 2020;

(d) followed up Slater & Gordon either by telephone or email after having received the follow-up voicemail on 31 August 2020, and

(e) sought advice from another lawyer (in the absence of a response to the email dated 4 August 2020) about whether they had a right to make a claim, either in late 2020, or in any event, far earlier than December 2023.

1. Notably, the documents produced by Slater & Gordon confirm that the claimant was funded by a third party funder, 'Fair Go Funding'. The insurer submitted further,

"that a reasonable person in the position of the claimant, who was experiencing 'very severe' pain which required him to cease working (CLA, pg. 21, para 13), would have attended to making a simple enquiry of Slater & Gordon (or indeed, another lawyer) by way of a further email or telephone call."

1. I find the submissions of the insurer persuasive. A reasonable person in the position of the claimant would not have experienced the same delay considering the extent of symptoms the claimant alleges he was experiencing both at the initial consultation with a solicitor and since. A person with the level of injury the claimant purports to have sustained, not having received any advice on whether he could make a claim as a passenger (on the claimant's evidence) would have made further enquiries in a timelier manner and not taken just under four years to seek the further advice.
2. The claimant was reporting symptoms to his chiropractor and to doctors in January 2021 as significant and related to the motor vehicle accident. He was undertaking investigations in 2021. Whilst I am sympathetic to the claimant that he was purportedly of a mistaken belief, a reasonable person in the position of the claimant would have sought further legal advice in relation to his rights to make a claim sooner. His explanation of holding a mistaken belief that he could not claim against his father's third party insurance is not a "satisfactory" explanation of the delay.
3. Because the claimant has not provided a "full and satisfactory explanation" within s 6.13(3), the statutory saving provisions does not apply. The insurer was accordingly entitled to refuse payment of statutory benefits (Schedule 2, cl 3(k)) and, by force of s 6.13(2) - (3), weekly payments are not payable for any period.
4. The interpretation of s 7.33 in a way that is consistent with the MAI Act when read as a whole, it is appropriate to proceed on the basis that the term 'full and satisfactory explanation' used in s 7.33 means a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation and the explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
5. I find that the claimant's explanation for delay in making a claim for damages is neither full nor satisfactory for the reasons recited above. The impact of this decision is the Commission does not approve the making of a late claim.

1. The claimant has not provided a full and satisfactory explanation within the meaning of s 6.13(3) of the MAI Act for the delay in making the claim for statutory benefits.
2. By operation of Schedule 2, cls 3(h) and 3(k), the insurer is entitled to refuse payment of statutory benefits by reason of that delay.
3. For the purposes of s 7.33 of the MAI Act the claimant has not provided a full and satisfactory explanation for the delay in referring the claim for assessment.
4. The Commission does not grant leave for the late claim to be made.

1. The claimant's entitlement to recover costs from the insurer arises under s 8.10 of the MAI Act. He is entitled to recover from the insurer the reasonable and necessary legal costs incurred in connection with the claim. As required by s 8.10(3) the regulations permit the payment of costs in a dispute of this nature: Regulations Schedule 1, Part 1 cl (3)(k).
2. Success is not a pre-requisite to the claimant accruing an entitlement to the payment of his legal costs: AAI Ltd v Moon [2020] NSWSC 714 at [82]. Accordingly, while the claimant has not been successful in these proceedings, he is entitled to recover his reasonable and necessary costs.
3. Having regard the material relied on by the parties in the dispute, the associated work that would have been undertaken by his lawyer, together with the need for his lawyer to provide advice and obtain instructions in relation to the proceedings, I find that the claimant's reasonable and necessary costs in connection with the dispute is $2,234.10 inclusive of GST.