"[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'."

1. Further, it is noted that "[t]he provision does not call for perfection, or ... for prolix or burdensome recounting of every moment that has elapsed": Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 (Walker) at [104].

1. As to whether the claimant's explanation is "full", the word "takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant": Russo v Aiello [2003] HCA 53 per Gleeson CJ.
2. In Rahman v Al-Maharmeh (2021) 95 MVR 394; [2021] NSWCA 31 (Rahman), Brereton JA noted, in respect of the predecessor to s 6.2 of the MAI Act:

"[39] While the 'full account of the conduct' referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include 'the actions, knowledge and belief' of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant's delay in commencing proceedings."

1. Accordingly the explanation for the delay is to be provided by the claimant.
2. The claimant's statutory declarations provide an account of her conduct and in particular her reliance on her solicitors to progress her claim. She notes she was 20 years old at the time of the accident. She was working part-time and receiving a Centrelink pension because of her sickle cell anaemia. Her declarations also briefly outline the impact that her physical and psychological injuries which she says were caused by the accident have had on her life.
3. The claimant's explanation is short. In effect, she relied on her solicitors to progress her claim. There can be no criticism of the claimant for this. Her solicitors have put on submissions explaining why no particulars were provided, noting that at the time of the 6.26 Direction the claimant was considered to have threshold injuries and therefore was not entitled to damages. If there is any fault, the submissions dated 23 October 2024 note it is a fault of the solicitor and not the claimant, who relied on the solicitor.
4. In the bundles of documents filed by the parties, there are several medical assessments which certify the claimant's injuries to be threshold injuries and the claimant's degree of permanent impairment to be less than 10%. This does not explain why the solicitors did not respond to the insurer's emails requesting particulars or to the 6.26 Direction. However, I accept that this is a fault of the solicitor and not the claimant. Her solicitors have conceded that any fault is a fault on their part.
5. Included in the claimant's bundle of documents is an email from the claimant to her solicitor, where she forwards the 6.26 Direction from the insurer to her solicitor and asks what it is. Her solicitor's email in response tells her to "Please disregard it". It is clear that the claimant entrusted the conduct of her claim to her solicitor and was entitled to rely on them to do everything necessary to progress her claim. As distinct from the circumstances in Nominal Defendant v Browne [2013] NSWCA 197; (2013) 64 MVR 214, the claimant has provided some detail of the instructions given to and the advice received from her solicitors.
6. The claimant was not equipped to second guess her solicitor's advice to disregard the insurer's correspondence or to question their conduct of her matter. Their failure is not her failure.
7. Given the essence of the claimant's explanation, I consider it to be full for the purposes of the MAI Act despite its brevity. She relied on her legal representatives. She was not aware of the specific requirements of ss 6.25 and 6.26 of the MAI Act, nor is it expected that a reasonable person in the position of the claimant would be aware of the requirements and time limits set out in those provisions. There is nothing more she could have said in this regard.
8. I am satisfied that the statutory declarations provided by the claimant fully explains the reasons why, from the date of the accident until the date of the statutory declarations, she had not provided "relevant particulars" within the meaning of the relevant sections of the MAI Act.

1. Section 6.2 of the MAI Act requires that the claimant's explanation be both full and satisfactory. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to comply with the duty.
2. The claimant was 20 years old at the time of the accident and living with a chronic illness which impacted her ability to work full time prior to the accident. There is evidence before me that she has been hospitalised on several occasions since the accident due to her sickle cell anaemia. The claimant also says her mental health has suffered as a result of the accident.
3. The claimant engaged solicitors to take carriage of her claim and, on at least one occasion, reached out to query the response in relation to the 6.26 Direction and was told by her solicitors to disregard it.
4. The decision of Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 involved an appeal of the grant of an extension of time where the claimant's solicitor had lodged the application more than three years from the date of the accident. In such circumstances, the claimant was required to seek leave pursuant to s 109 of the Motor Accidents Compensation Act 1999, which required the claimant to provide a full and satisfactory explanation to the court for the delay. The Court of Appeal noted:

"[60] Accordingly, the weight of authority under the 1988 Act in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for the delay in commencing proceedings."

1. Similar to the provision considered in Smith, there is nothing in the language of s 6.26 which requires the conduct of the solicitor to be "justified": Smith at [74].
2. I find that a reasonable person in the position of the claimant would have relied upon their solicitor's response and followed their instructions to disregard the insurer's correspondence. This is not a matter where the claimant failed to provide instructions or ignored requests from her solicitors. Her solicitors, in turn, considered it was not necessary to provide the relevant particulars as, in their view, the claimant did not have a right to damages under the MAI Act at the time.
3. As noted above, the standard of explanation is not perfection: Walker at [104] and [108].
4. I find that the claimant's explanation is such that a reasonable person in her position would have been justified in failing to comply with the duty to provide the "relevant particulars".

Does the claimant satisfy the threshold in s 6.26(7)?

1. As at the date of the accident, being 14 December 2020, the maximum amount for non-economic loss was $590,000. Accordingly, I must be satisfied that the total amount of damages likely to be awarded to the claimant exceeds 25% of $590,000, being $147,000.
2. My assessment of the claimant's likely amount of damages for the purposes of the current dispute is a "predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material, in which the question is whether there is 'a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent', that the total damages will exceed the relevant threshold": Rahman at [47].
3. The claimant has provided a schedule of damages dated 13 March 2025, claiming a total economic loss of $534,314. The claimant has also provided her individual tax returns for the financial years 2019 to 2024, inclusive, and payslips in respect of her earnings since the accident.
4. Based on my review of the documents before me and the submissions from the parties, and noting the claimant's history of chronic illness, if causation of her injuries is accepted to cause even partial incapacity then I find that she would likely be awarded an amount of damages that exceeds the relevant threshold.

1. In accordance with s 6.26(7) of the MAI Act, the Commission is satisfied:

(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than $147,000 being 25% of the maximum amount that may be awarded for non-economic loss under s 4.13 as at 14 December 2020.

1. The claim for damages made by the claimant should be reinstated.

1. At the preliminary conference on 2 April 2025, I directed the parties to confer with the intention of seeking to agree costs. As no agreement was reached, both parties put on submissions in respect of the claimant's costs of this matter.
2. The insurer submits that, in circumstances where the application was required to be lodged due to the claimant's non-compliance with the procedural requirements, the claimant should not be entitled to recover any costs.
3. The claimant submits that costs should be allowed per the regulations as she contends that the claim should not have been deemed as withdrawn given the operation of s 6.26(8) of the MAI Act. Appropriately, the claimant seeks regulated rather than exceptional costs.
4. This is a miscellaneous claims assessment matter and pursuant to cl 3(1) of Part 1, Schedule 1 of the Motor Accident Injuries Regulation 2017 (NSW) (Regulations) the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
5. I note that the claimant withdrew her submissions regarding s 6.28(8) of the MAI Act in light of the insurer's revised position in respect of the reinstatement application. Accordingly, whether s 6.28(8) applied was not required to be determined.
6. I do not consider that the claimant should be penalised for what I consider to be an appropriate withdrawal in light of the insurer's concession regarding the reinstatement application. This withdrawal was aligned with the Commission's guiding principle to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings: s 42 of the PIC Act.
7. The insurer's submission ignores that cl 2(h) of Part 1, Schedule 1 of the Regulations provides that whether for the purposes of Part 6 of the MAI Act the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay is a "regulated miscellaneous claims assessment matter". Whether it was the claimant's alleged conduct that led to the miscellaneous claims assessment matter being lodged is not relevant for the purposes of costs.
8. I am of the view that costs have been incurred by the claimant. The claimant's solicitors prepared detailed submissions and supporting evidence in relation to this application. They participated in several preliminary conferences. While a face-to-face hearing was not required, the insurer opposed the reinstatement application until 21 March 2025, being after the claimant's written submissions and evidence had been filed.
9. Noting the nature of the application and the submissions and evidence prepared by the claimant, I consider that it is appropriate for costs to be awarded in the maximum amount provided for under the Regulations, being 16 monetary units.
10. I allow regulated costs in the sum of $1,992 plus GST.