The delay
11 In examining whether there was a full and satisfactory explanation for the delay, there are several periods to be considered. The first is the delay up to 5 July 1999 when the first application was before Cooper DCJ. While Judge Naughton had to exercise his own judgment as to this period, he was in my view entitled to say that he saw no reason to differ in his conclusion from Judge Cooper and that there was a satisfactory explanation. This is to be accepted.
12 The second period is from 5 July 1999, when the first application for an extension was refused, to 18 November 1999 when the opponent had an appointment with a Dr Langeluddecke, a consultant neuro-psychologist. The appointment was arranged following the suggestion of Dr Dunn, a psychiatrist who had earlier seen the opponent. The appointment was made prior to 2 July 1999. Psychometric testing is usually a lengthy process and this may explain the delay in the appointment. However, for whatever reason, the appointment did not go ahead. The evidence contains no explanation.
13 The next period to consider is between 19 November 1999 and 14 April 2000. During this period appointments were made for the opponent to see Dr Marlowe, a consultant clinical psychologist, on 9 February 2000. Further, an appointment was made for Ms Touma to see Mr Taylor, a vocational psychologist on 14 April 2000 for assessment. Dr Marlowe provided a report dated 9 February 2000 and also a further report dated 6 March 2000 following an interview with the opponent's parents. Mr Taylor provided a report on 14 April 2000 and a further vocational report dated 20 April 2000. None of these reports were provided to the defendant.
14 The next period of delay is between 21 April 2000 and the filing of the Notice of Motion in the District Court on 19 January 2001, a period of almost 9 months. With respect to this period, there is not a skerrick of evidence explaining the delay. Mr Shalovsky, the opponent's solicitor, swore an affidavit on 21 December 2000 in support of the application. The affidavit referred to the appointments with Dr Marlowe and Mr Taylor and annexed copies of their reports. It contained no explanation as to what, if anything, took place between April and December 2000 in relation to the preparation of the fresh application to extend the limitation period. The solicitor did not give evidence before his Honour.
15 The Act contains a definition in s 40(2) of a 'full and satisfactory explanation' required by various provisions, including s 52(4B). It is as follows:
… a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to 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. The explanation is not a satisfactory explanation unless a reasonable person in the position of the clamant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
16 In Mancini v Thompson [2002] NSWCA38 Rolfe AJA discussed the requirement for the explanation to be 'full'. He said:
… 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".
17 In Nicholas v Webb (No 2) Supreme Court, Unreported, 19 March 1993 Master Greenwood said:
It is my view that in order properly to constitute the explanation required under s43 it will usually be necessary for both the claimant and his solicitor to set out in written form precisely what has and has not been done and the reasons for the acts and the omissions of each. These explanations must be detailed. It is not for the claimant's side to determine the relevance of behaviour going to the delay. Only then can an explanation be said to be full and satisfactory.
18 I am prepared to accept that the delay up until the hearing before Judge Cooper in July 1999 was 'full'. Despite the absence of any tangible evidence, I would also accept that the explanation for the delay to November 1999 was 'full'. However, it would require a great leap of faith into the unknown to be satisfied that the explanation for the delay between November 1999 until January 2001 was relevantly a 'full' one.
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. Here, perhaps because the appellant's solicitors considered that delay had been explained to Judge Cooper, absolutely no explanation was given for the relevant delay. The affidavit of the opponent said nothing about it. The affidavit of the solicitor merely recited events and exhibited reports. The last event was Mr Taylor's report of 17 April 2001. Counsel for the opponent, Mr Colquhoun, submits that the court should somehow fill in the gaps and accept that matters were being attended to during the relevant period, such as consideration of the medical reports and taking instructions. If this be the case, it would have been simple to provide the explanation by evidence. At the hearing before Naughton DCJ, counsel for the defendant put the whole of the delay (from 9 January 1999 when the primary limitation period expired) in issue. The onus with respect to the full and satisfactory explanation for the delay lay with the opponent. Little or no effort was made to discharge it. Without any explanation for the delay between April 2000 and January 2001, the court was not in a position to consider whether the explanation was a full and satisfactory one.
20 It follows that I am quite unable to see how his Honour could have concluded that the explanation was full and satisfactory in the absence of any explanation for the delay between April 2000 and January 2001 when the Notice of Motion was filed.
21 This of itself, is sufficient to convince me that leave to appeal should be granted, the appeal allowed and his Honour's extension of time set aside.