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[2002] NSWCA 57
respondent. Leave to appeal refused; the claimant was ordered to pay the respondent’s costs of the summons.
The claimant needed the Court's permission to bring his motor accident case after the three-year period had expired. He explained what happened when he contacted a solicitor in 2000, but did not explain why he had done nothing for roughly the preceding three years. The Court said it could not fill that gap by guessing at his reasons. Because the required explanation was not complete and satisfactory, the Court refused permission to appeal the District Court's decision.
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1,561 words · generated 01/10/2026
In Langlands v Simovic [2002] NSWCA 57, Kevin Langlands sought leave to appeal after the District Court refused his application to commence motor accident proceedings outside the statutory time limit. The Court of Appeal, comprising Handley JA, Beazley JA and Ipp AJA, refused leave to appeal on 4 March 2002.
No linked legislation citations have been extracted yet.
The accident occurred on 30 March 1997. Langlands was a front-seat passenger in a vehicle driven by Damon Simovic. The driver lost control, the vehicle hit a power pole and then overturned. An ambulance attended. Langlands was treated for left-sided lower back pain and chest pain, and continued to experience pain after returning home the following day ([2]). The three-year limitation period described in s 52(4) expired on 30 March 2000 ([2]).
At an unspecified time in 2000, Langlands contacted a solicitor after seeing an advertisement. He said the solicitor told him he had only six months in which to bring a claim. He decided not to proceed and said the solicitor did not tell him that he could seek leave to commence proceedings out of time ([12]). Later, after consulting a general practitioner on 6 September 2000, he saw his present solicitors on 12 September and received advice that court leave was required ([3]).
Langlands applied in the District Court for leave under s 52(4). Hogan DCJ considered his explanation full and credible, but not satisfactory in the context of the Act's time limits, and refused the application ([8]). Langlands then sought leave to appeal. The Court of Appeal held that his account did not explain the period between the accident and his contact with the first solicitor. It refused leave and ordered him to pay the respondent's costs of the summons ([16]–[17]).
The controlling requirement was s 52(4B)(a), which provided that leave must not be granted unless “the claimant provides a full and satisfactory explanation to the Court for the delay” ([9]). The provision also imposed a separate damages threshold: likely total damages had to be at least 25 per cent of the maximum amount that could be awarded for non-economic loss ([9]).
The damages threshold was not the obstacle on appeal. The primary judge found that Langlands passed it. Handley JA considered that finding understandable in light of Langlands' work and educational history and the nature of his back injuries ([10]). But satisfying that condition did not displace the separate requirement to explain the delay.
The critical difficulty was the time before Langlands contacted the first solicitor. His account explained the advice he received at that point and his later consultation with his present solicitors. It did not explain what he knew or believed during the period following the accident, or why he did not take steps to pursue proceedings before the three-year period expired. Handley JA identified several possibilities left unanswered: whether Langlands knew he could bring proceedings but thought he had no case, whether he was unaware of that possibility, or whether financial circumstances, expectations about recovery, or a belief that he had more time explained his inaction ([14]).
Langlands' counsel invited the Court to draw inferences to fill these gaps. Handley JA rejected that approach, stating that it was not appropriate, except on the margin, to draw inferences where the Act required a full and satisfactory explanation ([15]). The Court did not select among possible reasons for the delay because the evidence did not establish which, if any, applied. It concluded that there was “really no explanation at all” for the delay from the accident until the first solicitor contact ([15]).
The judgment therefore treats the explanation requirement as requiring an account that addresses the relevant period of delay, rather than merely an account of the claimant's later efforts to obtain advice. The Court acknowledged the sympathetic features of Langlands' circumstances but said it had to apply s 52 in its relevant form ([9]). That observation did not alter the statutory threshold.
The judgment applies the version of the Motor Accidents Act before it. It identifies s 52(4) as permitting a claimant to seek leave to commence proceedings more than three years after the relevant accident, subject to the requirements in s 52(4B) ([1], [9]). The Court quoted the two requirements: a full and satisfactory explanation for delay, and a minimum damages threshold ([9]).
The decision's contribution, on the text supplied, is its application of the explanation requirement to a gap in the claimant's account. It states that the claimant had not explained approximately three years of inaction and that the Court should not generally infer a missing explanation ([14]–[15]). It does not set out a broader test for every case, nor does it discuss other judgments or legislative amendments.
The supplied judgment contains no subsequent cases or materials describing the law after 4 March 2002. It therefore does not establish whether the provision was later amended, how later courts have interpreted this decision, or whether subsequent authority has qualified its approach. Any account of the law after this judgment would require sources beyond the text provided.
At [9], Handley JA quoted the statutory rule: “The leave of the Court must not be granted unless” the claimant provides a full and satisfactory explanation for delay and meets the specified damages threshold. In plain English, the provision made both conditions prerequisites to leave. Passing one did not compensate for failing the other.
At [14], Handley JA listed questions the evidence left open. The Court did not know whether Langlands knew he could sue, whether he thought he had no viable case, or whether his financial circumstances, expectations of recovery, or understanding of the time limit influenced his inaction. The point was not that any one of those explanations was legally sufficient. It was that the evidence did not say which, if any, explained the delay.
At [15], Handley JA stated that, where a full and satisfactory explanation is required, it is not appropriate “except on the margin” for the Court to draw inferences to fill gaps. In everyday terms, the Court would not construct an explanation from possibilities that the claimant had not addressed in his evidence.
Also at [15], Handley JA said there was “really no explanation at all” for the period between the accident and the first telephone call to a solicitor. This was the decisive observation: the account covered later events but left a substantial earlier period unexplained.
At [16], Handley JA concluded that the threshold in s 52(4B)(a) had not been met. Beazley JA and Ipp AJA agreed ([18]–[19]).
The decision is most directly relevant to an application for leave to commence proceedings after the limitation period where the governing statute requires a full and satisfactory explanation of delay. Its reasoning is particularly pertinent where the claimant explains later steps, such as obtaining advice or seeking leave, but leaves a significant earlier period of inactivity unaddressed.
The judgment also bears on applications in which a party asks the Court to infer the claimant's state of mind or reasons for delay from surrounding circumstances. Langlands indicates that such inferences may not fill substantial gaps where the statute requires the claimant to provide a full explanation. Handley JA preserved a limited qualification, “except on the margin” ([15]), but did not define its boundaries.
The case should be read within its stated statutory setting. The Court considered s 52 of the Motor Accidents Act and the relevant requirements as they stood at the time. The supplied text does not establish how the decision applies under other legislation, later statutory versions, or materially different evidence.
The judgment identifies no cited cases: its case-citation field says “n/a”, and the reasons cite no other judgments. The supplied material also contains no later decisions discussing Langlands v Simovic. Its treatment by later courts therefore cannot be established from the available source.
For the same reason, this analysis cannot say whether later courts have followed, distinguished, limited or questioned the decision. The proposition grounded in this judgment is confined to Handley JA's reasoning at [14]–[16], with Beazley JA and Ipp AJA agreeing at [18]–[19].
The decision does not define precisely what constitutes a “full and satisfactory explanation” in circumstances other than those before it. It does not decide how much detail must be provided for each part of a delay, or whether a particular explanation based on limited knowledge, financial circumstances, medical issues or expectations of recovery would satisfy the statutory test. Those matters were identified as unanswered possibilities, not resolved findings ([14]).
Nor does the judgment elaborate on the qualification “except on the margin” in its statement about drawing inferences ([15]). It does not specify when an inference would be marginally permissible, or how that qualification operates alongside the statutory responsibility placed on the claimant to provide the explanation.
Finally, the supplied text does not address subsequent amendments to the Act or later judicial consideration. The decision's continuing application, and its relationship to any later statutory language or authorities, cannot be determined from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, get a qualified Australian lawyer to check it.
CITATION : LANGLANDS v SIMOVIC [2002] NSWCA 57 FILE NUMBER(S) : CA 40865/01 HEARING DATE(S) : 4 March 2002 JUDGMENT DATE : 4 March 2002
KEVIN LANGLANDS PARTIES : v DAMON SIMOVIC JUDGMENT OF : Handley JA at 1; Beazley JA at 18; Ipp AJA at 19
LOWER COURT JURISDICTION : District Court LOWER COURT DC 5013/01 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER :
COUNSEL : Appellant - A S Morrison SC Respondent - D J Cutler SOLICITORS : Appellant - Vandervords Respondent - Ferguson Holz CATCHWORDS : MOTOR ACCIDENTS ACT - limitation period - extension of time - full and satisfactory explanation LEGISLATION CITED : Motor Accidents Act CASES CITED: n/a. DECISION : Leave to appeal refused. Orders made.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40865/01 DC 5013/01
HANDLEY JA BEAZLEY JA IPP AJA
MOTOR ACCIDENTS ACT - limitation period - extension of time - full and satisfactory explanation
Under s 52(4) of the Motor Accidents Act leave may be granted to commence proceedings more than three years after the date of the motor accident to which the claim related, but the claimant must provide a full and satisfactory explanation for the delay (s 52 (4B)(a)).
The claimant was injured in a motor vehicle accident on 30 March 1997. At some time in 2000 he sought advice from a solicitor who advised him that he had had only six months in which to bring a claim. That solicitor did not advise the appellant that he could apply for an extension of time. The appellant sought advice from a different solicitor on 12 September 2000. He was then advised that as the three year limitation period had expired on 30 March 2000, he would need to seek the leave of the Court before he could bring proceedings.
An application for an extension of time was made to the District Court. The Judge held that the claimant's explanation was full and credible, but was not satisfactory. The application was refused.
HELD : Refusing leave to appeal, the threshold requirement in s 52(4B)(a) that the claimant provide a full and satisfactory explanation for the delay had not been satisfied. The claimant provided no explanation at all for the delay between the date of the accident and the date of speaking to the first solicitor. ORDERS
(2) Claimant to pay respondent's costs of the summons. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40865/01 DC 5013/01
HANDLEY JA BEAZLEY JA IPP AJA
4 March 2002 KEVIN LANGLANDS v DAMON SIMOVIC Judgment 1 HANDLEY JA: This is an application for leave to appeal from a decision of Hogan DCJ given on 17 July 2001. His Honour had before him an application under s 52(4) of the Motor Accidents Act for leave to commence proceedings in respect of a motor accident more than three years after the date of the motor accident to which the claim related. 2 The accident occurred on 30 March 1997. The plaintiff was a front seat passenger in a motor vehicle driven by the defendant which was proceeding along a public street at Tuncurry. The driver lost control of the vehicle which collided with a power pole and the vehicle then turned over. An ambulance attended the scene of the accident and the plaintiff was treated for left sided lower back pain and chest pain, inferentially in a public hospital. The following day he returned home but continued to experience pain. The three year limitation period provided in s 52(4) expired on 30 March 2000. 3 The claimant consulted his present solicitors following the suggestion of a general practitioner, Dr Dunlop, he consulted on 6 September 2000. He saw his present solicitors on 12 September and received correct advice about his position and the need to seek the leave of the Court before he could bring proceedings in respect of his injuries. 4 The solicitors had to make a number of inquiries before they could make the application. They wrote to the driver of the vehicle on 13 and 20 September. This correspondence, presumably, was referred to the driver's third party insurer who wrote on 18 October 2000 to the claimant's solicitors stating: "Please provide a signed statement from your client giving a full and satisfactory explanation for the delay in making this claim. The explanation should give a full account of your client's conduct, including their actions, knowledge and belief from the date of the accident until the date of providing the explanation. The explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with s 43 or have been justified in experiencing the same delay". 5 This was a reference to the definition of "full and satisfactory explanation" in s 40(2). 6 The letter was sent in relation to the requirement under s 43 for a claim to be given to the third party insurer within six months of the accident but the same requirement arises under s 52 in relation to a failure to commence proceedings within three years. 7 A written explanation was provided by the claimant's solicitors to the insurer, on 19 December 2000, which provided information identical in substance to that in the affidavit of the claimant in support of the application for leave to commence proceedings out of time. The insurer rejected the explanation and on 28 May 2001 a notice of motion seeking an extension of time was filed on behalf of the claimant. 8 The proceedings came before Hogan DCJ who refused the application. His Honour thought that an explanation had been given which was as full as the claimant could give and was credible. The question he considered was whether it was satisfactory in the light of the time restraints in the Act. His Honour thought that the explanation was not satisfactory in that context and refused the application. The claimant has sought leave to appeal to this Court. 9 The case is such as to attract the sympathy of the Court, bearing in mind the plaintiff's education history, the material in his cross-examination and the medical evidence. Nevertheless, the Court must apply s 52 of the Motor Accidents Act in its form at the relevant time. Section 52(4B) provides: "The leave of the Court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the Court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than twenty-five per cent of the maximum amount that may be awarded for non-economic loss...". 10 The primary Judge found that the claimant passed the threshold of twenty-five per cent in subparagraph (b) and although we have not heard Mr Cutler for the opponent, in view of the plaintiff's work and educational history, and the nature of the injuries to his back, it is not hard to see why the Judge was satisfied on this question. 11 It remains, however, to consider the other threshold question which is whether the claimant has provided a full and satisfactory explanation for the delay. 12 The explanation outlined in the claimant's affidavit included in para 14 that, having seen an advertisement in "The Wollongong Advertiser", he telephoned a solicitor in Wollongong on some unspecified date during 2000. The solicitor asked the claimant for further information and then followed up with a phone call to ascertain whether the claimant had collected it. The paragraph continued: "At this time the solicitor advised me that I had only six months in which to bring a claim. On that basis I decided not to proceed any further. The solicitor did not advise me that I was able to bring a claim more than six months following the accident or that I was able to make an application to the Court seeking leave to commence proceedings out of time". 13 Later that year the claimant saw Dr Dunlop and was led to consult his present solicitors. The matter is further dealt with in paras 15 and 17 of his affidavit. Para 15 deals with the advice that the claimant received on 12 September when he consulted his present solicitors and is not an explanation of the delay. Para 17 says: "Prior to consulting Mr Chadwick on 12 September 2000 I was not aware that I was able to bring a claim more than twelve months after the accident or that it was open to me to bring a special application to the Court requesting that leave be granted to commence legal proceedings out of time". 14 There is no reason to doubt the truth of everything that the claimant has said in his affidavit and in his earlier statement to the insurer. However, the claimant does not state, either in his statement or in his affidavit, what his state of mind was and his relevant beliefs were prior to consulting his present solicitors. We are not told whether he knew in a general way that he could bring proceedings against the driver of the motor vehicle but did not think that he had a case on the merits. We are not told whether he was not aware that he could bring proceedings against the driver. If he was aware that he could bring proceedings against the driver and thought he had a good case, we do not know whether the explanation for the delay related to his financial position or his belief that the injury would get better over time or whether he thought that he had more time to bring proceedings and intended to get around to it sooner or later. 15 Dr Morrison invited us to draw inferences in these matters to fill in what, clearly, are gaps in the explanation. In my view when the Act requires a full and satisfactory explanation to be given for the delay it is not appropriate, except on the margin, for the Court to draw inferences. Here, there is really no explanation at all for the delay between the date of the accident and the date that the claimant telephoned the solicitor in Wollongong in response to the advertisement. We just do not know why the claimant did nothing for approximately three years during the period provided in the statute within which proceedings must be commenced. 16 Regretfully, therefore, I conclude that the claimant failed to meet the threshold requirement in s 52(4B)(a) and accordingly leave to appeal should be refused. 17 The orders I would propose are leave to appeal refused. Claimant to pay respondent's costs of the summons. 18 BEAZLEY JA: I agree. 19 IPP AJA: I agree.
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LANGLANDS
SIMOVIC
Leave to appeal refused; the claimant was ordered to pay the respondent’s costs of the summons.