(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
6 The thresholds referred to in s 109(3)(b) do not apply as the plaintiff was an infant at the time of the accident.
7 A full and satisfactory explanation is defined in s 66(2) of the MAC Act. It is in identical terms to s 40(2) of its predecessor in title, the Motor Accidents Act 1988.
8 Section 66(2) of the MAC Act reads:
"(2) In this Chapter, 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 claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."
9 Thus, the explanation must cover the period from the date of the accident until the date of providing the explanation. Both parties referred to Russo v Aiello (2003) 201 ALR 231; [2003] HCA 53. The first point that needs to be made is that in Russo, the claimant was not under a legal disability, nor and more importantly the claimant received prompt and competent legal advice. Thus, any delay was caused by the plaintiff himself at [6] the Chief Justice stated that in Russo the Court was not concerned with the possible significance of incompetent or inadequate legal advice.
10 In Russo, the Chief Justice explained that what the Act required is a justification for delay, not a demonstration that delay caused no harm.
11 McHugh JA elucidated at [27]:
It is a question of fact whether the application for a s 43A(7) order has proved that a plaintiff does not have a full and satisfactory explanation for the delay in making a late claim. But although it is a factual and not a legal issue, the criterion of a "full and satisfactory explanation" for delay does not involve any perception by the senses of some matter, event or entity in the external world. It does not depend on sight, hearing, feeling or touch. A "full and satisfactory explanation" for delay is an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgment."
12 However, in cases where it is the solicitor who is the cause of the delay, this court has taken the view that where the plaintiff was not personally responsible for the delay and it considered it to be reasonable for the plaintiff to have relied upon his solicitors to the extent he did is a very material consideration. It was in this context, that Studdert J said that the function of the provision s 52(3) of the Motor Accidents Act (a predecessor of s 109) is to require the claimant to explain that conduct in the course of providing a full and satisfactory explanation for the delay. It is not to provide a weapon which may enable an insurer to defeat the claim because of such conduct [see Guest v Southern & Anor (NSWSC, unreported 22 September 1995). Similar statements have been made in Morton v Jools (1992) ATR 81-164 and McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997) in relation to an extension of time pursuant to s 151D of the Workers Compensation Act.