Figliuzzi v Yonan - [2005] NSWCA 290

NEW SOUTH WALES COURT OF APPEAL

CITATION: Figliuzzi v Yonan [2005] NSWCA 290

FILE NUMBER(S):
40737/04

HEARING DATE(S): 27 July 2005

JUDGMENT DATE: 12/12/2005

PARTIES:
Guiseppe Figliuzzi
Lana Yonan

JUDGMENT OF: Santow JA Tobias JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4416/03

LOWER COURT JUDICIAL OFFICER: O'Toole DCJ

COUNSEL:
A: R R Bartlett SC / A Capelin
R: J Glissan QC / A R Reoch

SOLICITORS:
A: T L Lawyers, Newcastle
R: Ron Kramer & Associates, Fairfield

CATCHWORDS:
LIMITATION OF ACTIONS – Extension of limitation period – Motor accident claim – Leave sought to commence out of time – Delay as a result of failure to obtain legal advice – Where plaintiff brought workers compensation claim in relation to accident – Where plaintiff unaware of entitlement to bring separate claim for damages – Where plaintiff worked in legal environment – Whether “full and satisfactory explanation” for delay provided – Whether reasonable person in plaintiff’s position would have been justified in experiencing same delay – Prejudice to defendant by reason of delay – Motor Accidents Act 1988 ss 40(2), 52(4)
APPEALS – Appealable error – Judge’s duty to provide reasons – Appeal from discretionary decision

LEGISLATION CITED:
Family Provision Act 1982
Legal Profession Act 1987
Legal Profession Amendment (Personal Injury Advertising) Regulation 2003
Legal Profession Regulation 2002
Motor Accidents Act 1988
Suitors’ Fund Act 1951
Workers Compensation Act 1987

DECISION:
(1) Appeal allowed
(2) Set aside the orders made by Judge O'Toole on 6 August 2004 and in lieu thereof order that the Amended Notice of Application for Leave to Commence Proceedings filed in the District Court on 26 March 2004 be dismissed
(3) The respondent to pay the appellant's costs of the proceedings in the District Court and the costs of the Summons for Leave to Appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40737/04
DC 4416/03
SANTOW JA
TOBIAS JA
McCOLL JA
Monday 12 December 2005

GUISEPPE FIGLIUZZI v LANA YONAN

Judgment

SANTOW JA:

INTRODUCTION

Leave having been granted to this appeal, its central issue can be shortly stated. Was it open to the primary judge, O’Toole DCJ to conclude that the respondent, Ms Yonan, in seeking leave to bring a claim out of time under the Motor Accidents Act 1988 (NSW) (“the MA Act”) had as thereby required provided a “full and satisfactory explanation” for her delay? (The MA Act describes a person seeking such leave as “the claimant” so I shall refer to Ms Yonan as either the claimant or respondent accordingly.) The appellant contends that it was not open to the primary judge to conclude, as required by the statutory definition, that “a reasonable person in the position of the claimant would have failed to comply with the duty [to bring her claim in time] or would have been justified in experiencing the same delay”.

Here the claimant mistakenly believed, that her claim was solely under the workers’ compensation legislation, she having been injured in a car accident on the way to work. That indeed was how she was compensated. No one from her employer told her she might have a claim also under the MA Act. It was only when she was advised to seek legal advice because she felt her injuries were not getting better that she learned that her belief was mistaken. Had she done what a reasonable person would have done in her position? Would such a person have been justified in experiencing the same delay? Those are the questions posed by this appeal.
The remaining ground of appeal is that the primary judge failed to consider, or properly consider, prejudice to the appellant by reason of Ms Yonan’s delay and failure to comply with the time requirements under the Act. Tobias JA, whose draft judgment I have had the advantage of reading, dismisses that ground of appeal for reasons with which I respectfully concur. However, I myself would not have considered it necessary for the primary judge to deal more comprehensively than she did with the evidence of the various medical practitioners consulted. Her summation of that medical evidence was quite sufficient for the issue to which it was directed. In particular, it did include reference to the evidence of Dr Milton Cohen (Judgment [20]). He was a physician consulted by her employer the Legal Aid Commission of NSW (“the Commission”) at the request of its workers’ compensation insurer. It was not necessary to refer specifically to evidence from the other medical practitioners consulted at the insurer’s behest. I would adopt what Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
"[I]t is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”
That leaves only the central issue, namely whether the primary judge erred in finding that the opponent’s explanation for a delay between 3 September 1997 and 22 September 2003 was “a full and satisfactory explanation”. On that question I respectfully differ from the conclusion reached by Tobias JA in favour of the appellant. Because Tobias JA has comprehensively stated the relevant facts, I need deal only with such of those facts as bear upon our differing conclusions in explaining my reasons for the view I prefer.
However, there is a subset of that period where I am in entire agreement. I refer to the ten weeks of delay between 24 June 2003 and 4 September 2003, which the appellant complains, was a delay that was not the subject of the required “full and satisfactory explanation”. Here Tobias JA concludes that it cannot be said that it was not open to the primary judge to come to the conclusion she did, namely that there was a full and sufficient explanation of that delay. When a client places her faith in counsel and her solicitors, and a conference with counsel is unaccountably cancelled and a new time arranged even for ten weeks hence, it would still be entirely reasonable for the client to decline to change horses midstream, with the risk of added expense and lesser familiarity.
A full and satisfactory explanation?

Section 52(4), disentitles a claimant from commencing proceedings in respect of a claim more than three years after the date of the relevant motor accident, save with the leave of the court. The objects of that section set out below explain the reasons for this limitation. They emphasise that an extension is to be only on the limited basis allowed by the MA Act:
“(1)The objects of this section are:
(a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and
(b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if:
(i)the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and
(ii)the claim is likely to result in an award of substantial damages,
……….”
Section 40(2) of the MA Act defines “a full and satisfactory explanation” in these terms:
“In this Part, 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.”
There is in the end no dispute that the explanation given was a full one, in terms of the above definition. The issue is whether, in terms of the last sentence of s40(2), “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”. I shall refer to this in shorthand as “the reasonable person test”.
At [45] of her Judgment the primary judge concluded, in terms of those quoted words, that a reasonable person in the respondent’s position would have been justified in experiencing the delay between 26 August 2002, when she understood her potential rights, and September 2003, when her solicitor engrossed and lodged her affidavit in support of her application for leave (and which purportedly set out her explanation for that delay). It is then contended that, because the primary judge did not come to any similar conclusion with respect to the delay between the date of the accident on 3 September 1997 and 26 August 2002, a period of nearly five years, her Honour had failed to comply with a critical provision of the Act and thus was appellably in error.
Tobias JA records the contentions by the respondent in response:
“The respondent contended that, firstly, the question as to whether her Honour had considered the application of the second limb of s40(2) to the period prior to 26 August 2002 had been agitated before her in final addresses so that, given that at the conclusion of those addresses she immediately gave judgment, she could not have overlooked such an important issue and must, therefore, be taken to have given it consideration. Secondly, the respondent submitted that the opening sentence of [44] in which her Honour concluded that the respondent’s explanation for her delay between 3 September 1997 and 22 September 2003 “[was] a full and satisfactory explanation as provided in [the] Act” ought to be construed as indicating that she was in fact satisfied that there had been a “full and satisfactory explanation” within the meaning of both limbs of the definition of that expression in s40(2).”
Tobias JA, for reasons set out in his judgment, concluded that her Honour must be taken to have overlooked that important issue, namely the reasonable person test of the second limb in relation to the period 3 September 1997 to 26 August 2002. He in any event concluded that her Honour failed expressly to engage with or enter into that essential issue. That issue, expressed in the circumstances of this case, was “whether a reasonable person in the position of the respondent would have been justified in experiencing the delay between the date of the accident on 20 September 1997 and the date she first consulted with Mr Kramer on 26 August 2002.” That is clearly a reference to the objective second limb of the statutory definition. Tobias JA concluded that the primary judge’s judgment was “devoid of any reasons to support such a conclusion and that, of itself, constitutes appealable error.” I would prefer to put the issue in terms of whether there was a sufficiency of reasons.
This led Tobias JA to the conclusion that “the normative judgment which Her honour was bound by the MA Act to form as a condition of granting leave was, in a material respect, omitted with the result that a pre-condition under that Act to the granting of leave had not been satisfied. It inevitably follows that Her honour’s order that leave be granted must be set aside.”
Tobias JA, following agreement by the parties that if Her honour’s decision was set aside this Court should deal with the merits of that issue, then posed this question, “What decision should this Court make on the issue overlooked by the primary judge?” He concluded, for reasons set out in some detail, that he would not be prepared to conclude that a reasonable person in the respondent’s position would have been justified in experiencing the delay for the period in question. At the core of those reasons is the premise that a reasonable person in the circumstances of the respondent would have approached a solicitor, whether conveniently at Legal Aid or externally, for legal advice as to whether, when she became entitled to workers’ compensation, that fact disentitled her from claiming damages under the MA Act. This presupposes that forming that belief as she did without legal advice would in her particular circumstances cause her to fail the reasonable person test. To test that conclusion, I need to deal with the evidence bearing directly upon it.
She was first prompted to seek legal advice just prior to 26 August 2003 when her general practitioner, Dr Yenson, advised her to consult a solicitor. There is no suggestion in the evidence that anyone had earlier suggested she seek such advice, or told her that her belief might be wrong or need to be checked. Indeed when she first had the accident, she thought her entitlement was to workers’ compensation, as the accident occurred on her driving to work. That belief would have been reinforced by the fact that when the Commission’s personnel officer interviewed her concerning the lodgement of a claim for workers compensation, she was required to complete a workers compensation claim form. She asserted in her affidavit in support of her application for leave that the personnel officer never informed her that she could or should bring a claim for damages under the MA Act. She then deposed:
“At the time, I thought that as I was driving to work, the case was only one of workers compensation and not one for damages under the Motor Accidents Act. I thought the matters were different.”
In her affidavit Ms Yonan deposed that Dr Yenson had informed her that as she was not getting any better she was entitled to claim for damages. However, in cross-examination she said (T, 42.30) that she went to see Dr Yenson who advised her that she was not getting any better and so was entitled to a claim which he thought was a workers’ compensation claim. (I do not however consider anything hangs on any difference between her affidavit and her cross-examination on this point.) She then did consult a Mr Kramer of Ron Kramer & Associates, solicitors at Fairfield. He advised her for the first time that she was entitled to weekly and lump sum compensation pursuant to ss60, 66 and/or 67 of the Workers’ Compensation Act 1987 as well as damages for personal injuries under the Act. Mr Kramer also advised the respondent that the time limit for commencing any claim under the Act had expired and that she would therefore have to act quickly if she wished to make a claim. The respondent understood Mr Kramer’s advice and instructed him to pursue whatever workers’ compensation and common law rights were available to her as a result of the accident.
The question whether the reasonable person test is satisfied under s40(2) may be treated as a question of law, or mixed fact and law. It is fundamentally concerned with whether the claimant’s conduct by way of acts or omissions was capable of satisfying the statutory requirement for a full and satisfactory explanation and in particular its second objective element. The starting point must be the explanation actually given by the claimant, remembering that that explanation must under the statute be a full one. The legal question is the traditional one of whether the statute was capable of being satisfied by what the claimant said and did in the identified circumstances.
The requirement for a judge to provide adequate statement of reasons does differentiate between questions of law and questions of fact, as McHugh JA explains in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 explains:
"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple funding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff’s credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough.”
Insofar as the primary judge needed to delineate the respondent’s acts and omissions, I am satisfied she did so with sufficient particularity for the purposes of this issue. The gravamen of what is said by Tobias JA is rather that the primary judge did not engage expressly with the question of whether those acts and omissions were capable of satisfying the requirements of the definition of a full and satisfactory explanation so far as it is based on the test of a “reasonable person in a position of the claimant”. The critical paragraphs in the judgment at first instance are at [44] read with [45], quoted below:
“44.Applying the Motor Accident Act to the facts I find, I conclude that the plaintiff’s explanation to this Court for her delay between 3 September 1997 and 22 September 2003 is a full and satisfactory explanation as provided in that Act. Upon receipt of Mr Kramer’s advice, the plaintiff instructed him promptly. Mr Kramer is an experienced attorney. He acted with reasonable diligence in arranging medicolegal consultations and in bespeaking reports thereon from Drs Wolfenden, Deveridge and Sundaraj. Mr Kramer acted with reasonable diligence in considering and in advising the plaintiff upon the reports he received from Drs Wolfenden and Deveridge. Mr Kramer made appropriate attempts to obtain Dr Sundaraj’s belated report and promptly instructed counsel to advise the plaintiff.
45.The evidence is silent on the reason why counsel cancelled his conference with the plaintiff and Mr Kramer. Counsel’s cancelling that conference caused months’ delay in his advising the plaintiff and Mr Kramer. Counsel subsequently settled the plaintiff’s instructions to him and to Mr Kramer in her affidavit, explaining her delay in her claim. I conclude that a reasonable person in the plaintiff’s position would have been justified in experiencing the delay between 26 August 2002, when she understood her potential rights, and September 2003, when her attorney engrossed and lodged her affidavit supporting these Applications.”
It is clear from [45] of the Judgment quoted above and the fact that the trial judge had clearly before her the issue of the reasonable person test in counsel’s addresses, that it was unlikely in the extreme that she overlooked the reasonable person test when delivering her judgment ex tempore immediately after. It would have meant that she overlooked that element in relation to the period between 3 September 1997 and 22 September 2003, yet took it into account, as she clearly did in relation to the last ten weeks of that period. Moreover, the first sentence of the judgment at [44] is expressed in terms of the application of the Act to the facts found, by reference to whether there was “a full and satisfactory explanation as provided in that Act”. That must mean both limbs of the statutory definition were there addressed.
However, I agree that the reasons needed to engage more closely with the application of the reasonable person test to the circumstances of the claimant, as found. The question to be answered is whether a reasonable person in the position of Ms Yonan would have failed to act in instituting proceedings under the Act between 3 September 1997 and 22 September 2003 and been justified in so doing, given her position as follows:
(i)she was injured in a car accident as she was driving to work;
(ii)the Commission’s personnel officer interviewed her concerning the lodgement of a claim for workers’ compensation during the time she was off work immediately after the accident, and required her to complete a workers’ compensation claim form;
(iii)the Commission officer made no mention that she could or should bring a claim for damages under the Act;
(iv)she formed a belief without obtaining any verifying legal advice that, as she was injured driving to work, the case was only one of workers’ compensation and not one for damages under the Motor Accidents Act, she not unreasonably believing the matters were different.
(v)she was employed as a clerk in the Commission and in that capacity was in regular contact with solicitors and was familiar with the names and professional roles of those solicitors and barristers in private practice who were disposed to accept instructions from the Commission’s own solicitors;
(vi)she was aware that there were time limits in relation to criminal law matters prior to her injury in September of 1997 but said that she was not aware in relation to CTP Insurance, that personal injuries damages insurance involved time limits of some description or other beyond realising there was the possibility they could involve some time limits.
(vii)As she was driving to work she thought she could only claim for workers’ compensation and had not read the guidelines to the CTP insurance for that reason;
(viii)the Commission did not run a scheme where employees were expressly permitted to approach solicitors within the office with their own personal problems and seek advice; moreover that activity was “not encouraged” within the office (T, 52.9-.21).

I would attribute some significance to that last-mentioned circumstance. Why should it be reasonable for Ms Yonan to take advantage of her position to seek legal advice from a Commission solicitor, presumably for free or on a concessional basis? First it must be remembered she was employed in a junior capacity as a clerk. Second, if there were no scheme for doing so, she would naturally be inhibited in seeking such a favour, knowing it was not a practice that was encouraged. This is particularly as she was not close to the solicitors and barristers with whom she dealt, calling them only regarding Legal Aid matters (T, 56.28). A further question and answer in cross-examination revealed that to do so, she would have had to go through her supervisor, or the higher clerks, if she were to have any communication with any of the solicitors. All this would inhibit a reasonable person in Ms Yonan’s position. This is quite apart from the propriety of seeking advice on a concessional or free basis from solicitors when they were at the Commission for reasons having nothing to do with Ms Yonan’s private problems.
However, Tobias JA then fairly puts the matter independently of that consideration though “with some reluctance”. He puts the matter in terms of whether a reasonable person in the respondent’s position would have sought legal advice, not from one of the Commission’s solicitors or from someone connected with the Commission, but from an independent legal source. My difficulty with that way of posing the question is that it presupposes a reasonable person in Ms Yonan’s position would necessarily be prompted to seek legal advice to verify her belief, notwithstanding that her belief had some reasonable basis to it, for reasons elaborated below. This was not a case where she simply took a guess as to her legal position, with no rational basis for her belief.
That Ms Yonan could reasonably have formed the belief she did begin with the fact that her injury occurred when she was driving to work. That grounded her belief that the case was only one of workers’ compensation and not for damages under the Motor Accidents Act. That belief was then reinforced when the Commission’s personnel officer required her to complete only a workers’ compensation claim form, never informing her that she could or should bring a claim for damages under the MA Act.
For a person to have a civil claim under two regimes, namely workers’ compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive. That therefore she did not feel the need to verify her belief when that belief was ex facie reasonable does not to my mind render that belief unreasonable. A reasonable person in Ms Yonan’s circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief, intrinsically rational, that her own employer by its actions had implicitly confirmed. Her employer did so by requiring her to complete a workers’ compensation claim form. The Commission neither then nor subsequently informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work. While Ms Yonan’s ignorance of the law did not of itself excuse her from complying with the statutory time period (cf Ostrowski v Palmer (2004) 78 ALJR 957 per Gleeson CJ and Kirby J at [1]), nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”. I would therefore have reached the same conclusion as the primary judge on this matter, applying the reasonable person test.
Conclusion

I agree with the primary judge’s conclusion that the respondent gave a full and satisfactory explanation. I consider that the reasonable person test was satisfied for the reasons I have set out above.
Postscript

Since dictating the foregoing, I have had the advantage of reading the judgment of McColl JA in draft. It, and the reasons of Tobias JA, prompts me to elaborate on one aspect only.
The statutory test of a “full and satisfactory explanation” in s40(2) of the MA Act is predicated upon a hypothetical “reasonable person” in the position of the claimant. It asks whether such a “reasonable person” would have “failed to comply with the duty [to bring her claim in time] or would have been justified in experiencing the same delay”. In so applying that test, the legislature employs what the late Julius Stone called a legal category of indeterminate reference.
The defining characteristic of such a category is that “it does not usually lead compellingly to any one decision in a concrete case, but rather allows a wide range for variable judgment in interpretation and application, approaching compulsion only at the limits of the range”: Julius Stone, “Legal System and Lawyers’ Reasonings” (Sydney, Maitland Publications Pty Limited, 1964) at 264. As McHugh J put it in Russo v Aiello (2003) 215 CLR 643 at [27]:
“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”.
That is not in any way in conflict with recognising that the MA Act is, as Gleeson CJ pointed out in Russo v Aiello (supra) at [7] replete with statements demonstrating a legislative concern with the prompt and timeous resolution of claims for damages arising out of motor vehicle accidents. However, Gleeson CJ (at [7]) recognised that a reasonable person could “experience” a delay where that person suffered a delay in onset of symptoms. In such a case the claimant can be either unaware of her symptoms, or, I would add, unaware of their full extent.
That situation is not so very different to this case. It was only when Ms Yonan realised that her symptoms were not only worse but not dissipating that she consulted her GP, who for the first time prompted her to seek legal advice. That therefore she did not act earlier was understandable. She was hardly in a position where she could be said to be failing in any deliberate sense in the prompt and timeous resolution of her common law claim for damages, given that she was unaware she had such a claim. That is central to the question whether the hypothetical reasonable person would have experienced the same delay, circumstanced as Ms Yonan, in making the enquiries that would have enlightened her that she had a claim at general law, concurrent with the statutory compensation which she thought, understandably, to be her sole entitlement.
Accepting that the requirements for a “full and satisfactory explanation” is jurisdictional, nonetheless a primary judge must necessarily form an opinion involving the exercise of a discretion: George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803; [1983] 2 All ER 737; cf Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256 at 259, 263, 281; Attorney General (NSW) v X (2000) 49 NSWLR 653 per Spigelman CJ at [33], [45]-[55]; to the same effect Mobilio v Balliotis [1998] 3 VR 833 at 835, 838 and 853.
Moreover, in Family Provision Act proceedings where an applicant must establish that he or she is an eligible person in whose favour the court has jurisdiction to make an order, it has been held that appeals against findings on the “jurisdictional” issue are subject to the same principles that apply to appeals from discretionary decisions: Singer v Berghouse (No 2) (1994) 181 CLR 201 at 212; 68 ALJR 653 at 658; Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported, BC9302134) per Kirby P; Walter v De Jong (CA(NSW), Cole, Beazley and Stein JJA, CA 40620/96, 5 September 1997, unreported, BC9704560); Green v Robinson (1995) 36 NSWLR 96 at 112-113; 18 Fam LR 594. That must likewise be so in the context of this legislation as McHugh J recognised in Russo v Aiello where he concluded that:
“… the Court of Appeal could set aside the primary judge’s decision on the issue only on the basis of the well-known principles concerning an appeal against a discretionary judgment.”
Those principles include that
“a court of appeal is not justified in interfering with the decision appealed from unless it reaches a clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has failed properly to exercise the discretion committed to him”:
Mace v Murray (1955) 92 CLR 370 at 378 per Dixon CJ, Fullagar, Kitto and Taylor JJ.
As was said by Barry J in Atkinson v Atkinson [1969] VR 278 at 279:
“Where a judge is confronted on an appeal with an order which ….. he is quite sure he himself would not have made, the temptation is strong to regard it as unjust and unreasonable. Indeed when the sole basis for imputing error to a trial judge is the order and the consequences which flow from it, the only real control over the appellant court’s inclination to interfere is its own self-restraint.”
In Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, Kitto J, after referring to House v R (1936) 55 CLR 499 at 504-5; 10 ALJR 202, and to what his Honour had said in Lovell v Lovell (1950) 81 CLR 513 at 532-4; 24 ALJR 426, stated:
“… that there is a strong presumption in favour of the correctness of the decision appealed from, and that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
When three apparently reasonable judges, as in this court, have reached by a majority of two to one differing views as to what a reasonable person would have done in the circumstances, it highlights how difficult it is to be satisfied that the decision of the primary judge was clearly wrong in her discretionary determination, though it be the case that she should in her reasons have engaged more closely with that issue. Clearly enough, as I have explained, the primary judge was well aware of the test she had to apply, as is clear from her reference (in [45] of her judgment) to “a reasonable person in the plaintiff’s position”. Though respecting the views of those reaching a view to the contrary, I consider that this is the kind of case where a court of appeal is not justified in interfering with the discretionary decision appealed from, though recognising that a different view of what a reasonable person would have done in terms of the statutory test is clearly open.
The notion that these matters can be simply resolved by common sense is true in one sense. But it belies the fact that, as in causation, common sense is capable of producing a variety of answers depending on the value judgment reached and the legal context; see ”Causation” by The Rt Hon. Lord Hoffmann in (2005) 121 LQR 592 at 594-5. The value judgment here is the circumstances in which a reasonable person circumstanced as the respondent, would seek legal advice, where “would” in this context of what is a satisfactory explanation necessarily carries with it a normative judgment; compare, on satisfactory explanation, Buller v Black (2003) 56 NSWLR 425 at [38]-[39] per Mason P; at [96] per Giles JA (with whom Ipp JA agreed). To that question there is more than one answer. I do not consider that the answer which holds that a reasonable person would not seek legal advice, is appellably wrong. I have earlier (at [20]) set out the circumstances which in my opinion permit that result such that a discretionary determination to that effect has not been shown to be appellably wrong.
OVERALL CONCLUSION AND ORDERS

I would propose orders as follows:
(1)Appeal dismissed.
(2)Appellant to pay respondent’s costs of the appeal.

TOBIAS JA: On 3 September 1997 whilst driving to work, Lana Yonan (the opponent) was injured when the vehicle in which she was travelling was struck from behind by a vehicle driven by Guiseppe Figliuzzi (the claimant). As a consequence of the collision the opponent's vehicle was propelled forward into the rear of the vehicle in front of it causing whiplash injuries to the opponent's neck and back (the accident).
Pursuant to s52(4) of the Motor Accidents Act 1988 (the MA Act), the opponent was not entitled to commence proceedings in respect of a claim under that Act more than three years after the date of the accident to which the claim related except with the leave of the court in which the proceedings were to be taken. The three-year period referred to expired on 3 September 2000. As the opponent had not commenced proceedings on or before that date, leave was required from the court to do so after that date.
On 18 September 2003 the opponent filed a Notice of Motion in the District Court of New South Wales seeking that Court's leave to commence proceedings in respect of her claim under the MA Act. That application was heard by her Honour Judge O'Toole who, in an ex tempore judgment delivered on 6 August 2004, granted the opponent the leave she sought. By Summons filed on 28 January 2005, the claimant sought this Court's leave to appeal from the primary judge's decision to grant that leave. The substantive appeal was heard concurrently with the claimant's application for leave. At the conclusion of the oral argument, the Court granted the claimant leave to appeal and reserved its decision on the merits of the appeal. I will therefore refer hereafter to the claimant and the opponent as the appellant and the respondent respectively.
The relevant facts
The respondent was born on 12 March 1968. On 21 July 1986 she commenced employment as a clerk with the Legal Aid Commission of New South Wales (the Commission) in its Sydney office. The Commission entertained requests for legal assistance from members of the public involved in court proceedings. It employed a number of solicitors and its Sydney office's duties included appearing for its clients in court. It dealt with criminal, civil and family law matters. Each of those areas of practice was administered from a different floor of the building which the Commission occupied near Central Railway Station. The Commission instructed solicitors and barristers in private practice to appear for its clients in court proceedings.
The Commission also had a Fairfield office which comprised a single floor. Its Fairfield clients were generally involved in local court proceedings. It employed eight solicitors in that office, two of whom handled criminal proceedings, two of whom handled civil litigation and three of whom handled family law proceedings.
Prior to the accident, the respondent worked mainly in the Commission’s criminal section of its Sydney office. Her duties were generally confined to local and district court proceedings. She performed clerical tasks, retrieved electronic data and processed requests by clients for legal aid. She also ascertained clients' preferences for solicitors and/or counsel in private practice and telephoned members of the private legal profession for the purpose of ascertaining their availability to appear for the client and then retaining them for that purpose. As such she became familiar with the names and professional roles of both solicitors and barristers in private practice who were disposed to accept instructions from the Commission's own solicitors.
The respondent had been injured in a previous motor vehicle accident on 24 October 1989 when she was a passenger in a vehicle which collided with another vehicle. This accident incapacitated the respondent for several weeks but thereafter she resumed her normal full-time duties. She maintained that she had fully recovered from these injuries well prior to the accident in September 1997.
As the primary judge found, on 3 September 1997 the respondent was driving her motor vehicle on a periodic journey. After the accident, the respondent alighted from her vehicle, observed that it had been extensively damaged and recalled that it was comprehensively insured. The primary judge then found (at [13]) that the respondent
"had no doubt in her mind that the [appellant] was responsible for the … accident, for her headache and for the pain in her head, trapezoid or trapezii, which she attributed to [the accident]."
She attended her general practitioner, Dr Yenson, whom she had been seeing since at least November 1989 after she suffered injuries in her first motor vehicle accident.
The respondent alleged that many of her symptoms including headache, tremulous and painful hands, in respect of which she had consulted her general practitioner between April/May 1993 and 17 May 1997, were aggravated by her duties at the Commission.
In the period immediately following the accident, the respondent took time off work as a result of her injuries. She had intended resuming work about 15 September 1997 but the pain in her neck prevented her from performing her normal duties as she experienced difficulty in doing so. During the time she was off work immediately after the accident, the Commission's personnel officer interviewed her concerning the lodgement of a claim for workers compensation. She was required to complete a workers compensation claim form. She asserted in her affidavit in support of her application for leave that the personnel officer never informed her that she could or should bring a claim for damages under the MA Act. She then deposed:
"At the time, I thought that as I was driving to work, the case was only one of workers compensation and not one for damages under the Motor Accidents Act. I thought the matters were different."
There was no suggestion that the respondent ever enquired of the personnel officer as to whether the fact that the accident occurred when she was driving to work thus entitling her to workers compensation payments under the Workers Compensation Act 1987 prevented her from also claiming damages under the MA Act.
The respondent resumed normal duties at the Commission from approximately March 1998. She claimed and received workers compensation payments from the Commission's workers compensation insurer including medical and related expenses incurred as a result of the accident. Between March 1998 and April 2001 she worked for the Commission at times on a part-time basis and at other times on a full-time basis. From September 1997 until September 2003 she consulted various medical practitioners in relation to the injuries and their sequelae, which she alleged she had sustained as a consequence of the accident. These consultations included those with some nine specialist medical practitioners retained by the Commission's workers compensation insurer.
From June 1998 to December 2000 the respondent was employed in the Commission's office at Fairfield. From December 2000 to May 2001 she returned to the Sydney office. On 1 May 2001 the respondent requested a voluntary redundancy package from the Commission predicated upon her resigning from its employ. That request was granted. She did not work again until mid-December 2002 when Dr Yenson advised her to resume work. She eventually found a job at a Caltex Service Station in Fairfield West where she was employed at the time of her application for leave to the District Court.

Because the respondent had assumed that she was not entitled to claim damages under the MA Act due to the fact that the accident happened on her way to work, she took no steps to pursue any claim under that Act. However, just prior to 26 August 2004 Dr Yenson advised her to consult a solicitor. Although in her affidavit she deposed that Dr Yenson had informed her that as she was not getting any better she was entitled to claim for damages, in cross-examination she said (T 42(30)) that she went to see Dr Yenson who advised her that she was not getting any better and so was entitled to a claim which he thought was a workers compensation claim. Be that as it may, on 26 August 2002 she consulted Mr Kramer of Ron Kramer & Associates, solicitors at Fairfield, who advised her for the first time that she was entitled to weekly and lump sum compensation pursuant to ss 60, 66 and/or 67 of the Workers Compensation Act as well as damages for personal injuries under the MA Act. Mr Kramer also advised the respondent that the time limit for commencing any claim under the MA Act had expired and that she would therefore have to act quickly if she wished to make a claim. The respondent understood Mr Kramer's advice and instructed him to pursue whatever workers compensation and common law rights were available to her as a result of the accident.
On 3 September 2002 the Commission's workers compensation insurer ceased paying workers compensation to the respondent. On or about 26 September 2002 Mr Kramer forwarded to CIC Allianz, the appellant's CTP insurer, a motor accident personal injury claim form filled in and completed by the respondent and, on the same date, forwarded a letter to the appellant claiming damages for injuries sustained in the accident. The former document was, I assume, a late claim within the meaning of s43A(2) of the MA Act and purported to contain a full and satisfactory explanation for the delay in the making of the claim as required by that provision. At the same time, Mr Kramer arranged medico-legal consultations for the respondent with a neurologist and a surgeon whom she consulted on 28 November 2002 and 19 December 2002 respectively. Mr Kramer also sought an updated report from a Dr Sundaraj with whom the respondent had already consulted prior to seeing Mr Kramer, and who provided him with a report on 30 April 2003.
It would appear that after the receipt of Dr Sundaraj's report, Mr Kramer drafted an affidavit to be sworn by the respondent for the purpose of making an application for leave pursuant to s52(4) of the MA Act and arranged a conference for 24 June 2003 with junior counsel to settle that affidavit. For reasons never explained that conference was cancelled by counsel and rescheduled for 4 September 2003 (approximately ten weeks later). The respondent's affidavit in support of the leave application, which set out what purported to be the circumstances relating to the delay in commencing proceedings, was duly settled by counsel and sworn on 16 September 2003. The motion for leave was filed on 18 September 2003 and the respondent's affidavit was filed on 22 September 2003.
The respondent was extensively cross-examined on her affidavit before the primary judge but Mr Kramer, who swore an affidavit on 18 September 2003 relating to the period from 26 August 2002 (when he first consulted with her) to 16 September 2003, was not cross-examined.
The relevant statutory provisions
As I have already observed, in order to commence proceedings under the MA Act after 3 September 2000, the respondent needed to obtain the leave of the District Court pursuant to s52(4) thereof. Section 52(4B) was one of two critical provision with which the respondent was required to comply and was in the following terms:
"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 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as the date of the relevant motor accident."
So far as the requirement in (b) above is concerned, the primary judge found that it was satisfied and there is no challenge by the appellant to that finding.
Section 40(2) contains a definition of the expression "a full and satisfactory explanation". It is in the following terms and governs the meaning of the same expression where appearing in s52(4B)(a):
"In this Part, 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."
What does s40(2) require?
Section 40(2) has been the subject of two authoritative decisions which are relevant for present purposes. The first is that of this Court in Buller v Black (2003) 56 NSWLR 425. That case concerned the requirements of ss 43 and 43(A) of the MA Act with respect to the making of a claim under the MA Act as distinct from the commencement of proceedings in respect of a claim. Under s43A(7) the Court must dismiss proceedings commenced in respect of a late claim if it is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim. The onus of so satisfying the Court is on the defendant. However, where leave to commence proceedings is sought by a claimant pursuant to s52(4), the onus of satisfying the Court that the claimant has provided a full and satisfactory explanation for the delay in commencing proceedings is on the claimant, in this case, the respondent. So much was common ground.
The relevance, however, of Buller relates to the comments of Mason P and Giles JA, who disagreed in the result but not on the relevant principles, as to the meaning of s40(2) that applied in that case as it does in the present. Relevantly, in the present case it is the second sentence or limb of s40(2) that in my opinion constitutes the nub of the appeal. The appellant did not seek in any meaningful way to challenge so much of the primary judge's decision relating to the first sentence of the subsection that held that the respondent's explanation was "full" in that it contained a full account of the conduct, including the actions, knowledge and belief of the respondent, from the date of the accident until the date of providing the explanation.
With respect to the second limb or sentence of s40(2), the President adopted what fell from Giles JA in Diaz v Truong (2002) 37 MVR 158 at 165 [40]-[42]. Having observed that the purpose of the second limb of s40(2) was to set an objective standard of conduct which the full account of the conduct to which the first sentence of the subsection refers must achieve, Giles JA, with whom Ipp JA agreed, said this:
"[42]The standard of a reasonable person in the position of the claimant failing to comply with the duty is understandable. The stand of a reasonable person in the position of the claimant being 'justified in experiencing' a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay."
Giles JA was also a member of this Court in Buller. After referring to what he had said in Diaz, his Honour observed (at 442 [96]) that
"[s]atisfaction that a claimant does not have a satisfactory explanation for the delay in making the claim involves a normative judgment. It is not the exercise of a discretion but where minds may reasonably differ in the making of the normative judgment it must be asked whether the judge's determination was open to him. If it was, error is not shown simply because another mind might have come to a different determination."
The second authority of direct relevance is Russo v Aiello (2003) 215 CLR 643 where the High Court was concerned with ss 43(2) and 43A(7) of the MA Act. Nevertheless, they were also concerned with the concept of a "full and satisfactory explanation" as defined in s40(2).
At 645 [4], Gleeson CJ noted that s40(2) dealt with two elements. The first, being a full explanation, was defined to be a full account of the conduct, including actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation. The Chief Justice then added:
"The word 'full' takes it meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant. The subsection goes on to provide 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."
In this respect the Chief Justice also observed (at 646 [7]) that:
"the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it has caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration." (emphasis added)
In their joint judgment, Gummow and Hayne JJ observed with respect to s40(2) (at 659 [58]):
"The question the statute presents is whether the court is satisfied, on all the material before it, that the claimant does not 'have' a full and satisfactory explanation for delay. The proceedings must be dismissed [as s43A(7) requires] if the court is satisfied that either or both (i) it does not have before it 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, or (ii) that a reasonable person in the position of the claimant would not have been justified in experiencing the same delay."
So far as this last requirement is concerned, their Honours observed (at 662 [74]) that
"[w]hether a 'reasonable person' would have been so justified requires an evaluation by reference to a hypothetical objective standard and in light of the objects of the Act."
Even so, as Giles JA observed in Buller (see [61] above) and McHugh J remarked in Russo (at 651-652 [27]), a "full and satisfactory explanation" for delay is
"an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely different views. It is therefore properly described as a discretionary judgment. Because that is so, the Court of Appeal could set aside the primary judge's decision on the issue only on the basis of the well-known principles concerning an appeal against a discretionary judgment".
I assume that McHugh J in the last sentence of the above citation, was referring to the principle in House v The King (1936) 56 CCR 499 at 505. If so, it is inconsistent with the observation of Giles JA in Buller to which I have referred and of Mason P in the same case at 434 [39]. All agree that a normative judgment is involved but in my opinion, the better view is that it is discretionary only in the sense referred to by Giles JA in the passage from his judgment which I have recorded in [61] above. This also accords with the view of Mason P in Blackburn v Allianz Australia Insurance Ltd (2004) 61 NSWLR 632 at 634 [2]-[4].
The reasoning of the primary judge
Having set out the facts to which I have referred above, the primary judge referred (at [13]) to the fact that on 3 September 1997 the respondent was driving a motor vehicle on a periodic journey. Her Honour then found, as I have also noted, that immediately after the accident the respondent had no doubt in her mind that it was the defendant who was responsible for it.
As to the respondent's knowledge or awareness that persons injured in a motor vehicle accident could claim damages under the MA Act, the primary judge made the following findings (at [32]):
"Between mid 1997 and 23 August 2002 the plaintiff received printed data referring to her third party insurer. From whatever she heard in the course of her duties at the Commission, she deduced, correctly, that her second accident occurred on a periodic journey and entitled her to workers' compensation. In the course of the plaintiff's duties at the Commission she became aware that certain claims for damages for personal injuries arose from motor accidents. She concluded that no such claim was available to her. The plaintiff did not seek legal advice."
It is appropriate to interpose at this point the respondent's evidence in cross-examination relevant to the above findings.
I propose to set out the relevant exchanges between counsel and the respondent in the order in which they appear in the transcript. However, I shall record them in separate paragraphs which will facilitate further reference to them, where necessary, later in these reasons.
The following exchange took place at T 41(20-45):
"Q.And there are time limits in relation to criminal law matters are there not?
A.           That's right.
Q.And you're aware that time limits need to be adhered to don't you?
A.           That's right.
Q.And you knew that prior to your injury in September of 1997 didn't you?
A.           Yes.
Q.And you also realised prior to that date that failure to comply with notice requirements and time requirements can cause problems in cases?
A.           Yes.
Q.And you realised didn't you that CTP Insurance, personal injury damages insurance involved time limits of some description or other?
A.           Well to tell you the truth no I didn't.
Q.But you realise that they could involve some time limits?
A.Yeah possibly. See I never thought I'd be in an accident that's why."
Having repeated in response to a question from her Honour that she had never read the guidelines to the CTP as she thought that she would never be in an accident, the exchange continued (at T 41(51) - 42(21)):
" Q.But you were in an accident and you still didn't read the guidelines to the CTP is that right?
A.The reason of that was because I was driving to work I thought I was only benefit to workers compensation claim and not to the CTP.
Q.Well you realise that you had CTP insurance over your vehicle did you not?
A.           That's right.
Q.And that was to benefit somebody you might injure if you were driving negligently is that right?
A.           Yes, that's right.
Q.And so that they could make a claim for damages against you if they were injured is that right?
A.           Yep, that's right.
Q.And likewise if they injured you, you realise that there would be CTP insurance available for you if you wanted to bring a damages claim didn't you?
A.Yes. But like I said I was driving to work and I thought I could only claim for workers compensation.
Q.Yes but you realise CTP insurance would otherwise be available to you is that right?
A.That's right if I wasn't – I thought if I wasn't driving to work yes it would be available."
The foregoing evidence of the respondent makes clear that at all times she was aware firstly, that a workers compensation claim was different from a CTP claim; secondly, the purpose of CTP insurance was to enable a claim for damages to be made against a person who drove negligently and caused injury; thirdly, that had she not been driving to work, she realised that a third party claim would be available to her; and fourthly, that as she was driving to work she thought her only claim was in respect of workers compensation.
After referring to seeing Mr Kramer who advised her that she was entitled to claim damages in respect of the accident, the following further exchange took place (T 42(35) - 43(5)):
"Q.You were – so you were aware that damages claims existed for motor accidents weren't you?
A.           Yes.
Q.And you made your own legal decision is that, if I can put it that way that you were only entitled to workers compensation right is that right?
A.           That's right.
…
Q.Certainly you formed a belief that you didn't have any rights is that right?
A.           That's right.
Q.That was without the benefit of knowing what the law was in that area is that right?
A.           That's right."
The cross-examination then returned to the question of the respondent's knowledge of time limits referred to in [73] above in the following exchange (T 43(11-22)):
"Q.Well your evidence before was that you were aware that complications can occur in criminal matters --
A.           Yes that's right.
Q.           --when things get out of time is that right?
Q.           That's right yeah.
Q.And you'd be well aware that that can carry over into other types of legislation including personal injury damages claims, that's right isn't it?
A.           Yes."
The primary judge correctly found (at [32]) that the respondent did not seek legal advice. This was because she had concluded that because the accident occurred on a periodic journey to work, she was not entitled to damages for personal injuries arising from the accident but only to workers compensation. However, relevant to the issue posed by the second limb of s40(2), although not referred to by the primary judge, is the following evidence.
Although the respondent only worked in the criminal section of the Commission both at its Sydney and Fairfield offices, nevertheless she gave the following evidence (at T 43(56) - 44 (41)):
"Q.But the Legal Aid Commission where you worked also has a civil section does it not?
A.           That's right.
Q.And you never sought advice from any person in that civil section either did you?
A.           No.
Q.You've relied on whatever view you yourself had formed about whether you had a claim for damages or not didn't you?
A.           Yes.
Q.You knew all along that you had significant injuries that impacted on all aspects of your life didn't you?
A.           Yes.
Q.And you never sought to do anything about that until 26 August 2002 or thereabouts did you?
A.           That's right.
…
Q.           You'd been at Legal Aid Commission since 1986?
A.           That's right.
Q.So it wasn't as though the solicitors there were unapproachable or anything was it?
A.           No.
Q.           You knew them --
A.           But we never --
HER HONOUR: Wait a moment please for the question.
SWINTON: Q.     If you had sought some advice you would've expected to be given some advice wouldn't you?
A.           Yes."
In re-examination the respondent gave the following evidence (at T 49(11-24)); T 50(15-25)):
"Q.Now when you made the phone calls to these solicitors would you more often or not actually talk to the solicitor or would you talk more often than not with persons employed in that solicitor's office?
A.           No it was directly with the solicitor.
Q.Had you ever imposed upon any solicitors whilst you were doing this work, from the time you started, ever asked them about any private matters of your own?
A.           No never.
Q.           Why's that?
A.Never came up, I'm not sure.
…
Q.If you were assigning a matter to a barrister would you speak to the barrister himself or would you speak to his clerk?
A.Mostly to his clerk but if the barrister was available yes to the barrister.
Q.Had you in the time that you've ever spoken to any barristers prior to this motor accident in 1997 had you ever imposed on any barristers for a private opinion as to a matter that may or did affect you?
A.           No."

Such advertising frequently added the lure of a free initial consultation. The reasonable person would not in such circumstances be discouraged by the prospect of incurring legal costs at least in the first instance.
It belies commonsense, in such circumstances to say that to a reasonable person in the respondent’s position would have been justified in experiencing the same delay. A reasonable person in the respondent’s position would have obtained legal advice which, it might reasonably be inferred would have been correct, would have disabused her of her erroneous opinion, would have led to her making a claim and, if necessary, commencing court proceedings within the time period prescribed by s 52(4).
I agree with the orders Tobias JA proposes.

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LAST UPDATED: 13/12/2005