Smith v Grant

The case of Smith v Grant involved an appeal concerning an application for an extension of time to lodge a claim under the *Motor Accidents Compensation Act 1999* (NSW). The applicant sought this extension due to delays in lodging the claim, and the respondent insurer was critical of the conduct of the applicant's solicitor.

The central legal issues before the court were whether the applicant had provided a "full and satisfactory" explanation for the delay, as required by section 66(2) of the Act, and who bore the onus of proof in establishing this explanation. Specifically, the court considered whether a "full" explanation necessitated the applicant detailing their solicitor's conduct or their own knowledge of the limitation period.

The court reasoned that the assessment of a "full and satisfactory" explanation involves a normative judgment, requiring the delay to be something a reasonable person in the claimant's position would have been justified in experiencing, consistent with the objects of the Act, including early resolution of claims and provision of compensation. While the solicitor's conduct was relevant to the delay, the court held that section 66(2) did not directly require the solicitor's conduct to be "justified." The applicant was not obliged to anticipate every criticism of her solicitor or explain her knowledge of applicable diligence standards. Her account, including her solicitor's affidavits, constituted a "full account" without her needing to undertake such a task, especially as the insurer did not cross-examine her or her solicitor on these matters.

The appeal was dismissed, with the appellant ordered to pay the respondent's costs of the appeal and the application for leave to appeal. Leave to appeal was granted subject to the insurer filing a notice of appeal within seven days.