Under s 151D(2) of the Workers Compensation Act 1987, the correct test for granting leave to commence proceedings out of time is whether it is 'fair and just' to grant leave (per Salido v Nominal Defendant), not merely whether the delay has made a fair trial unlikely (per Holt v Wynter). A deliberate, fully informed decision to allow the limitation period to expire is a powerful factor against the grant of leave, and in the absence of special circumstances satisfactorily explaining the applicant's conduct, leave should ordinarily be refused even where the defendant has suffered no prejudice. Ramton v Cassin should not be followed in relation to interlocutory appeals capable of disposing of the entire case; such appeals should be heard before trial.
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