Under s.23A(3)(b) of the Limitation of Actions Act 1958 (Vic), the court must consider the likelihood and extent of potential prejudice to the defendant, not merely proven actual prejudice; potential prejudice cannot be ruled out simply because it has not been established to have occurred. The availability of a cause of action against a negligent solicitor whose default necessitated the application is a relevant consideration under s.23A but is not an automatic bar to extension; its weight depends on the circumstances of each case. The Victorian s.23A regime, which requires consideration of all the circumstances including specified factors, does not permit the conclusion that proof of prejudice alone must lead to refusal of an application.
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