When applying to rescind a deemed dismissal under Pt 12 r 4C of the District Court Rules, the whole period of delay must be considered in assessing prejudice — it is erroneous to discount prejudice that existed before the rule came into effect. The fact that an action was on foot and entitled to be on foot until the deemed dismissal rule applied is not a factor favouring rescission. The test is whether it is fair and just to rescind, applying the Salido guidelines, and the plaintiff bears the burden of demonstrating this.
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