A plaintiff's drug addiction and personal difficulties, while attracting sympathy, do not constitute a sufficient explanation for prolonged neglect of litigation where the plaintiff remained aware of the proceedings throughout. An error of fact by a primary judge regarding the parties' relationship (employee vs stranger) may be sufficiently material to vitiate a discretionary decision where it leads to unfounded inferences about the defendant's knowledge and opportunity to investigate the claim. The question left open by the split between Santow JA and Bryson JA is the degree of materiality required before an error of fact justifies appellate intervention in a discretionary procedural decision.
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