In applications to extend limitation periods under ss 60C and 60E of the Limitation Act 1969 (NSW), the party opposing extension bears an evidentiary onus to establish material pointing to particular areas of prejudice; the mere inability to locate potential witnesses, without evidence as to their availability or the particular information they might provide, does not constitute unassailable prejudice. The inquiry under s 60E(1)(b) is directed at whether a fair trial, not a perfect trial, remains possible. The Itek Graphix principle that a deliberate decision to allow a limitation period to expire is a powerful factor against extension does not apply where the plaintiff received unfavourable legal advice about the merits and did not make a fully informed choice to abandon common law rights.
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