On an application to rescind a deemed dismissal under DCR Pt 12 r 4C(4), the question is what is fair and just between the parties, not whether the applicant has provided a full and satisfactory explanation for delay as in limitation period cases. Principles from Brisbane South Regional Health Authority v Taylor regarding presumptive prejudice from delay must be applied cautiously in this context. Where uncontradicted expert evidence establishes a party's mental incapacity throughout the relevant period, the court must give that evidence substantial weight and draw the inference that the incapacity played a substantial role in the delay, even where the party's solicitors did not take steps to have a tutor appointed. A substantive right to have a pending application determined is preserved by s 30 of the Interpretation Act 1987 (NSW) when the enabling rule is omitted.
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