When assessing prejudice to a defendant in a limitation extension application, references to the position the defendant would have been in had proceedings been brought within time are permissible when made in context of addressing a specific submission about a particular witness's absence, provided the primary judge has correctly directed himself on the applicable principles and the references are not determinative of the exercise of discretion. The unreliability of a plaintiff's recollections may reflect on the plaintiff's ability to make his case rather than constituting prejudice to the defendant, depending on the circumstances. The Commonwealth's repeated reliance on the same unsuccessful arguments across Melbourne/Voyager collision cases was questioned as potentially inconsistent with model litigant obligations.
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