A deliberate decision on legal advice not to commence common law proceedings, adhered to until after the limitation period expires, is a powerful factor against extension of time even where the plaintiff was not informed of the precise limitation period. A written statement tendered under the Evidence Act where a witness is unavailable is not an adequate substitute for live testimony when assessing prejudice to a defendant. Once reasonable efforts to locate a witness have failed, the onus shifts to the applicant to show that more extensive efforts would have been successful. The temporal reference point for assessing prejudice in extension applications may be the date of the judge's decision rather than the date of filing, but this question was left open.
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