The authority of Nominal Defendant v Manning, which holds that a second application for extension of a limitation period is not necessarily an abuse of process even if based on evidence available at the time of the first application, may need to be reconsidered in light of the Civil Procedure Act 2005 (NSW), ss 56-60. Where a witness's evidence in cross-examination is ambiguous, the cross-examiner bears the risk of failing to clarify the ambiguity, and an appellate court will not readily disturb the primary judge's interpretation of such evidence. The absence of documentary evidence (such as medical imaging films) that would enable a defendant to reconstruct decision-making processes constitutes actual prejudice for the purposes of s 60G of the Limitation Act 1969 (NSW).
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