Limitation of Actions Consultation - Law Commission

Capital Territory, the Limitation Ordinance 1985 allows the court to extend the
limitation period for an action for personal injuries for such period as it
determines, if it is just and equitable to do so. 154
Similar provisions have been
adopted in New South Wales 155
and Victoria. 156
In Tasmania, the court may extend
the limitation period of three years in a personal injury case for a period of no
more than a further three years if it is considered just and reasonable so to do. 157
In
personal injury actions in Queensland, if any material fact of a decisive character is
only discoverable after the beginning of the final year of the limitation period, the
court may order that the limitation period be extended to the date one year after
the date of discoverability. 158
10.57 But some other jurisdictions have also provided for an extended limitation period
in cases of latent damage other than personal injury. South Australia and the
Northern Territory confer on the court a discretion to extend the limitation period
in all claims to such an extent and upon such terms as the court thinks fit (in the
Northern Territory) or as the justice of the case requires (South Australia), where
the plaintiff only becomes aware of material facts after the date twelve months
before the expiration of the limitation period, and commences proceedings within
twelve months after his or her discovery of the relevant facts. 159
In the Australian
Capital Territory, the court has a discretion to extend the limitation period in cases
of latent damage to property up to 15 years from the act or omission giving rise to
the action if it is just and reasonable to do so. 160
(4) Actions for Breach of Trust
10.58 Limitation provisions for actions for breach of trust are also closely based on
English legislation. In Western Australia and South Australia the relevant
provisions come from the English Trustee Act 1888: subjecting actions against a
trustee to a limitation period of six years except where the claim is based on fraud,
154 The court is required to have regard to all the circumstances of the case, including some
identified factors. See Limitation Ordinance 1985, s 36.
155 In cases of non-latent injury, the court may extend the normal three year limitation period
to a maximum of five years: Limitation Act 1969, ss 60A-E. Where the plaintiff is unaware
of the injury, the court may extend the limitation period for such period as it thinks fit,
providing that an application is made by the plaintiff within three years of his or her
knowledge of the nature or extent of the injury, or of the connection between the injury and
the defendant’s act or omission: Limitation Act 1969, ss 60G, 60I(1). The court may order
extensions of time, both under ss 60A-E and under ss 60F-J in relation to the same claim:
see s 60J. See further Harris v Commercial Minerals Ltd (1996) 70 ALJR 425.
156 Limitation of Actions Act 1958, s 23A(1) - (2).
157 Limitation Act 1974, s 5(3).
158 Limitation of Actions Act 1974, ss 30 - 31. For a recent discussion of the Queensland
provision, see Brisbane South Regional Health Authority v Taylor (1996) 70 AJLR 866.
159 South Australia Limitation of Actions Act 1936, s 48; Northern Territory Limitation
Act 1981, s 44. In cases of defective building work, South Australia, the Northern Territory
and Victoria have introduced legislation providing for a ten year limitation period running
from a fixed date such as the date of completion, or the issue of an occupancy permit or
final certificate by the local regulatory authority. No action may be brought outside this
period. See Victoria Building Act 1993, s 134; South Australia Development Act 1993, s
73; and Northern Territory Building Act 1993, s 160.
160 Limitation Ordinance 1985, s 40(1).
199