Limitation of Actions Consultation - Law Commission

(b) while he is, for a continuous period of twenty-eight days or
upwards, incapable of, or substantially impeded in, the
management of his affairs in relation to the cause of action in
respect of the limitation period for which the question arises, by
reason of-
(i) any disease or any impairment of his physical or mental
condition;
(ii) restraint of his person, lawful or unlawful, including
detention or custody under the Mental Health Act 1958;
(iii) war or warlike operations; or
(iv) circumstances arising out of war or warlike
operations. 180
10.63 Some jurisdictions, however, provide for a regime under which a prospective
defendant can start time running against a prospective plaintiff who is under a
disability by serving a notice to proceed on the person in charge of the plaintiff’s
affairs. 181
10.64 In New South Wales, the disability regime is not applicable to the recovery of a
penalty or forfeiture except where the person having the cause of action is an
aggrieved party. 182
Some jurisdictions have more detailed provisions dealing with
the limits of the disability regime. For example, in Queensland section 29 of the
Limitation of Actions Act 1974 provides: 183
(2) Notwithstanding [the extension of time provided for in
subsection 1]-
(a) where a right of action that has accrued to a person
under a disability accrues on the death of that person while
180 New South Wales Limitation Act 1969, s 11. See also Australian Capital Territory
Limitation Ordinance 1985, s 8(3). Cf the position in Queensland and Tasmania, where the
plaintiff is regarded as under disability if he or she is a minor, of unsound mind or
imprisoned, and Victoria, where minority and unsoundness of mind (but not
imprisonment) are regarded as disabilities: Queensland Limitation of Actions Act 1974, ss
5(2) and (3); Tasmania Limitation Act 1974, ss 2(2) and (3); Victoria Limitation of
Actions Act 1958, s 3(2) and (3).
In South Australia the legislation provides that “...a person is under a legal disability in
relation to an action or proceeding while he remains an infant or while he is subject to a
mental deficiency, disease or disorder by reason of which he is incapable of reasoning or
acting rationally in relation to the action or proceeding that he is entitled to bring”:
Limitation of Actions Act 1936, s 45(2). In the Northern Territory a “disabled person” is
defined to mean “a person who, by reason of age, disease, illness or mental or physical
infirmity, is incapable of managing his affairs in respect of legal proceedings”: Limitation
Act 1981, s 4 .
181 Northern Territory Limitation Act 1981, s 38; New South Wales Limitation Act 1969, s
53; Tasmania Limitation Act 1974, s 27; Australian Capital Territory Limitation
Ordinance 1985, s 31.
182 New South Wales Limitation Act 1969, s 52. See also Australian Capital Territory
Limitation Ordinance 1985, s 30(3); Northern Territory Limitation Act 1981, s 36(3). A
similar provision applied in England: Limitation Act 1939, s 22(e). For the meaning of
“aggrieved party” see Robinson v Currey (1881) 7 QBD 465.
183 See also Tasmania Limitation Act 1974, s 26; Victoria Limitation of Actions Act 1958, s
23.
202