Limitation of Actions Consultation - Law Commission

causes of action. A confirmation is only effective if given before the expiry of the
limitation period. 188
Western Australia and South Australia in contrast have kept
provisions based on English statutes from the nineteenth century, so that the rules
on acknowledgement and part payment vary from one claim to another. 189
The
provisions on Queensland, Tasmania and Victoria are derived from the English
Limitation Act 1939. 190
10.67 In most Australian jurisdictions, where the action is based on fraud or mistake, or
the cause of action has been deliberately concealed from the plaintiff, the
limitation period will not run until the plaintiff discovered the cause of action or
should with reasonable diligence have discovered it. 191
In Western Australia and
South Australia, however, the running of time is only delayed 192
for equitable
actions to recover land or rent, where there has been a concealed fraud. 193
4. NEW ZEALAND
10.68 The relevant New Zealand legislation is the Limitation Act 1950, which is based
on the English Limitation Act 1939. The legislation generally applies fixed
limitation periods, in most cases six years, running from the accrual of the cause of
action. The 1950 Act was reviewed by the New Zealand Law Commission, and in
its report, published in 1988, 194
the Commission recommended the replacement of
188 In most Australian jurisdictions, the expiry of the limitation period bars the right of action
rather than extinguishing the plaintiff’s right, except in the case of actions for the recovery
of land or rent, where the right and title of the plaintiff are extinguished. In the Australian
Capital Territory, Northern Territory, Queensland, Tasmania and Victoria, the expiry of the
limitation period also extinguishes title in an action to recover chattels. See Australian
Capital Territory Limitation Ordinance 1985, s 43(1); Northern Territory Limitation
Act 1981, s 19(2); Queensland Limitation of Actions Act 1974, s 12(2); Tasmania
Limitation Act 1974, s 6(2) and Victoria Limitation of Actions Act 1958, s 6(2). New
South Wales takes a different approach, viewing the expiry of a limitation period as
extinguishing the right rather than as a procedural bar in all cases: New South Wales
Limitation Act 1969, s 63.
189 A distinction must for example be drawn between ordinary personal actions, specialty
debts, actions relating to land, mortgages, actions to recover money charged on land and
other matters.
190 Queensland Limitation of Actions Act 1974, ss 35 - 37; Tasmania Limitation Act 1974, ss
29 - 31; Victoria Limitation of Actions Act 1958, ss 24 - 26.
191 Australian Capital Territory Limitation Ordinance 1985, ss 33 and 34; New South
Wales Limitation Act 1969, ss 55 and 56; Northern Territory Limitation Act 1981, ss 42
and 43; Queensland Limitation of Actions Act 1974, s 38; Tasmania Limitation Act
1974, s 32; Victoria Limitation of Actions Act 1958, s 27. In New South Wales, Australian
Capital Territory and Northern Territory the deliberate concealment of the identity of the
defendant will also stop time running.
192 Or, in South Australia, suspended: see para 10.59, n 168 above.
193 Western Australia Limitation Act 1935, s 27; South Australia Limitation of Actions Act
1936, s 25. But in South Australia, where there has been fraudulent concealment in a case
which does not fall within the section, the court may exercise its general jurisdiction to
extend the limitation period (see para 10.57 above).
194 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988). See also the
discussion paper that preceded the report, The Limitation Act 1950, PP3 (1987).
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