In Tasmania, like in all jurisdictions in Australia, any party who has been wronged and is considering commencing Court proceedings, needs to be acutely aware of the time limits which might apply to certain causes of action. In some instances, if you leave commencing proceedings too long you may find the other party has a complete defence to your claim. If your claim is “out of time” it is because the relevant statutory limitation period has expired.
A limitation period will generally commence from when the cause of action first arises and will expire according to the various limits contained with the Limitation Act 1974.
(1) Why do Limitation Periods Exist?
There are a variety of reasons why limitation periods exist. Principally, they are designed to put an end to disputes, particularly disputes that are many years old. It is recognised as being in the public interest for disputes to be resolved as quickly as possible.
Allowing old disputes to be litigated without end increases the likelihood of important evidence being lost, key witnesses no longer being available, and people’s memory of important events tends to deteriorate with the passage of time.
(2) What are the Limitation Periods in Tasmania?
If a series of facts suggests you have suffered a wrong at the hands of another party, that series of facts may be capable of being characterised as a “cause of action”. For example, if a contract existed between A and B, the terms of which have been breached by A, B may have a cause of action in contract against A. Generally speaking, the limitation period would run from the date of A’s breach of contract – whenever that may be.
Each individual action has its own limitation period. The point in time from when the limitation period commences can be different for each cause of action and is sometimes very complicated to determine. Not all limitation periods are defined under the Limitation Act 1974. Some, such as the limitation period for defamation, is set out under separate legislation (see, for example, section 20A(1) of the Defamation Act 2005). The Building Act 2016 also sets different limitation periods for building-related causes of action.
Some of the more common actions and their limitation periods are as follows:
(3) How do Limitation Periods Work?
A limitation period does not extinguish a plaintiff’s rights. Normally, it is a tool used by a defendant to bar the plaintiff’s proceedings – it is used as a complete defence to a claim that is brought outside of the relevant period.
For that reason, it is incumbent upon the defendant to raise it in their defence. If the defendant fails to raise it as a defence, the Court will not consider the operation of limitation periods on its own motion.
Notwithstanding this, a plaintiff who knowingly issues proceedings out of time may suffer significant adverse costs consequences as a result of being unsuccessful in the proceedings.
(4) What can be done if a Limitation Period has Expired?
In Tasmania there is no general provision that enables a limitation period to be extended. In very limited circumstances however, it may be possible to have limitation periods extended by order of the Court. Some limitation periods can also be extended by operation of law.
For example, Part 3 of the Limitation Act 1974 sets out circumstances where limitation periods can be extended, which includes where the plaintiff is a person under a disability. Limitation periods may also be reset in circumstances where there has been an acknowledgement or part-payment of a debt by a defendant. In some circumstances, the law also recognises that it is just to allow an extension of time where there is cogent evidence of fraud or mistake.
Under Tasmanian law, some specific actions can be extended where the Court decides it is “just and reasonable” to do so. For example, section 5A (5) of the Limitation Act 1974 allows a Court to extend a limitation period for actions in negligence, nuisance or breach of duty and where the claim includes damages for personal injury. In such an instance, if the Court considers it “just and reasonable”, it may extend the limitation period from three (3) years from the date of discoverability to six (6) years from that date.
(5) How we can help
If you are considering commencing legal proceedings, we can assist you in determining what limitation periods may apply to your proposed action. Likewise, if you have been threatened with legal proceedings or proceedings have been commenced against you, we can assist you in understanding what protection you may have under the applicable legislation and assist you correctly raise these matters in your defence.