Limitation periods in civil proceedings

Extending a limitation period

There are only a few exceptions to extend limitation periods so it is important not only to get good legal advice, but also prompt legal advice.

Governing legislation

The main piece of legislation that governs limitation periods in Queensland is the Limitation of Actions Act 1974, although some limitations are found in other acts (such as the Anti-Discrimination Act 1991 and Industrial Relations Act 2016). There are also separate limitation periods for some commonwealth laws, for example: under the Competition and Consumer Act 2010 (incorporating the Australian Consumer Law) and the Fair Work Act 2009.

Limitation periods for different causes of action

The main limitation periods that Gibbs Wright lawyers deal with are:

Note that there are several other limitation periods not listed above. The limitation periods listed are subject to change and are simplified and may not apply to you and your particular issue. You should always seek immediate and thorough legal advice on any claim because limitation periods can be very dangerous for plaintiffs and many defendants will “play for time” so that limitation periods lapse and the claim becomes worthless.

When does the limitation period start?

One of the most challenging aspects of limitation dates is when the limitation clock starts. The wording of the legislation for contract law, for example, reads:

“The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose…”

It is therefore necessary to determine when the “cause of action arose”. An “action” is defined as any proceedings in a court of law.^[1] The word “cause” is not defined in the legislation.

The courts have decided that a “…cause of action accrues once the plaintiff is able to issue a statement of claim capable of stating every existing fact which is necessary for the plaintiff to prove to support his or her right to judgment”.^[2]

A cause of action in contract arises even if the breach is unknown.^[3] Sections 14 to 19 of the Limitation of Actions Act provides some guidance on when certain (but less commonly used) causes of action arise.

There is sometimes an unclear dividing line between facts which involve a new cause of action and those which are simply further particulars of the cause already claimed. It will usually be the case, however, that a different breach with different consequences will be considered a new cause of action.^[4]

If this all sounds confusing, it can be. It is best to get legal advice.

Filing court documents before time runs out

Generally speaking, if a person does not commence proceedings (by filing certain specific court documents) within the relevant limitation date a defendant will usually have a complete defence against a claim because it is “statute-barred”.

An action commenced outside of a limitation period is not decided on the merits of the case and it is largely immaterial whether the plaintiff has a valid claim. A defendant will usually be able to defeat a claim, even a valid claim, on the sole ground that the limitation period has expired.

Note that whilst the usual position is that the defendant has the onus of raising a defence, there are exceptions, for example, recovery of land^[5] and conversion or wrongful detention of chattels.^[6]

Reasons for limitation periods

It is usually understood that limitation periods exist to:

1. ensure that defendants are not subject to an indefinite threat of being sued;
2. protect evidence (in particular the retention of documents and the ability to locate and have witnesses give evidence with reliable recollection);
3. provide certainty of exposure to liability (and the potential impact on insurance premiums and the cost of goods and services);
4. have matters dealt with as quickly as possible which is considered to be in the public interest; and
5. improve the administration of justice generally and lower the cost for the justice system (for example, if evidence is lost there may be more trials and longer running trials to resolve disputes).^[7]

Inadvertently missing limitation periods

Whether not knowing about limitation dates or incorrectly calculating limitation dates, both the general public and solicitors have inadvertently fallen outside of limitation periods.

Many professional negligence claims against solicitors are caused by the failure to correctly identify limitation dates. If a solicitor has missed a limitation period, this will usually constitute professional negligence. If your solicitor has missed a limitation period, you should contact us for advice.

References

1. Limitation of Actions Act 1974 (Qld) s 5. ↩︎
2. McQueen v Mount Isa Mines Ltd [2017] QCA 259; see also Read v Brown (1888) 22 QBD 128 at 131 and Do Como v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245. ↩︎
3. Kamloops v Nielsen [1984] 2 SCR 2 (Canada); considered in Hawkins v Clayton (1988) 78 ALR 69. ↩︎
4. Borsato v Campbell [2006] QSC 191; Wolfe v Queensland [2009] 1 Qd R 97. ↩︎
5. Limitation of Actions Act 1974 (Qld) s 24(1). ↩︎
6. Limitation of Actions Act 1974 (Qld) s 12(2). ↩︎
7. See for example the Queensland Law Reform Commission discussion paper ‘Review of the Limitation of Actions Act 1974 (Qld), December 1997. ↩︎