Law of limitation [1 ed.] 9780409339451, 0409339458

Table of contents :
Full Title
Copyright
Preface
Table of Cases
Table of Statutes, Regulations and Rules
Table of Abbreviations
Table of Contents
Part I: Time Contextualised
1. Source and Justification for Time Bars
2. Nature of Time Bars
3. Application of Time Bars
Part II: Time Prescribed
4. Running and Computation of Time
5. Contractual Causes of Action
6. Tortious Causes of Action
7. Personal Injury Causes of Action
8. Causes of Action in Relation to Land
9. Causes of Action in Relation to Mortgages
10. Causes of Action in Relation to Trusts
11. Causes of Action for Money Under Statute
12. Other Causes of Action
13. Causes of Action in Equity
Part III: Time Suspended
14. Disability
15. Fraud and Concealment
16. Mistake
17. Acknowledgement and Part Payment
Part IV: Time Extended
18. Introduction to the Extension of Time
19. General Discretion to Extend Time — Northern Territory and South Australia
20. Extension of Time for Personal Injury Actions
21. Extension of Time for Defamation and Admiralty Actions
Part V: Time Reformed
22. Setting Time Bars and Running of Time
23. Ultimate Time Bars and Extending Time
24. Challenging Time Bars
Index

Citation preview

Law of Limitation

G E Dal Pont Faculty of Law, University of Tasmania

LexisNexis Butterworths Australia 2016

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND

LexisNexis LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelství Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEW DELHI Dott A Giuffrè Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE

TAIWAN UNITED KINGDOM USA

LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry Author: Title: ISBN: Notes: Subjects: Dewey Number:

Dal Pont, G E (Gino Evan). Law of Limitation. 9780409339444 (hbk). 9780409339451 (ebk). Includes index. Limitation of actions — Australia. Time (Law) — Australia. 347.94052.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Goudy. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface All lawyers, not merely specialists in particular fields, are expected to be aware of limitation periods.1 This awareness must translate to communicating to clients the existence of any relevant limitation period that may apply to the claim. In the common context of potential personal injury claims, it has been said that:2 [t]his is something a solicitor should explain to a client who may have an action available for damages for personal injury, particularly in circumstances where the solicitor is not immediately instructed to commence proceedings, and where the limitation period will elapse within a few months. The solicitor should adopt this course even where the solicitor forms the view that such an action might not have particularly strong prospects of success, and even where the solicitor genuinely believes that the client does not wish to institute proceedings and will probably never wish to do so. The solicitor’s role is to advise and explain: the decision is one for the client.

Accordingly, those acting for a plaintiff ‘have an obligation to give proper advice as to the steps available to preserve a cause of action within the limitation period’.3 This is not to say that limitations law is necessarily simple. Limitations statutes are, after all, ‘technical Acts’,4 and with technicality come difficulties. Beyond the relevant Limitation Act — always the first point of call in this context — commentary to assist Australian lawyers with issues of limitation has to date been confined to that found in legal encyclopaedias5 and in one of the two (now dated) jurisdiction-specific annotated Act publications.6 The current English works,7 though comprehensive, reflect a statutory schema that has digressed in important ways from Australian counterparts. Hence the justification for this work, which I hope will assist practitioners to navigate the intricacies of the limitations schemas — lamentably far from uniform — across Australia. There are various persons whom I wish to thank for their assistance in preparing this book. I have been assisted by David Turner, of the Victorian

Bar, in alerting me to various cases and matters worthy of inclusion. Thanks must extend to Hayley Moore and Georgina Gordon from LexisNexis for managing the project, and to Felicia Gardner for (again) high standard editorial and proof-reading work. As always, the staff of the University of Tasmania Law Library very much deserve credit for their untiring assistance in securing access to relevant material. The law in this work is stated to material available to me as at 28 April 2016. G E Dal Pont Hobart 1 July 2016 ______________________________ 1. 2. 3. 4. 5. 6.

7.

Nguyen v Jajic [2007] ACTSC 12; BC200700813 at [9] per Connolly J. Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22; BC200901484 at [19] per Harper M. Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [36] per McCallum J. Phillips & Co (a firm) v Bath Housing Co-operative Ltd [2013] 2 All ER 475; [2012] EWCA Civ 1591 at [56] per Longmore LJ. The more comprehensive of these, found in The Laws of Australia, has ‘dropped out’ to book form: P Handford, Limitation of Actions, 3rd ed, Thomson Reuters, Sydney, 2012. Namely G McGrath, D C Price and I Davidson, Limitation of Actions Handbook: New South Wales, Butterworths, Sydney, 1998; K R Rees and M Chapman, Limitation of Actions Handbook: Victoria, Butterworths, Sydney, 1997. Such as A McGee, Limitation Periods, 7th ed, Sweet & Maxwell, London, 2014; M Canny, Limitation of Actions in England and Wales, Bloomsbury Professional, West Sussex, 2013.

Table of Cases References are to paragraph numbers A A v D (1995) 127 FLR 372 …. 20.11 —v Hoare [2008] 1 AC 844; [2008] UKHL 6 …. 7.72, 7.73, 7.76, 7.87 —v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) …. 7.88 A, DC v Prince Alfred College Inc [2015] SASC 12 …. 14.15, 14.47, 14.48 —v— [2015] SASCFC 161 …. 14.15, 14.47, 19.17, 19.21, 19.29 AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 …. 7.87, 7.88, 20.69, 22.4 Abbatangelo v Whittlesea City Council (2008) V ConvR ¶54–750; [2007] VSC 529 …. 8.24, 8.26 Abdulla v Birmingham City Council [2012] ICR 1419; [2012] UKSC 47 …. 2.10 Ackbar v C F Green & Co Ltd [1975] 1 QB 582 …. 1.35 ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76 …. 11.26, 16.8 A’Court v Cross (1825) 3 Bing 329; 130 ER 540 …. 1.23, 1.25, 5.20 Adam v Shiavon [1985] 1 Qd R 1 …. 4.26 Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 …. 6.22 —v Bracknell Forest Borough Council [2005] 1 AC 76; [2004] UKHL 29 …. 20.69 —v Elphinstone (SC(Tas), Zeeman J, 22 June 1993, unreported) …. 20.119 Adelson v Associated Newspapers Ltd [2007] EWHC 3028 (QB) …. 21.9, 21.12

Afarin v Excelior Pty Ltd (2013) 16 DCLR (NSW) 279; [2013] NSWDC 65 …. 18.18 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 …. 1.27, 1.28, 1.36 Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436 …. 12.15, 12.16 Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63; [2003] VSCA 6 …. 4.27 —v— (2005) 223 CLR 251; [2005] HCA 38 …. 4.27 Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 …. 21.4 AIC Ltd v ITS Testing Services (UK) Ltd, The ‘Kriti Palm’ [2007] 1 All ER (Comm) 667; [2006] EWCA Civ 1601 …. 15.47 Aiken v Stewart Wrighton Members’ Agency Ltd [1995] 3 All ER 449 …. 5.41 Airey v Airey [1958] 2 QB 300 …. 1.4 Albany, The v Marie Josaine, The [1983] 2 Lloyd’s Rep 195 …. 21.31 Alcan Gove Pty Ltd v Zabic (2015) 325 ALR 1; [2015] HCA 33 …. 7.5, 7.6 Alcock v Casey (2007) 215 FLR 59; [2007] ACTSC 87 …. 17.8, 17.59 Alden v Gregory (1764) 2 Eden 280; 28 ER 905 …. 15.3 Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of New South Wales Nominees Ltd [2013] NSWSC 1168 …. 13.36 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 …. 17.57 Allcard v Skinner (1887) 36 Ch D 145 …. 13.12, 13.24 Allen v Drayton Coal Pty Ltd (CA(NSW), Clarke and Powell JJA, Badgery-Parker AJA, 1 December 1995, unreported) …. 20.52 —v Roughley (1955) 94 CLR 98 …. 8.24, 8.28, 8.32 —v Vehicle Builders Employees’ Federation of Australia (1978) 22 ALR 510 …. 16.13 Alliance Bank of Simla v Carey (1880) 5 CPD 429 …. 2.35 Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2 …. 7.21, 7.47, 7.50, 7.67 Aly v Aly (EWCA, 1 January 1984, unreported) …. 4.50 Amaca Pty Ltd v CSR Ltd [2015] VSC 582 …. 3.31, 5.2, 7.81, 13.37 —v Ridgway [2005] NSWCA 417 …. 19.11

Amantilla Ltd v Telefusion plc (1987) 9 Con LR 139 …. 17.57 AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63 …. 20.122, 20.123, 20.124 Andresakis & Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507; [2006] NSWCA 294 …. 20.22, 20.24 Anglo Irish Beef Processors International v Federated Stevedores Geelong [1997] 2 VR 676 …. 4.58 Anisiena v H Crane Haulage Pty Ltd [1974] VR 670 …. 19.14, 20.21 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 …. 1.2, 4.30 Applegate v Moss; Archer v Moss [1971] 1 QB 406 …. 10.22, 15.27, 15.29 Arbuckle v Shire of Boroondara (1896) 22 VLR 513 …. 6.18 Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 …. 15.47 Archbold v Scully (1861) 9 HL Cas 360; 11 ER 769 …. 3.32, 5.14, 13.7 Archie v Archie [1980] Qd R 546 …. 1.17, 1.23, 4.25, 4.26 Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 …. 3.7, 11.13, 22.2 Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161 …. 21.4, 21.7, 21.13 Ariaans v Hastings (1996) 36 IPR 211 …. 13.5 Armitage v Nurse [1998] Ch 241 …. 10.22, 10.27, 10.28 Armstrong v Milburn (1886) 54 LT 723 …. 15.7 Arnold v Commonwealth (SC(ACT), Miles CJ, 30 November 1995, unreported) …. 20.34 Art Reproduction Co Ltd, Re [1952] Ch 89 …. 2.14 Ashe v National Westminster Bank plc [2007] 2 EGLR 137; [2007] EWHC 494 (Ch) …. 9.8 —v— [2008] 1 WLR 710; [2008] EWCA Civ 55 …. 8.24, 8.26, 9.8 Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd [2015] TASFC 6 …. 5.12, 5.14 Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377 …. 5.26, 5.32

Atkinson and Horsell’s Contract, Re [1912] 2 Ch 1 …. 8.16 Atlantic and Pacific Fibre Importing and Manufacturing Co Ltd, Re [1928] 1 Ch 836 …. 17.39, 17.40 Atlantic Shipping & Trading Co Ltd v Louis Dreyfus & Co [1922] 2 AC 250 …. 4.57 Attorney General v Bradlaugh (1885) 14 QBD 667 …. 3.25 —v Cocke [1988] Ch 414 …. 10.11, 12.4 —v Stephens (1855) 6 De GM & G 111; 43 ER 1172 …. 8.50 —v Stewart (1817) 2 Mer 143; 35 ER 895 …. 1.9 —v Trustees of the British Museum [2005] Ch 397; [2005] EWHC 1089 (Ch) …. 2.13 Attorney-General of New South Wales v Love [1898] AC 679 …. 8.11 Attorney-General (Vic) v Black [1959] VR 45 …. 11.11 Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 …. 13.12 Australia and New Zealand Savings Bank Ltd, Re [1972] VR 690 …. 5.26 Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 …. 1.7, 2.2, 5.33, 9.10, 9.19, 9.20 —v Dzienciol [2001] WASC 305 …. 6.18, 14.5, 14.31, 14.43 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 …. 18.10 Australian Croatian Cultural & Educational Association ‘Braca Radici’ Blacktown Ltd v Benkovic [1999] NSWCA 210 …. 18.12, 20.51 Australian Deposit and Mortgage Bank Ltd, Re [1907] VLR 348 …. 8.7 Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 …. 1.4, 2.6, 2.8, 2.24 Australian National Airlines Commission v Newman (1987) 162 CLR 466 …. 1.35 Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339; [1999] FCA 1315 …. 3.32 Axford v Gray [2013] VSC 664 …. 20.7, 20.13, 20.17, 20.75

Azaz v Denton [2009] EWHC 1759 (QB) …. 7.19, 15.5, 20.9 B Baburin v Baburin [1990] 2 Qd R 101 …. 13.12 —v— (No 2) [1991] 2 Qd R 240 …. 13.12 Bailey v Cassaniti (1991) 5 BPR 11,683 …. 13.18 —v Oswald (CA(NSW), Kirby P, Clarke and Meagher JJA, 25 May 1990, unreported) …. 7.8 Baker, Re (1881) 20 Ch D 230 …. 3.32 Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 …. 20.79, 20.111 —v Courage & Co [1910] 1 KB 56 …. 5.40, 16.2, 16.4 —v Shire of Albany (1994) 14 WAR 46 …. 12.33 —v Transport Accident Commission [1997] 1 VR 662 …. 20.3 Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 …. 7.38, 7.46, 7.47, 7.50, 7.51 Ball v Martin (SC(NSW), Bryson J, 6 September 1996, unreported) …. 17.34 Bank of Adelaide v Lorden (1970) 127 CLR 185 …. 5.19 Bank of Baroda v Mahomed [1999] CLC 463 …. 5.21, 17.24 Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 …. 2.20, 10.4, 10.22, 15.22 Bargen v State Government Insurance Office (Queensland) (1982) 154 CLR 318 …. 3.10, 12.22 Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81 …. 5.39, 5.44, 13.5, 13.34, 13.40, 13.41 —v Wingo 407 US 514 (1972) …. 1.21 Barlow v Homebush Bay Development Corporation (CA(NSW), Clarke and Powell JJA, Badgery-Parker AJA, 6 November 1995, unreported) …. 20.59 Barnes v Glenton [1899] 1 QB 885 …. 9.11 —v St Helens Metropolitan Borough Council [2007] 3 All ER 525; [2006]

EWCA Civ 1372 …. 4.50 Barnett v Creggy [2016] WTLR 17; [2014] EWHC 3080 (Ch) …. 12.4, 17.56 Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211 …. 14.40, 14.41 Barratt v Richardson [1930] 1 KB 686 …. 8.43 Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 …. 15.27 Barton v Chibber (SC(Vic), Hampel J, 29 June 1989, unreported) …. 16.9 Batchelor v Middleton (1848) 6 Hare 75; 67 ER 1088 …. 17.42 Bates v Endrey-Walder (CA(NSW), Handley and Beazley JJA, Sheppard AJA, 30 July 1998, unreported) …. 20.62 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 …. 1.5, 1.16, 1.29, 2.3, 3.31, 4.62, 4.63, 13.2, 14.2, 14.11 Battaglia v James Hardie & Co Pty Ltd (SC(Vic), Vincent J, 12 March 1987, unreported) …. 7.5 Baumgartner v Baumgartner (1987) 164 CLR 137 …. 15.28 Baxter v Calagos [2009] ACTSC 133 …. 20.35 Beaman v ARTS Ltd [1949] 1 KB 550 …. 15.8, 15.15, 15.32, 15.33, 15.34, 15.35 Beaulane Properties Ltd v Palmer [2006] Ch 79; [2005] EWHC 817 …. 8.13, 8.15 Beaumont v Hochkins (1889) 15 VLR 442 …. 8.34 Becher v Delacour (1881) 11 LR Ir 187 …. 17.20 Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 …. 8.26 Bela v Beehag (1984) 3 BPR 9402 …. 13.18 Bell v Morrison (1828) 1 Peters 351 …. 1.25 —v Peter Browne & Co [1990] 2 QB 495 …. 5.14 —v SPC Ltd [1988] VR 118 …. 20.42 —v— [1988] VR 123 …. 20.34 —v— [1989] VR 170 …. 20.13, 20.42 Bennett v Greenland Houchen & Co (a firm) [1998] PNLR 458 …. 7.18 Benzon, Re [1914] 2 Ch 68 …. 4.56

Berardinelli v Ontario Housing Corporation [1979] 1 SCR 275 …. 1.35 Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd [1990] 2 Qd R 301 …. 20.91, 20.100 Bergemann v Tilly’s Administrative Services Pty Ltd [2012] QSC 266 …. 14.25, 14.26 Bergfels v Port Stephens Shire Council [1983] 2 NSWLR 578 …. 20.49 Berriman v Cricket Australia (2007) 17 VR 528; [2007] VSC 365 …. 2.39, 19.9, 19.17 Berry v Stone Manganese & Marine Ltd [1972] 1 Lloyd’s Rep 182 …. 6.22 Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 …. 6.45, 21.9, 21.15, 21.16, 21.17, 21.22, 21.24 BHP Steel (AIS) Pty Ltd v Giudice (CA(NSW), Mason P, Handley and Cole JJA, 7 March 1997, unreported) …. 20.65 —v Lakovski [2000] NSWCA 334 …. 20.59 Bidstrup v Cullen [2013] SASC 136 …. 21.7, 21.24, 21.28 Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 …. 6.18 Billings v Reed [1945] 1 KB 11 …. 7.73 Binns v Nicholls (1866) LR 2 Eq 256 …. 4.48 Birkett v James [1978] AC 297 …. 19.34 Birse Construction Ltd v McCormick (UK) Ltd [2004] EWHC 3053 (TCC) …. 5.16 Black v S Freedman & Co (1910) 12 CLR 105 …. 10.33 Black-Clawson Ltd v Papierwerke AG [1975] AC 591 …. 2.35 Bladel v Russell Allport (FC(Tas), 12 November 1964, unreported) …. 18.22 Blair v Bromley (1846) 5 Hare 542; 67 ER 1026 …. 15.3 Blake, Re [1932] 1 Ch 54 …. 16.4 Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 …. 1.8, 1.28, 4.4, 4.39, 4.40, 4.41, 12.14 Bocardo SA v Star Energy UK Onshore Ltd [2009] 1 All ER 517; [2008] EWHC 1756 (Ch) …. 15.39, 15.43

Bolewski, Ex parte [1981] Qd R 54 …. 20.91 Bonifacio v NSW Trustee and Guardian [2015] NSWSC 124 …. 8.31 Bosanquet v Wray (1815) 6 Taunt 597; 128 ER 1167 …. 17.50 Bosma v Larsen [1966] 1 Lloyd’s Rep 22 …. 5.12 Bowes v City of Edmonton (2008) 86 Alta LR (4th) 47; [2007] ABCA 347 …. 22.7, 22.17, 23.4 Bowyer v Woodman (1867) LR 3 Eq 313 …. 5.14 Bowring-Hanbury’s Trustee v Bowring-Hanbury [1943] Ch 104 …. 4.48 Boydell v Drummond (1808) 2 Camp 157; 170 ER 1114 …. 17.57 Boyns v Lackey [1958] SR (NSW) 395 …. 13.4, 13.30 Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 …. 4.59 Bradford v Commonwealth of Australia [2002] FCA 1489 …. 20.57, 20.82 Bradford Old Bank Ltd v Sutcliffe [1918] 2 KB 833 …. 4.4, 5.23, 5.28 Bradman, Estate of the Late v Robinson (2010) 107 SASR 1; [2010] SASC 71 …. 1.24, 4.44, 18.6, 19.14, 19.19, 19.20 Bradshaw v Widdington [1902] 2 Ch 430 …. 17.37 Brady v Norman [2011] EMLR 16; [2011] EWCA Civ 107 …. 6.45, 21.9 Braedon v Hynes [1986] NTJ 883 …. 19.25 Brambles Australia Ltd v Hall (CA(NSW), Clarke and Powell JJA, Young AJA, 8 November 1995, unreported) …. 2.17, 20.107 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 …. 12.22, 12.24 Bree v Holbech (1781) 2 Doug 654; 99 ER 415 …. 15.4 —v Scott (1904) 29 VLR 692 …. 8.5, 8.18, 8.33 Breen v Williams (1996) 186 CLR 71 …. 3.29, 7.16, 7.23 Brew v Brew [1899] 2 IR 163 …. 17.60 Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 …. 1.36, 7.21, 20.110, 20.111 Brightwell v RFB Holdings (in liq) (2003) 44 ACSR 186; [2003] NSWSC 7 …. 13.40 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 15.22

Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 …. 6.41 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 …. 1.7, 1.17, 1.21, 1.25, 1.26, 1.32, 1.36, 2.22, 18.26, 19.24, 20.7, 20.13, 20.51, 20.80, 20.81, 20.82, 20.83, 20.84, 20.85, 20.119, 20.122, 21.33 Bristol & West plc v Bartlett [2002] 4 All ER 544; [2002] EWCA Civ 1181 …. 9.8 Brittain v Telecom Corporation of New Zealand Ltd [2002] 2 NZLR 201; [2002] NZCA 58 …. 7.14 Britton v Department of Crown Lands and Survey (SC(Vic), Gobbo J, 13 June 1984, unreported) …. 20.13 Brocklesby v Armitage & Guest (a firm) [2001] 1 All ER 172 …. 15.39, 15.40 Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 …. 20.88, 20.93, 20.111 Brook v Flinders University of South Australia (1988) 47 SASR 119 …. 4.30 —v Hoar [1967] 3 All ER 395 …. 14.20 Brookers (Aust) Ltd (in liq), Re (1986) 41 SASR 380 …. 5.24, 5.31, 5.33, 17.39, 17.41, 17.44, 17.46 Brooksbank v Smith (1836) 2 Y & C Ex 58; 160 ER 311 …. 16.3 Brott v Grey (2000) 181 ALR 617; [2000] FCA 1727 …. 5.24 Broulee Developments Pty Ltd v Mackay [2008] NSWSC 32 …. 13.20 Brown v Allweather Mechanical Grouting Co Ltd [1954] 2 QB 443 …. 11.12 —v Bird & Lovibond (a firm) [2002] EWHC 719 (QB) …. 15.20 —v Marine Contracting Pty Ltd [2012] QSC 228 …. 20.98, 20.105, 20.107 —v Minister for Education [2003] WASCA 204 …. 12.32 Browne v Perry [1991] 1 WLR 1297 …. 17.3 Brown’s Estate, Re [1893] 2 Ch 300 …. 5.23, 5.28 Brueton v Woodward [1941] 1 KB 680 …. 11.3 Brunton v D O’Bryan & Co Pty Ltd (CA(NSW), Kirby P, McHugh and

Clarke JJA, 4 August 1988, unreported) …. 20.65 Buck v English Electric Co Ltd [1977] 1 WLR 806 …. 20.14 Buckinghamshire County Council v Moran [1990] Ch 623 …. 1.3, 8.24 Buckland v Ibbotson (1902) 28 VLR 688 …. 10.13 Buckley v Dalziel [2007] 1 WLR 2933; [2007] EWHC 1025 (QB) …. 21.12 Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155 …. 17.5, 17.6, 17.7, 17.24 Budgett v Budgett [1895] 1 Ch 202 …. 2.13 Buller v Black (2003) 56 NSWLR 425; [2003] NSWCA 45 …. 3.18 Bulli Coal Mining Co v Osborne [1899] AC 351 …. 3.26, 13.33, 15.2, 15.3, 15.5, 15.29 Burgchard v Holroyd Shire Council [1984] 2 NSWLR 164 …. 6.37 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 …. 13.37 Burns v Argon Construction Ltd [2009] NZHC 561 …. 6.23 —v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267 …. 2.3, 2.24, 3.38, 7.90, 7.91 Busch v Stevens [1963] 1 QB 1 …. 17.1, 17.5 Bush v Minister for Local Government (2002) 124 LGERA 256; [2002] NSWLEC 203 …. 13.23 Bust v Charles Porter & Sons Pty Ltd [2010] QSC 317 …. 20.100 Butler v Gaudron (CA(NSW), Handley, Sheller and Cole JJA, 17 November 1994, unreported) …. 2.16, 6.32 Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 …. 20.100, 20.102 ‘ C C v CSIRO (SC(NSW), Harrison M, 19 September 1997, unreported) …. 14.43 Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 …. 1.32, 2.3, 20.7, 20.12, 20.27, 20.32 Calder v Uzelac [2003] VSCA 175 …. 7.80 Callaghan v Dominion Insurance Co Ltd [1997] 2 Lloyd’s Rep 541 …. 5.12

Cameron v Blau [1963] Qd R 421 …. 9.12, 15.22, 17.55 —v Murdoch [2003] WASC 264 …. 17.5, 17.24, 17.47, 17.60 —v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133 …. 4.50 Canadian Northern Railway Co v Robinson [1910] AC SCR 387 …. 1.35 Candibon Pty Ltd v Minister for Planning (2011) 183 LGERA 10; [2011] VSC 415 …. 16.9 Capgemini US LLC v Case [2004] NSWSC 674 …. 13.22 Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561 …. 11.16 Cardiff-Borehole Collieries Ltd v Robertson (1925) 25 SR (NSW) 348 …. 8.50 Carey v Australian Broadcasting Corporation [2010] NSWSC 709 …. 21.5, 21.8 —v— (2012) 84 NSWLR 90; [2012] NSWCA 176 …. 21.4, 21.6, 21.12, 21.13, 21.18, 21.27 Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495 …. 2.37, 5.12 Carlowe v Frigmobile Pty Ltd [1999] QCA 527 …. 1.34, 7.8 Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 …. 13.23 Carne v Malins (1851) 6 Exch 803; 155 ER 770 …. 4.26 Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton [2001] QCA 335 …. 1.34, 7.8 Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189 …. 2.19, 2.20, 6.22 —v— [1963] AC 758 …. 1.7, 1.15, 1.28, 1.34, 2.19, 6.6, 7.4, 7.22, 7.28, 7.85, 22.15 Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1 …. 1.19, 1.25, 1.28, 1.29, 17.1, 17.7, 17.53, 17.59 Cashman v 7 North Golden Gate Gold Mining Co (1897) 7 QLJ 152 …. 13.9 Casley v Australian Broadcasting Corporation [2013] VSC 251 …. 21.5,

21.11, 21.20, 21.21, 21.28 —v— [2013] VSCA 182 …. 21.5, 21.6, 21.11, 21.12, 21.20, 21.21, 21.28 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 …. 21.15 Cassis v Kalfus [2001] NSWCA 460 …. 2.20 Castensen v Frankipile Australia [2004] QSC 145 …. 20.107 Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364 …. 20.101 Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 …. 20.107 Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38 …. 7.19 Cattley v Pollard [2007] Ch 353; [2006] EWHC 3130 (Ch) …. 10.35 Cavanagh v New South Wales [2008] NSWCA 350 …. 18.18, 18.23, 20.41, 20.42 Cave v Robinson Jarvis & Rolf (a firm) [2002] 1 WLR 581; [2001] EWCA Civ 245 …. 15.40 —v— [2003] 1 AC 384; [2002] UKHL 18 …. 1.15, 1.24, 1.25, 1.28, 1.35, 15.19, 15.30, 15.36, 15.37, 15.38, 15.39, 15.40 Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7 …. 7.19, 7.33, 7.41, 7.52, 20.2, 20.13, 20.15 Cavenett v Commonwealth of Australia [2007] VSCA 88 …. 7.13, 7.70, 7.80 Cawthorne v Thomas (1993) 6 BPR 13,840 …. 17.27 CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 …. 13.23 CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) …. 15.20, 15.21, 15.28, 15.32, 15.46 Central Electricity Generating Board v Halifax Corporation [1963] AC 785 …. 4.4, 4.6, 4.41, 11.3, 11.6 Central Trust Co v Rafuse [1986] 2 SCR 147 …. 6.42 Ceric v CE Heath Underwriting & Insurance (Australia) Pty Ltd (1993) 91 NTR 26 …. 11.2, 11.6 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 …. 1.28,

18.24, 18.25, 18.26, 20.18, 20.53, 20.54, 20.55 Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) …. 1.7, 14.24, 15.37, 20.39 —v— [2004] EWCA Civ 557 …. 14.24 Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 29 …. 4.30 Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 …. 3.37 Chapple v Durston (1830) 1 Cr & J 1; 148 ER 1311 …. 1.34, 1.36, 2.6 Chardon v Fumero Soto 462 US 650 (1983) …. 1.34 Chase Securities Corp v Donaldson 325 US 304 (1945) …. 2.4 Chasemore v Turner (1875) LR 10 QB 500 …. 17.7 Cheang Thye Phin v Lam Kin Sang [1929] AC 670 …. 5.7 Cheney v Duncan (2001) 34 MVR 28; [2001] NSWCA 197 …. 2.16 Chesworth v Farrar [1966] 1 QB 407 …. 6.16, 6.17 Chetham v Hoare (1870) LR 9 Eq 571 …. 15.20 Chethams v Remington & Co [1999] 3 VR 258; [1999] VSC 150 …. 17.20 Chidiac v Maatouk [2010] NSWSC 386 …. 5.24 Child Support Registrar v Meekin (2008) 224 FLR 27; [2008] FMCAfam 877 …. 3.6 China v Harrow Urban District Council [1954] 1 QB 178 …. 1.7, 1.35, 4.12 Chinnery v Evans (1864) 11 HLC 115; 11 ER 1274 …. 9.17 Chinnock v Wasbrough [2015] EWCA Civ 441 …. 1.15 Chittick v Maxwell (1993) 118 ALR 728 …. 13.32, 13.35 Chohan v Times Newspapers Ltd [2001] 1 WLR 1859; [2001] EWCA Civ 964 …. 12.9 Cholmondeley v Clinton (1820) 2 Jac & W 1; 37 ER 527 …. 1.16, 8.24 —v— (1821) 4 Bli 1; 4 ER 721 …. 1.16 Christensen v Davison [1971] Qd R 208 …. 4.56 Christie v Bell (1847) 16 M & W 669; 153 ER 1358 …. 4.26 —v Purves (2007) 69 ATR 155; [2007] NSWCA 182 …. 6.6, 6.7, 6.14 Christopoulous v Angelos (1996) 41 NSWLR 700 …. 6.6, 6.38, 6.43, 6.44

Chua Teck Chew v Goh Eng Wah [2009] 4 SLR(R) 716 …. 15.19 Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 …. 8.15, 8.16, 8.17, 8.39 Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 …. 3.28, 13.35, 13.40 Ciantar v New South Wales [2008] NSWSC 191 …. 4.63, 4.64, 14.11, 14.44 Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159; [2000] WASCA 415 …. 2.6, 2.20, 5.12 Clark v Clark (1882) 8 VLR (E) 303 …. 15.20, 15.21 —v Hougham (1823) 2 B & C 149; 107 ER 339 …. 15.4 —v Ibrahim [2014] VSC 30 …. 21.23 —v McGuinness [2005] VSCA 108 …. 20.7, 20.11, 20.35 Clarke v Harpier Acoustics Pty Ltd (in liq) (FC(Qld), Derrington, Ambrose and Dowsett JJ, 20 September 1991, unreported) …. 20.87 Clarkson v Modern Foundries Ltd [1958] 1 All ER 33 …. 6.22 Clay v Clay (2001) 202 CLR 410; [2001] HCA 9 …. 10.2, 10.32 Clegg v Dearden (1848) 12 QB 576; 116 ER 986 …. 6.4 —v Edmondson (1857) 8 De GM & G 787; 44 ER 593 …. 13.30 Clyde Industries Ltd v Dittes (SC(NSW), Cole J, 5 June 1992, unreported) …. 5.29 Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189 …. 20.15 Coburn v Colledge [1897] 1 QB 702 …. 4.4, 4.8, 4.9, 5.17 Cocchi v Cocchi [1989] 1 Qd R 266 …. 14.43 Cohen v Cohen (1929) 42 CLR 91 …. 2.20 Colchester Borough Council v Smith [1992] Ch 421 …. 8.26 Coliseum (Barrow) Ltd, Re [1930] 2 Ch 44 …. 17.39, 17.40, 17.41 Collin v Duke of Westminster [1985] QB 581 …. 5.41 Collins v Benning (1705) 12 Mod 444; 88 ER 1440 …. 5.22 Colonial Finance, Mortgage, Investment and Guarantee Corporation Ltd, Re (1905) 6 SR (NSW) 6 …. 5.21

Colorado v Haden Engineering Pty Ltd (CA(NSW), Priestley, Clarke and Powell JJA, 6 November 1995, unreported) …. 6.22 Comcare v A’Hearn (1993) 45 FCR 441 …. 20.20 Commerce Commission v Roche Products (New Zealand) Ltd [2003] 2 NZLR 519 …. 13.33, 13.41, 15.6, 15.8 Commercial Bank of Australia Ltd v Colonial Finance, Mortgage, Investment and Guarantee Corporation Ltd (1906) 4 CLR 57 …. 5.29 Commercial Minerals Pty Ltd v Hollins (CA(NSW), Meagher, Handley and Sheller JJA, 22 December 1993, unreported) …. 6.22 Commercial Union Assurance Company Ltd v Revell [1969] NZLR 106 …. 5.24, 5.28, 5.31 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 …. 11.24 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16 …. 6.5, 6.6, 6.14, 15.5, 15.37 —v Dixon (1988) 13 NSWLR 601 …. 3.10, 18.16 —v Lewis [2007] NSWCA 127 …. 18.18, 20.59 —v McLean (1996) 41 NSWLR 389 …. 20.63, 20.66 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 …. 20.61, 20.65 —v Mewett (1997) 191 CLR 471 …. 1.14, 2.3, 2.6, 2.33, 2.39, 3.4, 3.7, 3.9, 3.36, 18.16 —v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 …. 20.59, 20.68, 20.123 —v Smith [2005] NSWCA 478 …. 1.18, 1.28, 7.80, 18.18, 18.19, 18.22, 20.19, 20.59, 20.60, 20.62, 20.68, 20.69, 20.83 —v Smith [2006] HCA Trans 242 …. 18.18 —v— [2007] NSWCA 168 …. 20.59 —v Verwayen (1990) 170 CLR 394 …. 2.3, 2.6, 2.18, 2.24, 4.61 Compania de Electricidad de la Provincia de Buenos Aires Ltd, Re [1980] Ch 146 …. 17.42, 17.44, 17.46 Conquer v Boot [1928] 2 KB 336 …. 5.14

Conray v Scotts Refrigerated Freightways Pty Ltd (2008) Aust Torts Rep ¶81-944; [2008] NSWCA 60 …. 20.26 Conridge v Schaapveld [2015] NSWSC 663 …. 14.17, 17.50, 17.51 Conry v Simpson [1983] 3 All ER 369 …. 20.22 Consolidated Agencies Ltd v Bertram Ltd [1965] AC 470 …. 17.44 Cooke v Gill (1873) 8 LR CP 107 …. 4.4 Cork v AAL Aviation Ltd [2014] FCA 1085 …. 4.63, 15.6, 15.10, 18.17 Cork and Bandon Railway v Goode (1853) 13 CB 826; 138 ER 1427 …. 5.41 Coshott v Coshott [2015] FCA 1284 …. 2.31 —v Lenin [2007] NSWCA 153 …. 5.37, 5.40 Costello v City of Calgary (1989) 60 DLR (4th) 732 …. 4.9 Cottam v Partridge (1842) 4 Man & G 271; 134 ER 111 …. 17.47 Cotterell v Leeds Day (a firm) (QBD, Buckley J, 21 December 1999, unreported) …. 4.59 —v Price [1960] 3 All ER 315 …. 4.56 Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 …. 13.34, 13.35, 13.39 Country and District Properties Ltd v C Jenner & Son Ltd [1976] 2 Lloyd’s Rep 728 …. 5.12 Coventry v Apsley (1691) 2 Salk 420; 691 ER 366 …. 6.18 Cowper v Godmond (1833) 9 Bing 748; 131 ER 795 …. 5.40 Cox v Keys [2012] NSWCA 268 …. 18.18, 20.57, 20.80 —v Morgan (1801) 2 Bos & Pul 398; 126 ER 1349 …. 1.28 CRA Ltd v Martignago (1996) 39 NSWLR 13 …. 20.62, 20.64 CSR Ltd v Rendell (CA(NSW), Handley, Sheller and Cole JJA, 7 August 1996, unreported) …. 20.59 Crawley v Short (2009) 262 ALR 654; [2009] NSWCA 410 …. 13.5, 13.11 Creevy v Barrois [2005] NSWCA 264 …. 12.28 Crerar v Parkes (No 2) (2005) 15 Tas R 147; [2005] TASSC 93 …. 18.19 Cressey v E Timm & Son Ltd [2005] 1 WLR 3926; [2005] EWCA Civ 763 …. 7.87

Crombie v Crombie [1903] SASR 147 …. 5.40 Crumbie v Wallsend Local Board [1891] 1 QB 503 …. 6.21 Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084 …. 19.14 Culley v Doe d Taylerson (1840) 11 Ad & El 1008; 113 ER 697 …. 8.30, 8.34 Curic v Sprudzans (1980) 91 LSJS 232 …. 14.43 Curnow v Roman Catholic Trust Corporation Diocese of Melbourne [2006] VSC 364 …. 20.75 Curwen v Milburn (1889) 42 Ch D 424 …. 17.37 Cuthill v State Electricity Commission of Victoria [1981] VR 908 …. 20.111 Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181 …. 6.38, 6.39, 6.40 D D’Agostino v Anderson [2012] NSWCA 443 …. 6.44 Dabbs v Humphries (1834) 10 Bing 446; 131 ER 977 …. 17.31 Dale v British Coal Corporation [1992] PIQR P373 …. 20.39, 20.42 Dallas, Re (1910) 6 Tas LR 65 …. 2.13 Damman v Peninsula Health [2012] VSC 572 …. 20.22, 20.24 Danae Investment Trust plc v Macintosh Nominees Pty Ltd (No 2) (1993) 10 ACSR 11 …. 4.30 Dao v Australian Postal Commission (1987) 162 CLR 317 …. 3.5 Darke v Eltherington [1963] Qd R 375 …. 4.4, 14.2 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 …. 2.20, 6.18, 6.20, 6.21, 6.22, 6.23 Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3 …. 20.13, 20.23, 20.24 Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 …. 18.20 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175

CLR 353 …. 16.2, 16.14 Davies v Barancewicz (2011) 5 ACTLR 305; [2011] ACTSC 166 …. 20.4 —v Edwards (1851) 7 Exch 22; 155 ER 839 …. 17.2, 17.53 —v Elsby Brothers Ltd [1960] 3 All ER 672 …. 4.25 —v Nilsen [2015] VSC 584 …. 20.21 —v Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380 …. 20.39 Dawkins v Lord Penrhyn (1878) 4 App Cas 51 …. 2.6, 2.25 Dawson (decd), Re [1966] 2 NSWR 211 …. 5.39, 7.16 Day v Day (1871) LR 3 PC 751 …. 8.50 DC v New South Wales [2012] NSWSC 142 …. 14.44, 20.42 De Beauvoir v Owen (1850) 5 Ex 166; 155 ER 72 …. 2.25 De Nier v Beicht [1982] VR 331 …. 1.7 De Rossi v Walker (1902) 2 SR (NSW) 249 …. 3.2 Deane v City Bank of Sydney (1918) 25 CLR 215 …. 17.50 Dedousis v Water Board (1994) 181 CLR 171 …. 20.56, 20.58, 20.66 Delai v Western District Health Service [2009] VSC 151 …. 7.52, 20.13, 20.22, 20.23, 20.27, 20.36, 20.75 Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 …. 1.9 Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158 …. 4.13 Dennis v Charnwood Borough Council [1983] QB 409 …. 6.40 Dennis Hotels Pty Ltd v Victoria (1961) 104 CLR 621 …. 11.24 Denys v Shuckburgh (1840) 4 Y & C Ex 42; 160 ER 912 …. 16.4 Deputy Commissioner of Taxation v DTR Securities Pty Ltd (1988) 165 CLR 56 …. 11.13 Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 …. 3.5, 3.6 Derry v Peek (1889) 14 App Cas 337 …. 6.5, 15.16 Devine v Holloway (1861) 14 Moo PC 290; 15 ER 314 …. 1.9

Devlin v Roche [2002] 2 IR 360 …. 7.76 DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 …. 5.23, 5.24, 5.27, 5.33, 5.34, 9.21 Diaz v Truong (2002) 37 MVR 158; [2002] NSWCA 265 …. 3.18 Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474 …. 20.91 Dickin v BHP Billiton Ltd [2004] VSC 215 …. 19.14 Dibley v Sydney West Area Health Service [2009] NSWSC 856 …. 18.19 Dillon v Baltic Shipping Co (The ‘Mikhail Lermontov’ (No 2)) (SC(NSW), Carruthers J, 28 May 1993, unreported) …. 4.53 —v Macdonald (1902) 21 NZLR 45 …. 13.18 Diplock, Re [1948] Ch 465 …. 5.37, 10.7, 16.3, 16.11 Dismore v Milton [1938] 3 All ER 762 …. 2.15 Director of Public Prosecutions (WA) v Bennett & Co (a firm) (2005) 151 A Crim R 516; [2005] WASC 1 …. 13.23 Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 …. 1.34, 1.36, 7.8, 20.90, 20.94, 20.107, 20.109 Dixie v Royal Columbian Hospital [1941] 2 DLR 138 …. 3.35 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 …. 4.4, 7.8, 20.70, 20.87, 20.91, 20.92, 20.93, 20.98, 20.104 Dobbie v Medway Health Authority [1994] 4 All ER 450 …. 7.88 Doe & Duroure v Jones (1791) 4 TR 301; 100 ER 1031 …. 1.25 Doe d Baker v Coombes (1850) 9 CB 714; 137 ER 1073 …. 8.33 Doe d Evans v Page (1844) 5 QB 767; 114 ER 1439 …. 3.36 Donmez v Neissa [2012] VSC 73 …. 2.6, 2.20, 2.22 Donnelly v State of Victoria (SC(Vic), O’Bryan J, 30 June 1994, unreported) …. 7.82 Donovan v Gwentoys Ltd [1990] 1 All ER 1018 …. 1.15, 1.32, 19.27, 20.10, 20.26 Doran v Thompson Ltd [1978] IR 223 …. 4.61 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 …. 1.3

Doundoulakis v Antony Sdrinis & Co [1989] VR 781 …. 2.6 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 …. 6.48 Dowell Australia Pty Ltd v Page (CA(NSW), Clarke and Powell JJA, Young AJA, 1 December 1995, unreported) …. 6.22, 20.62, 20.67 Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21 …. 1.16, 7.21, 20.7, 20.12, 20.23, 20.24, 20.28, 20.36 Drayton Coal Pty Ltd v Drain (CA(NSW), Gleeson CJ, Priestley and Meagher JJA, 22 August 1995, unreported) …. 20.60, 20.67 Drinkwater v Caddyrack Pty Ltd (No 3) (SC(NSW), Young J, 28 November 1997, unreported) …. 5.24 Driscoll v Iron Mountain Australia Pty Ltd (2010) 245 FLR 132; [2010] ACTSC 127 …. 20.4 Drover v Northern Territory of Australia (2004) 14 NTLR 140; [2004] NTCA 11 …. 19.4 DTR Securities Pty Ltd v Deputy Commissioner of Taxation (Cth) (1987) 8 NSWLR 204 …. 11.12, 11.13 Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; [2002] UKHL 48 …. 10.35 Dudycz v Vager Pty Ltd [2011] ACTSC 7 …. 20.7, 20.32, 20.38 Duff v Freijah (1982) 62 FLR 280 …. 20.20 Duke Group Ltd (in liq) v Alamain Investments Ltd (2003) 232 LSJS 58; [2003] SASC 415 …. 5.39, 13.40 Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 6.48 Duncan v Mendes (CA(NSW), Priestley and Beazley JJA and Rolfe AJA, 29 May 1998, unreported) …. 17.58 Dungate v Dungate [1965] 3 All ER 818 …. 17.32 Dunne v Iarnród Éireann [2007] IEHC 314 …. 8.32 Dupleix v De Rovan (1705) 2 Vern 540; 23 ER 950 …. 14.30 Dwr Cymru (Welsh Water) v Carmarthenshire County Council [2004] EWHC 2991 (TCC) …. 17.5, 17.57 Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895 …. 18.18,

18.19 E Earl of Harrington v Corporation of Derby [1905] 1 Ch 205 …. 6.22 Eastbury v Genea Ltd [2015] NSWSC 198 …. 18.19, 18.22 Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42 …. 13.2, 13.4, 13.6, 13.13, 13.15, 13.16, 13.19, 13.20 Eddis v Chichester Constable [1969] 2 Ch 345 …. 15.4, 15.23, 5.24, 15.25, 15.49, 15.50 Edgington v Clark [1964] 1 QB 367 …. 17.27 Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27 …. 13.31 Edmunds v Waugh (1866) LR 1 Eq 418 …. 1.35, 9.16 Edwards’ Will Trusts, Re [1937] Ch 553 …. 17.37 Edwards v Bray [2011] 2 Qd R 310; [2011] QCA 72 …. 5.17 —v Kennedy [2009] VSC 74 …. 20.29 Eijkman v Magann [2005] NSWCA 358 …. 18.26, 20.65 Elder v Northcott [1930] 2 Ch 422 …. 5.7 Ellis v Ellis [2015] WASC 77 …. 2.12 —v Loftus Iron Co (1874) LR 10 CP 10 …. 6.4 —v Reko Pty Ltd (2010) 57 MVR 1; [2010] NSWCA 319 …. 3.18 Emery v Day (1834) 1 CM & R 245; 149 ER 1071 …. 5.16 Engert v Sydney Ferries Corporation [2009] NSWSC 1400 …. 12.17, 18.19, 21.31, 21.33 England, Re [1895] 2 Ch 820 …. 4.48 Equuscorp Pty Ltd v Lloyd [1999] 1 VR 854; [1998] VSC 171 …. 9.11 Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218 …. 13.5 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 …. 18.9 Europa, The (1863) 2 Moo PC (NS) 1; 15 ER 803 …. 16.13 Eustace v Queensland [1999] QCA 502 …. 20.88 Evans v Repco Transmission Co Pty Ltd [1975] VR 150 …. 20.111 Ezekiel v Lehrer [2002] Lloyd’s Law Rep PN 260; [2002] EWCA Civ 16 ….

15.43 —v Orakpo [1997] 1 WLR 340 …. 9.9, 9.16 F F J Walker Ltd v Webber (CA(NSW), Kirby P, Meagher JA and Hope AJA, 16 November 1989, unreported) …. 20.65 Facchini v Bryson [1952] 1 TLR 1386 …. 8.52 Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; [2012] FCAFC 193 …. 11.12, 11.15 Fairtrouni v El Omar [1999] NSWSC 84 …. 12.5 Fairweather v St Marylebone Property Co Ltd [1963] AC 510 …. 8.15, 8.16 Falcon v McCann [1998] VSC 83 …. 7.80 Farmizer (Products) Ltd, Re [1997] BCC 655 …. 3.13 Farrow v Wilson (1869) LR 4 CP 744 …. 2.10 Feiglin v Ainsworth [2011] VSC 454 …. 12.5, 12.7 —v— [2015] VSCA 326 …. 10.35 Fenech v Sterling (1983) 51 ALR 205 …. 15.8 Fernance v Nominal Defendant (1989) 17 NSWLR 710 …. 4.13 Fersch v Power and Water Authority (1990) 101 FLR 78 …. 1.24, 1.25 Field v Field (CA(NSW), Reynolds, Hope and Glass JJA, 21 October 1981, unreported) …. 20.88 Fielding v Doran (1984) 60 ALR 342 …. 3.10 Findley v Morand [2014] QSC 297 …. 21.13, 21.14 Finlay v Silicon Industrial Pty Ltd (2003) 229 LSJS 14; [2003] SASC 236 …. 19.14, 19.21 Firman v Ellis [1978] QB 886 …. 1.5, 1.36, 7.11, 18.2, 18.6, 19.33, 19.34, 20.7, 23.15 Fischer v Nemeske Pty Ltd [2014] NSWSC 203 …. 17.41 —v— [2015] NSWCA 6 …. 5.24, 17.41 Fisher v Brooker [2009] 4 All ER 789; [2009] UKHL 41 …. 13.2, 13.16 Fitter v Veal (1706) 12 Mod 542; 88 ER 1506 …. 6.18

Fitzgerald v Masters (1956) 95 CLR 420 …. 13.21 Flavelle (deceased), Re [1969] 1 NSWR 361 …. 10.10 Fleetwood and District Electric Light and Power Syndicate, Re [1915] 1 Ch 486 …. 2.14 Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) …. 14.2, 20.34, 20.91, 20.98, 20.108, 20.117 —v— (2001) 34 MVR 40; [2001] QCA 244 …. 14.25, 14.44 Flynn (No 2), Re [1969] 2 Ch 403 …. 17.25, 17.42 Footman Bower & Co Ltd, Re [1961] Ch 443 …. 17.5, 17.48, 17.52 Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 …. 18.3, 19.17, 19.22, 19.24, 19.25, 19.32, 19.34 —v Smith (1855) 11 Ex 161; 156 ER 786 …. 14.2 —v Wandsworth Health Authority [1997] QB 402 …. 1.20, 20.69 Ford Motor Co (Australia) Ltd v Kulic [1988] VR 152 …. 20.13, 20.19 Forrest Trust, Re [1953] VLR 246 …. 17.55 Forster v Outred & Co (a firm) [1982] 2 All ER 753 …. 6.11, 6.31 Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004 …. 7.52 Fountaine, Re [1909] 2 Ch 382 …. 10.29 Foyle Enterprises Pty Ltd v Steve Parcell Building Services [2015] QDC 225 …. 5.17 Frawley v Neill [2000] CP Rep 20 …. 13.5 Frisby, Re (1889) 43 Ch D 106 …. 17.20 Frizelle v Bauer [2009] NSWCA 239 …. 7.46, 7.50 Fulton v Fulton (2014) 106 A 3d 127 …. 3.31 Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182 …. 7.87 Fysh v Page (1956) 96 CLR 233 …. 13.4, 13.5 G G D Searle & Co v Gunn [1996] 2 NZLR 129 …. 7.23 G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 …. 10.25, 15.8, 15.24, 15.25

—v— [1959] 1 WLR 492 …. 15.24 Galaxidis v Galaxidis [2004] NSWCA 111 …. 13.9 Galea v Commonwealth (No 2) [2008] NSWSC 260 …. 18.19 Gangar v Espinet [2009] 4 LRC 260; [2008] UKPC 48 …. 3.35 Garden v Bruce (1868) LR 3 CP 300 …. 5.16 Gardner v Wallace (1995) 184 CLR 95 …. 2.39 Garner v Wingrove [1905] 2 Ch 233 …. 14.5 Gee & Co (Woolwich) Ltd, Re [1975] Ch 52 …. 17.40, 17.45, 17.46 Gelmini v Moriggia [1913] 2 KB 549 …. 4.35 General Credits Ltd v Wenham (1989) 18 NSWLR 570 …. 17.7, 17.29, 17.38 General Rolling Stock Co Ltd, Re (1872) 7 Ch App 646 …. 2.14 General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 2 All ER 173 …. 4.8 George, Re [1935] VLR 26 …. 4.48 George Wimpey & Co Ltd v Sohn [1967] 1 Ch 487 …. 8.25 Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 …. 3.31, 13.4, 13.33, 13.41 Geraldton Port Authority v Ship ‘Kim Heng 1888’ [2011] FCA 1148 …. 19.27 GGG v YYY [2011] VSC 429 …. 7.25, 20.36 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 …. 12.5, 12.7 Gibbs v Guild (1881) 8 QBD 296 …. 15.4 —v— (1882) 9 QBD 59 …. 15.4, 15.7 Giles v Rhind (No 2) [2009] Ch 191; [2008] EWCA Civ 118 …. 15.39 Gillespie v Elliott [1987] 2 Qd R 509 …. 6.37 —v Swift Australia Pty Ltd [2009] QCA 316 …. 20.81 Gilmore v Waugh [2012] NSWCA 263 …. 18.25, 20.41, 20.43, 20.51, 20.62 Glasbrook v Richardson (1874) 23 WR 51 …. 13.18 Glasson v Fuller [1922] SASR 148 …. 13.8, 13.9 Gleeson v Gleeson [2002] NSWSC 418 …. 5.24, 5.26, 9.2, 9.7

Glennie v Glennie [2009] NSWSC 154 …. 14.45 Gmitrovic v Commonwealth of Australia [2016] NSWSC 418 …. 21.16 Goddard v Cox (1742) 2 Str 1194; 93 ER 1122 …. 17.50 Goldsworthy v Brickell [1987] Ch 378 …. 13.24 Gollel Holdings Pty Ltd v Kenneth Maurer Funerals Pty Ltd (1987) 9 IPR 109 …. 13.23 Good v Parry [1963] 2 QB 418 …. 17.5, 17.12, 17.24, 17.32, 17.56 Good Challenger Navegante SA v Metalexportimport SA [2004] 1 Lloyd’s Rep 67; [2003] EWCA Civ 1668 …. 17.36 Goodchild v Greatness Timber Co Ltd [1968] 2 QB 373 …. 20.109 Goodwin v Smith (SC(ACT), Miles CJ, 10 December 1990, unreported) …. 20.34 —v Western Australian Sports Centre Trust [2014] WASC 138 …. 8.11 Gordon v James Hardie & Co Pty Ltd (No 1) (1987) Aust Torts Rep ¶80132 …. 20.88 —v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 …. 20.22, 20.23, 20.24 Gotham v Doodes [2007] 1 All ER 527; [2006] EWCA Civ 1080 …. 9.10 Government Insurance Office of New South Wales v Strange (CA(NSW), Clarke and Powell JJA, Young AJA, 28 November 1995, unreported) …. 20.61 Grahame Allen & Sons Pty Ltd v Water Resources Commission [2000] 1 Qd R 523; [1998] QSC 181 …. 15.29 Granger v George (1826) 5 B & C 149; 108 ER 56 …. 15.4 Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 2.21, 6.27 Grave v Wharton (1879) 5 VLR (L) 97 …. 8.32 Gravgaard v Aldridge & Brownlee (a firm) [2005] PNLR 19; [2004] EWCA Civ 1529 …. 7.87 Green v Eadie [2012] Ch 363; [2011] EWHC B24 (Ch) …. 11.2 —v Humphreys (1884) 26 Ch D 474 …. 17.6, 17.30 —v Walkley (1901) 27 VLR 503 …. 6.18 Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 …. 6.7

Gregory v Torquay Corporation [1911] 2 KB 556 …. 1.4 —v— [1912] 1 KB 442 …. 1.4 Griffith v Bloch (1878) 4 VLR (L) 294 …. 14.30 Grzybowicz v Smiljanic [1980] 1 NSWLR 627 …. 3.25 Gscheidle v Gscheidle [1990] 2 Qd R 54 …. 4.36 Guest v West Tamar Council [2013] TASSC 1 …. 7.47, 7.48, 7.49, 20.119, 20.121 Gustell v Reeve [1936] 1 KB 272 …. 5.41, 11.3 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 …. 14.4, 14.16, 14.44 Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131; [2003] EWCA Civ 1048 …. 10.8 H H Ford & Co Ltd v Compagnie Furness (France) [1922] 2 KB 797 …. 4.57 Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593 …. 13.16 Halford v Brookes [1991] 3 All ER 559 …. 1.2, 7.10, 7.88, 20.7, 20.11, 20.15, 20.18, 20.42 Hall v Director of Public Prosecutions (2015) 122 SASR 12; [2015] SASCFC 19 …. 4.65, 4.66 —v WorkCover Queensland [2015] 2 Qd R 88; [2014] QCA 135 …. 7.61 Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224 …. 5.24 Hamilton v Kaljo (1989) 17 NSWLR 381 …. 15.28 Hammet v Connor [1980] VR 538 …. 1.36, 7.21, 7.80, 20.65 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 …. 18.18, 21.5, 21.11 Hardy v Ryle (1829) 9 B & C 603; 109 ER 224 …. 4.35, 6.18 Hare v Hare (2006) 83 OR (3d) 766 …. 4.6, 5.21 Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 …. 4.12 Harlock v Ashberry (1882) 19 Ch D 539 …. 9.9, 17.20, 17.48 Harnett v Fisher [1927] AC 573 …. 1.8, 1.24, 1.31, 14.12, 14.23 —v Green (No 2) (1883) 4 LR (NSW) (L) 292 …. 8.26

Harris v AAL Aviation Ltd [2015] VSC 602 …. 15.17 —v Commercial Minerals Ltd (1996) 186 CLR 1 …. 20.12, 20.51, 20.62, 20.64, 20.65 —v Gas and Fuel Corporation of Victoria [1975] VR 619 …. 4.4, 20.91 —v Lindeborg [1931] SCR 235 …. 13.4 —v Quine (1869) LR 4 QB 653 …. 2.35, 2.38 —v Wogama Pty Ltd [1969] 1 NSWR 245 …. 8.24 —v Woolworths Ltd [2010] NSWSC 25 …. 7.46 Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810 …. 13.25 Hartley v Birmingham City District Council [1992] 2 All ER 213 …. 20.23, 20.27, 20.39 Harule Pty Ltd, Re (1994) 13 ACSR 500 …. 14.24 Harvey v R G O’Dell Ltd [1958] 2 QB 78 …. 12.22 Haward v Fawcetts (a firm) [2006] UKHL 9; [2006] 3 All ER 497 …. 1.15, 7.88 Hawkins v Clayton (1986) 5 NSWLR 109 …. 6.22 —v— (1988) 164 CLR 539 …. 1.30, 6.6, 6.31, 6.32, 6.37, 6.42, 15.5 Haydon v Williams (1830) 7 Bing 163; 131 ER 63 …. 17.34 Hayward v Chaloner [1968] 1 QB 107 …. 8.50 —v Georges Ltd [1966] VR 202 …. 7.34, 7.73 Healthcorp Ltd v Commissioner of Stamps (Qld) (1991) 22 ATR 220 …. 19.19 Healy v Femdale Pty Ltd (FC(Qld), Macrossan CJ, McPherson and Thomas JJ, 9 June 1993, unreported) …. 20.99, 20.107, 20.109 Heard v Kemp [2002] EWCA Civ 1506 …. 21.12 Heath v Pugh (1881) 6 QBD 345 …. 9.8, 9.9 Henderson v Temple Pier Co Ltd [1998] 3 All ER 324 …. 7.87 Heffernan v Scafidi (CA(Vic), Winneke P, Tadgell and Hayne JJA, 30 April 1996, unreported) …. 20.19 Henriksens Rederi A/S v T H Z Rolimpex (‘The Brede’) [1974] 1QB 233 …. 4.19

Henry Boot Construction Ltd v Alstom Combines Cycles Ltd [2005] 3 All ER 932; [2005] EWCA Civ 814 …. 5.18 Hepburn v McDonnell (1918) 25 CLR 199 …. 17.5, 17.6, 17.7, 17.31 Herschberg v Mula (1993) Aust Torts Rep ¶81-256 …. 7.78 Heslop v Burns [1974] 3 All ER 406 …. 8.52 Hetherington v Mirvac Pty Ltd (1999) Aust Torts Rep 181-514; [1999] NSWSC 443 …. 18.16 Hewer v Bryant [1970] 1 QB 357 …. 14.20 Hewett v Barr [1891] 1 QB 98 …. 4.25, 4.26 Hewitt v Henderson [2006] WASCA 233 …. 12.5, 13.40 Hewlett v London County Council (1908) 24 TLR 331 …. 4.59 Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) …. 1.36, 7.70, 7.78, 7.82, 20.29 Highup Pty Ltd v Gubas (2014) 226 FCR 541; [2014] FCA 1170 …. 6.10 Hill v Iluka Corp Ltd [2002] TASSC 113 …. 20.113, 20.119 —v Parke Davis & Co Ltd (1986) 41 SASR 349 …. 2.7 —v Walker (1858) 4 K & J 166; 70 ER 69 …. 2.10 Hillebrand v Council of the City of Penrith [2000] NSWSC 1058 …. 16.9, 16.11 Hillingdon London Borough Council v ARC Ltd [1997] 3 All ER 506 …. 11.6, 11.7 —v— [1999] Ch 139 …. 11.7 Hilton v Southern Steam Laundry [1946] KB 65 …. 2.3 Hintz v WorkCover Queensland [2007] QCA 72 …. 20.100 Hipworth v Maher (1952) 87 CLR 335 …. 17.42 Hodgson v Salt [1936] 1 All ER 95 …. 4.48 Holden v Goodridge (1985) 55 LGRA 231 …. 6.37 Holder v Holder [1968] Ch 353 …. 13.8, 13.12 Hollingshead, Re (1888) 37 Ch D 651 …. 17.20 Hollis v Palmer (1836) 2 Bing NC 713; 132 ER 275 …. 5.7 Holmes v Cowcher [1970] 1 All ER 1224 …. 9.16

—v Mackrell (1858) 3 CBNS 789; 140 ER 953 …. 17.36 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 …. 18.18, 18.19, 18.20, 20.54, 20.59, 20.60, 20.82, 20.84 Homfray v Scroope (1849) 13 QB 509; 116 ER 1357 …. 4.46 Honey v McLennan (1997) 18 WAR 384 …. 10.22, 15.28, 15.29 Hong Guet Eng v Wu Wai Hong (liquidator of Xiang Man Lou Food Court Pte Ltd) [2006] 2 SLR(R) 458 …. 5.21 Honour v Faminco Mining Services Pty Ltd [2008] QSC 330 …. 20.102, 20.107 Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247 …. 13.2 Horan v Melbourne College of Hair and Beauty Culture Pty Ltd (CA(Vic), Brooking, Charles and Callaway JJA, 22 June 1995, unreported) …. 20.13 Horton v Sadler [2007] 1 AC 307; [2006] UKHL 27 …. 20.12, 20.23, 20.27 Houda v New South Wales [2012] NSWSC 1040 …. 2.2, 21.4, 21.5, 21.6, 21.16, 21.17, 21.25, 21.28 Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619 …. 13.12, 13.27 House v R (1936) 55 CLR 499 …. 18.24, 18.25, 18.26 Hovenden v Annesley (1806) 2 Sch & Lef 607; 9 RR 119 …. 13.32, 13.33 Howe v David Brown Tractors (Retail) Ltd [1991] 4 All ER 30 …. 7.14 Howell v Young (1826) 5 B & C 259; 108 ER 97 …. 10.12 Howlett, Re [1949] Ch 767 …. 10.20, 10.21, 13.12 Hristofis v Kanellos (1992) 163 LSJS 142 …. 19.34 Huber v Steiner (1835) 2 Bing (NC) 203; 132 ER 80 …. 2.35 Hughes v Griffin [1969] 1 All ER 460 …. 8.26, 8.30 —v Minister for Health [1999] WASCA 131 …. 12.33 —v Schofield [1975] 1 NSWLR 8 …. 13.19 Humphrey v Fairweather [1993] 3 NZLR 91 …. 2.20 Humphreys v Humphreys [2005] 1 FCR 712; [2004] EWHC 2201 (Ch) …. 13.12 Hunter v Gibbons (1856) 1 H & N 459; 156 ER 1281 …. 15.6

—v Stronghold Insurance (Aust) Ltd (SC (Vic), Nathan J, 18 January 1991, unreported) …. 5.12 — Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 …. 18.13 Hurrinath Chatterji v Mohunt Mothoor Mohun Goswami (1893) LR 20 Ind App 183 …. 2.2 Hurst v Parker (1817) 1 B & Ald 92; 106 ER 34 …. 2.20, 17.57 HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 …. 18.26, 20.101, 20.109, 20.115 Hyde v Agar (1998) 45 NSWLR 487 …. 20.67 —v Johnson (1836) 2 Bing (NC) 776; 132 ER 299 …. 17.4 —v Pearce [1982] 1 WLR 560 …. 8.26 Hyleing v Hastings (1698) 1 Ld Raym 389; 91 ER 1157 …. 17.1 I Ilovska v Kaycone Pty Ltd (SC(ACT), Higgins J, 19 August 1996, unreported) …. 20.35 Imac Security Services Pty Ltd v Tyco Australia Pty Ltd [2002] VSC 592 …. 13.22 Imperial Gas Light & Coke Co v London Gas Light Co (1854) 10 Ex 39; 156 ER 346 …. 15.6 Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 …. 15.3, 15.6, 15.32 Incorporated Society v Richards (1841) 1 Dr & War 258 …. 8.16 Inframatrix Investments Ltd v Dean Construction Ltd [2012] 2 All ER (Comm) 337; [2012] EWCA Civ 64 …. 4.57 Inglis v Commonwealth Trading Bank of Australia (1970) 119 CLR 334 …. 3.4 Ingram v Mohren (1993) 10 WAR 497 …. 9.19 Invercargill City Council v Hamlin [1996] AC 624 …. 6.36, 6.38, 6.40 Ireland v Wightman [2013] SASC 139 …. 19.18 —v— (2014) 119 SASR 266; [2014] SASCFC 52 …. 19.18 Irvine v Kirkpatrick (1851) 17 LT 32 …. 15.3

Issa v Issa [2015] NSWSC 112 …. 13.41 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 …. 3.24, 18.12 Iverson v Howen [2008] NSWSC 1246 …. 5.11 J J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 …. 8.30, 8.31 J O’C v Director of Public Prosecutions [2000] 3 IR 478 …. 1.23 Jackson v Ogg (1859) Johnson’s Reports 397; 70 ER 476 …. 5.22 —v Stothard [1973] 1 NSWLR 292 …. 2.10 Jacobson v Taylor [1984] Tas R 197 …. 20.119 James v Australian and New Zealand Banking Group Ltd (1986) 64 ALR 347 …. 6.18 —v Commissioner for Railways (1963) 63 SR (NSW) 373 …. 14.2 Jamieson v Chiropractic Board of Australia [2011] QCA 56 …. 21.6 Jane v Bob Jane Corp Pty Ltd [2013] VSC 406 …. 12.5, 12.7 Jarvis (decd), Re [1958] 2 All ER 336 …. 13.30 Jarvis v Surrey County Council [1925] 1 KB 554 …. 11.13 Jauncey, Re [1926] 1 Ch 471 …. 9.20 Jess v Scott (1986) 12 FCR 187 …. 20.20 Jessamine Investment Co v Schwartz [1978] QB 264 …. 8.50 Joachimson (a firm name) v Swiss Bank Corporation [1921] 3 KB 110 …. 5.33 Johannessen v Miller (1977) 16 SASR 546 …. 3.25 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 …. 6.26 John Lysaght Aust Ltd v Butfield (CA(NSW), Mahoney AP, Handley and Powell JJA, 8 December 1993, unreported) …. 6.22 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 …. 2.40 John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973)

129 CLR 65 …. 2.35, 3.7, 3.9, 3.10, 11.13, 11.14, 11.15 Johns v Johns [2004] 3 NZLR 202 …. 10.27, 10.28, 13.34, 13.35 Johnson, Re (1885) 29 Ch D 964 …. 9.19 Johnson, Re [2000] 2 Qd R 502; [1999] QSC 197 …. 8.33 Johnson v Chief Constable of Surrey (EWCA, Rose, Russell and Neill LJJ, The Times, 23 November 1992, unreported) …. 6.18, 15.47 —v Ministry of Defence [2012] EWCA Civ 1505 …. 20.69 —v Northern Territory of Australia (2014) 285 FLR 227; [2014] NTSC 18 …. 19.3 —v O’Neill [1911] AC 552 …. 8.25 —v Watson [2003] 1 NZLR 626 …. 6.41 Joliffe v Baker (1883) 11 QBD 255 …. 10.22 Jolly, Re [1900] 2 Ch 616 …. 8.15 Jonathan v Mangera [2015] QDC 195 …. 3.24 Jones v Bellgrove Properties Ltd [1949] 2 KB 700 …. 2.3, 17.39, 17.56 —v Corry (1840) 6 Bing NC 247; 133 ER 97 …. 4.26 —v Griggs (2007) 251 LSJS 399; [2007] SASC 394 …. 19.14 —v Pope (1666) 1 Wms Saund 34; 88 ER 45 …. 5.41 —v Royal Hospital for Women (CA(NSW), Mason P, Handley and Beazley JJA, 24 July 1998, unreported) …. 20.60 —v Stones [1999] 1 WLR 1739 …. 13.7, 13.9 —v Thiess Bros Pty Ltd (SC(Qld), Shepherdson J, 8 April 1993, unreported) …. 2.37 —v Tuberville (1792) 4 Bro CC 115; 29 ER 806 …. 1.5 Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237 …. 14.43 Justice v Cairnie Estate (1993) 105 DLR (4th) 501 …. 1.19 K Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 …. 20.81 Kamloops v Nielsen [1984] 2 SCR 2 …. 6.38, 6.42 Kamouh v Associated Electrical Industries International Ltd [1980] QB 199

…. 17.24, 17.32 Karaagac v GRE Insurance Ltd (CA(NSW), Hope, Clarke and Meagher JJA, 26 April 1989, unreported) …. 14.17 Karasaridis v Kastoria Fur Products (1984) 37 SASR 345 …. 4.30 Kashmir, The [1923] P 85 …. 21.31 Kation Pty Ltd v Lamru Pty Ltd [2011] NSWSC 219 …. 17.34, 17.35, 17.36 Kay v Dickson Lonergan Ltd [2006] NZHC 605 …. 6.24, 6.38, 15.29 Kaye v Hoffman (2009) 19 Tas R 357; [2009] TASSC 5 …. 7.49 —v— (No 2) (2008) 17 Tas R 176; [2008] TASSC 2 …. 7.49 Keating v Woods (SC(WA), Adams M, 17 May 1994, unreported) …. 14.6, 14.31, 14.43 Kedem v Johnson Lawyers Legal Practice Pty Ltd [2013] FCA 432 …. 2.16 —v— [2014] FCAFC 3 …. 2.16 Keller v Bayside City Council [1996] 1 VR 356 …. 4.27 Kertz v Kertz [2010] FamCA 975 …. 18.18 Ketteman v Hansel Properties Ltd [1987] AC 189 …. 2.3, 2.18 Khalil v Barakat [2013] EWHC 85 (QB) …. 21.12 Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591 …. 2.16, 6.10 Kibble v Fairthorne [1895] 1 Ch 219 …. 8.8 Kill v Hollister (1746) 1 Wil KB 129; 95 ER 532 …. 4.37 King v Coupland [1981] Qd R 121 …. 14.25 —v Victor Parsons & Co [1973] 1 All ER 206 …. 15.27, 15.28, 15.29, 15.30 Kingsmill v Millard (1855) 11 Exch 313; 156 ER 849 …. 8.26 Kinsman v Rouse (1881) 17 Ch D 104 …. 9.3 Kinzett v McCourt (1999) 46 NSWLR 32; [1999] NSWCA 7 …. 20.67 Kirby v Cowderoy [1912] AC 599 …. 8.25, 8.33 —v Leather [1965] 2 QB 367 …. 14.25 Kitchen v RAF Association [1958] 2 All ER 241 …. 15.27 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 …. 21.31 —v Lincoln City Council [1999] 2 AC 349 …. 16.14, 16.15

Klobucar v Neocoat Pty Ltd [1999] ACTSC 96 …. 20.12, 20.23 Knight v Smith [1975] Tas SR 83 …. 20.24 Knipe v British Railways Board [1972] 1 QB 361 …. 20.109 Knox v Gye (1872) LR 5 HL 656 …. 13.33 Kong Magnus, The [1891] P 223 …. 12.17 Kosky v Trustees of Sisters of Charity [1982] VR 961 …. 4.10 Kotulski v Attard [1981] 1 NSWLR 115 …. 14.14, 14.15, 14.16, 14.44 Koumorou v State of Victoria [1991] 2 VR 265 …. 20.13, 20.26, 20.35, 20.37, 20.38 KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] QB 1441; [2003] EWCA Civ 85 …. 7.74, 20.7, 20.14 Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 …. 3.34 Krogh v Bennett [2015] WADC 147 …. 20.123 Kruber v Grzesiak [1963] VR 621 …. 7.34, 7.73 Kuek v Victoria Legal Aid [1999] 2 VR 331; [1999] VSCA 44 …. 1.6 L Lacey, Re [1907] 1 Ch 330 …. 5.41, 17.37, 17.60 Lakaev v Denny [2010] NSWSC 1480 …. 21.11, 21.21, 21.23, 21.28 Lakshmijit v Sherani [1974] AC 605 …. 5.25 Lallemand v Brown (2014) 9 ACTLR 313; [2014] ACTSC 235 …. 3.27, 3.31 Lambeth London Borough Council v Bigden (2001) 33 HLR 43 …. 17.34 Lamshed v Lamshed (1963) 109 CLR 440 …. 13.14 Lane v Bennett (1836) 1 M & W 70; 150 ER 350 …. 14.30 Lang v Le Boursicot (1993) 5 BPR 11,782 …. 5.42, 13.37 —v Victoria [1965] VR 390 …. 14.20 Law Society v Sephton & Co (a firm) [2006] 2 AC 543; [2006] UKHL 22 …. 6.6, 6.9, 6.11 Lawrance v Lord Norreys (1890) 15 App Cas 210 …. 15.22 Laws v WEB Scaffolding Pty Ltd [2010] ACTCA 3 …. 20.7 Ledingham v Bermejo Estancia Co Ltd [1947] 1 All ER 749 …. 17.40

Lee v Rogers (1663) 1 Lev 110; 83 ER 322 …. 1.24, 2.6 —v Whangarei District Council [2015] NZHC 2777 …. 6.24, 6.38 —v Wilmot (1866) LR 1 Ex 364 …. 17.2 Legal Services Commission v Rasool [2008] 3 All ER 381; [2008] EWCA Civ 154 …. 11.7 Legg v Inner London Education Authority [1972] 3 All ER 177 …. 13.23 Legh v Legh (1930) 143 LT 151 …. 15.7 Leigh v Jack (1879) 5 Ex D 264 …. 8.24, 8.28 Leivers v Barber, Walker & Co Ltd [1943] KB 385 …. 5.41 Lester v Garland (1808) 15 Ves 248; 33 ER 748 …. 4.35 Letang v Cooper [1965] 1 QB 232 …. 7.73 Levi & Co Estate of, Re (1874) 8 SALR 144 …. 17.52 Levy v Watt [2012] VSC 539 …. 15.35, 15.48 —v— (2014) 308 ALR 748; [2014] VSCA 60 …. 1.13, 6.27, 15.6, 15.15, 15.20, 15.29, 15.34, 15.35, 15.48, 21.3 —v Williams [1925] VLR 615 …. 8.8 Lewis v Plunket [1937] 1 Ch 306 …. 9.9 —v Ward [2016] 4 WLR 6; [2015] EWHC 3503 …. 4.50 Ley v Peter (1858) 3 H & N 101; 157 ER 403 …. 17.4 Lian Kok Hong v Ow Wah Foong [2008] 4 SLR 165; [2008] SGCA 30 …. 6.36, 7.87 Liff v Peasley [1980] 1 All ER 623 …. 4.25 Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 …. 13.3, 13.5 Ling v Owners of the Ship ‘Longevity’ (FCA, Sheppard J, 25 September 1995, unreported) …. 21.31 Linsell v Bonsor (1835) 2 Bing NC 241; 132 ER 95 …. 17.2 Litchfield, Re (1989) 51 SASR 87 …. 4.66 Littledale v Liverpool College [1900] 1 Ch 19 …. 8.24, 8.25 Liu Wai Keung v Liu Wai Man [2015] 1 HKLRD 490; [2014] HKCA 614 …. 10.21 Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1

All ER 182 …. 15.39 Llandovery Castle, Re [1920] P 119 …. 2.6 Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 …. 4.30 Lloyds Bank Ltd v Margolis [1954] 1 All ER 734 …. 5.33, 5.34 Locklier v New South Wales [2009] NSWSC 746 …. 19.30, 20.43, 20.59 Loftus (decd), Re [2006] 4 All ER 1110; [2006] EWCA Civ 1124 …. 3.30, 10.7, 13.3 Loizou v Derrimut Enterprise Pty Ltd [2004] VSC 176 …. 13.30 London and Midland Bank v Mitchell [1899] 2 Ch 161 …. 9.20 London Congregational Union Inc v Harriss & Harriss (a firm) [1988] 1 All ER 15 …. 2.19 London Strategic Health Authority v Whiston [2010] 3 All ER 452; [2010] EWCA Civ 195 …. 7.88, 20.18, 20.69 Long v Hepworth [1968] 3 All ER 248 …. 7.73 —v Tower Hamlets London Borough Council [1998] Ch 197 …. 8.50 Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 …. 18.25, 20.13, 20.21, 20.27, 20.38 Lord Advocate v Lord Lovat (1880) 5 App Cas 278 …. 8.25 Lord St John v Boughton (1838) 9 Sim 219; 59 ER 342 …. 17.36 Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783; [2001] EWCA Civ 1805 …. 6.48 Lovell v Lovell [1970] 3 All ER 721 …. 2.10 Lovett v Le Gall (1975) 10 SASR 479 …. 1.24, 19.14, 19.18, 19.22, 19.24 Lowe v Bentley (1928) 44 TLR 388 …. 4.18 Lowsley v Forbes [1999] 1 AC 329 …. 4.13, 12.8 Lubovsky v Snelling [1944] KB 44 …. 2.8, 4.59 Lucy v W T Henleys Telegraph Works Co Ltd [1970] 1 QB 393 …. 20.49 Lyell v Kennedy (1889) 14 App Cas 437 …. 8.54 Lynch v Keddell [1985] 2 Qd R 103 …. 4.30 Lynes v Snaith [1899] 1 QB 486 …. 8.52

Lynn v Bamber [1930] 2 KB 72 …. 15.6, 15.7 Lyu v Jeon (2012) 62 MVR 409; [2012] NSWCA 446 …. 3.21 M Mabbett v Josef & Sons Contracting Pty Ltd (in liq) [2006] NSWSC 1452 …. 14.43 Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485 …. 4.25, 4.26 Maccaba v Lichtenstein [2003] EWHC 1325 (QB) …. 21.9 Mace v Murray (1955) 92 CLR 370 …. 18.24 Mackenzie v Albany Finance Ltd [2003] WASC 100 …. 5.24, 5.33 —v— [2004] WASCA 301 …. 5.24, 5.33 Macleod v Flight West Airlines Pty Ltd [2001] QCA 96 …. 20.99 Macquarie Pathology Services Pty Ltd v Sullivan (CA(NSW), Kirby P, Mahoney and Clarke JJA, 28 March 1995, unreported) …. 13.37 Maga v Archbishop of Birmingham [2010] 1 WLR 1441; [2010] EWCA Civ 256 …. 14.43 Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 …. 6.18 Maguire v Simpson (1977) 139 CLR 362 …. 3.4 Mahon v Frankipile (Australia) Pty Ltd (1990) 157 LSJS 52 …. 19.25, 19.34 Management Corporation Strata Title Plan No 473 v De Beers Jewellery Pte Ltd [2001] 2 SLR(R) 669; [2001] SGHC 206 …. 5.37 —v— [2002] 1 SLR(R) 418; [2002] SGCA 13 …. 5.37 Manby v Manby (1876) 3 Ch 101 …. 4.51 Manitoba Metis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623; [2013] SCC 14 …. 1.31, 3.2, 3.38, 4.63, 7.4 Mann v Department of Immigration and Ethnic Affairs (SC(NSW), Malpass M, 16 April 1996, unreported) …. 15.9 Mantonella Pty Ltd v Grancroft Pty Ltd [2015] QSC 191 …. 10.25 Manufacturers Mutual Insurance Ltd v Government Insurance Office

(1993) 7 ANZ Ins Cas ¶61-158 …. 1.7, 1.25, 12.5, 13.34, 13.37 Maracle v Travellers Indemnity Company of Canada [1991] 2 SCR 50 …. 4.59 Markarian v Woolworths Ltd (CA(NSW), Clarke and Powell JJA, BadgeryParker AJA, 7 November 1995, unreported) …. 6.22 Markfield Investments Ltd v Evans [2001] 2 All ER 238 …. 8.33 Marr v Green (SC(Tas), Zeeman J, 28 April 1992, unreported) …. 18.24 —v— (1993) 14 Tas R 317 …. 18.24, 20.13, 20.24, 20.119 Marren v Dawson Bentley & Co Ltd [1961] 2 QB 135 …. 4.35 Marsal v Apong [1998] 1 WLR 674 …. 3.36 Marshall v Minister for Education of Queensland [2004] QSC 135 …. 20.106 —v Taylor [1895] 1 Ch 641 …. 8.27 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 …. 20.111 Martindale v Burrows [1997] 1 Qd R 243 …. 7.5 Martinus v Kidd (1982) 150 CLR 648 …. 4.42, 7.21 Maskell v Horner [1915] 3 KB 106 …. 5.38, 5.40 Mason, Re [1929] 1 Ch 1 …. 16.2 Mason v Mason [1997] 1 VR 325 …. 1.13, 7.73 —v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308 …. 2.34, 2.39, 18.12 Masters v Stewart [2014] NZHC 2419 …. 10.27 Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417 …. 13.5 Matai Industries Ltd v Jensen [1989] 1 NZLR 525 …. 13.34, 14.24, 15.29, 15.32 Matheson v Commissioner of Main Roads (2001) 25 WAR 269; [2001] WASCA 402 …. 12.33 Matthews v Trustees Executors and Agency Co Ltd (1898) 24 VLR 643 …. 10.13 Mavra v Logan (1980) 24 SASR 567 …. 19.34 Maxwell v Chittick (CA(NSW), Mahoney, Priestley and Powell JJA, 23

August 1994, unreported) …. 13.32, 13.35 —v Murphy (1957) 96 CLR 261 …. 3.34, 3.35, 3.36, 3.37 May v Martin (1885) 11 VLR 562 …. 8.32 Mazzeo v Caleandro Guastalegname & Co (2001) 3 VR 172; [2000] VSCA 230 …. 1.15, 7.78, 7.82 McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 …. 7.87, 20.12 McCallum, Re [1901] 1 Ch 143 …. 15.5, 15.26 McCoubrey v Ministry of Defence [2007] 1 WLR 1544; [2007] EWCA Civ 17 …. 7.87, 20.69 McDonald v McDonald (1935) 35 SR (NSW) 173 …. 2.10 McDonnell & East Ltd v McGregor (1936) 56 CLR 50 …. 4.19 McGee v Yeomans [1977] 1 NSWLR 273 …. 4.30 McGrath v Troy [2010] NSWSC 1470 …. 2.12 McGuinness v Registrar-General (1998) 44 NSWLR 61 …. 8.21 McHenry, Re [1894] 3 Ch 290 …. 5.11, 5.25 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 …. 1.27, 2.4, 2.24, 2.36, 2.37, 2.38, 2.39, 2.40 McKinnon v Huxley [2003] NSWSC 1221 …. 21.31 McLean v Commonwealth (SC(NSW), Sperling J, 28 June 1996, unreported) …. 20.63, 20.66 —v Sydney Water Corporation [2001] NSWCA 122 …. 20.60 McManamny v Hadley [1975] VR 705 …. 20.107 McPherson v Lawless [1960] VR 363 …. 4.35 McQueen v Savides (SC(NSW), James J, 4 April 1996, unreported) …. 20.49 McWhirter v Emerson-Elliott [1960] WAR 208 …. 8.20, 8.25 Melisavon Pty Ltd v Springfield Land Development Corp Pty Ltd [2015] 1 Qd R 476; [2014] QCA 233 …. 6.38 Mellersh v Brown (1890) 45 Ch D 225 …. 9.20 Mercer v Allianz Australia Insurance Ltd (No 3) [2014] TASSC 69 …. 7.21, 7.50

Metacel Pty Ltd v Ralph Symonds Ltd [1969] 2 NSWR 201 …. 15.6 Méthot v Montreal Transportation Commission [1972] SCR 387 …. 1.35 Metropolis and Counties Permanent Investment Building Society, Re [1911] 1 Ch 698 …. 9.4 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 …. 18.24 Michelotti v Roads Corporation (2009) 26 VR 609; [2009] VSC 195 …. 18.19 Midgley v Midgley [1893] 3 Ch 282 …. 2.10, 2.11 Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 …. 5.14 Millard v Victoria [2006] VSCA 29 …. 20.21 Miller v Dell [1891] 1 QB 468 …. 6.25, 6.27 —v London Electrical Manufacturing Co Ltd [1976] 2 Lloyd’s Rep 284 …. 1.34, 7.8, 20.109 Millner v Raith (1942) 66 CLR 1 …. 3.33 Mills v Fowkes (1839) 5 Bing NC 455; 132 ER 1174 …. 17.50, 17.51 —v Haywood (1877) 6 Ch D 196 …. 13.18 Milward v Earl Thanet (1801) 5 Ves 720n …. 13.18 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 …. 6.37 Ministry of Health v Simpson [1951] AC 251 …. 10.7, 16.3, 16.11 Minoque, Ex parte [1980] Qd R 350 …. 20.111 Minoque v Bestobell Industries Pty Ltd [1981] Qd R 356 …. 20.111 M(K) v M(H) [1992] 3 SCR 6 …. 1.25, 1.27, 1.28, 1.33, 3.31, 7.4, 7.23, 7.25, 13.5, 13.7, 13.9, 13.12, 13.40, 15.6, 15.27 MLW Technology Pty Ltd v May [2005] VSCA 29 …. 13.9 MM v Roman Catholic Church of Canada (2001) 205 DLR (4th) 253; [2001] MBCA 148 …. 24.14 Mohima v Mosesh (1888) LR 16 Ind App 23 …. 8.50 Montgomerie’s Brewery Co Ltd v Blyth (1901) 27 VLR 175 …. 15.32 Morgan v Banning (1999) 20 WAR 474 …. 1.7, 2.16, 4.30, 4.50 —v Rowlands (1872) LR 7 QB 493 …. 17.2

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 …. 20.100, 20.102, 20.103 Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) (1999) 96 FCR 217; [1999] FCA 1820 …. 10.19 Morley v Spencer [1994] 1 NZLR 27 …. 5.43 Morris v BHP Coal Pty Ltd [2014] QSC 96 …. 20.107 —v Fred Pty Ltd (SC(ACT), Higgins J, 4 December 1995, unreported) …. 20.35 —v New South Wales [2005] NSWDC 10 …. 14.17 Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480 …. 3.23, 3.24 Mort v Bradley [1916] SALR 129 …. 11.13 Morton v Jools (1992) Aust Torts Rep ¶81-164 …. 20.84 Moschi v LEP Air Services Ltd [1973] AC 331 …. 5.29 Moses v Lovegrove [1952] 2 QB 533 …. 8.25, 8.26 Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177 …. 13.34 Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 …. 6.23, 6.38 Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 3 All ER 129 …. 8.15, 8.33 Mount Isa Mines v Pusey (1970) 125 CLR 383 …. 22.14 Mowen v Morning Bulletin/APN [2013] QCA 36 …. 14.24 Muir v Franklins Ltd [2001] QCA 173 …. 20.107 Murdock v Lipman [2012] NSWSC 983 …. 3.24, 20.21, 20.30, 20.52 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 …. 8.26, 8.32, 14.7 Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 …. 6.7, 6.31, 15.28 Mulpha Hotel Pty Ltd v Goff [2012] 1 Qd R 226; [2011] QCA 204 …. 12.23, 12.27 Murphy v A Raptis and Sons (a firm) (FCA, French J, 11 April 1991, unreported) …. 21.32, 21.33

—v Grealish [2009] 3 IR 366; [2009] IESC 9 …. 4.59, 4.61 —v Lawrence [1960] NZLR 772 …. 5.24, 5.26 —v Lewis [2009] QDC 37 …. 21.16 —v Welsh [1993] 2 SCR 1069 …. 1.24, 14.2 Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 …. 7.23, 15.22, 22.3, 22.4 —v Whiting [2002] QSC 257 …. 7.19 N Napolitano v Coyle (1977) 15 SASR 559 …. 19.8, 19.12, 19.14, 19.15, 19.20, 19.22 Nash v Eli Lilly & Co [1993] 4 All ER 383 …. 7.87, 7.88 —v Hodgson (1854) 1 Kay 650; 69 ER 276 …. 17.47, 17.50 National Bank of Tasmania Ltd (in liq) v McKenzie [1920] VLR 411 …. 8.13, 17.54 National Westminster Bank plc v Powney [1991] Ch 339 …. 4.13 Neall v Deadle (1912) 107 LT 646 …. 8.50 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 …. 15.22 Nelson v Wyong Shire Council (1989) 68 LGRA 164 …. 4.21, 4.22 New South Wales v Bennie [2005] NSWCA 172 …. 14.4 —v Gillett [2012] NSWCA 83 …. 7.47, 7.51, 7.52 —v Harlum [2007] NSWCA 120 …. 1.34, 14.10, 14.16, 14.43 —v Higgins [2005] NSWCA 244 …. 14.9, 14.48 —v Judd [2003] NSWCA 355 …. 20.21, 20.30, 20.33 —v Knight [2002] NSWCA 185 …. 20.65 —v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 …. 15.28 —v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 …. 7.33 —v Williamson (2012) 248 CLR 417; [2012] HCA 57 …. 7.41 New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 …. 1.15, 1.28, 4.5 Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 ….

10.30 Newman v State of Queensland [2009] QSC 125 …. 20.106, 20.114 Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87 …. 13.23 Newton Bellamy & Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431 …. 4.59 Neylon v Dickens [1987] 1 NZLR 402 …. 13.11 NF v State of Queensland [2005] QCA 110 …. 20.107, 20.108 Nicholas v Andrew (1920) 20 SR (NSW) 178 …. 8.32 Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 …. 6.4 Nicholson v England [1926] 2 KB 93 …. 8.13 Nielson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 …. 19.14, 20.106 Niemann v Electronic Industries Ltd [1978] VR 431 …. 19.25 NIML Ltd v MAN Financial Australia Ltd (2006) 15 VR 156; [2006] VSCA 128 …. 15.25 Nintendo Co Ltd v Care (2000) 52 IPR 34; [2000] FCA 1538 …. 13.22 No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 …. 13.2, 13.4, 13.6, 13.13, 13.15, 13.19 Noja v Civil and Civic Pty Ltd (1990) 26 FCR 95 …. 14.2, 20.24 Nolan v Nolan [2004] VSCA 109 …. 10.35 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 …. 6.45, 18.6, 21.4, 21.5, 21.6, 21.9, 21.10, 21.11, 21.12, 21.16, 21.19, 21.22, 21.24, 21.28 Norris v McGeachy [2010] TASFC 4 …. 2.6, 2.16, 18.24, 20.119 North Shore City Council v Body Corporate 188529 [2011] 2 NZLR 289; [2010] NZSC 158 …. 6.38, 6.41 Northey v Minister for Education (1995) 13 SR (WA) 124 …. 7.91 Norton v Ellam (1837) 2 M & W 46; 150 ER 839 …. 5.22 Novak v Bond [1999] 1 SCR 808 …. 1.23, 1.24, 4.62 Novoship (UK) Ltd v Nikitin [2015] QB 499; [2014] EWCA Civ 908 …. 10.35 Nowell v Palmer (1993) 32 NSWLR 574 …. 13.16

Noyes v Pollock (1886) 32 Ch D 53 …. 9.4 Nwakobi v Nzekwu [1964] 1 WLR 1019 …. 13.6 Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 …. 6.12 O O’Brien v Australia and New Zealand Bank Ltd (1971) 5 SASR 347 …. 13.4 —v O’Brien (1995) 35 NSWLR 664 …. 14.2 O’Connor v Isaacs [1956] 2 QB 288 …. 2.20, 6.18 Oelkers v Ellis [1914] 2 KB 139 …. 15.7 Official Assignee of Collier v Creighton [1993] 2 NZLR 534 …. 15.20 Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 …. 17.3, 17.24, 17.27 Ogilvie v Adams [1981] VR 1041 …. 5.21, 5.22, 5.23, 5.24, 5.25, 5.30, 5.33 O’Halloran v Visy Board Pty Ltd [2004] QSC 123 …. 18.17, 20.103, 20.117 Olejniczak v Wallaby Grip Australia Pty Ltd (1993) 117 FLR 155 …. 7.5 Olive v Johnstone [2006] NSWCA 21 …. 14.16 Oliver, Re [1927] 2 Ch 323 …. 17.47 O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55 …. 12.8 O’Neil v Hart [1905] VLR 107 …. 8.33 —v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906 …. 4.19, 6.4, 7.34 —v Rhodes [2016] TASSC 17 …. 7.49 Opacic v Patane [1997] 1 Qd R 84 …. 20.101 Opbroek v Australian Capital Territory [2016] ACTSC 64 …. 7.30 Oram v BHP Mitsui Coal Pty Ltd [2015] 2 Qd R 357; [2014] QSC 230 …. 2.20 Order 64 Rule 1BB of the Supreme Court Rules (Qld), In the Matter of; Wyatt, In the Matter of v Orrell (1992) Aust Torts Rep ¶81-172 …. 4.59 Order of RR Telegraphers v Railway Express Agency Inc 321 US 342 (1944) …. 1.18

O’Reilly, Re [2015] VSC 708 …. 2.12 O’Reilly v Granville [1971] IR 90 …. 4.61 Orr v Ford (1989) 167 CLR 316 …. 13.2, 13.4, 13.8, 13.9, 13.10, 13.12, 13.27, 13.28, 13.29 Ortleib v Lloyd [2015] FCCA 377 …. 3.6 Ostabridge Pty Ltd (in liq) v Stafford [2001] NSWCA 335 …. 17.7, 17.25 Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) …. 6.45, 21.9, 21.15, 21.21, 21.22 Otway Coal Co Ltd, Re [1953] VLR 557 …. 5.7, 8.7 Owen v De Beauvoir (1847) 16 M & W 547; 153 ER 1307 …. 1.32, 8.23 P P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288; [2006] EWCA Civ 1717 …. 3.31, 13.34, 13.36 Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 …. 4.8, 4.9, 4.10 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 …. 16.15 Page v Castlemaine City Council (1986) 66 LGRA 296 …. 6.37 —v Central Queensland University [2006] QCA 478 …. 20.85 —v Hewetts [2012] CP Rep 40; [2012] EWCA Civ 805 …. 4.50 —v— [2014] WTLR 479; [2013] EWHC 2845 (Ch) …. 4.50 —v Linwood (1837) 4 Cl & Fin 399; 7 ER 154 …. 9.4 Paki v Attorney-General [2015] 1 NZLR 67; [2014] NZSC 118 …. 13.13, 13.14 Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 …. 18.9 Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797 …. 2.16, 5.29 Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 …. 2.6, 2.15 Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Rep ¶80-223 …. 2.5 Panizza v Commissioner of State Taxation (1981) 11 ATR 624 …. 17.37

Papadopoulos v James Hardie & Co Pty Ltd (SC(Vic), Kaye J, 12 February 1988, unreported) …. 7.5 —v MC Labour Hire Services Pty ltd (No 4) (2009) 24 VR 66; [2009] VSC 193 …. 13.37 Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072 …. 8.30, 8.34 Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 …. 10.35, 13.39, 15.20 Paramasivam v Flynn (1998) 90 FCR 489 …. 3.27, 15.15 Pardoe, Re [1906] 1 Ch 265 …. 9.19 Pardoe, Re [1906] 2 Ch 340 …. 9.19 Park v Brady [1976] 2 NSWLR 329 …. 1.4, 9.3, 9.4 Parkinson v Hanbury (1867) LR 2 HL 1 …. 9.4 Parr’s Banking Co v Yates [1898] 2 QB 460 …. 5.7 Parsons v Doukas (2001) 52 NSWLR 162; [2001] NSWCA 128 …. 18.12, 20.60 —v Partridge (1992) 111 ALR 257 …. 4.14 Partridge v Briggs (SC(Vic), Gobbo J, 2 June 1988, unreported) …. 20.2 Patel v Shah [2005] EWCA Civ 157 …. 13.26 Paterson v Leigh (2008) 51 MVR 508; [2008] QSC 277 …. 3.24 Patten v Lend Lease Funds Management Pty Ltd [2010] NTSC 51 …. 19.14 Patterson v Northern Territory of Australia (2001) 165 FLR 296; [2001] NTSC 93 …. 19.4 Pauling’s Settlement Trusts, Re [1961] 3 All ER 713 …. 3.32, 13.12 Pauling’s Settlement Trusts, Re [1964] Ch 303 …. 3.32, 13.12 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 …. 5.36 Payne v Jonkers Enterprises Pty Ltd [2004] QSC 447 …. 20.91, 20.102 —v Rowe (2012) 16 BPR 30,869; [2012] NSWSC 685 …. 10.37 PD v Australian Red Cross Society (New South Wales Division) (1993) Aust Torts Rep 181-205 …. 20.41, 20.59 Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 …. 16.13 Peconic Industrial Development Ltd v Law Kwok Fai (2009) 12 HKCFAR

139; [2009] HKCFA 16 …. 10.35 Pedersen v Young (1964) 110 CLR 162 …. 2.35, 3.7, 3.10 Pegler v Railway Executive [1948] AC 332 …. 12.12 Peixeiro v Haberman [1997] 3 SCR 549 …. 1.25, 7.4 Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564 …. 5.12 Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182 …. 7.50 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56 …. 2.12, 13.9 Perry v Royal Women’s Hospital (SC(Vic), Beach J, 14 May 1991, unreported) …. 7.78, 7.82 —v Woodfarm Homes Ltd [1975] 1 IR 104 …. 8.15 Peters v Anderson (1814) 5 Taunt 596; 128 ER 823 …. 17.50 Peterson v Dowse Asphalt Pty Ltd (SC(ACT), Higgins J, 30 November 1994, unreported) …. 20.35 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 …. 8.20, 8.24, 8.26, 8.27, 8.32 Petricola v Metropolitan Transit Authority (1989) Aust Torts Rep ¶80-247 …. 7.41, 20.2 Philip Collins Ltd v Davis [2000] 3 All ER 808 …. 4.19 Philips v Philips (1844) 3 Hare 281; 67 ER 388 …. 17.1, 17.7 Phillips & Co (a firm) v Bath Housing Co-operative Ltd [2013] 2 All ER 475; [2012] EWCA Civ 1591 …. 17.57 Phillips-Higgins v Harper [1954] 1 QB 411 …. 1.18, 16.9, 16.10, 16.11 —v— [1954] 2 All ER 51 …. 16.9, 16.11 Philpott v Kelley (1853) 3 Ad & E 106; 111 ER 353 …. 6.27 Photinopoulos v Photinopoulos (1988) 54 DLR (4th) 372 …. 15.35 Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 …. 20.98 Pilford v Greenmanor Ltd [2012] EWCA Civ 756 …. 8.25 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 …. 7.16 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 …. 6.45, 21.4,

21.5, 21.7, 21.10, 21.11, 21.12, 21.14, 21.19, 21.20, 21.28 Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 …. 6.34, 6.35, 6.36, 6.37, 6.40 Piscioneri v Reardon [2015] ACTSC 61 …. 2.20, 15.9, 15.18, 15.37 Pizer v Ansett Australia Ltd [1998] QCA 298 …. 18.26, 20.107, 20.109 Platt v BRB (Residuary) Ltd [2015] PIQR P7; [2014] EWCA Civ 1401 …. 20.69 Plowman v Sisters of St John of God Inc [2012] NSWSC 376 …. 7.55, 7.56, 14.43, 20.12, 20.16, 20.82 Pointon v Walkley [1951] SASR 121 …. 14.15, 14.25, 14.43 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2010) 267 ALR 530; [2010] FCA 367 …. 12.33 Polimich Pty Ltd v Argent [1977] 2 NSWLR 439 …. 12.14 Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296 …. 7.64, 7.80, 14.47, 19.12, 19.14 Pollard v Clayton (1855) 1 K & J 462; 69 ER 540 …. 13.18 Pollock (deceased), Re [1964] VR 554 …. 5.8, 10.20 Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125 …. 19.8, 19.12, 19.24, 19.28 Poole Corporation v Moody [1945] 1 KB 350 …. 3.26 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 …. 4.58 Portman Building Society v Hamlyn Taylor Neck (a firm) [1998] 4 All ER 202 …. 5.37 Pounds v Eckford Rands (a firm) [2003] Lloyd’s Rep PN 195 …. 7.19 Powell v McFarlane (1979) 38 P & CR 452 …. 8.24 Power v Kenny [1977] WAR 87 …. 17.53 Powers, Re (1885) 30 Ch D 291 …. 5.43 Pratt v Cook Son & Co (St Paul’s) Ltd [1939] 1 KB 364 …. 11.3 Presentaciones Musicales SA v Secunda [1994] Ch 271 …. 4.53 Prideaux v Webber (1660) 1 Lev 31; 82 ER 282 …. 4.45 Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia [2014]

QSC 107 …. 21.7, 21.26 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 …. 1.8, 1.15, 4.26, 4.30, 4.31 Prowse v McIntyre (1961) 111 CLR 264 …. 14.2 Public Trust v Ottow [2009] NZHC 2904 …. 13.24 Pugh v Heath (1882) 7 App Cas 235 …. 8.7, 9.8 Pullar v Secretary for Education [2007] NZCA 389 …. 6.24, 6.38 Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 …. 2.20, 2.21, 2.22, 6.38 Purnell v Roche [1927] 2 Ch 142 …. 14.5 Purton v Jackson (2013) 22 Tas R 333; [2013] TASSC 46 …. 18.13 Q Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 …. 8.24 Quek v Beggs (1990) 5 BPR 11,761 …. 13.24 R R v Byrnes (1995) 183 CLR 501 …. 15.31 —v Lawrence [1982] AC 510 …. 1.17 —v McNeil (1922) 31 CLR 76 …. 2.24, 13.33, 13.40 —v Williams [1942] AC 541 …. 5.41 R & H Green & Silley Weir Ltd v British Railways Board [1985] 1 All ER 237 …. 5.12 R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 …. 3.33 Radcliffe v Bartholomew [1892] 1 QB 161 …. 4.35 Radonich v Radonich [1999] WASC 165 …. 8.26, 8.34 Rahman v Sterling Credit Ltd [2001] 1 WLR 496 …. 5.41 Rains v Buxton (1880) 14 Ch D 537 …. 8.24 Ramnarace v Lutchman [2001] 1 WLR 1651; [2001] UKPC 25 …. 8.26 Ramsden v Lee [1992] 2 All ER 204 …. 20.10 Ramton v Cassin (1995) 38 NSWLR 88 …. 2.17

Randall v Stevens (1853) 2 El & Bl 641; 118 ER 907 …. 8.32, 8.33 Randel v Brisbane City Council [1984] 2 Qd R 276 …. 20.89, 20.98, 20.106 Raschke v Suncorp Metway Insurance Ltd [2005] 2 Qd R 549; [2005] QCA 161 …. 20.90 Rasmussen v Rasmussen [1995] 1 VR 613 …. 10.22 Ratcliffe v VS & B Border Homes Ltd (1987) 9 NSWLR 390 …. 6.6 Rawle v Southstate Industrial Supplies Pty Ltd (2008) 7 DCLR (NSW) 134; [2008] NSWDC 70 …. 7.47 Rayney v State of Western Australia (No 3) [2010] WASC 83 …. 21.4, 21.5, 21.6 RB Policies at Lloyd’s v Butler [1950] 1 KB 76 …. 1.15, 1.23, 1.28, 15.35 Read v Brown (1888) 22 QBD 128 …. 4.4 —v Price [1909] 2 KB 724 …. 17.34, 17.60 Reader v Fried [2001] VSC 495 …. 10.22, 10.23, 13.13, 13.15, 15.28 Redmond v J C Hutton Pty Ltd [2004] ACTSC 102 …. 20.29, 20.104 Reeves v Butcher [1891] 2 QB 509 …. 5.16, 5.27 —v Leyland Motor Corporation of Australia Ltd (No 2) (1984) 115 LSJS 62 …. 19.25 Registrar-General v Cleaver (1996) 41 NSWLR 713 …. 6.43, 6.44, 11.8, 11.9, 11.10 Reid v AGCO Australia Ltd [2000] VSC 363 …. 19.11, 19.24, 19.34 Reidy v Trustee of the Christian Brothers (1994) 12 WAR 583 …. 1.15 Rendall v Hill’s Dry Docks and Engineering Company Ltd [1900] 2 QB 245 …. 4.59 Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 …. 20.13, 20.20, 20.22 Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 …. 3.34 Rhodes v Smethurst (1838) 4 M & W 42; 150 ER 1335 …. 4.45, 4.46 Richardson, Re [1911] 2 KB 705 …. 5.12 Riches v Director of Public Prosecutions [1973] 1 WLR 1019 …. 2.15 Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] 2 All ER 304; [2005] EWCA Civ 92 …. 1.7, 12.8

Riley v Pentilla [1974] VR 547 …. 8.25 Riley and the Real Property Act, Re [1965] NSWR 994 …. 8.26, 8.32 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 …. 21.3, 21.4, 21.7, 21.12, 21.14, 21.22, 21.28 Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483 …. 21.28 River Steamer Co, Re (1871) LR 6 Ch App 822 …. 17.25 Roberts v Swangrove Estates Ltd [2008] Ch 439; [2008] EWCA Civ 98 …. 8.24 Robertson v Hobart Police & Citizens’ Youth Club [1982] Tas R 102 …. 2.6, 20.119 Robins v Downes (1996) 24 MVR 180 …. 12.27, 12.28 Robinson, Re [1911] 1 Ch 502 …. 16.3 Robinson v Craven (1994) 63 SASR 267 …. 2.7, 18.6, 19.6, 19.10, 19.11 —v Zinc Corporation Pty Ltd [2005] NSWCA 372 …. 20.54 Roddam v Morley (1856) 1 De G & J 1; 44 ER 622 …. 17.60 Rodgers v Revenue SA, Department of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2 …. 3.34, 18.12, 19.1, 19.2 Rolfe v Gregory (1865) 4 De G J & S 576; 46 ER 1042 …. 15.3 Romain v Scuba TV Ltd [1997] QB 887 …. 8.47 Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 …. 2.2, 2.6, 2.15 Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) 47 IPR 593; [1999] FCA 1000 …. 13.23 Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants VOF (The Gilbert Rowe) (No 2) [1999] CLC 1461 …. 5.42, 11.2 Rownson, Re (1883) 29 Ch D 358 …. 2.10 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 …. 11.26 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 …. 5.39 Royal Insurance Australia Ltd v Comptroller of Stamps (Vic) (1992) 23 ATR 528 …. 11.25

Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 …. 20.88, 20.97, 20.98, 20.107, 20.108 Ruckmaboye v Lulloobhoy Mottichund (1852) 8 Moo PC 4; 14 ER 2 …. 14.30 Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443 …. 19.9, 19.18 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 …. 3.18, 3.19 Rutherford, Re (1880) 14 Ch D 687 …. 5.27 Rutter v New South Wales [2005] NSWCA 231 …. 20.42 S S v G [1995] 3 NZLR 681 …. 7.23 S & B Pty Ltd v Podobnik (1994) 53 FCR 380 …. 20.7, 20.10, 20.13 Salido v Nominal Defendant (1993) 32 NSWLR 524 …. 3.15, 18.3, 18.4, 18.5, 18.6, 18.8, 18.25, 18.26 Salter v Clarke (1904) 4 SR (NSW) 280 …. 8.32 Salter Rex & Co v Ghosh [1971] 2 QB 597 …. 20.20 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 …. 7.15, 7.16, 13.33, 18.19, 18.20, 19.9, 19.18, 20.83 Sampson v Zucker (CA(NSW), Gleeson CJ, Cole JA and Simos AJA, 11 December 1996, unreported) …. 2.16, 6.32 Sanders v Sanders (1881) 19 Ch D 373 …. 17.55 Sands v Thompson (1883) 22 Ch D 614 …. 10.32 Sardon Pty Ltd v Registrar of Titles [2004] WASC 56 …. 4.11, 8.7, 8.8, 9.3, 9.12 Sauer v Allianz Australia Insurance Ltd (2006) 47 MVR 220; [2006] NSWCA 364 …. 20.113 Saunders v Jackson [2009] NSWCA 192 …. 14.16, 14.44 Sauria, The and Trent, The [1957] 1 Lloyd’s List LR 396 …. 4.59 Sayers v Lord Chelwood [2013] 2 All ER 232; [2012] EWCA Civ 1715 …. 2.22, 7.11, 7.13, 20.10 Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261

…. 6.37 Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 …. 6.6, 6.38, 6.44 Schijf v Mydomaine Pty Ltd [2015] WASC 428 …. 2.16, 4.30, 4.32 Scott v Avery (1856) 5 HLC 811; 10 ER 1121 …. 4.37, 4.38, 4.41, 12.14 —v Davis (2000) 204 CLR 1; [2000] HCA 52 …. 15.25 —v Hazelwood (2001) 10 Tas R 67; [2001] TASSC 45 …. 2.16 —v State of Western Australia (1994) 11 WAR 382 …. 7.91, 12.32 Seaegg v R (1932) 48 CLR 251 …. 11.15 Seagram v Knight (1867) LR 2 Ch App 628 …. 4.48 Seaton v Seddon [2013] 1 All ER 29; [2012] EWHC 735 (Ch) …. 14.23 Segal v Fleming [2002] NSWCA 262 …. 2.20, 6.8, 6.14 —v Young [2001] NSWCA 141 …. 4.36 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 …. 6.8 Sessions v Phengsiaroun [2008] ACTSC 132 …. 17.59, 20.7, 20.10 Sevcon Ltd v Lucas CAV Ltd [1986] 2 All ER 104 …. 4.8 Seymour v Seymour (1996) 40 NSWLR 358 …. 10.22, 10.23, 15.28, 15.29 —v Williams [1995] PIQR P470 …. 7.73, 7.74 Shade v Compton Partnership [2000] PNLR 218 …. 7.19 Sharp v Milligan (1856) 22 Beav 606; 52 ER 1242 …. 13.19 —v— (No 2) (1857) 23 Beav 419; 53 ER 165 …. 13.19 Sharpe v Goodhew (1990) 96 ALR 251 …. 5.37 Shaw v Broadbent [2010] QSC 433 …. 1.34, 7.8, 20.80 —v Garbutt (1996) 7 BPR 14,816 …. 8.32, 8.33, 17.3, 17.27 Sheldon v McBeath (1993) Aust Torts Rep ¶81-209 …. 6.22 —v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 …. 15.19, 15.36, 15.43, 15.44, 15.45, 15.46 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 …. 8.32 Sherson & Associates Pty Ltd v Bailey (2001) Aust Torts Rep ¶81-591; [2000] NSWCA 275 …. 6.38 Shire of Toodyay v Merrick [2016] WASC 29 …. 15.13, 15.28, 15.29, 15.31

Shoobert v Baptist Community Services NSW & ACT Ltd [2011] ACTSC 152 …. 18.19 Short v Crawley (No 30) [2007] NSWSC 1322 …. 13.40 —v Short [1961] NZLR 516 …. 10.12 Shortland Electricity v O’Connor [1999] NSWCA 87 …. 14.9 Sihvola, Re [1979] Qd R 458 …. 20.79, 20.91 Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968 …. 7.11, 7.87 Simson v Ingham (1823) 2 B & C 65; 107 ER 307 …. 17.50 Sinclair v Registrar-General [2010] NSWSC 173 …. 11.9, 11.10, 16.8, 16.11 Site Developments (Ferndown) Ltd v Cuthbury Ltd [2011] Ch 226; [2010] EWHC 10 …. 8.32 Skene v Cook [1901] 2 KB 7 …. 5.7 Skrijel v Mengler [1998] VSC 71 …. 15.17, 15.28, 15.29, 15.35, 15.46 Slaveska v State of Victoria [2015] VSCA 140 …. 7.41, 7.42 Smirk v Lyndale Developments Ltd [1975] Ch 317 …. 8.26 Smith v Browne [1974] VR 842 …. 19.14, 20.106 —v Central Asbestos Co Ltd [1973] AC 518 …. 1.2, 1.3, 1.16, 1.23, 1.24, 1.28, 1.34, 7.8, 7.87, 20.68, 20.91, 22.15 —v Clay (1767) 3 Bro CC 639n …. 13.32 —v Department of Defence (SC(NSW), Sperling J, 6 April 1998, unreported) …. 20.36, 20.116 —v Grant (2006) 67 NSWLR 735; [2006] NSWCA 244 …. 20.20 —v Lloyd (1854) 9 Exch 562; 156 ER 240 …. 8.28 —v Rynne [2005] NSWCA 77 …. 7.35 —v Thorne (1852) 18 QB 134; 118 ER 50 …. 17.29 Sniezek v Bundy (Letchworth) Ltd [2000] PIQR P213 …. 7.88 Societé Egyptienne Financiére Pour le Commerce et L’Industrie SAE v Clyde Industries Ltd [1960] SR (NSW) 315 …. 14.30 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 …. 18.6, 19.14, 19.15, 19.16, 19.17, 19.18, 20.90 Solling v Broughton [1893] AC 556 …. 8.32

Sophron v Nominal Defendant (1957) 96 CLR 469 …. 19.32 Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 …. 2.25, 4.62, 20.111 South Australian Co v City of Port Adelaide [1914] SALR 15 …. 8.11 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 …. 20.59, 20.60 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233 …. 13.9, 13.13 Spackman v Foster (1883) 11 QBD 99 …. 6.25 Spadotto & Co Pty Ltd (in liq) v Raber (CA(NSW) Priestley, Clarke and Powell JJA, 27 October 1995, unreported) …. 20.61, 20.62, 20.68, 20.70 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 …. 17.56 —v WorkCover Queensland [2009] QCA 323 …. 20.109 Spandideas v Vellar [2008] VSC 198 …. 7.49, 7.51, 7.52 Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858 …. 6.31, 6.35 Spencer v Hemmerde [1922] 2 AC 507 …. 17.1, 17.2, 17.5, 17.6, 17.7, 17.29, 17.30, 17.31, 17.33, 17.34, 17.54 —v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254 …. 3.23, 3.24 Spoor v Green (1874) LR 9 Ex 99 …. 5.14 Stafford v Stafford (1857) 1 De G & J 193; 44 ER 697 …. 13.12 Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 …. 1.15, 17.4, 17.5, 17.10, 17.24, 17.42, 17.45, 17.46, 17.54, 17.55 Stamford, Spalding and Boston Banking Co v Smith [1892] 1 QB 765 …. 17.49 Staples v Holdsworth (1838) 4 Bing NC 717; 132 ER 965 …. 4.26 State Government Insurance Commission v Teal (1990) 2 WAR 105 …. 5.12, 5.42, 11.13 State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332 …. 14.25, 14.26, 14.44, 14.45, 18.26 State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20 …. 1.34, 1.36, 7.8, 7.21, 20.87, 20.96

State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 …. 19.21, 19.31 State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 …. 15.5 State Rail Authority v Gaudron (CA(NSW), Priestley and Meagher JJA, Brownie AJA, 12 August 1997, unreported) …. 20.66 State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 …. 1.5, 1.8, 14.2 State Transit Authority of New South Wales v Fraser (CA(NSW), Meagher, Handley and Powell JJA, 23 May 1995, unreported) …. 20.91 Statek Corporation v Alford [2008] EWHC 32 (Ch) …. 10.25 Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 …. 6.45, 19.33, 21.5, 21.12, 21.15, 21.22 Stephenson v Queensland [2004] QCA 483 …. 20.96 Stevens v Head (1992) 176 CLR 433 …. 2.36 —v Motor Vehicle Insurance Trust [1978] WAR 232 …. 12.33 Stevenson v Tasmania [2008] TASSC 27 …. 14.22 Stewart, Re [2004] 1 NZLR 354 …. 15.8 Stinchcombe v Thomas [1957] VR 509 …. 5.40 Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 …. 7.12, 7.24, 7.70, 7.72, 7.73, 7.74, 7.75, 7.76, 7.77, 7.78, 7.82 Stuart v Hishon [2013] NSWSC 766 …. 17.29, 17.31, 17.36 Stubbings v Webb [1993] AC 498 …. 7.34, 7.72, 7.73, 7.76 Stucley, Re [1906] 1 Ch 67 …. 9.20 Sturgis v Morse (1857) 24 Beav 541; 53 ER 466 …. 15.20 Sugden v Crawford [1989] 1 Qd R 683 …. 20.95 Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94; [2001] QCA 252 …. 11.7 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 …. 5.29 Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 …. 12.11, 17.1, 17.2, 17.24, 17.25, 17.47 Sutherland Shire Council v Heyman (1985) 157 CLR 424 …. 6.18, 6.37

Sutton v Sutton (1882) 22 Ch D 511 …. 9.21 Suttons Motors Pty Ltd v Campbell [1956] SR (NSW) 304 …. 6.27 SW v New South Wales [2010] NSWSC 966 …. 14.4, 14.17 Swain, Re [1891] 3 Ch 233 …. 10.12 Swann v Sowell (1819) 2 B & Ald 759; 106 ER 543 …. 17.25 Swansea City Council v Glass [1992] QB 844 …. 5.17 SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commission (1990) ATPR ¶41-045 …. 6.9 Switz Pty Ltd v Glowbind Pty Ltd (2000) 18 ACLC 343; [2000] NSWSC 222 …. 5.24 Sydney City Council v Zegarac (1998) 43 NSWLR 195 …. 7.7, 18.1, 19.22, 20.12, 20.47, 20.49, 20.51, 20.52, 20.54 Sze Tu v Lowe [2014] NSWCA 462 …. 10.36, 13.39 T T v H [1995] 3 NZLR 37 …. 14.2, 14.24, 14.44 Tabor v Godfrey (1895) 64 LJQB 245 …. 8.26 Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19 …. 20.102 Talory v Jackson (1638) 4 Croke Car 513; 79 ER 1043 …. 5.41 Tanna v Deutsche Bank (Asia) AG [1997] ANZ Conv R 598 …. 6.9 Tanner v Smart (1827) 6 B & C 603; 108 ER 573 …. 17.1, 17.7 Tavsanli v Philip Morris (Australia) Ltd (SC(Vic), Young CJ, 18 September 1989, unreported) …. 20.13, 20.42 Tay Ivy v Tay Joyce [1991] 2 SLR(R) 752 …. 5.21 Taylor v Davies [1920] AC 636 …. 10.35 —v Hollard [1902] 1 KB 676 …. 17.53 —v Twinberrow [1930] 2 KB 16 …. 8.16 —v Western General Hospital [1986] VR 250 …. 20.42 Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 …. 13.7 Teamsters & Employers Welfare Trust of Illinois v Gorman Brothers Ready

Mix (2002) 283 F 3d 877 …. 1.6 Telfair Shipping Corp v Inersea Carriers SA (‘The Caroline P’) [1985] 1 All ER 243 …. 5.12 Telstra Corporation Ltd v Rea [2002] NSWCA 49 …. 20.62, 20.68, 20.70 Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133 …. 17.28 Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] 2 AC 337; [2012] UKSC 19 …. 1.10, 16.5, 16.11 Thom v Davy Burton [2009] 1 NZLR 437; [2008] NZSC 65 …. 6.15 Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 …. 6.26 Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 …. 1.5, 2.3, 2.22, 7.10, 7.87, 19.34, 20.9, 20.13, 20.26, 20.37 Thomson v Eastwood (1877) 2 App Cas 215 …. 5.20 —v Les Harrison Contracting Co [1976] VR 238 …. 4.55 —v Lord Clanmorris [1899] 2 Ch 523 …. 11.13 —v— [1900] 1 Ch 718 …. 4.48, 5.41, 11.13 Thomson’s Mortgage Trusts, Re [1920] 1 Ch 508 …. 2.13 Thorne v Heard & Marsh [1895] AC 495 …. 10.21, 10.22 —v Heard [1894] 1 Ch 599 …. 10.12, 10.21, 10.22, 15.5 Thursby v Warren (1628) Cro Car 159; 79 ER 738 …. 2.6 Tidd, Re [1893] 3 Ch 154 …. 5.32 Tichborne v Weir (1892) 67 LT 735 …. 8.16 Tickner v Buzzacott [1965] Ch 426 …. 8.16 Timmis, Re [1902] 1 Ch 176 …. 10.2 Tippets v Heane (1834) 1 Cr M & R 252; 149 ER 1074 …. 17.2 Tito v Waddell (No 2) [1977] Ch 106 …. 10.8, 10.22, 12.4, 12.5, 15.27, 15.42 Todd v Davison [1972] AC 392 …. 14.20 Tointon v H W Greenham and Sons Pty Ltd [1986] VR 666 …. 20.13 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135 …. 20.24 Tolley v Morris [1979] 2 All ER 561 …. 14.2

Tolofson v Jensen [1994] 3 SCR 1022 …. 2.35, 2.40, 4.59 Tonkin v Johnson [1999] 2 Qd R 318 …. 4.11 Topham v Booth (1887) 35 Ch D 607 …. 4.48 Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 …. 2.6, 2.16, 3.10, 4.4, 5.38, 16.2 Tosich v Tasman Investment Management Ltd (2008) 250 ALR 274; [2008] FCA 377 …. 4.46 Transplanters (Holding Company) Ltd, Re [1958] 2 All ER 711 …. 17.4, 17.40, 17.41 Trattonicolas v Schafer (1983) 106 LSJS 50 …. 19.25 Trewin v Flower [1965] NZLR 8 …. 16.11 Trevelyan v Charter (1835) 4 LJ (NS) (Ch) 209 …. 15.5 Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136; [2007] SASC 285 …. 7.15 Trkulja v Dobrijevic [2013] VSC 261 …. 21.20 Trustees, Executors, and Agency Co Ltd v Short (1888) 13 App Cas 793 …. 8.32 TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (2003) 57 IPR 530; [2003] FCA 371 …. 13.5 Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138 …. 20.12, 20.22, 20.23, 20.24, 20.31 Tucker v Barwon Health and Geelong Hospital [2008] VSC 229 …. 7.52, 20.29, 20.75 Tuckey v Hawkins (1847) 4 CB 655; 136 ER 665 …. 4.4, 5.41, 5.44 Tung v Augustine [1973] VR 616 …. 14.20 Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120 …. 2.25, 20.55 Turner v Midland Railway Co [1911] 1 KB 832 …. 4.41 —v Stallibrass [1898] 2 QB 56 …. 6.17 —v W H Malcolm Ltd (1992) 15 BMLR 40 …. 14.2 Tyley v Dougherty [1932] SASR 307 …. 14.2

U UCB Corporate Services Ltd v Kohli [2004] 2 All ER (Comm) 422; [2004] EWHC 1126 (Ch) …. 17.20 Ulowski v Miller [1968] SASR 277 …. 1.5, 19.24, 19.32 Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 …. 17.18 Urie v Thompson 337 US 163 (1949) …. 7.4 V Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 …. 13.8 Van Gerven v Amaca Pty Ltd [2010] VSC 236 …. 7.81 —v— [2012] VSC 131 …. 20.6, 20.21 Van Heeren v Cooper [2015] BPIR 953; [2014] EWHC 4797 (Ch) …. 17.6, 17.8 Van Vliet v Griffiths (1979) 20 SASR 524 …. 3.37 Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 …. 12.22 Vane v Vane (1873) LR 8 Ch App 383 …. 15.49 Vaudin v Hamon [1974] AC 569 …. 1.3 Vellar v Spandideas [2008] VSCA 139 …. 7.49, 7.51, 7.52 Verboon v McMahon [1970] VR 282 …. 14.20 Verebes v Verebes (1995) 6 BPR 14,408 …. 2.29, 8.3, 8.15 Verschuuren v Tom’s Tyres Corporation Ltd (1992) 86 NTR 1 …. 1.4, 3.13 Vicary v State of Queensland [2009] QSC 284 …. 20.83, 20.116 Victorian Producers’ Co-operative Co Ltd v Dye [1927] VLR 572 …. 17.25 Vinnicombe v MacGregor (1902) 28 VLR 144 …. 6.5 VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57 …. 5.24, 5.30, 17.29, 17.32, 17.34, 17.42, 17.43 VMT v Corporation of the Synod of the Diocese of Brisbane (2007) Aust Torts Rep ¶81-909; [2007] QSC 219 …. 20.100, 20.111, 20.115 W W v Attorney-General [1999] 2 NZLR 709 …. 14.24, 14.44, 24.4, 24.5,

24.6, 24.11 W H Eutrope & Sons Pty Ltd (in liq), Re [1932] VLR 453 …. 17.32, 17.36 W T Lamb & Sons v Rider [1948] 2 KB 331 …. 4.11 Wagdy Hanna & Associates Pty Ltd v National Library of Australia (2012) 7 ACTLR 70; [2012] ACTSC 126 …. 3.27 —v— [2014] ACTCA 32 …. 5.11, 5.40 Wainman v Kynman (1847) 1 Ex 118; 154 ER 49 …. 17.2 Walker v Clements (1850) 15 QB 1046; 117 ER 755 …. 4.19 —v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 …. 3.16, 3.17, 3.18, 3.20 —v Melham [2007] NSWSC 264 …. 3.31 Walkin v South Manchester Health Authority [1995] 4 All ER 132 …. 7.18, 7.19 Walkley v Precision Forgings Ltd [1979] 2 All ER 548 …. 2.3, 2.6 Walla v State Transport Authority [1985] VR 327 …. 20.13, 20.34 Wallingford v Mutual Society (1880) 5 App Cas 685 …. 15.22 Wallis v Crowe [1942] SASR 23 …. 5.29 Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 …. 8.25, 8.26 Walter v Yalden [1902] 2 KB 304 …. 8.16 Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 …. 18.23, 20.18, 20.49, 20.84 Walton v Gardiner (1993) 177 CLR 378 …. 1.5, 3.25 —v Mascall (1844) 13 M & W 452; 153 ER 188 …. 5.22 Wan-Jen Sun v Hojunara International Group Pty Ltd [2013] NSWSC 2044 …. 6.45 Ward v Lewis (1896) 22 VLR 410 …. 1.7, 10.13, 15.30 —v Walton (1989) 66 NTR 20 …. 19.14 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 …. 2.16, 6.6, 6.7, 6.9, 6.10, 6.11, 6.12, 6.44, 15.5 Wardman v Hatfield [2003] NSWCA 283 …. 5.29 Warren v Coombes (1979) 142 CLR 531 …. 18.25

—v Murray [1894] 2 QB 648 …. 8.26 Waters v Earl of Thanet (1842) 2 QB 757; 114 ER 295 …. 4.59, 5.11, 5.25 Watson v Isell (1890) 16 VLR 607 …. 4.35 —v Public Trustee [1984] VR 365 …. 3.13 —v Reid (1830) 1 Russ & M 236; 39 ER 91 …. 13.18 Watt v Rama [1972] VR 353 …. 4.10 Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51 …. 20.90, 20.102 Webeck v Foley (1992) 5 BPR 11,694 …. 8.33 Weis Restaurant Toowoomba v Gillogly [2013] QCA 21 …. 20.96 Weld v Petre [1929] 1 Ch 33 …. 9.20, 13.4 Weldon v Neal (1887) 19 QBD 394 …. 4.25, 4.26, 4.30 Wells v Commonwealth of Australia [2014] NSWSC 148 …. 2.16, 20.41, 20.42 West Bromwich Building Society v Wilkinson [2005] 4 All ER 97; [2005] UKHL 44 …. 9.8 West Riding County Council v Huddersfield Corporation [1957] 1 QB 540 …. 11.7 Westby, Re (1879) 10 Ch D 776 …. 4.56 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890 …. 4.19 Westfield Design & Construction Pty Ltd v LR & M Construction Pty Ltd (1999) 204 LSJS 50; [1999] SASC 319 …. 4.11, 4.12, 12.15 Wewaykum Indian Band v Canada [2002] 4 SCR 245; [2002] SCC 79 …. 1.19, 3.31 Wheatley v Bower [2001] WASCA 293 …. 12.5 Whereat v Duff [1972] 2 NSWLR 147 …. 13.16, 13.24 White v Parnther (1829) 1 Knapp 179; 12 ER 288 …. 1.25 —v Taupo Totara Timber Co [1960] NZLR 547 …. 1.7 Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22 …. 18.19, 20.15, 20.32 Whitfield v North Durham Health Authority (1995) 6 Med LR 32 …. 7.88

Whiting v JDS Engineering & Labour Services Pty Ltd [2010] NSWCA 28 …. 18.12, 19.33, 19.34 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 …. 8.24, 8.26 Wilby v Henman (1834) 2 Cr & M 658; 149 ER 924 …. 2.20 Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427 …. 7.88 —v Verity (1871) LR 6 CP 206 …. 4.4, 5.14, 6.18, 6.26 Williams v Auckland Council [2015] NZCA 479 …. 13.5, 13.12 —v Central Bank of Nigeria [2014] AC 1189; [2014] UKSC 10 …. 10.35 —v Commonwealth of Australia [2007] NSWSC 1342 …. 18.18, 18.19 —v F S Evans & Sons (1988) 52 SASR 237 …. 19.34 —v Fanshaw Porter & Hazelhurst (a firm) [2004] 2 All ER 616; [2004] EWCA Civ 157 …. 15.36, 15.47 —v Greatrex [1956] 3 All ER 705 …. 13.19 —v Milotin (1957) 97 CLR 465 …. 4.4, 4.14 —v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 …. 7.16, 20.41, 20.42 —v— (SC(NSW), Bruce J, 23 July 1997, unreported) …. 4.30 —v— (1999) 25 Fam LR 86; [1999] NSWSC 843 …. 3.28, 3.29 —v Pott (1871) LR 12 Eq 149 …. 8.29, 8.54 —v Smith [1984] Tas R 176 …. 7.13, 20.119 —v Thomas [1909] 1 Ch 713 …. 8.7 —v Zupps Motors Pty Ltd [1990] 2 Qd R 493 …. 1.7, 14.2 Williams Brothers Direct Supply Ltd v Raftery [1958] 1 QB 159 …. 8.25, 8.27, 8.28 Willis v Earl Howe [1893] 2 Ch 545 …. 8.32 Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98; [2009] WASCA 29 …. 2.16 Wilson, Re [1937] Ch 675 …. 17.47 Wilson v Equity Trustees, Executors and Agency Co Ltd [1911] VLR 481 …. 8.52

—v Horne (1999) 8 Tas R 363; [1999] TASSC 33 …. 4.14, 6.16, 7.23, 7.27 —v Rigg (2002) 36 MVR 451; [2002] NSWCA 246 …. 2.6, 2.15 Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 …. 1.34, 2.40, 4.12, 4.13, 7.8, 20.83 Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287 …. 2.20, 4.15, 6.6, 6.13 Winters v Doyle [2006] 2 Qd R 285; [2006] QCA 110 …. 3.24 Wintle v Stevedoring Industry Finance Committee (SC(Vic), McGarvie J, 5 April 1989, unreported) …. 20.111 —v— [2002] VSC 265 …. 20.6, 20.42 Witten v Lombard Australia Ltd (1968) 14 FLR 322 …. 14.30 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 …. 18.9, 20.91, 20.95, 20.111 Woodhead v Elbourne [2001] 1 Qd R 220; [2000] QSC 42 …. 3.29, 20.102 Woodland-Ferrari v UCL Group Retirement Benefits Scheme [2003] Ch 115; [2002] EWHC 1354 (Ch) …. 10.23 Woodward v McGregor [2003] NSWSC 672 …. 5.21 —v Wesley Hazell Pty Ltd [1994] ANZ ConvR 623 …. 8.24 Wookey v Quigley (No 2) [2010] WASC 209 …. 21.4, 21.5, 21.6, 21.8, 21.11, 21.13, 21.15, 21.28 Woolley v Jensen (1995) 14 Tas R 373 …. 20.23, 20.24 Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 …. 19.10, 19.11 WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34 …. 2.2 Workers’ Compensation Board of Queensland, Ex parte [1983] 1 Qd R 450 …. 11.4 Workers’ Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679 …. 12.27 Wright v Donatelli (1995) 65 SASR 307 …. 19.16, 19.17 — v John Bagnall & Sons Ltd [1900] 2 QB 240 …. 2.8, 4.59 —v New Zealand Farmers Co-operative Association of Canterbury Ltd [1939] AC 439 …. 5.29

—v Pepin [1954] 2 All ER 52 …. 17.34, 17.37 —v Vanderplank (1856) 8 De GM & G 133; 44 ER 340 …. 13.8 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2007] WASC 118 …. 10.22, 15.29 Wrightson v Queensland [2005] QCA 367 …. 7.21, 20.93, 20.96 Y Yan Jun v Attorney-General [2015] 1 SLR 752; [2014] SGCA 60 …. 7.19, 7.72 Yates v Costain Australia Ltd (1989) 18 NSWLR 312 …. 12.28 —v Thakeham Tiles Ltd [1995] PIQR P135 …. 20.35 Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 …. 1.25, 1.27, 3.34, 3.35, 3.36 Yorkshire Bank Finance Ltd v Mulhall [2009] 2 All ER (Comm) 164; [2008] EWCA Civ 1156 …. 8.24 Young v Commissioner of Fire Service (SC(Qld), Williams J, 24 March 1997, unreported) …. 20.107 —v Paddle Brothers Pty Ltd [1956] VLR 38 …. 16.13 —v Queensland Trustees Ltd (1956) 99 CLR 560 …. 5.20 —v South Tyneside Metropolitan Borough Council [2007] QB 932; [2006] EWCA Civ 1534 …. 7.87, 20.69 Yousefi v Commonwealth of Australia [2012] NSWSC 967 …. 18.19, 19.22, 19.30, 19.31 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 …. 3.36 Yu v Speirs [2001] NSWCA 373 …. 18.18, 20.41 Z Zarb v Parry [2012] 2 All ER 320; [2011] EWCA Civ 1306 …. 8.32, 8.33 Zhang v State of New South Wales [2012] NSWSC 606 …. 4.4, 4.11, 7.33 —v Zhai [2014] 3 NZLR 69; [2014] NZHC 1026 …. 13.36 Zinda v Ark Academies (Schools) [2011] EWHC 3394 (QB) …. 21.12 Zraika v Walsh (2011) 60 MVR 17; [2011] NSWSC 1569 …. 3.20, 12.23, 12.26

Table of Statutes, Regulations and Rules References are to paragraph numbers COMMONWEALTH ACT Self-Government (Consequential Provisions) Act 1988 s 12 …. 1.10 Acts Interpretation Act 1901 …. 4.36, 4.55 s 36(2) …. 4.55 Admiralty Act 1988 s 4 …. 12.20 s 37 …. 12.20 Australian Consumer Law …. 6.7, 6.9, 6.18 Ch 2 …. 6.7 Ch 3 …. 6.7 s 18 …. 6.7, 13.23 s 20 …. 6.7 s 236(2) …. 6.7 Australian Industries Preservation Act 1906 s 11(1) …. 11.13 Bankruptcy Act 1966 s 127 …. 1.14 Child Support (Assessment) Act 1989 …. 3.6 s 111 …. 3.6 s 112 …. 3.6 Child Support (Registration and Collection) Act 1988 …. 3.6

Competition and Consumer Act 2010 Sch 2 …. 13.23 Constitution s 75(iv) …. 3.10 s 109 …. 3.5 Copyright Act 1968 s 134 …. 1.14 Corporations Act 2001 s 1317K …. 1.14 Electronic Transactions Act 1999 10(1) …. 17.36 Evidence Act 1995 s 131(1) …. 17.28 s 131(2)(i) …. 17.28 s 140 …. 15.22 Federal Court of Australia Act 1976 s 37M …. 1.2, 2.16, 4.30, 18.10, 19.14 Federal Court Rules 1979 O 62 r 23 …. 18.22 Federal Court Rules 2011 …. 18.22 r 16.53 …. 4.30 Income Tax Assessment Act 1936 …. 3.5 s 170 …. 3.5 s 207(1) …. 11.13 Judiciary Act 1903 s 64 …. 3.4, 3.5, 3.6, 3.7 s 79 …. 1.14, 3.7, 3.9, 3.10, 11.15 s 79(1) …. 3.7 s 80 …. 1.14, 3.7, 3.8, 3.9 Navigation Act 1912 …. 12.17 s 396 …. 12.17

Patents Act 1990 s 120(4) …. 1.14, 4.8 Racial Discrimination Act 1975 s 25ZA …. 11.13 Trade Practices Act 1974 s 51AA …. 6.7 s 52 …. 6.7, 13.23 s 82(2) …. 15.8 Workplace Relations Act 1996 s 405 …. 11.15 s 407 …. 11.15 s 407(1) …. 11.12 AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 s 39 …. 8.38 s 64 …. 20.5 Building Act 2004 s 6(1) …. 6.41 s 140 …. 6.41 s 140(b) …. 6.41 s 142 …. 6.41 s 142(1) …. 6.41 s 142(2) …. 6.41 Civil Law (Wrongs) Act 2002 Pt 3.1 …. 7.28, 20.4 Pt 9.3 …. 21.19 s 15(1) …. 4.42 s 15(2) …. 4.42 s 16(2) …. 4.42 s 16(3) …. 4.42

s 16(4) …. 4.42 s 21 …. 12.23 s 61(1)(b) …. 17.53 Civil Law (Wrongs) Amendment Act 2003 (No 2) …. 7.28, 7.30 Court Procedures Rules 2006 r 21 …. 1.2, 4.30, 18.10, 19.14 r 503 …. 4.30 r 1729 …. 18.22 Electronic Transactions Act 2001 s 9(1) …. 17.36 Evidence Act 2011 s 131(1) …. 17.28 s 131(2)(i) …. 17.28 s 140 …. 15.22 Guardianship and Management of Property Act 1991 …. 14.50 Human Rights Commission Act 2005 s 7(1) …. 7.30 s 7(3)(a) …. 7.30 Land Titles Act 1925 …. 9.2 s 69 …. 8.2 Legislation Act 2001 …. 4.36, 4.55 s 84(1)(c) …. 3.33 s 121(1) …. 3.2 s 121(6) …. 3.2 s 151(2) …. 4.36 s 151(3) …. 4.36 s 151A …. 4.55 Limitation Act 1985 …. 1.10, 2.6, 2.25, 2.27, 2.31, 3.11, 3.13, 3.14, 3.27, 4.19, 4.21, 4.33, 4.46, 5.4, 5.5, 5.7, 5.9, 5.37, 6.2, 6.3, 6.25, 7.15, 7.70, 8.2, 8.5, 9.2, 9.3, 9.6, 9.16, 10.1, 10.2, 10.8, 10.16, 10.17, 10.24, 10.25, 10.29, 11.1, 11.5, 11.14, 11.18, 12.1, 12.3, 12.6, 12.8, 12.10, 12.11,

12.14, 12.15, 12.17, 12.18, 12.20, 12.21, 12.23, 12.27, 13.38, 14.1, 14.9, 14.12, 14.49, 15.7, 15.8, 15.9, 15.10, 15.18, 15.37, 15.40, 15.48, 15.49, 16.1, 17.8, 17.9, 17.11, 20.27 s 4(a) …. 3.13 s 4(b) …. 3.3 s 5(a) …. 8.2 s 5(b) …. 15.49 s 6 …. 3.30 s 7(1) …. 3.2 s 7(2)(a) …. 3.3 s 7(2)(b) …. 3.3 s 7(3) …. 3.3 s 8(1) …. 3.27 s 8(a) …. 3.11, 4.2, 15.23 s 8(b) …. 3.11 s 8A …. 4.33 s 10 …. 4.14 s 11 …. 10.6 s 11(1) …. 3.27, 4.2, 4.14, 4.50, 5.9, 5.10, 5.46, 6.2, 8.46, 10.10, 11.5, 12.3, 12.19, 22.4, 22.9 s 11(2) …. 4.2, 4.14, 7.12, 22.7 s 12 …. 12.3 s 13 …. 5.42 s 14(1) …. 12.8 s 14(2) …. 12.8 s 15 …. 11.5, 14.9 s 15(1) …. 11.11 s 15(2) …. 11.12 s 16 …. 7.28, 7.29, 20.4 s 16A …. 7.28, 7.29, 20.4 s 16A(1) …. 20.4

s 16A(2) …. 20.4 s 16B …. 7.14, 7.28, 7.29, 7.70, 7.77, 7.79, 7.81, 20.4 s 16B(1) …. 7.20, 20.4 s 17(1) …. 12.15 s 17(2) …. 12.15 s 17(3) …. 12.16 s 17(4) …. 12.15 s 18 …. 6.27 s 19 …. 14.9, 21.30 s 19(1) …. 12.18 s 19(2) …. 12.18 s 19(3)(a) …. 21.30 s 19(3)(b) …. 21.30 s 19(4) …. 12.18 s 19(5) …. 12.18 s 20(1) …. 5.7 s 20(2) …. 5.7 s 21(1) …. 12.23 s 21(2) …. 12.24 s 21(3) …. 12.23 s 21A …. 11.16 s 21A(1) …. 11.18 s 21A(2) …. 11.17 s 21A(4) …. 11.18 s 21B(1) …. 6.45, 21.2 s 21B(2) …. 21.2, 21.28 s 22 …. 9.2 s 23 …. 9.3 s 24(1) …. 9.7 s 24(2) …. 9.7 s 25 …. 5.7

s 25(1) …. 9.15 s 25(2) …. 9.15 s 26(1) …. 9.6 s 26(2) …. 9.6 s 27 …. 10.6 s 27(1) …. 10.17 s 27(2) …. 10.17 s 28 …. 10.26 s 29 …. 10.29 s 30 …. 7.30, 20.34 s 30(1) …. 14.6, 14.9 s 30(1)(e) …. 14.9 s 30(2) …. 14.10 s 30(3)(a) …. 14.11 s 30(3)(b) …. 14.11 s 30B …. 7.30, 14.11, 20.4 s 30B(1) …. 7.30 s 30B(2) …. 7.30, 20.4 s 30B(3) …. 7.30 s 30B(4) …. 7.30 s 31(1) …. 14.50 s 31(2) …. 14.50 s 31(3) …. 14.50 s 31(4) …. 14.50 s 31(5) …. 14.49 s 31(6) …. 14.50 s 31(7) …. 14.50 s 32(1) …. 17.10, 17.54 s 32(2)(a) …. 17.9 s 32(2)(a)(ii) …. 17.48

s 32(2)(b) …. 17.11 s 32(2)(c) …. 17.11 s 32(3) …. 17.9 s 32(4) …. 17.3, 17.4, 17.9 s 32(5) …. 17.10, 17.42, 17.44 s 32(6) …. 17.10 s 32(7) …. 17.10 s 33(1) …. 10.24, 15.10 s 33(1)(b) …. 15.43 s 33(2) …. 15.10 s 33(3) …. 15.37 s 33(4) …. 15.10, 15.23 s 33(5) …. 15.49 s 34(1) …. 16.6 s 34(3) …. 16.7 s 36 …. 7.29, 7.30, 20.2, 20.4, 20.8, 20.75 s 36(1) …. 7.17 s 36(2) …. 2.34, 7.17 s 36(3) …. 20.3, 20.8 s 36(3)(b) …. 20.51 s 36(4) …. 20.3 s 36(5)(a) …. 7.29, 20.4 s 36(5)(b) …. 20.4 s 36(6) …. 7.30, 20.4 s 37 …. 20.5 s 38 …. 20.2 s 38(2) …. 20.3 s 39 …. 20.4 s 40 …. 23.3 s 40(1) …. 6.34 s 40(2) …. 6.34

s 43 …. 2.21 s 43(1) …. 2.27, 6.28 s 43(2) …. 2.27, 6.29 s 44 …. 2.21, 2.31 s 45 …. 2.6, 2.21, 2.25 s 46(1) …. 3.12, 12.10 s 46(2) …. 3.12, 12.10 s 47(1) …. 3.12 s 47(2) …. 3.12, 12.10 s 48 …. 4.39, 12.14 s 49(1) …. 12.11 s 49(2) …. 12.11 s 51 …. 4.19 s 52 …. 4.16 s 53 …. 4.16 s 54(1) …. 11.18 s 54(2) …. 11.18 s 54(3) …. 11.18 s 55 …. 2.33 s 56 …. 2.33 s 57 …. 2.33, 2.34 s 100(1) …. 20.4 s 100(2) …. 20.4 Dictionary …. 2.31, 3.27, 4.4, 4.11, 5.42, 7.28, 7.33, 9.2, 9.3, 9.7, 10.6, 10.7, 10.17, 10.30, 14.12, 14.27, 20.2, 20.35 Limitation Amendment Act 1993 …. 11.16 s 2 …. 2.33 Sale of Goods Act 1954 s 52(1) …. 5.13 s 52(2) …. 5.13 s 53(1) …. 5.13

s 54(1) …. 5.13 Workers Compensation Act 1951 …. 20.4 NEW SOUTH WALES Children and Young Persons (Care and Protection) Act 1998 …. 7.55 Choice of Law (Limitation Periods) Act 1993 s 3 …. 2.33 s 4 …. 2.33 s 5 …. 2.33 s 6 …. 2.33 s 7(1) …. 2.33 s 7(2) …. 2.33 Civil Liability Amendment (Personal Responsibility) Act 2002 …. 7.32, 7.38, 7.39, 20.48, 20.71 Civil Procedure Act 2005 …. 4.19 s 56 …. 1.2, 4.30, 18.10, 19.14 ss 56–59 …. 2.16 s 64 …. 4.29 s 65 …. 4.30 s 65(1) …. 4.29 s 65(2) …. 4.29 Compensation to Relatives Act 1897 …. 2.5, 3.37, 4.14, 6.3, 7.26, 7.32, 7.43, 20.49, 20.50, 20.57, 20.73, 20.76, 24.14 s 2(a) …. 3.37 s 3 …. 20.45, 20.57, 20.79 s 19 …. 7.32 Compensation to Relatives (Amendment) Act 1953 …. 3.37 Conveyancing Act 1919 s 53(1) …. 4.62 s 54A …. 17.35 s 127 …. 8.49

s 127(1) …. 8.49 Defamation Act 2005 Pt 3 Div 1 …. 21.19 Dust Diseases Tribunal Act 1989 s 3(1) …. 6.3, 7.32, 7.40 s 12A …. 6.3, 7.22, 7.32, 7.40 s 12B …. 4.42 Sch 1 …. 7.32, 7.40 Sch 3 cl 7 …. 7.22, 7.32, 7.40 Electronic Transactions Act 2000 s 9(1) …. 17.36 Environmental Planning and Assessment Act 1979 s 4(1) …. 6.41 s 109ZK …. 6.41 s 109ZK(1) …. 6.41 s 109ZK(2) …. 6.41 s 109ZL …. 6.41 Evidence Act 1995 s 131(1) …. 17.28 s 131(2)(i) …. 17.28 s 140 …. 15.22 Frustrated Contracts Act 1978 …. 5.6 Pt 3 …. 5.6 Guardianship Act 1987 …. 7.55 Interpretation Act 1987 …. 4.36, 4.55 s 30(1)(c) …. 3.33 s 36(1) …. 4.36 s 36(2) …. 4.55 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 7.26, 7.44, 20.45, 20.76, 20.79 s 2(1) …. 4.42

s 2(2)(a)(i) …. 4.42 s 2(2)(c) …. 4.42 s 2(2)(d) …. 4.42 Law Reform (Miscellaneous Provisions) Act 1946 s 5(1) …. 12.23, 20.55, 20.73 s 6(4) …. 4.5 Limitation Act 1969 …. 1.4, 1.10, 1.11, 1.28, 1.34, 2.2, 2.4, 2.6, 2.25, 2.26, 2.28, 2.31, 2.36, 3.2, 3.6, 3.10, 3.13, 3.14, 3.16, 3.17, 3.26, 4.14, 4.19, 4.21, 4.33, 4.46, 4.62, 5.5, 5.7, 5.10, 5.35, 5.37, 6.3, 6.25, 6.41, 7.14, 7.15, 7.24, 7.25, 7.26, 7.33, 7.34, 7.38, 7.54, 7.72, 8.3, 8.9, 8.13, 8.14, 8.22, 8.23, 8.30, 8.34, 8.45, 8.49, 9.2, 9.3, 9.6, 9.14, 9.16, 10.1, 10.2, 10.6, 10.8, 10.10, 10.16, 10.17, 10.24, 10.25, 10.29, 11.1, 11.2, 11.28, 12.1, 12.3, 12.8, 12.10, 12.11, 12.14, 12.15, 12.17, 12.18, 12.20, 12.21, 12.23, 12.26, 12.27, 12.28, 13.38, 14.1, 14.9, 14.49, 15.7, 15.8, 15.9, 15.18, 15.27, 15.40, 15.48, 16.1, 17.8, 17.9, 17.11, 17.54, 17.58, 18.15, 18.16, 18.21, 20.56, 20.71, 20.80, 22.2 Pt 2 Div 6 …. 7.25, 7.32, 7.38, 7.40, 7.43, 7.53, 7.54, 7.71, 14.8, 20.48, 24.10 Pt 3 Div 3 …. 7.39, 20.48 Pt 3 Div 3 Subdiv 1 …. 20.45 Pt 3 Div 3 Subdiv 2 …. 7.38, 20.47, 20.48, 20.74 Pt 3 Div 3 Subdiv 3 …. 7.38, 20.46, 20.47, 20.48, 20.56 Pt 3 Div 4 …. 7.38, 7.44, 18.15, 20.48 Pt 4 Div 1 …. 18.15, 20.55 Div 6 …. 20.71, 20.72 s 6A …. 7.26 s 6A(1) …. 7.26, 7.40, 24.14 s 6A(2) …. 7.26, 24.13 s 6A(2)(c) …. 24.13 s 6A(3) …. 7.26, 24.13 s 6A(5)(a) …. 7.26, 24.14 s 6A(5)(b) …. 7.26

s 6A(6) …. 7.26 s 7(a) …. 3.13 s 7(b) …. 3.3 s 8(2) …. 6.3, 7.22, 7.32, 7.40 s 9 …. 3.30 s 10(1) …. 3.2 s 10(2) …. 3.2 s 10(3)(a) …. 3.3 s 10(3)(b) …. 3.3 s 10(4) …. 3.3 s 11(1) …. 2.31, 3.2, 4.11, 5.42, 7.14, 7.33, 7.34, 7.41, 7.72, 8.3, 8.7, 8.9, 8.23, 8.30, 9.2, 9.3, 9.7, 10.7, 10.17, 10.30, 20.49, 20.57 s 11(2) …. 3.11, 15.23 s 11(2)(b) …. 8.7 s 11(3)(a) …. 14.12 s 11(3)(b) …. 14.12 s 11(3)(b)(ii) …. 14.12 s 11(3)(b)(iii) …. 14.27 s 11(3)(b)(iv) …. 14.27 s 11(4) …. 8.23 s 11(5) …. 4.33 s 13 …. 4.14, 7.12 s 14 …. 3.26, 11.14, 18.16 s 14(1) …. 4.50, 7.33, 18.16 s 14(1)(a) …. 3.4, 5.2 s 14(1)(b) …. 6.2, 12.26 s 14(1)(c) …. 5.46 s 14(1)(d) …. 11.2 s 14(2) …. 6.3 s 14(3) …. 11.2, 11.14, 11.15 s 14A …. 5.6

s 14B …. 6.45, 21.2 s 15 …. 12.2 s 16 …. 3.26, 5.42 s 17 …. 3.26 s 17(1) …. 12.8 s 17(2) …. 12.8 s 17(3) …. 12.8 s 18 …. 3.26, 11.15 s 18(1) …. 11.11 s 18(2) …. 11.12 s 18A …. 4.14, 7.32, 7.33, 7.34, 7.35, 23.15 s 18A(1) …. 7.20, 7.72 s 19 …. 2.5, 6.3, 7.32, 20.49 s 19(1) …. 7.32 s 19(1)(b) …. 4.14 s 19(2) …. 7.32 s 20 …. 3.26, 9.7 s 20(1) …. 12.15 s 20(2) …. 12.15 s 20(3) …. 12.16 s 20(4) …. 12.15 s 21 …. 3.26, 6.27 s 21(b) …. 6.27 s 22 …. 21.30 s 22(1) …. 5.5, 12.17 s 22(2) …. 12.18 s 22(3) …. 12.18 s 22(4)(a) …. 21.30 s 22(4)(b) …. 21.30 s 22(5) …. 12.18 s 22(6) …. 21.30

s 23 …. 3.26, 8.3 s 24 …. 8.46 s 24(1) …. 5.10 s 24(2) …. 5.7 s 24(3) …. 5.7, 5.10 s 24(4) …. 5.10 s 25 …. 8.45 s 26 …. 6.3, 12.28 s 26(1) …. 12.23 s 26(1)(b) …. 12.28, 20.73 s 26(2) …. 12.24 s 26(3) …. 12.23 s 27(1) …. 8.9 s 27(2) …. 8.5 s 27(3) …. 8.9 s 28 …. 8.23 s 29 …. 8.35 s 29(c) …. 8.35 s 30 …. 8.36 s 31 …. 8.39 s 32(1) …. 8.43 s 32(2) …. 8.44 s 33 …. 8.30, 8.44, 8.53, 8.54 s 34 …. 8.49, 8.50 s 36(1) …. 8.3 s 36(2) …. 8.4 s 37(1) …. 8.22 s 37(2) …. 8.37 s 37(3) …. 8.37 s 38(1) …. 8.31

s 38(2) …. 8.32 s 38(3) …. 8.31 s 38(4)(a) …. 8.30 s 38(4)(b) …. 8.30 s 38(4)(c) …. 8.30 s 38(5) …. 8.34 s 39(a) …. 8.33 s 40 …. 9.2 s 41 …. 9.3 s 42(1) …. 9.7 s 42(2) …. 9.7 s 43 …. 5.7, 5.10 s 43(1) …. 9.15 s 43(2) …. 9.15 s 44(1) …. 9.6 s 44(2) …. 9.6 s 45 …. 9.13 s 46 …. 9.7 s 47 …. 10.6 s 47(1) …. 10.17 s 47(2) …. 10.17 s 48 …. 10.6, 10.10 s 49 …. 10.26 s 50 …. 10.29 ss 50A–50F …. 20.48 s 50A(1) …. 7.14, 7.20, 7.25, 7.41, 20.48, 20.71, 24.10 s 50A(2) …. 7.39, 20.48, 20.71 s 50A(3) …. 7.40, 20.48 s 50A(4) …. 7.41, 20.48 s 50B …. 7.44 s 50C …. 7.32, 7.57

s 50C(1) …. 7.43, 23.5 s 50C(2) …. 7.44 s 50C(3) …. 7.43 s 50D …. 7.32 s 50D(1) …. 7.45, 20.121 s 50D(1)(b) …. 7.51 s 50D(2) …. 7.50 s 50D(3) …. 7.50 s 50D(4) …. 7.45 s 50E(1) …. 7.53 s 50E(2) …. 7.53 s 50E(3) …. 7.53 s 50F(1) …. 7.54, 14.8 s 50F(2) …. 7.55 s 50F(3) …. 7.57 s 50F(4) …. 7.47, 7.55 s 50F(5) …. 7.54, 14.8 s 51 …. 2.25, 14.11 s 51(1) …. 1.5, 4.62, 15.10, 23.1, 23.5, 23.7, 23.8, 23.12 s 51(2) …. 2.25, 4.62, 23.1, 23.18 s 52 …. 2.5 s 52(1) …. 14.6, 14.9 s 52(2) …. 14.10 s 52(3) …. 14.11 s 53(1) …. 14.51 s 53(2) …. 14.51 s 53(3) …. 14.51 s 53(4) …. 14.51 s 53(5) …. 14.51 s 53(6) …. 14.51

s 53(7) …. 14.51 s 53(10) …. 14.49 s 54 …. 17.5 s 54(1) …. 17.10, 17.54 s 54(2)(a) …. 17.9 s 54(2)(a)(ii) …. 17.48 s 54(2)(b) …. 17.11 s 54(2)(c) …. 17.11 s 54(3) …. 17.9 s 54(4) …. 17.3, 17.4, 17.9 s 54(5) …. 17.10, 17.42, 17.44 s 54(6) …. 17.10 s 54(7)(a) …. 17.10 s 54(7)(b) …. 17.10 s 55(1) …. 10.24, 15.10 s 55(1)(b) …. 15.18, 15.42 s 55(2) …. 15.10 s 55(3) …. 15.10, 15.23 s 55(4) …. 15.49 s 56 …. 16.11 s 56(1) …. 16.6 s 56(3) …. 16.7 s 56A(1) …. 21.2 s 56A(2) …. 21.2, 21.28 s 56A(3) …. 21.3 s 56B …. 21.2 s 56C …. 18.21 s 56D …. 21.2 s 57 …. 1.34, 7.34 ss 57–60 …. 20.45 s 57(1)(b) …. 20.94

s 57(1)(c) …. 20.95 s 57(1)(d) …. 20.104 s 57(1)(e) …. 20.105 s 57B(1)(b) …. 20.90 s 57B(1)(c) …. 20.95 s 57B(1)(d) …. 20.104 s 57B(1)(e) …. 20.105 s 58 …. 1.34, 1.36, 20.79, 20.80 ss 58–60 …. 7.7 s 58(1) …. 20.79 s 58(2) …. 7.32, 20.45, 20.70, 20.93 s 58(2)(a) …. 20.91 s 58(2)(b) …. 20.41 s 59 …. 20.45, 20.78 s 60 …. 20.45, 20.57, 20.78 s 60A …. 20.48 ss 60A–60E …. 20.47 ss 60A–60M …. 7.32, 23.15 s 60C …. 20.47, 20.49, 20.55 s 60C(1) …. 7.51 s 60C(2) …. 7.32, 19.22, 20.41 s 60D …. 20.47, 20.49 s 60D(2) …. 20.49 s 60D(3) …. 20.49 s 60E …. 20.49, 20.74, 20.118 s 60E(1) …. 19.22, 20.12, 20.50, 20.53, 20.74 s 60E(1)(b) …. 20.26 s 60E(1)(c)–(e) …. 20.74 s 60E(1)(h) …. 20.52 s 60E(2)–60E(4) …. 20.50

s 60F …. 20.46, 20.56 ss 60F–60J …. 4.62, 20.47, 20.56, 23.1, 23.18 s 60G …. 7.80, 20.47, 20.49, 20.57, 20.58, 20.59, 20.61, 20.66, 20.68 s 60G(2) …. 7.32, 18.25, 20.41, 20.42, 20.57, 20.60, 20.67 s 60H …. 20.47, 20.57, 20.58, 20.59, 20.61, 20.68, 21.31 s 60H(2) …. 20.57 s 60I …. 7.80, 20.12, 20.58, 20.60, 20.61, 20.62, 20.63, 20.67, 20.123, 21.31 s 60I(1) …. 15.50, 20.59, 20.61, 20.62, 20.70 s 60I(1)(a) …. 20.58, 20.60, 20.61, 20.62, 20.65, 20.67, 20.68, 20.70 s 60I(1)(a)(ii) …. 18.26, 20.64, 20.65 s 60I(1)(a)(iii) …. 7.51, 20.60, 20.66, 20.67 s 60I(1)(b) …. 7.49, 7.50, 19.14, 20.58, 20.61, 20.62, 20.68, 20.70 s 60J …. 20.55, 20.56 s 60K(1) …. 20.55 s 60K(3) …. 20.55 s 60L …. 18.21, 20.12 s 60M …. 20.55 s 60M(1) …. 20.55 s 60M(2) …. 20.55 s 61 …. 18.16, 20.55 s 62A …. 7.32, 20.73 ss 62A–62F …. 20.48 s 62A(2) …. 20.73 s 62A(3) …. 20.73 s 62B …. 7.32 s 62B(1) …. 20.74 s 62B(1)(b) …. 20.26 s 62B(2) …. 20.76 s 62B(3) …. 20.76 s 62C(1) …. 20.73

s 62D(1) …. 20.77 s 62D(2) …. 20.77 s 62E …. 18.21 s 62F(1) …. 18.15 s 63 …. 2.12, 2.29, 2.38, 3.4, 9.2 ss 63–68 …. 2.4, 2.21 ss 63–68A …. 18.15 s 63(1) …. 2.29, 17.55, 18.16 s 63(2) …. 2.30 s 63(3) …. 2.29 s 64 …. 2.29 s 64(1) …. 2.29 s 64(2) …. 2.30 s 64(3) …. 2.29 s 65(1) …. 2.26, 2.29, 6.28, 8.13 s 65(2) …. 2.30, 6.29 s 65(3) …. 2.29 s 66 …. 9.2 s 67(1) …. 8.14 s 67(2) …. 8.14 s 68 …. 2.31 s 68A …. 2.6, 2.21, 2.25 s 69(1) …. 3.12, 12.10 s 69(2) …. 3.12, 12.10 s 70(1) …. 3.12 s 70(2) …. 3.12, 12.10 s 71 …. 4.39, 12.14 s 72(1) …. 12.11 s 72(2) …. 12.11 s 73(1) …. 12.13 s 73(2) …. 12.13

s 74(1) …. 4.19 s 74(2) …. 4.19 s 75 …. 4.16 s 76 …. 4.16 s 78(1) …. 1.4 s 78(2) …. 2.33 Sch 4 …. 2.26, 2.29, 8.13 Sch 5 …. 20.46 Sch 5 Pt 3 …. 7.26, 24.14 Sch 5 Pt 3 cl 10 …. 7.26 Sch 5 cl 4(4)(b) …. 20.58 Limitation (Amendment) Act 1990 …. 4.62, 7.32, 7.34, 20.44, 20.46, 20.47, 20.49, 23.15 Limitation Amendment (Child Abuse) Act 2016 …. 7.26, 24.13 Limitation of Actions (Recovery of Imposts) Amendment Act 1993 …. 11.16, 11.19, 11.28 Mental Health Act 1958 …. 14.12 Mental Health Act 1990 …. 7.55 Motor Accidents Act 1988 …. 14.2 s 40(2) …. 3.18 s 43 …. 3.15 s 43A …. 20.20 s 52 …. 3.15, 12.28, 18.3 s 52(4) …. 12.28 s 52(4B) …. 3.15 s 52(5) …. 3.16, 12.28 Motor Accidents Amendment Act 1995 …. 3.15 Motor Accidents Compensation Act 1999 …. 3.15, 3.16, 3.19, 20.48 Ch 4 …. 7.40 s 66(2) …. 3.18 s 72 …. 3.15

s 109 …. 1.4 s 109(1) …. 3.15, 12.26 s 109(3) …. 3.15 s 109(5) …. 3.16, 12.26 s 134 …. 3.15 s 134(1) …. 3.15 NSW Trustee and Guardian Act 2009 …. 7.55 Probate and Administration Act 1898 s 44 …. 8.38 Real Property Act 1900 …. 8.21, 9.2, 9.7, 11.9 Pt 6A …. 9.2 ss 45B–45G …. 9.2 s 45D(1) …. 8.21 s 45D(4) …. 8.21 s 127(1) …. 11.8 s 129(1) …. 11.8 s 132(2) …. 11.9 s 132(3) …. 11.9 Real Property (Possessory Titles) Amendment Act 1979 …. 8.21 Recovery of Imposts Act 1963 …. 11.16, 11.19 s 2(1) …. 11.19 s 2(2) …. 11.19 s 2(3) …. 11.19 s 3(1) …. 11.19 s 3(2) …. 11.19 s 3(3) …. 11.19 s 3(4) …. 11.17 s 4(1) …. 11.28 s 4(2) …. 11.28 s 5 …. 11.17 s 7(1) …. 11.19

s 7(3) …. 11.28 Rules of Supreme Court 1970 Sale of Goods Act 1923 s 12 …. 5.6 s 51(1) …. 5.13 s 51(2) …. 5.13 s 52(1) …. 5.13 s 53(1) …. 5.13 Supreme Court Rules 1970 Pt 20 r 1(2) …. 4.30 Pt 20 r 4 …. 4.30 Pt 52A r 17 …. 18.22 Trustee Act 1925 s 69(1) …. 10.4 Workers Compensation Act 1987 s 151D(2) …. 2.34, 3.24 NORTHERN TERRITORY Administration and Probate Act 1969 s 52 …. 8.38 Aged and Infirm Persons’ Property Act 1979 s 13 …. 14.52 Building Act 1993 s 159(3) …. 6.41 s 160(1) …. 6.41 s 160(2) …. 6.41 Choice of Law (Limitation Periods) Act 1994 …. 2.33 s 4 …. 2.33 s 5 …. 2.33 s 6 …. 2.33 Compensation (Fatal Injuries) Act 1974 …. 7.58

s 7 …. 6.3, 7.58 s 13 …. 6.3, 7.58 Crown Lands Amendment Act (No 3) 1980 s 8(1) …. 8.2 Defamation Act 2006 Pt 3 Div 1 …. 21.19 Electronic Transactions (Northern Territory) Act 2000 s 9(1) …. 17.36 Evidence (National Uniform Legislation) Act 2011 s 131(1) …. 17.28 s 131(2)(i) …. 17.28 s 140 …. 15.22 Interpretation Act 1978 …. 4.36, 4.55 s 12(c) …. 3.33 s 17 …. 14.52 s 28(1) …. 4.36 s 28(2) …. 4.55 Land Title Act 2000 …. 9.2 s 198 …. 8.2 Law Reform (Miscellaneous Provisions) Act 1956 s 5(1) …. 4.42 s 5(2) …. 4.42 s 6 …. 4.42 s 6(1)(a) …. 4.42 s 7(1) …. 4.43 s 12 …. 12.23 s 27(1) …. 11.2, 11.6 Limitation Act 1981 …. 1.4, 1.11, 3.11, 3.13, 3.14, 3.25, 3.26, 4.46, 5.5, 5.7, 5.10, 5.35, 5.37, 6.3, 6.25, 7.15, 7.58, 8.2, 8.5, 8.45, 9.2, 9.3, 9.6, 9.14, 9.16, 10.1, 10.2, 10.6, 10.8, 10.10, 10.16, 10.17, 10.24, 10.25, 10.29, 11.1, 11.2, 12.1, 12.8, 12.10, 12.11, 12.14, 12.15, 12.17, 12.18,

12.20, 12.21, 12.23, 12.27, 13.38, 14.1, 14.3, 14.9, 14.49, 14.52, 15.7, 15.8, 15.9, 15.10, 15.18, 15.40, 15.48, 16.1, 17.8, 17.9, 17.11, 19.1, 19.10, 19.12 s 4(1) …. 3.2, 4.11, 5.42, 9.2, 9.3, 9.7, 10.7, 10.17, 10.30, 14.3, 14.12, 14.17, 14.52, 19.1 s 4(2) …. 3.11 s 5 …. 3.13 s 6(1) …. 3.2 s 6(2) …. 3.2 s 6(3)(a)(ii) …. 3.3 s 6(3)(b) …. 3.25 s 6(4) …. 3.3, 8.11 s 7 …. 3.30 s 8 …. 4.19 s 11 …. 4.14, 7.12 s 12 …. 3.26, 11.14 s 12(1) …. 4.50 s 12(1)(a) …. 5.2 s 12(1)(b) …. 6.2, 7.12, 7.58 s 12(1)(c) …. 5.46 s 12(1)(d) …. 11.2 s 12(2)(a) …. 6.3, 7.22, 7.60 s 12(2)(b) …. 6.45, 21.2 s 12(2)(c) …. 6.3 s 12(2)(d) …. 6.3 s 12(3) …. 6.3, 7.60, 11.2, 11.14 s 13 …. 12.2 s 14 …. 3.26 s 14(1) …. 5.42 s 15 …. 3.26 s 15(1) …. 12.8

s 15(2) …. 12.8 s 16 …. 3.26 s 16(1) …. 11.11 s 16(2) …. 11.12 s 17 …. 6.3, 7.58 s 18 …. 3.26 s 18(1) …. 12.15 s 18(2) …. 12.15 s 18(3) …. 12.16 s 19 …. 3.26, 6.27 s 19(1) …. 6.27 s 19(1)(b) …. 6.27 s 19(2) …. 6.28 s 19(3) …. 6.29 s 20 …. 21.30 s 20(1)(a) …. 12.18 s 20(1)(b) …. 12.18 s 20(1)(c) …. 12.18 s 20(2) …. 5.5, 12.17 s 20(3) …. 12.18 s 20(4) …. 12.18 s 20(5)(a) …. 21.30 s 20(5)(b) …. 21.30 s 21 …. 3.26 s 22 …. 8.46 s 22(1) …. 5.10 s 22(2) …. 5.7 s 22(3) …. 5.7, 5.10 s 22(4) …. 5.10 s 23 …. 8.45 s 24 …. 6.3

s 24(1) …. 12.23 s 24(2) …. 12.24 s 24(3) …. 12.23 s 25 …. 9.2 s 26 …. 9.3 s 27(1) …. 9.7 s 27(2) …. 9.7 s 28 …. 5.7, 5.10 s 28(1) …. 9.15 s 28(2) …. 9.15 s 29(1) …. 9.6 s 29(2) …. 9.6 s 30 …. 9.13 s 32 …. 10.6 s 32(1) …. 10.17 s 32(2) …. 10.17 s 33 …. 10.6, 10.10 s 34 …. 10.26 s 35 …. 10.29 s 35B …. 11.20 s 35C …. 11.16 s 35D …. 11.16 s 35D(1) …. 11.20 s 35D(2) …. 11.17 s 35D(4) …. 11.17 s 35D(5) …. 11.17 s 36(1) …. 14.6, 14.9 s 36(2) …. 14.10 s 36(3) …. 14.11 s 36(4) …. 14.11, 23.1

s 37 …. 14.52 s 38(1) …. 14.52 s 38(2) …. 14.52 s 39(1) …. 14.52 s 39(2) …. 14.52 s 39(3) …. 14.52 s 40(1)(a)–(c) …. 14.52 s 40(1)(d) …. 14.49 s 40(1)(e) …. 14.49 s 41(1) …. 17.10, 17.54 s 41(2)(a) …. 17.9 s 41(2)(a)(i) …. 17.3, 17.4, 17.19 s 41(2)(a)(ii) …. 17.48 s 41(2)(b) …. 17.11 s 41(2)(c) …. 17.11 s 41(3) …. 17.9 s 41(4) …. 17.10, 17.42, 17.44 s 41(5) …. 17.10 s 42(1) …. 10.24, 15.10 s 42(1)(b) …. 15.42 s 42(2) …. 15.10 s 42(3) …. 15.10, 15.23 s 42(4) …. 15.49 s 43(1) …. 16.6 s 43(3) …. 16.7 s 44 …. 3.13, 14.52, 19.3 s 44(1) …. 19.1, 19.3, 19.4, 19.22 s 44(2) …. 19.6 s 44(3) …. 19.12, 19.22 s 44(3)(a) …. 19.7 s 44(3)(aa) …. 19.7

s 44(3)(b) …. 7.59, 19.8 s 44(3)(b)(i) …. 19.13, 19.17 s 44(3)(b)(ii) …. 19.21 s 44(4) …. 19.10 s 44(6) …. 19.3 s 44(6)(b) …. 19.5 s 44(7) …. 7.17 s 44A …. 19.7 s 44A(1) …. 21.2 s 44A(2) …. 21.2, 21.28 s 44A(3) …. 21.3 s 44B …. 21.2 s 44C …. 21.2 s 45(1) …. 3.12, 12.10 s 45(2) …. 3.12, 12.10 s 46(1) …. 3.12 s 46(2) …. 3.12, 12.10 s 47 …. 4.39, 12.14 s 48(1) …. 12.11 s 48(2) …. 12.11 s 48A(1) …. 4.27 s 48A(2) …. 4.27 s 49 …. 4.16 s 50 …. 4.16 Sch Pt I …. 1.11 Sch Pt II …. 1.11 Limitation Amendment Act 1993 …. 11.16 Local Court Act 1999 s 19 …. 19.4 s 19(1) …. 19.4

s 19(2) …. 19.4 s 19(3) …. 19.4 Police Administration Act 1978 s 162(1) …. 19.3 Real Property Act 1886 s 251 …. 8.2 Sale of Goods Act 1972 s 51(1) …. 5.13 s 51(2) …. 5.13 s 52(1) …. 5.13 s 53(1) …. 5.13 Supreme Court Rules 1987 r 1.10 …. 1.2, 4.30, 18.10, 19.14 r 36.01(6) …. 4.27 r 63.11(5) …. 18.22 r 63.11(9) …. 18.22 QUEENSLAND Acts Interpretation Act 1954 …. 4.36, 4.55 s 9 …. 11.21 s 20(2)(c) …. 3.33 s 36 …. 4.55 s 38(1) …. 4.36 s 38(2) …. 4.55 s 38(5) …. 4.55 Choice of Law (Limitation Periods) Act 1996 s 3 …. 2.33 s 3(1) …. 2.33 s 3(2) …. 2.33 s 3(3) …. 2.33 s 5 …. 2.33

s 6 …. 2.33 Civil Liability Act 2003 Sch 2 …. 7.61 Civil Liability and Other Legislation Amendment Act 2010 s 25 …. 7.61 Civil Proceedings Act 2011 s 16(1) …. 4.28 s 16(2) …. 4.28 s 64 …. 7.61 Common Law Practice and Limitation of Actions Acts Amendment Act 1981 s 9 …. 7.61 s 29 …. 7.61 s 31 …. 7.61 Corrective Services and Other Legislation Amendment Act 2008 …. 14.24 Criminal Code s 647 …. 14.23 Defamation Act 2005 Pt 3 Div 1 …. 21.19 Distress Replevin and Ejectment Act 1867…. 1.10 Electronic Transactions (Queensland) Act 2001 s 14(1) …. 17.36 Forensic Disability Act 2011 …. 14.23 Land Title Act 1994 Pt 6 Div 5 …. 8.20 Law Reform Act 1995 s 6(c) …. 12.23 Law Reform (Limitation of Actions) Act 1956 …. 3.10 s 5 …. 3.10 Limitation of Actions Act 1974 …. 1.10, 2.26, 2.37, 3.6, 3.11, 3.13, 3.14,

3.25, 3.26, 4.46, 5.5, 5.35, 5.37, 5.42, 6.2, 6.3, 6.25, 7.14, 7.15, 7.24, 7.25, 7.61, 7.72, 8.3, 8.13, 8.20, 8.22, 8.23, 8.30, 8.34, 8.37, 8.38, 8.40, 8.46, 8.49, 8.50, 10.1, 10.2, 10.6, 10.7, 10.8, 10.16, 10.24, 10.25, 10.29, 11.1, 11.29, 12.1, 12.2, 12.5, 12.7, 12.8, 12.10, 12.11, 12.14, 12.15, 12.17, 12.18, 12.20, 12.21, 12.23, 12.27, 13.38, 14.1, 14.18, 14.25, 14.27, 14.37, 15.7, 15.8, 15.9, 15.27, 15.40, 15.48, 16.1, 17.5, 17.8, 17.9, 17.37, 17.56, 17.61, 18.14, 20.117 Pt 3 …. 3.23 s 5 …. 7.61 s 5(1) …. 3.2, 4.11, 7.33, 7.61, 8.3, 8.7, 8.9, 8.23, 8.30, 8.37, 10.30, 20.78 s 5(2) …. 14.23, 14.24, 20.117 s 5(3) …. 14.23 s 5(4) …. 3.11, 15.23 s 5(5) …. 8.7 s 5(6) …. 8.23 s 5(7)(d) …. 12.7 s 5(7)(e) …. 12.8 s 6(1) …. 3.2 s 6(2) …. 3.2 s 6(3)(a) …. 3.25 s 6(3)(b)(i) …. 3.3 s 6(3)(b)(ii) …. 3.3 s 6(4) …. 3.3, 8.11 s 7 …. 3.13 s 10(1) …. 4.50 s 10(1)–10(5) …. 3.26 s 10(1)(a) …. 5.2, 6.2, 7.12, 9.11 s 10(1)(b) …. 5.46 s 10(1)(c) …. 12.15 s 10(1)(d) …. 11.2, 11.4 s 10(2) …. 12.2

s 10(3) …. 5.42 s 10(3A) …. 5.42 s 10(4) …. 12.8 s 10(4A) …. 12.8 s 10(5) …. 11.11 s 10(5A) …. 11.12 s 10(6) …. 3.26 s 10(6)(a) …. 5.5, 12.17, 12.19 s 10AA …. 6.45, 21.2 s 10A …. 11.16 s 10A(1) …. 11.21 s 10A(2) …. 11.17 s 10A(3) …. 11.17 s 10A(5) …. 11.21 s 11 …. 3.22, 11.4 s 11(1) …. 7.14, 7.17, 7.61, 7.72, 20.78 s 11(2) …. 6.3, 7.22, 7.61 s 11(3) …. 7.61 s 11(4) …. 7.61 s 12 …. 6.27 s 12(1) …. 6.27 s 12(2) …. 6.28 s 12(3) …. 6.29 s 13 …. 8.5 s 14(1) …. 8.23 s 14(2) …. 8.35 s 14(3) …. 8.36 s 15(1) …. 8.39 s 15(2) …. 8.40 s 15(3) …. 8.41

s 15(4) …. 8.41 s 16(1) …. 8.3, 8.4 s 16(2) …. 8.22 s 16(3) …. 8.22 s 16(4) …. 8.37 s 17 …. 8.13, 8.43, 8.44 s 18(1) …. 8.50 s 18(2) …. 8.50 s 18(2A) …. 8.50 s 18(3) …. 8.30, 8.54 s 19(1) …. 8.30, 8.31 s 19(2) …. 8.31 s 19(3)(a) …. 8.30 s 19(3)(b) …. 8.30 s 20 …. 9.4 s 21 …. 8.33 s 22 …. 8.34 s 23 …. 8.38 s 24(1) …. 2.26, 8.13 s 24(2) …. 8.13 s 25 …. 8.46 s 26 …. 9.19 s 26(1) …. 9.9 s 26(2) …. 9.10 s 26(3) …. 9.10 s 26(4) …. 9.9 s 26(5) …. 9.16 s 26(5A)(a) …. 9.17 s 26(5A)(b) …. 9.17 s 26(6) …. 9.9 s 27(1) …. 8.3, 10.6, 10.7, 10.20

s 27(1)(a) …. 10.25 s 27(2) …. 10.6, 10.10 s 27(2A) …. 10.26 s 27(3) …. 10.29 s 28 …. 10.7 s 29 …. 14.24, 20.34, 20.117 s 29(1) …. 14.18 s 29(2) …. 14.18 s 29(2)(a) …. 14.19 s 29(2)(b) …. 14.19, 23.1 s 29(3)(a) …. 14.19 s 29(3)(b) …. 14.19 s 30 …. 20.34 ss 30–32 …. 7.62 s 30(1)(a) …. 20.90, 20.96 s 30(1)(a)(iv) …. 20.94 s 30(1)(b) …. 20.93, 20.95, 20.96, 20.98, 20.99, 20.104, 20.108, 20.117 s 30(1)(b)(ii) …. 20.117 s 30(1)(c) …. 20.97, 20.98, 20.105, 20.106, 20.107, 20.108, 20.117 s 30(1)(c)(i) …. 19.14 s 30(1)(c)(ii) …. 20.98 s 30(1)(d)(ii) …. 20.98 s 30(2) …. 20.104, 20.108 s 31 …. 1.34, 7.8, 12.27, 20.7, 20.34, 20.79, 20.87, 20.96, 20.117 s 31(1) …. 7.17, 20.78 s 31(2) …. 7.17, 20.78, 20.79, 20.80, 20.84, 20.85, 20.86, 20.89, 20.93, 20.112, 20.113 s 31(2)(a) …. 7.7, 20.80, 20.88, 20.89, 20.91, 20.93, 20.105, 20.110, 20.117 s 31(2)(b) …. 20.80, 20.89, 20.110 s 32 …. 20.78

s 32A(1) …. 21.2 s 32A(2) …. 21.2, 21.28 s 32A(3) …. 21.3 s 32A(4) …. 21.2 s 33 …. 18.14 s 35(1) …. 17.9, 17.13 s 35(1)(b) …. 17.48 s 35(2) …. 17.13 s 35(3) …. 17.5, 17.12, 17.56 s 35(4) …. 17.13 s 36(1) …. 17.3, 17.14 s 36(2) …. 17.4, 17.14, 17.37, 17.42, 17.44 s 37(1) …. 17.15 s 37(2) …. 17.15 s 37(3) …. 17.16 s 37(4) …. 17.17 s 37(5) …. 17.19, 17.61 s 37(5A) …. 17.19 s 37(6) …. 17.20, 17.61 s 37(6A) …. 17.20 s 37(7) …. 17.17, 17.18 s 37(8) …. 17.16 s 38(1) …. 10.24, 10.25, 15.11, 15.23 s 38(1)(b) …. 15.42 s 38(1)(c) …. 16.6 s 38(2)(a) …. 15.49 s 38(2)(b) …. 16.7 s 39 …. 18.20 s 40(1) …. 12.23 s 40(1)(b) …. 12.27 s 40(2) …. 12.24

s 40(3) …. 12.23, 12.27 s 41(1) …. 3.12 s 41(2) …. 4.39, 12.14 s 41(3) …. 12.11 s 41(4) …. 12.11 s 41(5) …. 12.13 s 41(6) …. 12.11 s 42 …. 4.19 s 43 …. 3.30 s 66(1) …. 4.42 s 66(2)–(2B) …. 4.42 s 66(2)(b) …. 4.42 Limitation of Actions Amendment Act 1993 …. 11.16 Mental Health Act 2000 …. 14.23 Motor Accident Insurance Act 1994 …. 3.22, 3.23, 3.24 Pt 4 Div 3 …. 3.22 s 57 …. 3.22, 3.23 s 57(1) …. 3.22, 3.23 s 57(2) …. 3.22, 3.23 Personal Injuries Proceedings Act 2002 s 59(1) …. 3.22 s 59(2) …. 3.22 s 59(2)(b) …. 12.27 Real Property Act 1861 …. 8.13 Sale of Goods Act 1896 s 50(1) …. 5.13 s 50(2) …. 5.13 s 51(1) …. 5.13 s 52(1) …. 5.13 Statute of Frauds and Limitations Act 1867 …. 1.10

Supreme Court Act 1995 s 17 …. 7.61 Trusts Act 1973 s 5(1) …. 10.30 Uniform Civil Procedure Rules 1999 r 5 …. 1.2, 4.30, 18.10, 19.14 r 695 …. 18.22 Workers’ Compensation Act 1916 Sch cl 24A(3) …. 11.4 SOUTH AUSTRALIA Acts Interpretation Act 1915 …. 4.36, 4.55 s 16(1)(c) …. 3.33 s 27(1) …. 4.36 s 27(2) …. 4.55 Civil Procedure Act 1833 s 3 …. 11.13 Commercial Arbitration Act 1986 …. 4.11, 4.12 Commercial Arbitration Act 2011 …. 4.11, 4.12 Criminal Assets Confiscation Act 2005 …. 4.66 s 74 …. 4.66 s 75 …. 4.66 Crown Proceedings Act 1992 s 4(1) …. 3.2 s 5(1) …. 3.2 Defamation Act 2005 …. 11.11 Pt 3 Div 1 …. 21.19 Development Act 1993 s 4(1) …. 6.41 s 73(1) …. 6.41 s 73(2) …. 6.41

Dust Diseases Act 2005 …. 7.64 Sch 1 cl 4(1) …. 7.64 Sch 1 cl 4(2) …. 7.64 Electronic Transactions Act 2000 s 9(1) …. 17.36 Equal Opportunity Act 1984 s 93(2) …. 19.1 Evidence Act 1929 s 67C(1) …. 17.28 s 67C(2)(g) …. 17.28 Law Reform (Ipp Recommendations) Act 2004 s 76 …. 19.9, 19.17 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 6(3)(b) …. 12.29 s 6(4) …. 12.29 Limitation of Actions Act 1936 …. 1.11, 2.26, 3.6, 3.11, 3.14, 3.26, 4.17, 4.19, 4.44, 4.46, 4.50, 4.65, 4.66, 5.5, 5.37, 5.39, 6.2, 6.3, 7.15, 7.25, 8.4, 8.13, 8.20, 8.23, 8.34, 8.38, 8.42, 8.46, 8.49, 8.50, 10.1, 10.2, 10.8, 10.14, 10.16, 10.24, 10.25, 10.29, 10.31, 11.1, 11.28, 12.1, 12.2, 12.10, 12.15, 12.18, 12.20, 12.21, 12.27, 13.38, 14.1, 14.3, 14.28, 14.29, 15.7, 15.8, 15.12, 15.27, 15.40, 15.48, 16.1, 17.8, 17.12, 17.21, 19.1, 19.10, 19.12, 22.4 Pt 6 …. 7.15 s 3(1) …. 2.33, 3.11, 3.12, 4.11, 4.12, 8.3, 8.7, 8.23, 15.23, 19.1 s 4 …. 8.5, 9.12, 9.13 s 6 …. 8.23 s 7 …. 8.35 s 8 …. 8.36 s 9 …. 8.39 s 10 …. 8.43 s 11 …. 8.44

s 12 …. 9.12 s 13 …. 8.42 s 14 …. 8.38 s 15 …. 8.50 s 16 …. 8.50 s 17 …. 8.54 s 20 …. 8.34 s 21 …. 17.23, 17.37 s 21B(2) …. 21.3 s 22 …. 8.41 s 23 …. 8.51 s 24 …. 8.51 s 25(1) …. 10.24, 15.12, 15.23, 15.46, 15.49 s 25(2) …. 15.12, 15.49 s 26 …. 3.30 s 27 …. 17.13 s 27(1) …. 9.4, 9.5 s 27(3) …. 17.17 s 27(4) …. 17.16 s 27(5) …. 17.16 s 28 …. 2.26, 8.13 s 29 …. 8.23 s 31 …. 10.31 s 31(a) …. 10.15 s 31(b) …. 10.15 s 31(c) …. 10.15 s 32 …. 10.31 s 32(1) …. 10.14, 10.20, 10.26 s 32(2) …. 10.29 s 33 …. 17.22 s 33(1) …. 9.19, 10.7

s 34 …. 5.42, 5.46, 8.48, 12.8, 12.15 s 35 …. 4.14, 4.50, 7.12, 14.30 s 35(a) …. 5.2, 10.14, 12.15, 12.19 s 35(b) …. 12.2 s 35(c) …. 6.2, 12.19 s 35(d) …. 8.46 s 35(e) …. 5.8, 9.18 s 35(f) …. 5.8, 8.46, 9.18 s 35(g) …. 5.5 s 36 …. 7.80 s 36(1) …. 2.36, 7.14, 7.17, 7.63 s 36(1a) …. 7.64 s 36(2) …. 7.33, 7.63 s 37 …. 11.11, 11.13, 11.14 s 37(1) …. 6.45, 21.2 s 37(2) …. 19.7, 21.2, 21.28 s 38 …. 11.16 s 38(1) …. 5.39 s 38(2) …. 5.39 s 38(3) …. 11.17 s 38A(1) …. 2.33 s 38A(2) …. 2.33 s 38A(3) …. 2.33 s 39 …. 7.64, 14.30 s 40 …. 14.30 s 41 …. 4.17 s 42(1) …. 17.3, 17.4, 17.21, 17.42, 17.44 s 42(2) …. 17.21 s 44 …. 4.19 s 45 …. 1.11

s 45(1) …. 14.6, 14.28 s 45(2) …. 14.29 s 45(3) …. 14.28, 23.1 s 46 …. 14.29 s 46A …. 4.44 s 47 …. 4.66 s 47(1) …. 4.65, 4.66 s 47(2) …. 4.66 s 47(2)(d) …. 4.66 s 48 …. 1.11, 2.36, 3.37, 4.44, 19.7, 19.17, 19.22, 22.4 s 48(1) …. 19.1, 19.22 s 48(1)(c) …. 19.1 s 48(2) …. 19.6 s 48(3) …. 19.9, 19.12, 19.18, 19.22 s 48(3)(a) …. 19.7 s 48(3)(b) …. 19.8 s 48(3)(b)(i) …. 7.65, 19.13 s 48(3)(b)(ii) …. 19.21 s 48(3a) …. 19.17 s 48(3a)(a) …. 19.18 s 48(3a)(b) …. 19.18 s 48(3b) …. 7.65, 19.9, 19.12, 19.23 s 48(4) …. 19.10 s 48(6)…. 19.3 s 49 …. 4.66, 19.5 Limitation of Actions (Recovery of Taxes and Substantive Law) Amendment Act 1994 …. 11.16, 11.28 s 2(2) …. 2.33 Limitation of Suits and Actions Act 1861 …. 1.11 s 38 …. 11.13 s 38(2) …. 11.17, 11.22

s 38(3a) …. 11.28 s 38(3b) …. 11.28 s 38(4) …. 11.22 s 38(5) …. 11.22 Limitations Amendment Act 1975 …. 19.1, 22.4 Real Property Act 1886 Pt 7A …. 8.20 Sale of Goods Act 1895 s 48(1) …. 5.13 s 48(2) …. 5.13 s 49(1) …. 5.13 s 50(1) …. 5.13 Statutes Amendment (Miscellaneous Provisions) Act 1972 …. 19.1, 22.4 Supreme Court Act 1878 …. 15.12, 15.49 Supreme Court Civil Rules 2006 r 3 …. 1.2, 4.30, 18.10, 19.14 r 54(6) …. 4.30 r 54(7) …. 4.30 r 263(2)(b) …. 18.22 Survival of Causes of Action Act 1940 s 2(1) …. 4.42 s 2(2) …. 4.42 s 3 …. 4.42 s 3(1)(b) …. 4.42 s 4 …. 4.43 Trustee Act 1893 s 45(i) …. 10.15 s 45(ii) …. 10.15 s 45(iii) …. 10.15 s 46(1) …. 10.14

TASMANIA Acts Interpretation Act 1931 …. 4.36, 4.55 s 16(1)(c) …. 3.33 s 24(a) …. 3.2 s 29(1) …. 4.36 s 29(3) …. 4.55 Administration and Probate Act 1935 s 27(5) …. 4.43 s 27(6) …. 4.43 Building Act 2000 s 3(1) …. 6.41 s 255 …. 6.41 s 256 …. 6.41 Defamation Act 2005 Pt 3 Div 1 …. 21.19 s 20A(1) …. 6.45, 21.2 s 20A(2) …. 21.2, 21.28 Electronic Transactions Act 2000 s 7(1) …. 17.36 Fatal Accidents Act 1934 …. 7.67 Guardianship and Administration Act 1995 …. 14.23, 14.53 Land Titles Act 1980 …. 9.9 s 40(3)(h) …. 8.20 s 138W(1) …. 8.20 s 138W(2)–(12) …. 8.20 Limitation Act 1974 …. 1.12, 2.26, 3.6, 3.11, 3.13, 3.26, 4.46, 5.5, 5.35, 5.37, 5.42, 6.3, 6.25, 7.14, 7.15, 7.24, 7.66, 8.3, 8.6, 8.13, 8.20, 8.22, 8.23, 8.30, 8.34, 8.37, 8.38, 8.40, 8.46, 8.49, 8.50, 9.9, 9.14, 9.16, 10.1, 10.2, 10.6, 10.7, 10.8, 10.16, 10.24, 10.25, 10.29, 11.1, 11.28, 12.1, 12.2, 12.5, 12.7, 12.11, 12.14, 12.15, 12.17, 12.18, 12.20, 12.21, 12.27, 12.30, 13.38, 14.1, 14.18, 14.27, 14.37, 14.49, 15.7, 15.8, 15.9, 15.27, 15.40, 15.48, 16.1, 17.5, 17.8, 17.9, 17.37, 17.56, 17.61

Pt II Div 2 …. 3.26 s 2(1) …. 4.11, 7.12, 7.47, 7.67, 7.69, 8.3, 8.7, 8.23, 8.30, 10.30, 14.22, 20.118, 20.121 s 2(2)(a) …. 14.23 s 2(2)(b) …. 14.23 s 2(3) …. 14.23 s 2(4) …. 3.11, 15.23 s 2(5) …. 3.11 s 2(8)(a) …. 12.7 s 2(8)(b) …. 12.8 s 3(6) …. 8.7, 12.30 s 3(7) …. 8.23 s 4(1) …. 4.14, 4.50 s 4(1)(a) …. 5.2, 6.2, 9.11 s 4(1)(b) …. 5.46 s 4(1)(c) …. 12.15 s 4(1)(d) …. 11.2 s 4(2) …. 12.2 s 4(3) …. 5.42 s 4(4) …. 12.8 s 4(5) …. 5.8, 9.16 s 4(6) …. 11.11, 11.12 s 5(1) …. 7.69, 20.119, 20.120 s 5(1A) …. 7.69 s 5(3) …. 7.69, 20.119 s 5(4) …. 20.119 s 5A …. 7.69, 14.20, 20.118, 20.120 s 5A(1) …. 7.69, 20.118 s 5A(2) …. 7.33, 7.66 s 5A(3) …. 7.14, 7.17, 7.67, 7.72, 20.118, 23.5 s 5A(3)(a) …. 7.50

s 5A(4) …. 7.67 s 5A(5) …. 7.67, 20.118 s 5A(6) …. 7.68 s 6 …. 6.27 s 6(1) …. 6.27 s 6(2) …. 6.28 s 6(2)(c) …. 6.27 s 7(1) …. 12.30 s 7(2) …. 12.30 s 8 …. 21.30 s 8(1) …. 5.5, 12.17 s 8(2) …. 12.18 s 8(3) …. 12.18 s 8(4) …. 21.30 s 8(6) …. 12.18 s 8(7) …. 21.30 s 9 …. 3.26 s 10(1) …. 8.9 s 10(2) …. 8.5 s 10(4) …. 8.10 s 10(5) …. 8.10 s 10(6) …. 8.10 s 10(7) …. 8.10 s 11(1) …. 8.23 s 11(2) …. 8.35 s 11(3) …. 8.36 s 12(1) …. 8.39 s 12(2) …. 8.40 s 12(3) …. 8.40 s 12(4) …. 8.40

s 12(5) …. 8.41 s 12(6) …. 8.41 s 13 …. 8.13 s 13(1) …. 8.3, 8.4 s 13(2) …. 8.22 s 13(3) …. 8.22 s 13(4) …. 8.22 s 13(5) …. 8.37 s 14(1) …. 8.43 s 14(2) …. 8.44 s 15(1) …. 8.50 s 15(2) …. 8.50 s 15(3) …. 8.30, 8.54 s 15(4) …. 8.50, 8.54 s 16(1) …. 8.30, 8.31 s 16(2) …. 8.31 s 16(3)(a) …. 8.30 s 16(3)(b) …. 8.30 s 16(4) …. 8.34 s 18 …. 9.4 s 19 …. 8.33 s 20 …. 8.38 s 21 …. 2.26, 8.13 s 22 …. 8.46 s 23(1) …. 9.9 s 23(2) …. 9.10 s 23(3) …. 9.10 s 23(4) …. 9.10 s 23(5) …. 9.9 s 23(6) …. 9.9 s 23(7)(a) …. 9.17

s 23(7)(b) …. 9.17 s 23(8) …. 9.13 s 23A …. 8.6 s 24(1) …. 8.3, 10.6, 10.7, 10.20 s 24(2) …. 10.6, 10.10 s 24(3) …. 10.26 s 24(4) …. 10.29 s 25 …. 10.7 s 25A …. 11.28 s 25B …. 11.23 s 25C …. 11.16 s 25C(1) …. 11.28 s 25C(2) …. 11.28 s 25D …. 11.16 s 25D(2) …. 11.23 s 25D(3) …. 11.17 s 25D(5) …. 11.17 s 25E …. 11.17 s 26(1) …. 14.18 s 26(1A) …. 14.18 s 26(2) …. 14.19 s 26(3) …. 14.19 s 26(4) …. 14.19, 23.1 s 26(5) …. 14.19 s 26(6) …. 14.20, 14.22 s 26(7) …. 14.22 s 26(8) …. 14.22 s 26(9) …. 14.22 s 27(1) …. 4.42, 14.53 s 27(2) …. 14.53

s 27(3) …. 14.53 s 27(3)(a) …. 4.42 s 27(3)(c) …. 4.42 s 27(3A)–27(3C) …. 4.42 s 27(4) …. 14.53 s 27(5) …. 14.53 s 27(6) …. 14.53 s 27(8) …. 14.49 s 28 …. 14.27 s 29(1) …. 17.9, 17.13 s 29(1)(b) …. 17.48 s 29(3) …. 17.13 s 29(4) …. 17.5, 17.12, 17.56 s 29(5) …. 17.13 s 30(1) …. 17.3, 17.14 s 30(2) …. 17.4, 17.14, 17.37, 17.42, 17.44 s 31(1) …. 17.15 s 31(2) …. 17.15 s 31(3) …. 17.16 s 31(4) …. 17.17 s 31(5) …. 17.19, 17.61 s 31(6) …. 17.19 s 31(7) …. 17.20, 17.61 s 31(8) …. 17.20 s 31(9) …. 17.18 s 31(10) …. 17.16 s 32(1) …. 10.24, 15.11, 15.23 s 32(1)(b) …. 15.28, 15.42 s 32(1)(c) …. 16.6, 16.11 s 32(2)(a) …. 15.49 s 32(2)(b) …. 16.7

s 32A …. 2.33 s 32B …. 2.33 s 32C …. 2.33 s 32D …. 2.33 s 33(1) …. 3.12 s 33(2) …. 4.39, 12.14 s 33(3) …. 12.11 s 33(4) …. 12.11 s 33(5) …. 12.13 s 33(6) …. 12.11 s 34 …. 9.9 s 35 …. 4.19 s 36 …. 3.30 s 37(1) …. 3.2, 3.3 s 37(2) …. 3.2 s 38 …. 3.13 s 38A …. 20.121 s 38A(1) …. 20.120 s 38A(2) …. 20.120 s 38A(3) …. 20.120 s 38A(4) …. 20.120 Limitation Amendment Act 1993 …. 11.16, 11.23, 11.28 Limitation Amendment Act 2004 …. 7.69, 14.22, 20.118 Limitation of Actions Act 1836 …. 1.12 Limitation of Actions Act 1875 …. 1.12 Limitation of Actions Act 1934 …. 1.12 Limitation of Actions Act 1965 …. 1.12, 7.69 s 2 …. 7.69 s 2(1) …. 7.69 s 2(2) …. 7.69

Mental Health Act 2013 …. 14.23 Mercantile Law Act 1935 s 3 …. 1.12 Sale of Goods Act 1896 s 53(1) …. 5.13 s 53(2) …. 5.13 s 54(1) …. 5.13 s 55(1) …. 5.13 Settled Land Act 1884 s 2(1) …. 8.37 s 2(3) …. 8.37 Supreme Court Civil Procedure Act 1932 s 45(1) …. 18.24 Supreme Court Rules 2000 r 427(2A) …. 4.30 Trustee Act 1898 s 4 …. 10.30 Wrongs Act 1954 …. 12.30 s 3(5) …. 12.30 VICTORIA Accident Compensation Act 1985 Pt IV …. 7.40 Acts Interpretation Act 1958 s 31A …. 4.55 Administration and Probate Act 1958 s 3(1) …. 7.40 s 29(1) …. 7.44, 20.76 s 29(2A) …. 7.44 s 29(3) …. 3.13 Administrative Law Act 1978 …. 11.26

Building Act 1993 s 129 …. 6.41 s 130(a) …. 6.41 s 134 …. 6.41 s 134A …. 6.41 Choice of Law (Limitation Periods) Act 1993 s 2 …. 2.33 s 3 …. 2.33 s 5 …. 2.33 s 6 …. 2.33 Civil Procedure Act 2010 s 7 …. 1.2, 4.30, 18.10, 19.14 Commercial Arbitration Act 2011 …. 12.11 s 21 …. 12.11 Defamation Act 2005 Pt 3 Div 1 …. 21.19 Electronic Transactions (Victoria) Act 2000 s 9(1) …. 17.36 Evidence Act 2008 s 131(1) …. 17.28 s 131(2)(i) …. 17.28 s 140 …. 15.22 Goods Act 1958 s 55(1) …. 5.13 s 55(2) …. 5.13 s 56(1) …. 5.13 s 57(1) …. 5.13 Guardianship and Administration Act 1986 …. 7.55 s 85 …. 7.55, 14.23 Interpretation of Legislation Act 1984 …. 4.36, 4.55, 11.26 s 14(2)(e) …. 3.33

s 38 …. 3.2 s 44(1) …. 4.36 s 44(3) …. 4.55 s 44(4) …. 4.55 Limitation of Actions Act 1955 …. 1.4, 1.13, 15.15 Limitation of Actions Act 1958 …. 1.13, 2.26, 3.6, 3.11, 3.13, 3.14, 3.26, 4.46, 5.35, 5.37, 5.42, 6.3, 6.25, 7.14, 7.15, 7.24, 7.26, 7.38, 7.54, 7.71, 8.3, 8.13, 8.22, 8.23, 8.30, 8.34, 8.37, 8.38, 8.40, 8.46, 8.49, 8.50, 9.9, 9.16, 10.1, 10.2, 10.6, 10.7, 10.8, 10.16, 10.24, 10.25, 10.29, 11.1, 11.24, 11.27, 11.28, 11.29, 12.1, 12.2, 12.5, 12.7, 12.10, 12.11, 12.14, 12.15, 12.18, 12.20, 12.21, 12.27, 12.31, 13.38, 14.1, 14.18, 14.25, 14.27, 14.37, 15.7, 15.8, 15.9, 15.27, 15.40, 15.48, 16.1, 16.15, 17.5, 17.8, 17.9, 17.37, 17.56, 17.61, 20.2, 20.27, 20.35, 20.71 Pt IIA …. 7.25, 7.26, 7.38, 7.39, 7.40, 7.43, 7.53, 7.54, 7.56, 7.71, 14.8, 14.18, 14.19, 20.6, 20.8, 20.71, 20.72, 20.75, 24.10 Pt IIA Div 2 …. 20.72 Pt IIA Div 3 …. 7.26, 7.44, 24.14 Pt IIA Div 5 …. 7.26 s 3(1) …. 4.11, 7.33, 7.41, 7.70, 8.3, 8.7, 8.23, 8.30, 8.37, 10.30, 20.2 s 3(2) …. 14.23, 20.35 s 3(3) …. 14.23 s 3(4) …. 3.11, 15.23 s 3(5) …. 8.7 s 3(6) …. 8.23 s 3(7)(a) …. 12.7 s 3(7)(b) …. 12.8 s 5(1) …. 4.14, 4.50 s 5(1)–5(7) …. 3.26 s 5(1)(a) …. 5.2, 6.2, 7.12, 9.11, 12.19, 13.37 s 5(1)(b) …. 5.46 s 5(1)(c) …. 12.15 s 5(1)(d) …. 11.2

s 5(1AAA) …. 6.45, 21.2 s 5(1AA) …. 7.70 s 5(1A) …. 7.5, 7.13, 7.14, 7.17, 7.70, 7.71, 7.72, 7.73, 7.76, 7.77, 7.78, 7.79, 7.80, 7.81, 7.82 s 5(1C) …. 7.71 s 5(2) …. 12.2 s 5(3) …. 5.42 s 5(4) …. 4.13, 4.62, 12.8 s 5(5) …. 11.11 s 5(5)(b) …. 11.12 s 5(6) …. 7.70, 7.73 s 5(7) …. 5.8, 9.16 s 5(8) …. 3.26 s 5(9) …. 7.71 s 6 …. 6.27 s 6(1) …. 6.27 s 6(2) …. 6.28 s 6(2)(c) …. 6.27 s 7 …. 3.3, 8.11 s 7A …. 8.12 s 7AB …. 8.12 s 7B(1) …. 8.12 s 7B(2) …. 8.12 s 7C …. 8.12 s 8 …. 8.5 s 9(1) …. 8.23 s 9(2) …. 8.35 s 9(3) …. 8.36 s 10(1) …. 8.39 s 10(2) …. 8.40 s 10(3) …. 8.41

s 10(4) …. 8.41 s 10A(1) …. 11.26 s 11 …. 8.13 s 11(1) …. 8.3, 8.4 s 11(2) …. 8.22 s 11(3) …. 8.22 s 11(4) …. 8.22 s 11(5) …. 8.37 s 12 …. 8.44 s 13(1) …. 8.50 s 13(2) …. 8.50 s 13(3) …. 8.54 s 14(1) …. 8.30, 8.31 s 14(2) …. 8.31 s 14(3) …. 8.30 s 14(3)(a) …. 8.30 s 14(4) …. 8.34 s 15 …. 9.4 s 16 …. 8.33 s 17 …. 8.38 s 18 …. 2.26, 8.13 s 19 …. 8.46 s 20(1) …. 9.9 s 20(2) …. 9.10, 20.42 s 20(3) …. 9.10 s 20(4)(a) …. 9.9 s 20(4)(b) …. 9.9 s 20(5)(a) …. 9.17 s 20(5)(b) …. 9.17 s 20A …. 11.16 s 20A(1) …. 11.24

s 20A(2) …. 11.26 s 20A(2A) …. 11.26 s 20A(3) …. 11.17 s 20A(4) …. 11.17 s 20A(5) …. 11.26 s 20B(1) …. 11.29 s 20B(2) …. 11.29 s 20B(4) …. 11.29 s 21(1) …. 8.3, 10.6, 10.7, 10.20 s 21(2) …. 10.6, 10.10, 10.26 s 21(3) …. 10.29 s 22 …. 10.7 s 23 …. 20.34 s 23(1) …. 14.18 s 23(1)(a) …. 14.19 s 23(1)(b) …. 14.19 s 23(1)(c) …. 14.19, 23.1 s 23(1)(d) …. 14.19 s 23(1)(e) …. 14.20 s 23(1A) …. 7.54, 14.8, 14.18, 14.19 s 23(2) …. 14.27 s 23A …. 7.41, 7.70, 7.71, 7.73, 20.2, 20.6, 20.8, 20.19, 20.75, 20.79, 20.111 s 23A(1) …. 7.17 s 23A(2) …. 7.17, 18.25, 19.14, 20.2, 20.90, 20.106 s 23A(2)(b) …. 20.41 s 23A(3) …. 20.3, 20.6, 20.8, 20.75 s 23A(3)(b) …. 20.51 s 23A(4)(a) …. 20.3 s 23A(6) …. 20.6 s 23B(1) …. 21.2

s 23B(2) …. 21.2, 21.28 s 23B(3) …. 21.3 s 23B(4) …. 21.2 s 23B(5) …. 21.2 s 24(1) …. 17.9, 17.13 s 24(1)(b) …. 17.48 s 24(2) …. 17.13 s 24(3) …. 17.5, 17.12, 17.13, 17.56 s 25(1) …. 17.3, 17.14 s 25(2) …. 17.4, 17.14, 17.37, 17.42, 17.44 s 26(1) …. 17.15 s 26(2) …. 17.15 s 26(3) …. 17.16 s 26(4) …. 17.17 s 26(5) …. 17.19, 17.61 s 26(6) …. 17.20, 17.61 s 26(7) …. 17.18 s 26(8) …. 17.16 s 27 …. 10.24, 15.11, 15.23, 15.28, 15.49, 16.7 s 27(b) …. 15.42 s 27(c) …. 16.6, 16.15 s 27A(1) …. 7.44 s 27B(1) …. 7.14, 7.20, 7.25, 7.41, 7.71, 20.2, 20.71, 24.10 s 27B(2) …. 7.71 s 27B(2)(c) …. 7.40 s 27B(2)(d) …. 7.40 s 27B(2)(e) …. 7.40 s 27B(3) …. 7.41 s 27D …. 20.72 s 27D(1) …. 7.43, 20.15, 23.5

s 27D(2) …. 7.56 s 27E …. 14.18, 14.19, 20.72 s 27E(2) …. 7.56 s 27F …. 7.25, 7.26, 24.14 s 27F(1) …. 7.45, 20.17, 20.121 s 27F(2) …. 7.50 s 27F(3) …. 7.50 s 27F(4) …. 7.45 s 27G(1) …. 7.44 s 27H …. 7.43 s 27I …. 20.72 s 27I(1) …. 7.53 s 27I(2) …. 7.53 s 27I(3) …. 7.53 s 27J(1) …. 7.55 s 27J(2) …. 7.54, 14.8 s 27J(4) …. 7.55 s 27J(5) …. 7.55 s 27J(3) …. 7.57 s 27K …. 7.71, 20.7 s 27K(2) …. 20.73 s 27K(2)(a) …. 20.13 s 27K(3) …. 20.73 s 27L …. 7.71, 20.12 s 27L(1) …. 20.8, 20.75 s 27L(1)(a) …. 20.13 s 27L(1)(b) …. 7.25, 20.13 s 27L(1)(d) …. 20.36 s 27L(1)(e) …. 7.25 s 27L(2) …. 20.75 s 27L(3) …. 20.76

s 27L(4) …. 20.76 s 27N …. 20.6 s 27N(1) …. 7.39, 20.6, 20.71 s 27N(2) …. 7.39, 20.71 s 27N(3) …. 7.39, 20.71 s 27N(4) …. 7.39 s 27N(5) …. 7.39, 7.40 s 27O(1) …. 7.26, 24.13 s 27O(4) …. 7.26, 24.14 s 27P(1) …. 7.26, 24.14 s 27P(2) …. 7.26, 24.14 s 27Q(1) …. 7.26, 24.14 s 27Q(2) …. 7.26, 24.14 s 27R …. 7.26 s 28(1) …. 3.12 s 28(2) …. 4.39, 12.14 s 28(3) …. 12.11 s 28(4) …. 12.11 s 28(5) …. 12.13 s 29 …. 9.9 s 29(1) …. 4.42 s 29(2)(a) …. 4.42 s 29(2)(c) …. 4.42 s 29(2A) …. 4.42 s 30 …. 4.19 s 31 …. 3.30 s 32(1) …. 3.2, 3.3 s 32(2) …. 3.2 s 33 …. 3.13 s 34(1) …. 4.27

s 34(2) …. 4.27 Limitation of Actions (Amendment) Act 1989 …. 7.70 Limitation of Actions (Amendment) Act 1993 …. 11.16, 11.25 Limitation of Actions (Amendment) Act 2002 …. 1.13, 7.70 Limitation of Actions (Amendment) Act 2004 …. 11.26, 11.29 Limitation of Actions Amendment (Child Abuse) Act 2015 …. 1.13, 7.26, 24.13 Limitation of Actions (Personal Injuries) Act 1972 …. 7.70 s 3 …. 20.2 Limitation of Actions (Personal Injury Claims) Act 1983 …. 7.70 s 23A …. 20.2 Limitation of Actions (Recovery of Imposts) Act 1961 …. 11.24 Owners Corporations Act 2006 …. 8.12 Property Law Act 1928 Pt IX …. 1.13 Real Property Act 1890 s 47 …. 8.7 Real Property Act 1907 …. 1.13 Settled Land Act 1958 s 3(1) …. 8.37 s 8(1) …. 8.37 Supreme Court Act 1928 Pt VII Div 7 …. 1.13 Supreme Court (General Civil Procedure) Rules 2015 r 36.01(6) …. 4.27 r 63.14 …. 18.22 Transfer of Land Act 1958 …. 9.9 s 42(2)(b) …. 8.20 ss 60–62 …. 8.20 Transport Accident Act 1986 Pt 6 …. 7.40

Pt 10 …. 7.40 Trustee Act 1953 Pt VI …. 1.13 Trustee Act 1958 s 3(1) …. 8.37, 10.30 Workers Compensation Act 1958 …. 7.40 s 27B(2)(a) …. 7.40 s 27B(2)(b) …. 7.40 Workplace Injury Rehabilitation and Compensation Act 2013 Pt 7 …. 7.40 Wrongs Act 1958 …. 12.31 Pt III …. 7.26, 7.43, 20.76, 24.14 s 20 …. 20.6, 20.42 s 20(1) …. 20.6 s 20(1A) …. 20.6 s 20(2) …. 20.6, 20.42 s 20(3) …. 20.6 s 20(7) …. 20.6 s 23B …. 12.31 s 23B(1) …. 12.31 s 23B(3) …. 12.31 s 24(4) …. 12.31 Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 …. 1.13, 7.38, 7.39, 7.71, 20.6, 20.71 WESTERN AUSTRALIA Acts Amendment (Asbestos-Related Diseases) Act 1983 …. 7.85 Administration Act 1903 s 8 …. 8.38 Choice of Law (Limitation Periods) Act 1994 s 3(1) …. 2.33

s 3(2) …. 2.33 s 3(3) …. 2.33 s 4 …. 2.33 s 5 …. 2.33 s 6 …. 2.33 Criminal Code s 51 …. 3.25 s 52 …. 3.25 s 65 …. 3.25 s 103 …. 3.25 Criminal Procedure Act 2004 s 21(1) …. 3.25 s 21(2) …. 3.25 Crown Suits Act 1947 s 6 …. 3.2 Defamation Act 2005 Pt 3 Div 1 …. 21.19 Electronic Transactions Act 2011 s 10(1) …. 17.36 Fatal Accidents Act 1959 …. 4.2, 7.83, 7.84, 20.122, 20.123 Guardianship and Administration Act 1990 …. 14.34 s 3(1) …. 14.34 Interpretation Act 1984 …. 4.36, 4.55 s 11 …. 3.2 s 37(1)(c) …. 3.33 s 61(1)(b) …. 4.36 s 61(1)(e) …. 4.55 s 61(2) …. 4.55 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 s 7 …. 12.23

Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 20.123 s 4(1) …. 4.42 s 4(2) …. 4.42 s 4(2)(a) …. 4.42 s 4(2a) …. 4.42 Limitation Act 1935 …. 1.12, 7.91, 10.14, 12.32, 22.2, 22.4 s 8 …. 8.38 s 30 …. 8.13 s 32 …. 9.19, 17.5 s 32(1) …. 12.8 s 35 …. 9.12 s 36 …. 8.11 s 37 …. 11.11 s 37A …. 11.16 s 38(1)(a)(i) …. 11.13 s 38(1)(c) …. 7.91 s 38(1)(c)(iii) …. 12.5 s 38(1)(e)(ii) …. 5.46 s 38A …. 7.85 s 38A(1) …. 12.34 s 40 …. 7.91, 12.32, 14.6, 14.31 s 47 …. 10.14 s 47(1) …. 10.14, 10.26 s 47A …. 7.91, 12.32, 12.34, 12.35 s 47A(1) …. 12.32, 12.34 s 47A(2) …. 12.33 s 47A(3)(a) …. 12.33 s 47A(3)(b) …. 12.33 s 47A(3)(c) …. 12.33 s 47A(4)(a) …. 12.32

s 47A(5)–47A(9) …. 12.34 s 47A(9) …. 12.34 Limitation Act 2005 …. 1.12, 2.26, 3.13, 3.4, 3.27, 3.38, 4.20, 4.46, 4.60, 5.4, 5.5, 5.9, 5.37, 6.2, 6.3, 6.25, 7.3, 7.15, 7.83, 7.85, 7.87, 7.89, 7.90, 8.3, 8.13, 8.22, 8.23, 8.30, 8.34, 8.38, 8.49, 9.3, 9.16, 9.20, 10.1, 10.2, 10.5, 10.8, 10.24, 10.25, 10.29, 11.1, 11.5, 11.11, 11.27, 11.28, 11.30, 12.1, 12.6, 12.8, 12.10, 12.11, 12.14, 12.15, 12.18, 12.20, 12.21, 12.27, 12.35, 13.38, 14.1, 14.21, 14.31, 15.7, 15.8, 15.13, 15.20, 15.23, 15.27, 15.31, 15.40, 16.1, 17.8, 17.9, 17.11, 20.123, 22.1, 22.9, 24.8 Pt 2 Div 2 …. 14.33, 14.34, 14.38 Pt 2 Div 3 …. 14.33, 14.34, 14.38 Pt 3 …. 7.91 Pt 3 Div 1 …. 14.36 Pt 3 Div 2 …. 14.36 Pt 5 …. 4.60 Div 3 …. 4.2 s 3(1) …. 3.12, 3.27, 4.11, 4.12, 7.33, 7.83, 8.3, 8.7, 8.23, 8.39, 9.3, 9.7, 10.7, 10.30, 11.27, 12.10, 12.15, 14.32, 14.34, 20.122, 24.8 s 3(1)(a) …. 22.9 s 3(2) …. 4.2 s 3(3) …. 3.11, 4.2, 15.23 s 3(4) …. 8.7 s 3(5) …. 8.23 s 3(6)(a) …. 8.30 s 3(6)(b) …. 8.30 s 3(6)(c) …. 8.30 s 3(6)(d) …. 8.34 s 3(7) …. 3.12, 12.10 s 4 …. 3.38, 7.90 s 4(1) …. 8.30 s 6(2) …. 7.85, 7.89

s 7 …. 3.38, 7.90, 7.91, 14.36 s 7(1) …. 3.38, 7.90 s 7(2) …. 3.38, 7.90, 7.91 s 7(3) …. 7.91 s 7(4) …. 7.91 s 9(1) …. 3.13 s 9(2) …. 1.4, 3.13 s 10(1) …. 3.2 s 10(2)(a) …. 3.3 s 10(2)(b) …. 3.3 s 12(1) …. 4.50 s 13(1) …. 3.27, 4.2, 4.14, 4.50, 5.9, 5.10, 5.46, 6.2, 8.3, 8.46, 11.5, 11.11, 12.3, 12.8, 12.15, 12.19, 22.4, 22.9 s 13(2) …. 4.2, 4.14, 7.12, 22.7 s 14 …. 4.2 s 14(1) …. 7.14, 7.20, 7.83 s 14(2) …. 7.83 s 15 …. 4.2, 6.45, 21.2 s 16 …. 4.2, 6.2 s 17 …. 4.2, 12.23 s 18 …. 4.2, 5.42 s 19 …. 4.2 s 19(1) …. 8.5 s 19(2) …. 3.3 s 20 …. 4.2, 9.7 s 21 …. 4.2 s 21(1) …. 9.15 s 21(2) …. 9.15, 9.20 s 22 …. 4.2 s 22(1) …. 9.15 s 22(2) …. 9.15, 9.20

s 23 …. 4.2, 9.7 s 24 …. 4.2, 9.7 s 25 …. 4.2, 9.3 s 26 …. 4.2, 12.3 s 27 …. 4.2 s 27(1) …. 3.27, 10.5, 10.30 s 27(2) …. 3.27, 10.5, 10.10 s 28 …. 4.2, 11.16 s 28(1) …. 11.27 s 28(2) …. 11.27 s 28(3) …. 11.27 s 28(4) …. 11.17 s 28(5) …. 11.17 s 29 …. 3.12, 4.2, 12.10 s 30 …. 7.91 ss 30–34 …. 14.36 s 30(1) …. 14.33 s 30(2) …. 14.33 s 31 …. 7.91 s 31(1) …. 14.33 s 31(2) …. 14.33 s 32 …. 7.91 s 32(1) …. 2.22, 14.34 s 32(2) …. 14.34 s 32(3) …. 14.35 s 33 …. 4.60 s 33(1) …. 14.38 s 33(2) …. 14.38 s 33(3) …. 14.38 s 34 …. 14.33 ss 35–37 …. 14.36

s 35(1) …. 2.22, 14.6, 14.34 s 35(2) …. 14.34 s 35(3) …. 14.35 s 36 …. 4.60 s 36(1) …. 14.38 s 36(2) …. 14.38 s 36(3) …. 14.38 s 36(4) …. 14.38 s 38 …. 4.60, 20.122 s 38(1)(e)(i) …. 5.42 s 38(2) …. 10.24, 15.13, 15.23, 15.28, 15.31, 15.42 s 38(4) …. 15.13 s 39 …. 7.84, 20.122 s 39(1) …. 20.122 s 39(2) …. 20.122 s 39(3) …. 20.123 s 39(4) …. 20.123, 20.124 s 39(5)(a)–(c) …. 20.123 s 39(5)(d) …. 20.123 s 40 …. 20.122, 21.8 s 40(1) …. 21.2 s 40(2) …. 21.2, 21.29 s 40(3) …. 21.2, 21.28, 21.29 s 41 …. 7.91, 20.122 s 41(1) …. 14.39 s 41(2) …. 14.39 s 41(3) …. 14.39 s 41(4) …. 14.39 s 42 …. 20.122 s 42(1) …. 14.39

s 42(2) …. 14.39 s 42(3) …. 14.39 s 44 …. 20.122, 21.3, 21.8 s 45(1) …. 4.60 s 45(2)(a) …. 4.60 s 45(2)(b) …. 4.60 s 46(1) …. 17.9 s 46(1)(b) …. 17.48 s 46(2) …. 17.9 s 47 …. 17.10, 17.54 s 47A …. 12.35 s 48 …. 17.3, 17.4, 17.9 s 49 …. 17.10, 17.42, 17.44 s 50(2) …. 17.10 s 50(7) …. 17.10 s 51(1) …. 17.11 s 51(2) …. 17.11 s 52 …. 14.36 s 53(2) …. 14.19, 14.37 s 54(1) …. 12.13 s 54(2) …. 12.13 s 55 …. 7.83, 7.86 s 55(1) …. 20.123 s 56 …. 7.86 s 56(1) …. 7.87 s 56(2) …. 7.87 s 56(3) …. 7.87 s 56(4) …. 7.87 s 56(5) …. 7.87 s 57(1) …. 7.86 s 57(2) …. 7.86

s 58 …. 12.24 s 59 …. 5.21 s 60 …. 6.27 s 60(b) …. 6.27 s 61 …. 8.4 s 62 …. 10.26, 10.30 s 63 …. 4.39, 12.14 s 64 …. 12.16 s 65(1) …. 8.31 s 65(2) …. 8.31 s 65(3) …. 8.31 s 66 …. 8.23 s 67 …. 8.35 s 68 …. 8.36 s 69(1) …. 8.39 s 70 …. 8.44 s 71 …. 8.30, 8.44, 8.53, 8.54 s 72 …. 8.50 s 72(1) …. 8.49 s 72(2) …. 8.49 s 72(3) …. 8.49 s 73(2) …. 8.37 s 73(3) …. 8.37 ss 74–78 …. 4.60 s 75 …. 4.60 s 75(a) …. 2.26, 8.13 s 75(b) …. 18.15 s 76 …. 3.3, 4.60, 8.11 s 77 …. 4.60 s 77(1) …. 8.14

s 77(2) …. 8.14 s 78 …. 4.60, 10.30 s 78(1) …. 8.22 s 78(2) …. 8.22 s 79(1) …. 2.20 s 79(2) …. 2.22, 14.34 s 79(3) …. 2.22 s 80 …. 3.30 s 81(1) …. 4.20 s 81(2) …. 4.20 s 81(3) …. 4.20 s 82 …. 4.16 s 83 …. 4.16 s 84(a) …. 8.33 s 85 …. 10.29 s 86(1) …. 11.30 s 86(2) …. 11.30 s 86(3) …. 11.30 s 87(1) …. 11.30 s 87(2) …. 11.30 s 87(3) …. 11.30 s 87(4) …. 11.30 s 88(1) …. 12.11 s 88(2) …. 12.11 Limitation Legislation Amendment and Repeal Act 2005 s 4(2) …. 1.12 Sale of Goods Act 1895 s 48(1) …. 5.13 s 48(2) …. 5.13 s 49(1) …. 5.13 s 50(1) …. 5.13

Supreme Court Rules 1971 O 1 r 4B …. 1.2, 4.30, 18.10, 19.14 O 21 r 5(2)–(5) …. 4.30 Transfer of Land Act 1893 s 68(1A) …. 8.20 ss 222–223A …. 8.20 Trustees Act 1962 s 6(1) …. 10.30 Workers’ Compensation and Injury Management Act 1981 …. 7.87 CANADA Limitation Act 2012 (BC) …. 8.20, 22.5 s 3(1)(b) …. 8.20 s 3(1)(i) …. 24.14 s 3(1)(j) …. 24.14 s 3(1)(k) …. 24.14 s 6 …. 4.2, 22.9, 22.15 s 6(1) …. 22.9 s 8 …. 22.15, 22.22 s 14 …. 5.21 s 21 …. 4.63 s 21(1) …. 22.18, 23.4, 23.5 s 21(2)(d) …. 23.8 s 21(2)(e) …. 23.10 s 21(3) …. 23.7 s 24 …. 23.12 Limitation of Actions Act (Man) s 2.1(2) …. 24.14 s 7(5) …. 4.63 s 14(4) …. 4.63 Limitation of Actions Act 1978 (Sask)

s 3(3.1) …. 24.14 Limitation of Actions Act 1989 (NS) s 2(5) …. 24.10 Limitation of Actions Act 2009 (NB) …. 22.5 s 1(1) …. 22.9 s 2(1) …. 22.9 s 5 …. 4.2, 22.9, 22.15 s 5(1)(b) …. 22.18, 23.5 s 5(2) …. 22.22 s 11 …. 5.21 s 14.1 …. 24.14 s 16 …. 23.7 s 17 …. 23.8 s 18(1) …. 23.11 s 19(1) …. 23.12 Limitations Act 1975 (BC) …. 23.1 s 8 …. 23.1 Limitations Act 1995 (NL) …. 24.14 s 8(2) …. 24.14 s 22 …. 22.17, 22.18 Limitations Act 1996 (Alta) …. 22.5 s 3(4)(k) …. 24.14 s 3(4)(l) …. 24.14 s 8 …. 23.1 Limitations Act 2000 (Alta) …. 22.5 s 1(h)(ii) …. 14.32, 23.8 s 2(1) …. 22.9 s 3 …. 4.2, 22.9, 22.15 s 3(1)(a) …. 22.22 s 3(1)(b) …. 22.18, 23.5 s 3(3) …. 22.18, 23.5

s 3(3)(c) …. 5.21 s 3(5) …. 22.19 s 4(1) …. 23.7 s 5(1) …. 23.11 s 5(2) …. 23.8 s 7 …. 4.60 s 8(2) …. 23.12 s 10 …. 3.31 Limitations Act 2002 (Ont) …. 22.5, 24.9 s 2(1) …. 22.9 s 4 …. 4.2, 22.9, 22.15 s 5 …. 22.15 s 5(1)(b) …. 22.22 s 5(3) …. 5.21 s 10(1) …. 24.9 s 10(2) …. 14.7, 24.9 s 10(3) …. 24.9 s 13(1) …. 23.12 s 15(2) …. 22.18, 23.5 s 15(4)(a) …. 23.11 s 15(4)(b) …. 23.8 s 15(4)(c) …. 23.7 s 22 …. 4.60 Limitations Act 2004 (Sask) …. 22.5 s 3(1) …. 22.9 s 5 …. 4.2, 22.9, 22.15 s 6 …. 22.15 s 6(1) …. 22.22 s 7(1) …. 22.18, 23.5 s 8(1)(a) …. 23.8 s 8(1)(b) …. 23.11

s 10 …. 5.21 s 11(1) …. 23.12 s 16(1) …. 24.14 s 17 …. 23.7 s 18 …. 22.19 s 21 …. 4.60 IRELAND Statute of Limitations 1957 …. 1.10, 22.3 NEW ZEALAND Building Act 1991 s 91(2) …. 6.41 Building Act 2004 s 393(2) …. 6.41 Commerce Act 1986 s 80(5) …. 15.8 Family Protection Act 1955 s 9 …. 15.8 Limitation Act 1950 …. 1.7, 1.10, 5.15, 5.16, 5.21, 5.22, 5.41, 6.41, 7.23, 10.13, 22.3 s 2(2) …. 14.24 s 5(1)(a) …. 5.21 s 6(1) …. 4.50 s 11 …. 5.43 s 11(1) …. 4.2, 4.34 s 12 …. 5.43 s 28 …. 6.41 s 28(c) …. 16.11 s 41 …. 4.60 Limitation Act 2010 …. 3.28, 22.3, 22.18, 22.26, 24.12

s 11 …. 22.9, 22.15, 22.17, 22.26 s 11(1) …. 22.9, 22.16 s 11(2) …. 22.16 s 11(3) …. 2.20, 22.16 s 11(3)(b) …. 22.18, 22.19, 23.5 s 12 …. 22.9, 22.26 s 12(1) …. 3.28, 22.9 s 14 …. 22.15, 22.16, 22.17 s 14(2) …. 22.19 s 16(1) …. 22.16 s 17(2) …. 24.12 s 17(3) …. 24.12 s 17(4) …. 23.3 s 17(6) …. 23.3, 24.12 s 18 …. 23.3, 24.12 s 43 …. 2.2 s 44 …. 23.8 s 45(1) …. 23.11 s 45(2) …. 23.11 s 45(3) …. 23.11 s 47(1) …. 23.12 s 47(2) …. 23.12 s 48(1) …. 23.7 Matrimonial Property Act 1976 …. 6.15 Patents Act 1953 s 20(4) …. 4.8 Patents Act 2013 s 149(1) …. 4.8 SINGAPORE Limitation Act 1959

s 6 …. 5.37 s 6(7) …. 22.9 Limitation Act 1996 s 24(4)(d) …. 7.87 s 24A(1) …. 7.72 UNITED KINGDOM 20 Hen III c 1 1154 …. 1.8 32 Hen VIII c 2 1540 …. 1.8 Administration of Justice Act 1705 (IV Anne c 16) s 17 …. 5.5 s 19 …. 14.19 Arbitration Act 1996 s 13(2) …. 12.13 s 13(3) …. 4.39, 12.14 s 14(3) …. 12.11 Australian Courts Act 1828 (9 Geo IV c 83) …. 1.9 s 24 …. 1.9 Civil Procedure Act 1833 (3 & 4 Will IV c 42) …. 1.10, 5.41, 22.1 s 3 …. 5.41, 5.42, 5.46, 8.47, 11.11, 11.13 Compulsory Purchase Act 1965 …. 11.6 s 11(1) …. 11.6 County Courts Act 1888 (51 & 52 Vict c 43) s 116 …. 6.17 Crown Suits Act 1769 (9 Geo 3 c 16) …. 8.11 Defamation Act 2013 s 8 …. 6.48 Electricity Act 1947 …. 11.3 s 14(1) …. 11.3 Foreign Limitation Periods Act 1984 s 1 …. 2.33

Insolvency Act 1986 s 214 …. 3.13 Judicature Act 1873 …. 4.26, 5.12 Latent Damage Act 1986 s 1 …. 6.36 Law Reform (Limitation of Actions) Act 1954 …. 7.3 s 2(1) …. 7.73 Law Reform (Miscellaneous Provisions) Act 1934 …. 4.42, 20.49 s 1(3) …. 6.17 s 3 …. 4.8 Limitation Act 1623 (21 Jac I c 16) …. 1.8, 1.9, 1.10, 1.11, 1.12, 1.34, 1.36, 3.10, 3.26, 4.24, 4.35, 5.41, 7.2, 8.30, 9.11, 12.2, 12.14, 13.2, 14.2, 14.3, 15.2, 17.1, 17.47, 18.1, 22.1, 22.2 s 3 …. 1.8, 7.2, 12.2, 17.1 s 7 …. 14.2, 14.30 Limitation Act 1939 …. 1.4, 1.10, 1.13, 1.34, 2.15, 4.62, 5.41, 5.42, 6.25, 7.2, 8.30, 12.4, 15.7, 15.8, 15.14, 15.15, 15.27, 16.5, 16.15, 17.5, 17.8, 17.24, 17.47, 17.48, 17.56, 18.1, 18.2, 22.1, 22.3, 22.4, 23.13 s 2 …. 7.2 s 2(1)(a) …. 5.37 s 2(1)(b) …. 5.46 s 2(1)(d) …. 5.41, 11.2, 11.3 s 2(2) …. 12.2, 12.4 s 2(3) …. 5.41, 5.42, 8.47 s 2(4) …. 12.8 s 2(5) …. 11.11 s 2(6) …. 12.17 s 2(7) …. 12.4 s 2D …. 7.9, 18.2 s 2D(1) …. 7.10, 20.12, 20.40 s 2D(1)(b) …. 20.9

s 2D(3) …. 7.10, 20.3, 20.9 s 3 …. 6.27 s 3(2) …. 6.28 s 4(3) …. 8.5 s 5(1) …. 8.23 s 5(2) …. 8.35 s 5(3) …. 8.36 s 6(1) …. 8.39 s 6(2) …. 8.40 s 6(3) …. 8.40 s 6(4) …. 8.41 s 6(5) …. 8.41 s 8 …. 8.43, 8.44 s 9 …. 8.50 s 9(3) …. 8.54 s 10(1) …. 8.30, 8.31 s 10(2) …. 8.31 s 12 …. 9.4 s 13 …. 8.33 s 15 …. 8.38 s 16 …. 8.13 s 17 …. 8.46 s 18(1) …. 9.9 s 18(2) …. 9.10 s 18(3) …. 9.10 s 18(5) …. 9.15, 9.16 s 18(5)(a) …. 9.15, 9.17 s 18(5)(b) …. 9.17 s 19 …. 10.14 s 19(1) …. 10.10, 10.18, 10.20 s 19(1)(b) …. 10.21

s 19(2) …. 10.11, 10.26 s 19(3) …. 10.29 s 20 …. 10.7, 16.3 s 22(1) …. 14.18 s 22(1)(a) …. 14.19 s 22(1)(b) …. 14.19 s 22(1)(c) …. 4.62, 14.19 s 22(1)(e) …. 14.19 s 22(2)(b) …. 14.20 s 23 …. 17.13 s 23(1)(b) …. 17.48 s 23(4) …. 17.5, 17.54, 17.56 s 24 …. 17.14 s 24(1) …. 17.3 s 24(2) …. 17.3, 17.37 s 25 …. 17.15 s 25(5) …. 17.61 s 25(6) …. 17.61 s 26 …. 15.7, 15.9, 15.11, 15.15, 15.23, 15.27, 15.49, 16.11 s 26(a) …. 15.15, 15.32 s 26(b) …. 15.15, 15.18, 15.19, 15.32, 15.42 s 26(c) …. 16.5 s 27(2) …. 4.39, 12.14 s 27(3) …. 12.11 s 27(5) …. 12.13 s 28 …. 4.19 s 29 …. 3.30 s 31(3) …. 14.23 Sch …. 17.5 Limitation Act 1960 …. 1.10

Limitation Act 1963 …. 1.34, 7.7, 7.8, 19.1, 20.79 s 1(3) …. 7.7, 19.15, 20.79 s 7(3) …. 7.7, 20.90 s 7(4) …. 7.7, 20.95 s 7(5) …. 7.7 Limitation Act 1975 …. 7.8, 18.2, 23.15 s 1 …. 7.73 s 1(1) …. 7.9 s 2A(6) …. 7.87 s 2A(7) …. 7.87 Limitation Act 1980 …. 1.10, 4.56, 5.46, 9.10, 10.11, 12.17, 14.20, 15.6, 15.7, 15.36, 16.3, 17.5, 18.2, 20.9 s 3(1) …. 6.27 s 3(2) …. 6.28 s 4A …. 6.45, 21.2 s 5 …. 5.21 s 6 …. 5.21 s 6(2) …. 5.21 s 6(3) …. 5.21 s 7 …. 12.15, 12.16 s 8 …. 5.42, 8.47 s 8(1) …. 5.41 s 9 …. 3.13, 11.11 s 9(1) …. 11.2 s 11(1) …. 7.14, 7.34, 7.72 s 14(1) …. 7.87 s 14(1)(b) …. 7.87, 7.88 s 14(2) …. 7.87 s 14(3) …. 7.87, 20.69 s 14A …. 6.36 s 14A(8)(a) …. 7.87, 7.88

s 14A(10) …. 7.87 s 14B …. 6.36, 23.3 s 15(1) …. 8.5, 17.27 s 15(2) …. 8.39 s 15(3) …. 8.40 s 15(4) …. 8.36 s 15(5) …. 8.41 s 16 …. 9.4 s 17 …. 8.13 s 19 …. 8.46 s 20(1) …. 9.9, 9.10 s 20(2) …. 9.10 s 20(3) …. 9.10 s 20(5) …. 9.16 s 20(6) …. 9.17 s 20(7) …. 9.17 s 21 …. 10.14 s 21(1) …. 10.10, 10.18, 10.20 s 21(3) …. 10.11, 10.26 s 21(4) …. 10.29 s 22(a) …. 10.7, 16.3 s 23 …. 12.3 s 24(1) …. 12.8 s 26 …. 8.38 s 28 …. 14.18 s 28(2) …. 14.19 s 28(4) …. 14.19 s 29(3) …. 17.48 s 29(5) …. 17.5, 17.56 s 29(7) …. 17.54 s 30 …. 17.14

s 30(1) …. 17.3 s 30(2) …. 17.37 s 30(2)(a) …. 17.4 s 31 …. 17.15 s 31(6) …. 17.61 s 31(7) …. 17.61 s 32 …. 15.9, 15.37, 15.40 s 32(1) …. 15.20, 15.23, 15.44 s 32(1)(a) …. 15.43 s 32(1)(b) …. 15.17, 15.18, 15.19, 15.36, 15.38, 15.43, 15.47 s 32(1)(c) …. 16.5 s 32(2) …. 15.37, 15.38, 15.39, 15.47 s 32(3) …. 15.49 s 32(3)(a) …. 15.49 s 32A(1) …. 21.9, 21.17 s 32A(2) …. 21.12 s 32A(2)(b)(ii) …. 21.15 s 33 …. 7.9, 7.74, 18.2, 20.69 s 33(1) …. 7.10, 20.12, 20.40 s 33(1)(b) …. 20.9, 20.31 s 33(2) …. 20.3 s 33(3) …. 7.10, 20.9 s 33(3)(a) …. 20.9, 20.13, 20.26 s 33(3)(b) …. 20.9, 20.25, 20.26 s 33(3)(c) …. 20.9 s 33(3)(d) …. 20.9, 20.34, 20.35 s 33(3)(e) …. 20.9, 20.37 s 33(3)(f) …. 20.9 s 34(5) …. 12.13 s 35(1) …. 4.19

s 35(2) …. 4.19 s 36(2) …. 3.30 s 39 …. 3.13 Sch 1 cl 1 …. 8.23 Sch 1 cl 4 …. 8.39 Sch 1 cl 5 …. 8.50 Sch 1 cl 6 …. 8.50 Sch 1 cl 6(1) …. 8.54 Sch 1 cl 7(1) …. 8.43 Sch 1 cl 7(2) …. 8.44 Sch 1 cl 8(1) …. 8.30, 8.31 Sch 1 cl 8(2) …. 8.31 Lord Tenterden’s Act see Statute of Frauds Amendment Act 1828 Maritime Conventions Act 1911 s 8 …. 21.31 Mercantile Law Amendment Act 1856 s 13 …. 17.4 Patents Act 1949 s 13(4) …. 4.8 Prescription and Limitation (Scotland) Act 1984 s 2 …. 23.2 Public Authorities Protection Act 1893 …. 12.35 Real Property Limitation Act 1833 (3 & 4 Wm IV c 27) …. 1.10, 1.12, 8.30, 8.51, 9.11, 22.1, 23.1 s 2 …. 8.5, 8.28, 8.30, 9.8 s 3 …. 8.23, 8.28, 8.35, 8.36, 8.39, 8.42, 8.43, 9.8 s 4 …. 8.44 s 6 …. 8.38 s 7 …. 3.36, 8.50 s 8 …. 8.50 s 9 …. 8.54

s 12 …. 8.34 s 14 …. 17.2 s 16 …. 23.1 s 17 …. 4.62, 23.1 s 20 …. 8.41 s 21 …. 8.51 s 22 …. 8.51 s 24 …. 9.8 s 25 …. 10.32 s 26 …. 15.2, 16.5 s 28 …. 9.4 s 34 …. 8.13 s 40 …. 9.9, 9.10, 10.7, 12.8 s 42 …. 8.46, 9.15, 9.17, 9.18 Real Property Limitation Act 1837 (7 Wm IV and 1 Vict c 28) s 1 …. 9.12 Real Property Limitation Act 1874 (37 & 38 Vict c 57) …. 1.10, 1.12, 9.11, 22.1 s 1 …. 8.5, 8.30 s 3 …. 14.31 s 5 …. 23.1 s 7 …. 9.4 s 8 …. 9.9, 9.10, 12.8 s 15 …. 8.38 Responsibility of Shipowners Act 1733 (7 Geo 2 c 15) …. 12.17 Riot (Damages) Act 1886 …. 11.13 Statute of Frauds Amendment Act 1828 (9 Geo 4 c 14) …. 17.2, 17.4, 17.21, 17.34, 17.35 s 1 …. 17.2, 17.5, 17.21 Statute of James see Limitation Act 1623 Statute of Merton 1235 …. 1.8

Statute of Mortmain …. 1.9 Statute of Westminster 1275 (3 Ed I c 39) …. 1.8 Supreme Court of Judicature Act 1873 (36 &37 Vict c 66) …. 15.7 s 25(11) …. 15.7 Supreme Court of Judicature Act 1875 (38 & 39 Vict c 77) …. 15.7 Trustee Act 1888 …. 10.31 s 1(3) …. 10.31 s 8 …. 10.14, 10.31 s 8(1) …. 10.21 Workmen’s Compensation Act 1897 s 2(1) …. 2.8

Table of Abbreviations

Legislation Australian and New Zealand limitations statutes ACT Limitation Act 1985 (ACT) NSW Limitation Act 1969 (NSW) NT Limitation Act 1981 (NT) Qld Limitation of Actions Act 1974 (Qld) SA Limitation of Actions Act 1936 (SA) Tas Limitation Act 1974 (Tas) Vic Limitation of Actions Act 1958 (Vic) WA Limitation Act 2005 (WA) WA 1935 Limitation Act 1935 (WA) (repealed) NZ Limitation Act 2010 (NZ) NZ 1950 Limitation Act 1950 (NZ) (repealed) English limitations statutes UK 1623 Limitation Act 1623 (UK) UK 1833 Real Property Limitation Act 1833 (UK) UK 1874 Real Property Limitation Act 1874 (UK) UK 1939 Limitation Act 1939 (UK) UK 1963 Limitation Act 1963 (UK) UK 1975 Limitation Act 1975 (UK) UK 1980 Limitation Act 1980 (UK) Books

Bradbrook

Cairns Canny Carter Handford McGee McGrath, Price and Davidson Rees and Chapman

Law reform reports ALRI DP4

ALRI 55 BCLI 19

BCLRC 6

Edmund Davies

A P Moore, S Grattan and L Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law, 6th ed, Lawbook Co, Australia, 2016 B C Cairns, Australian Civil Procedure, 10th ed, Lawbook Co, Australia, 2014 M Canny, Limitation of Actions in England and Wales, Bloomsbury Professional, West Sussex, 2013 J W Carter, Contract Law in Australia, 6th ed, LexisNexis Butterworths, Australia, 2013 P Handford, Limitation of Actions, The Laws of Australia, 3rd ed, Thomson Reuters, Sydney, 2012 A McGee, Limitation Periods, 7th ed, Sweet & Maxwell, London, 2014 G McGrath, D C Price and I Davidson, Limitation of Actions Handbook: New South Wales, Butterworths, Sydney, 1998. K R Rees and M Chapman, Limitation of Actions Handbook Victoria, Butterworths, Sydney, 1997.

Alberta Institute of Law Research and Reform, Limitations, Report for Discussion No 4, September 1986 Alberta Law Reform Institute, Limitations, Report No 55, December 1989 British Columbia Law Institute, The Ultimate Limitation Period: Updating the Limitation Act, Report No 19, July 2002 Law Reform Commission of British Columbia, Report on Limitations Part II — General, Project No 6, 1974 Report of the Committee on Limitation of Actions in

Committee

Cases of Personal Injury, Cmnd 1829, September 1962 (chaired by Lord Edmund Davies)

ILRC

Law Reform Commission (Ireland), Limitation of Actions, Report No 104, December 2011 Commonwealth of Australia (Law of Negligence Review Panel), Review of the Law of Negligence, Canberra, 2002 (chaired by Justice Ipp) Law Commission (England and Wales), Limitation of Actions, Consultation Paper No 151, October 1997 Law Commission (England and Wales), Limitation of Actions, Paper No 270, July 2001 Manitoba Law Reform Commission, Limitations, Report No 123, July 2010 New South Wales Law Reform Commission, Report on the Limitation of Actions, Report No 3, October 1967 (note that page numbers are given in relation to the Report itself; paragraph numbers are given when citing Appendix C – Note on Limitation Bill) New South Wales Law Reform Commission, Second Report on the Limitation of Actions, Report No 12, 1971 New South Wales Law Reform Commission, Third Report on the Limitation of Actions — Special Protections, Report No 21, 1975 New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims, Report No 50, 1986 New South Wales Law Reform Commission, Time Limits on Loans Payable on Demand, Report No 105, 2004 New Zealand Law Commission, Limitation Defences in Civil Proceedings, Report No 6, October 1988

Ipp Report

Law Com 151 Law Com 270 MLRC NSWLRC 3

NSWLRC 12

NSWLRC 21

NSWLRC 50

NSWLRC 105

NZLC 6

NZLC 61 NZLC MP16

Orr Committee

QLRC 53

SLRC

TLRC A10 TLRC 69 Tucker Committee WALRC 36(I)

WALRC 36(II)

Wright Committee

New Zealand Law Commission, Tidying the Limitation Act, Report No 61, July 2000 New Zealand Law Commission, Limitation Defences in Civil Cases: Update Report for the Law Commission, Miscellaneous Paper No 16, June 2007 (prepared by C Corry) Law Reform Committee, Final Report on Limitation of Actions, Cmnd 6923, September 1977 (chaired by Lord Justice Orr) Queensland Law Reform Commission, Review of the Limitation of Actions Act 1974 (Qld), Report No 53, September 1998 Singapore Academy of Law, Report of the Law Reform Committee on the Review of the Limitation Act (Cap 163), February 2007 Law Reform Committee of Tasmania, Report on Limitation of Actions, No A10, 1973 Law Reform Commission of Tasmania, Limitation of Actions for Latent Personal Injuries, No 69, 1992 Report of the Committee on the Limitation of Actions, Cmnd 7740, 1949 (chaired by Lord Tucker) Western Australian Law Reform Commission, Limitation and Notice of Actions: Latent Disease and Injury, Project No 36, Part I, 1982 Western Australian Law Reform Commission, Report on Limitation and Notice of Actions, Project No 36 Pt II, January 1997 Law Revision Committee, Statutes of Limitation, Fifth Interim Report, Cmnd 5334, December 1936 (chaired by Lord Wright MR)

Contents Preface Table of Cases Table of Statutes, Regulations and Rules Table of Abbreviations

Part I 1. 2. 3.

Source and Justification for Time Bars Nature of Time Bars Application of Time Bars

Part II 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Time Contextualised

Time Prescribed

Running and Computation of Time Contractual Causes of Action Tortious Causes of Action Personal Injury Causes of Action Causes of Action in Relation to Land Causes of Action in Relation to Mortgages Causes of Action in Relation to Trusts Causes of Action for Money Under Statute Other Causes of Action Causes of Action in Equity

Part III Time Suspended 14. Disability 15. Fraud and Concealment

16. Mistake 17. Acknowledgement and Part Payment

Part IV Time Extended 18. Introduction to the Extension of Time 19. General Discretion to Extend Time — Northern Territory and South Australia 20. Extension of Time for Personal Injury Actions 21. Extension of Time for Defamation and Admiralty Actions

Part V

Time Reformed

22. Setting Time Bars and Running of Time 23. Ultimate Time Bars and Extending Time 24. Challenging Time Bars Index

[page 1]

PART I

Time Contextualised The law has long prescribed time bars for the bringing of actions, and English law has traditionally heavily influenced the Australian trajectory to this end. How those historical developments have ultimately prompted the existing Australian law are catalogued in Chapter 1, which goes on to explain the rationales commonly advanced for stipulating limitation periods. This serves as a backdrop to the discussion surrounding what has been described as the traditionally ‘procedural’ nature of statutory time bars — barring only the remedy and not the corresponding right — that forms the focus of Chapter 2. The scope for the application of limitations statutes is the subject of Chapter 3, as it sets the parameters for the operation of relevant time bars. To a greater or lesser degree, Australian limitation law, following its English progenitor, primarily attributes limitation periods by reference to discrete causes of action. Hence the structure adopted in Part II, prefaced by Chapter 4, which introduces the core concepts that govern the running of time for limitations purposes: a ‘cause of action’ and its commencement by reference to its ‘accrual’. There are instances, notwithstanding the accrual of a relevant cause of action, where the law suspends or defers the running of time, which are the subject of Part III. There are also instances where the court is empowered to extend time beyond what would otherwise be the relevant time bar. The application and scope of the extension power is elaborated in Part IV. In the wake of manifold law reform body reports over decades, in Australia and elsewhere in the common law world, Part V identifies and evaluates the main targets for the reform of limitation law.

[page 3]

CHAPTER 1

Source and Justification for Time Bars Delay and the Law Defining a ‘Statute of Limitation’ Limitation in its Historical Context Impact of common law and equity English statutory backdrop Translation into Australian (colonial) law (and thereafter) Rationales for Limitation Grounded in justice Justice grounded in (un)availability of evidence (‘evidentiary’ rationale) Justice grounded in oppression to defendant Justice in granting peace or repose Justice in expeditious dispute resolution (‘diligence’ rationale) Upshot of rationales Impact on drafting limitation legislation Impact on construing limitation legislation

1.1 1.4 1.5 1.5 1.8 1.9 1.15 1.17 1.18 1.23 1.25 1.28 1.29 1.34 1.35

Delay and the Law 1.1 This book is about how the law addresses the issue of delay, not in some generic or amorphous sense, but in the context of pursuing causes of action and enforcing legal entitlements. The inquiry into delay here targets the elapsing of time between the accrual of a cause of action or entitlement and the commencement of the proceedings relating to that cause of action or entitlement. It is thus concerned chiefly with delay occasioned by the moving party, namely the plaintiff (or applicant). It is not concerned with delays — whether or not attributable to the litigants — once the proceedings are commenced. The various ways the law responds to an applicant’s delay postcommencement of proceedings — including, say, via the law on want of prosecution1 or reflecting the delay in the quantum of monetary relief granted2 — fall outside the scope of this book. How the law addresses delay by a defendant (or respondent), itself presupposing that proceedings are [page 4] already on foot, is best addressed within a book on the law of procedure,3 and is omitted from this work. 1.2 In broad terms, Lord Simon has observed, the law responds to delay, whether before or after proceedings are commenced, because ‘[t]here can be a few circumstances in which contentions within a society can be prolonged unresolved without risk to the fabric of that society’.4 Although expressed as separate reasons for the law’s intervention, his Lordship in effect gave substance to this vague remark as follows:5 [D]ilatory procedures may defeat the very purpose of the judicial process — namely, to vouchsafe justice — since, if litigation is prolonged, not only is there waste of time and money and moral energy, but circumstances may change in such a way that what would have been at the outset a just conclusion is in the end no longer so. Finally, delay will make it more difficult for the legal procedures themselves to vouchsafe a just conclusion — evidence may have disappeared and recollections become increasingly unreliable.

What this meant, conceived his Lordship, was that ‘[s]peedy rough justice will … generally be better justice than justice worn smooth and fragile with the passage of years’.6 This sentiment has been characteristic of the English system of justice from early times. It is reflected by the maxim interest reipublic ut sit finis litium — in the interest of society as a whole, litigation must come to an end. Society requires, said Lord Simon, that ‘the law should be able to draw a line finally closing the account between contestants’.7 The notion of ‘speedy’ justice, if not perhaps ‘rough’ in some senses of the word,8 resonates with the modern Australian civil procedure reforms directed to the cheap, quick and just resolution of disputes.9 1.3 The policy attaching finality to litigation finds expression in multiple legal doctrines, each ‘established in the knowledge that in some cases a rightful remedy might be thereby withheld’ coupled with ‘the conviction that this is a necessary price to pay for the advantages of celerity and some sort of finality in the legal process’.10 These include the principle of res judicata,11 [page 5] the law relating to prescriptive rights,12 barristerial immunity,13 statutes of limitation and the equitable defence of laches. As limitation statutes target delay in commencing legal proceedings once a cause of action has accrued, the principles surrounding them form the substance of this book. The same can be said of laches and equity’s application of limitation statutes by way of analogy, which the book therefore also addresses,14 albeit in a subsidiary way to statutes of limitation.

Defining a ‘Statute of Limitation’ 1.4 A ‘statute of limitation’ has been described as ‘prima facie any statute which imposes a limitation of time upon an existing right of action’.15 This may be contrasted with a statute that, when creating a new right of action, then sets a limited time within which that right might be enforced. Here the

limitation does not bar an existing cause of action; it imposes a condition that is ‘of the essence of a new right’.16 While clearly a time bar, it may be difficult to construe the statute as one of limitation17 — at least in the traditional procedural as opposed to substantive sense18 — though ultimately it rests upon any statutory definition of ‘limitation [page 6] law’ (or the like).19 Ordinarily, therefore, reference to a statute of limitation is likely to target the generic statutes of limitation in each State and Territory. But these are not a code for time bars,20 whether or not they are consolidating statutes,21 as multiple other statutes (while not statutes of limitation as such) set time limits on bringing proceedings to enforce a civil claim.22 While this work focuses on ‘statutes of limitation’ in the traditional sense, mention is made on occasion of time bars imposed on rights created by statute.

Limitation in its Historical Context Impact of common law and equity 1.5 While courts of equity, via the defence of laches, could bar a claim for equitable relief for reasons of delay in its commencement, no parallel development occurred in common law courts.23 That relief in equity had its genesis in the Chancellor’s exercise of discretion, grounded in matters of conscience, translated to equity judges taking into account the plaintiff’s conduct in determining whether relief should issue and, if so, moulding that relief. The plaintiff’s tardiness in seeking relief not unnaturally fed into this inquiry. Courts at common law, conversely, against the backdrop of a formalistic writ system, assumed no such enveloping discretion to the grant of relief. For this reason, inter alia, at common law delay by a plaintiff in prosecuting a claim once it had accrued was not of itself any bar to its enforceability.24

‘The common law’, Lord Denning MR pithily remarked, ‘laid down no time limit’.25 The courts’ inherent power to prevent abuses of process could, however, function as a vehicle to stay proceedings on this ground if, by reason of delay or another matter, commencement or [page 7] continuation of the proceedings would involve injustice or unfairness to one of the parties.26 Indeed, the High Court of Australia has noted that the refusal in the Anglo-Australian common law to import the equitable defence of laches to claims at law has emphasised the significance of the development of the inherent power with respect to abuse of process.27 1.6 In various jurisdictions in the United States, the law developed differently. There the courts were willing to treat laches as a defence available equally in actions at common law, meaning that the doctrine of laches could actually function to shorten statutory limitation periods.28 American judges also developed ‘tolling doctrines’, upon which plaintiffs could rely to lengthen statutory limitation periods. ‘Toll’ means to take away, bar or defeat, and so here translates to taking away the right of a defendant to claim the benefit of a prescriptive period laid down by a statute of limitations. Yet in substance many circumstances in which tolling has been utilised reflect bases for holding that, under limitation-type statutes in the English and Australian landscape, function to postpone the running of time.29 1.7 Anglo-Australian law witnessed no parallel judicial activism outside the terms of limitations statutes; there emerged no ‘common law of limitations’. Judges have deferred to Parliament, even in instances where application of the statutory language would generate an unfair outcome30 or undue hardship.31 Limitation periods, as wholly a ‘creature of statute’,32 were not amenable to modification or amelioration by mere judicial fiat.33 At the same time, [page 8]

where statute imposed no limitation period, the courts were not justified in creating any time bar,34 except in causes or claims in equity via the doctrines of laches or acquiescence.35

English statutory backdrop 1.8 The foregoing, in turn, reveals the primacy attached to the terms of limitation statutes, which in English law have a lengthy lineage. The earliest recorded limitation-like statute in England was apparently the Statute of Merton 1235,36 although genuine statutes of limitation awaited the reign of Henry I. These aligned the time bar to notable events, such as coronations, by reference to which the action should have been prosecuted; otherwise the action was barred. The reign of Henry VIII saw the adoption of a ‘more definite and rational’37 time bar, by reference to the date of the happening of the cause of action.38 This was a prelude, some 80 years later, to what has proven the most influential and longstanding limitation statute, the Limitation Act of 1623.39 Passed during the reign of James I, it has also become known as the ‘Statute of James’.40 It went beyond its predecessors by prescribing limitation periods for other than land-related claims. Via its principal provision, s 3, a six year limitation period for various actions, including actions on the case, the latter encompassing claims based on simple contract or tort, was prescribed. The same section subjected actions for slander to a two year limitation period, and those involving trespass to the person to a four year period. The Act, to this end, provided what has been described as ‘an arbitrary but certain time limit within which such actions should be brought’; if not brought within time, the actions became ‘statute barred, and persons who might until then have been defendants could conduct their affairs accordingly’.41

Translation into Australian (colonial) law (and thereafter) 1.9 Whether an English statute took effect in a colony depended on ‘whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation … equally applicable to any country in

which it is by the rules of English law that property is governed’.42 The High Court of Australia, in applying this test, declared that the English law of prescription as to ancient lights formed part of the law of New South Wales, and thus entered [page 9] into force in the Australian colonies. Griffith CJ, delivering the reasons of the court, said that ‘the law of prescription, which is, in various forms, part of the law of most civilized countries, cannot be regarded as a law of local policy adapted solely to the locality in which it was made, but must be regarded as a general regulation of property’.43 As the court, in this regard, could not distinguish in principle between prescription at common law and prescription by statute, it could be deduced that the Limitation Act 1623 (UK) — directed to a similar end — was not a law of local policy. Certainly, English case authority had earlier made clear that the 1623 statute applied to New South Wales,44 by virtue of an English 1828 statute, under which all laws and statutes in force within the realm of England at the time of the passing of the Act ‘shall be applied in the administration of justice in the Courts of New South Wales and Van Dieman’s Land [Tasmania] respectively, so far as the same can be applied in the said colonies’.45 At the time the States of Victoria and Queensland formed part of New South Wales. 1.10 In most Australian jurisdictions the English Act of 1623 continued to govern the law of limitation for some considerable period. Its most longstanding operation was in the Australian Capital Territory, in which it had effect until the Territory enacted its own limitation statute, with effect from 19 December 1985.46 This Act was modelled, in large part, on the Limitation Act 1969 (NSW), which had commenced on 1 January 1971, before which New South Wales law likewise applied the 1623 Act. The temporal subsistence of an ancient English statute, well into the second half of the twentieth century is the more remarkable given that English law was updated by statutes enacted in 1833,47 187448 and, most substantially, 1939

when the first general English statute dealing with limitation was enacted.49 The current English statute, the Limitation Act 1980, which commenced on 1 May 1981, is a consolidating statute not conceptually dissimilar to its 1939 forebear. The latter heavily influenced the drafting of limitations statutes in Queensland, Tasmania and Victoria, as well as in Ireland,50 most Canadian provinces and New Zealand.51 But in New Zealand and in several of those provinces modern limitations statutes have shifted to a different model.52 Other Australian jurisdictions, which had likewise had the 1623 statute incorporated into their law upon their colonisation, enacted their own statutes albeit invariably in terms replicating English precedents. Queensland did so in 1867, some eight years after separating from New South Wales, via two statutes,53 which saw no substantial change until the [page 10] Limitation Act of 1960 adopted the English reforms of 1939. Following the recommendation of the Queensland Law Reform Commission,54 the current Limitation of Actions Act 1974 was enacted, commencing on 1 July 1975. 1.11 South Australia enacted its own limitations legislation six years before Queensland, namely the Limitation of Suits and Actions Act 1861 (though re-enacted with amendments in 1867), again in a form reflecting English law, which in due course applied in the Northern Territory. The current South Australian statute, the Limitation of Actions Act 1936 (commencing on 13 August 1936), was a mere consolidating statute, based heavily on its predecessors. Its antiquity marks it as the most archaic of its brethren, despite some worthwhile reforms in the interim.55 Once the Northern Territory enacted its own limitation statute,56 modelled on the 1969 New South Wales Act, which took effect on 26 February 1982, it repealed both the 1623 Act and the 1867 South Australian Act in their application in the Territory.57 1.12 In Tasmania, the English Act of 1623 was repealed by s 3 of the Mercantile Law Act 1935 (Tas).58 A variety of English-based provisions setting limitation periods formed the subject matter of Tasmanian statutes in

the interim,59 which ultimately yielded to a comprehensive, and still current, limitation statute,60 the Limitation Act 1974 on 1 January 1975, upon the recommendation of the Law Reform Committee of Tasmania.61 The 1623 Act remained extant in Western Australia until the enactment of the Limitation Act 1935 (WA), which re-enacted the 1623 Act and consolidated other relevant Imperial statutes then in force,62 often verbatim.63 It retained force until 15 November 2005, when the most recent wholesale Australian review of limitation law64 triggered the Limitation Act 200565 (which did not, though, implement the core recommendation for two limitation periods, with a limited discretion to extend time attached). The 1935 Act continues to apply, despite its repeal and the enactment of the 2005 Act, to causes of action that accrued before 15 November 2005.66 1.13 Before 1955 there were multiple enactments in Victoria relating to limitation of actions,67 but no dedicated limitations statute. No fewer than 43 of these were repealed or amended when, upon the recommendations of the Victorian Statute Law Revision Committee,68 the Limitation of Actions Act 1955 was enacted, entering into force on 1 January 1956. The 1955 Act proved the culmination of a protracted debate, on the topic of a statute of general application, over nearly a decade,69 ultimately recommending that Victorian law reflect the (then current) [page 11] English Limitation Act of 1939. The 1958 Victorian statutory consolidation saw the 1955 Act become the Limitation of Actions Act 1958 as from 19 December 1961, which remains extant today. Albeit amended throughout the years,70 the Victorian legislation, together with its Queensland and Tasmanian counterparts, still owe much to the 1939 English Act. 1.14 It is evident from the foregoing that, so far as Australian limitation statutes are concerned, these are a State and Territory affair. That there is no Commonwealth statute of limitation — though various Federal statutes prescribe time bars for proceedings or steps therein71 — explains why ss 79 and 80 of the Judiciary Act 1903 (Cth) function to apply to each Federal

proceeding the whole body of law in the relevant State, except to the extent to which it is inconsistent with Commonwealth laws.72

Rationales for Limitation 1.15 The foregoing brief historical excursus reveals that for hundreds of years it has been the policy of the law to fix definite time limits for prosecuting civil claims.73 The fixing of time bars here represents, a New South Wales judge explained, one of the many ‘attempts of legislators to provide for … a reasonable balance between the competing desiderata of certainty in rule and the attaining of what is felt to be a just result in particular cases’.74 Others, in the specific context of time bars, have spoken in terms of Parliament’s attempt to ‘strike a balance between these irreconcilable interests, both legitimate’.75 The balance, having been struck by Parliament, makes it ‘emphatically not the function of the judges to try to strike their own balance, whether as a response to the apparent merits of a particular case or otherwise’.76 It involves a ‘practical compromise’ between the interests of plaintiffs in securing relief and defendants in being shielded from what are often termed ‘stale’ claims.77 When using the term ‘stale’ in this context, it evinces an explicitly temporal dimension; it does not directly probative of the validity of the claim.78 [page 12] 1.16 It has been judicially observed that the rationale for Limitations Acts has ‘remained remarkably constant’,79 a venerable statement of which is found in the following remarks of Lord Plumer MR in 1820:80 The statute is founded upon the wisest policy, and is consonant to the municipal law of every country. It stands upon the general principle of public utility … The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will,

upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which, the plans in life, habits and expenses of himself and his family may have been (as it is alleged in the present instance they were) unalterably formed and established.

His Lordship’s reference to the ‘negligence’ should not, in view of the antiquity of the decision, be viewed as negligence in a tort sense. And his reference to the ‘owner’ should not be understood in any way as confining the rationale for the statute to claims over property (albeit that the earliest limitations statutes targeted land). From a broader perspective, Lord Plumer’s focus on public utility resonates with much more recent remarks, by an Australian High Court judge, that statutes of limitation serve ‘societal and commercial ends of high importance’. ‘[P]eople who have been wronged’, his Honour observed, ‘should be obliged, not only in the interests of those whom they would sue and, in most cases, themselves personally, but also of society itself, to bring and prosecute their actions with a reasonable degree of diligence’.81

Grounded in justice 1.17 Within Lord Plumer’s statement appear the four rationales McHugh J elaborated in Brisbane South Regional Health Authority v Taylor,82 arguably the most frequently cited catalogue in Australian law in this context. His Honour prefaced his identification of the respective rationales by observing that ‘[t]he effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions’.83 Indeed, questions of justice inform each of the rationales, which may not be entirely discrete, for statutes of limitation, as discussed below.

Justice grounded in (un)availability of evidence (‘evidentiary’ rationale) 1.18 The elapsing of time increases the likelihood that the relevant evidence will be lost or its integrity otherwise compromised. A limitation period is, accordingly, ‘a reasonable and normally salutary principle, where the parties’ memories have grown dim as to long past events and possibly

some documents which might have been material have in the course of time [page 13] perished’.84 A court, when presented with incomplete or potentially inaccurate evidence, can hardly be confident in meting justice as between the litigants. This cannot, in turn, other than impact adversely upon public confidence in the broader administration of justice. 1.19 It is often from the perspective of the defendant that the issue is approached — specifically, the prejudice a defendant may suffer in being unable to properly defend the claim because of lost evidence. There is, it may be reasoned, less potential prejudice for the plaintiff, whose interests are to retain evidence favourable to the claim. This point has been explained in the following terms:85 [I]t can be argued that a potential defendant is in a more vulnerable position than a plaintiff. This is because the plaintiff decides when to commence proceedings, and can use the time before the claim is brought to collect evidence, while the defendant may not even be aware that he or she is at risk of being sued and is therefore unlikely to take any steps to preserve the necessary evidentiary material. It can also be argued that, because it is the plaintiff whose interests have been harmed, the plaintiff is likely to have a clearer recollection of events and that, because of the prejudicial effect of delay on the defendant’s case, the plaintiff’s evidence is likely to be preferred to the defendant’s.

Yet in the final analysis lost evidence will likely make it harder for both parties to secure an accurate (and therefore, fair and just) result. The elapsing of time may also make it difficult for the court in another way that is capable of adversely affecting fairness, that is, in accurately applying the same values and standards as those applying at the time the events occurred.86 This latter point has been elaborated as follows:87 … the continual evolution of the law to reflect current socio-economic values makes questions of law as it stood at the time of the alleged breach of duty more difficult to determine fairly and accurately with the passage of time, especially where the law is judge-made. It is often very difficult for a judge of a current generation to weigh the reasonableness of conduct which occurred many years ago as a judge of an earlier generation would have weighed it. Because cultural values change, conduct which was acceptable even 20 years ago is unacceptable today. The relative inability of one generation to judge the reasonableness of conduct of members of an older generation could lead to injustice in some cases. When human ability to judge the reasonableness of past conduct has seriously diminished, society must insist that the court stay

its hand. Limitations law ensures that conduct giving rise to an action will be judged according to more or less current cultural standards.

1.20 Matters of this nature may also arise when it comes to the adducing of expert evidence years after the event. In a medical negligence case, say, the court is concerned with acceptable standards of medical practice at the time of the tortious act or omission, and the progress of medical science and practice in time may challenge experts to situate themselves into the standard of a (much) earlier time.88 [page 14] 1.21 McHugh J in Brisbane South voiced concern that sometimes the deterioration in quality of justice may not be recognisable even by the parties, as ‘what has been forgotten can rarely be shown’,89 before observing that:90 … it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

1.22 Of course, even claims pursued within the applicable limitation period are not assured of being decided upon evidence that is complete and sufficiently reliable. Prescription of a precise moment when a claim translates from being enforceable to being statute-barred cannot reflect, across the spectrum of litigation, any clear division between the requisite evidential threshold and quality. For this reason, nor are all claims out of time necessarily marked by incomplete and unreliable evidence. This in turn provided the chief impetus for the introduction within limitation statutes of judicial discretion to extend time, and explains why inquiry into the potential for prejudice — due to delay compromising the availability and reliability of the evidence — lies at the core of the courts’ discretionary assessment.91

Justice grounded in oppression to defendant 1.23 It has been declared unfair, oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed.92 ‘Long dormant claims’, it has been observed, ‘have often more of cruelty than of justice in them’.93 There are at least two aspects to this rationale. The first, that a plaintiff who delays pursuing a claim essentially lulls the defendant into a belief that the claim will not be pursued, exhibits almost an estoppel-like quality. A defendant should not, it may be reasoned, have his or her expectations, fostered by the plaintiff’s inaction, frustrated once the statutory bar has been triggered.94 There is a moment, reflected by the legislative judgment of the applicable limitation period, that causes the scales of justice to pivot from the plaintiff to the defendant. Informed by the notion that ‘those who go to sleep upon their claims should not be assisted by the courts’95 — bearing in mind that statutes of limitation do not condemn sleeping itself, but ‘waking up to assert a claim long after the injury’96 — those statutes decree that the prejudice stemming from the plaintiff’s inaction shifts the balance of justice in the defendant’s favour. While a strict temporal line is a blunt tool for this purpose, it is mollified, as noted above, by judicial discretion to extend time. [page 15] As to the second aspect, which dovetails into the first rationale discussed above, a claim pursued many years after the cause of action accrued could produce prejudice defendants’ ability to defend the claim if there is a ‘risk of their witnesses having died or disappeared or their memory having failed’.97 The point has especial significance where disputed facts must be ascertained from oral testimony of witnesses (as opposed to where there are legal issues only, or at least a high level of documentation or physical evidence).98 There is also an increased risk that the scene of the events giving rise to the claim may have changed. 1.24 Collectively, these two aspects inform judicial remarks that limitation bars are ‘passed for the protection of defendants’,99 ‘for the ease of

those who would take advantage thereof’.100 The interests of the plaintiff, it may be reasoned, have already been taken into account by affording time to commence the proceedings. Yet unbridled focus on the interests of the defendant can prove misleading, for at least two reasons. First, there are occasions where the plaintiff’s delay has been fostered or at least influenced by the defendant’s conduct, say, by concealing the plaintiff’s claim or encouraging a plaintiff’s mistake as to the claim. Under the rubric of justice, it would be inappropriate that a defendant who has so behaved to plead an otherwise applicable time bar. This in turn explains why limitations statutes modify the impact of time bars for concealment101 and mistake.102 Secondly, it risks a skewed perspective on the respective interests that limitations legislation must balance; fairness does not only go the one way, but must equally take into account justice to plaintiffs.103 Indeed, the passage of time has revealed progressive amendment of limitations statutes to more consistently address the interests of plaintiffs, not merely those of defendants. These have included postponing the commencement of a limitation period — say, by reference to the plaintiff’s discoverability of the claim104 — and suspending its operation.105 There is also now some provision for curial discretion to extend time,106 directed at ‘eliminat[ing] the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced’,107 on the basis that ‘a plaintiff ought not to find that his action is statute-barred before he has had a reasonable opportunity to bring it’.108 [page 16]

Justice in granting peace or repose 1.25 Older case authority has described Limitations Acts as ‘statutes of repose’,109 ‘laws of peace and justice’110 and as ‘[A]ct[s] of peace’.111 The reference to peace and repose again targets the interests of the defendant, in the sense that ‘[t]here comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations’.112 Expressed another way, a policy of limitation statutes is ‘to

allow potential defendants to regulate their lives and businesses on the assurance that, after a certain time, they will not be harassed by “old unhappy far off things”’.113 And the shorter the limitation period, the greater the premium the legislature has placed on their function as a statute of repose.114 1.26 Whilst the limitation period remains unexpired, there is always the prospect that the plaintiff may commence proceedings, and so the defendant cannot, it is reasoned, proceed with personal or business affairs safe in any assurance that the proceedings will not issue. This, in turn, can produce a chilling effect on the defendant’s peace of mind, which cannot be assuaged until there is an assurance, via the elapsing of time, that any claim is statutebarred. This peace of mind may often have a commercial dimension, as insurers, public institutions and businesses have a significant interest in knowing that they have no liabilities beyond a definite period.115 Even for causes of action for personal injuries, it is said, ‘it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong’.116 In this context, in particular, the position of insurers cannot be ignored; it is desirable that insurers be made aware reasonably quickly of potential claims, and be positioned to determine their possible size, to allow them to determine their future liabilities with some degree of accuracy and, on occasion, satisfy their need to inform reinsurers.117 More generally, this feeds [page 17] into the importance of certainty for putative defendants — and also third parties associated with them118 — in approaching their business affairs, a point that has been illustrated as follows:119 The need for certainty can be justified in many cases. For example, manufacturers need to be able to ‘close their books’ and calculate the potential liability of their business enterprise with some degree of certainty before embarking on future development. Under modern circumstances, an award of damages compensation may be so large as to jeopardise the financial viability of a business. The threat of open-ended liability from unforeseen claims may be an unreasonable burden on business. Limitation periods may allow for more accurate and certain

assessment of potential liability.

1.27 Of course, the commercial world has no monopoly on the value of certainty, which explains various judicial statements recognising the broader significance of certainty afforded to defendants by limitations statutes.120 A precise time bar, moreover, reflects a wider economic dimension in that it enables putative defendants to make the most productive use of their resources, and avoid the disruptive effect of unsettled claims on their financial decision-making.121 It may also relieve a potential defendant of the obligation to preserve evidence relevant to the claim, and thus inform legitimate document destruction policies.122

Justice in expeditious dispute resolution (‘diligence’ rationale) 1.28 At the turn of the nineteenth century an English judge identified ‘the general policy of the law’ as ‘that the using of legal diligence is always favoured’, before noting that ‘[t]he maxim vigilantibus et non dormientibus succurunt jura123 is one of those that we learn on our earliest attendance in Westminster Hall’.124 In line with this policy, the imposition of specific time constraints on the time within which plaintiffs must commence proceedings once the cause of action has accrued, or otherwise risk being unable to pursue their claim, aims to encourage plaintiffs to vindicate their claims with ‘reasonable promptitude’.125 Limitations statutes, to [page 18] this end, ‘encourage the expeditious commencement of proceedings’,126 which reflects a public interest beyond merely that of ‘peace’ for an individual defendant. That public interest — more broadly, that ‘there shall be an end of litigation’127 — aligns with modern civil procedure reforms, noted earlier,128 directed to ensuring that disputes are settled or resolved as quickly as possible. Ensuring an end to litigation, and its accelerated resolution, serve the apt public policy of reducing both the public and private cost, financial or otherwise, of litigation.

Upshot of rationales 1.29 Some important observations stem from the preceding catalogue of the various rationales underscoring statutes of limitation. First, limitation regimes perform a challenging balancing function, aiming to balance ‘the need for finality in civil litigation with the justice of permitting individuals to pursue their claims in the courts’, and ‘the inevitable prejudice that any delay produces for a defendant with the right of a plaintiff to access to the courts’.129 The balancing exercise is driven by the evident tensions between the interests of each litigating party, overlaid by broader notions of public policy.130 1.30 Secondly, the traditional binary approach to limitation periods, wherein the ability to pursue a claim is lost at a specific moment, cannot assure that justice will necessarily accrue to each party upon the application of a limitation period (or its extension). Indeed, Deane J has branded it ‘inevitable that a Statute of Limitations will, on occasion, lead to injustice in the special circumstances of particular cases’, being ‘an unavoidable cost of the benefits involved in ensuring that plaintiffs act promptly and that defendants are not subjected to the litigation of stale claims’.131 1.31 Thirdly, limitations statutes are driven by specific policy choices of the legislatures, as are the exceptions and qualifications found in them.132 This is evident from the courts’ longstanding deferral to Parliament when it comes to setting precise time bars and, outside of limitations statutes, informs equity’s inclination to foster flexibility in applying the defence of laches rather than setting (even broad) time parameters.133 It is therefore the role of the legislature to ‘hold the scales evenly between plaintiff and defendant’,134 which has over time manifested itself in various statutory initiatives, most often directed at redressing a balance that has swayed too greatly in favour of the defendant. 1.32 Fourthly, as a question of legislative judgment informed by the relevant rationales for limitations legislation, a limitation period ‘should not be seen therefore as an cut off point unrelated to the demands of justice or the general welfare of society’.135 It is the legislature’s

[page 19] judgment that ‘the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated’.136 Expressed another way, it is a judgment that ‘the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period’.137 Of course, the time bar imposed is arbitrary in one sense; why it should be six years, instead of, say, six years and two days, or five years and 360 days, is by no means defensible. As explained by Smith LJ in Cain v Francis, in the context of a three year limitation period for personal injury claims:138 Any limitation bar is arbitrary. It cannot always be fair and just to permit a claimant to proceed with his action if he commences it two years and 364 days after the relevant injury. Significant prejudice and unfairness might already have arisen, even long before the expiry of three years, for example by the death of an important witness. But the rule is that the claimant can proceed, notwithstanding any unfairness to the defendant. On the other hand, the expiry of the three-year term does not automatically create unfairness. Yet what was deemed fair on Tuesday is deemed unfair on Wednesday. There might be no unfairness to the defendant even if he is required to answer the claim, say, five years after the accident. The three-year limit is Parliament’s best guess as to when prejudice can be expected to have arisen such that it is unfair to expose the defendant to the claim. The imposition of an arbitrary limit could only ever hope to do rough justice.

Another judge, a century and a half earlier, spoke of an object of limitations statutes being ‘to fix a point, the exact position of which should be perfectly clear, rather than one which should, abstractedly considered, be the most just’.139 There are, nonetheless, evident policies informing longer and shorter limitation periods;140 in any case, any precise temporal bar cannot avoid broad brush policy judgments. What is more important, rather, is that the trigger to run the relevant limitation period be as clear as possible, so that both plaintiffs and defendants know where they stand.141 It is equally important that potential undue prejudice or injustice to late plaintiffs be addressed via avenues to suspend or extend time.142 1.33 Fifthly, it should not be supposed that each rationale for limitation periods is equally compelling in any given case. For instance, it has been said

that in claims arising out of historic alleged child sexual abuse, ‘there is absolutely no corresponding public benefit in protecting [defendants] from the consequences of their wrongful actions’.143 The ‘patent inequity’ of allowing defendants in these instances to escape accountability, while the victim continues to suffer the consequences, is said to militate ‘against any guarantee of repose’.144 Also, as a typical [page 20] case of abuses of this kind will involve direct evidence solely from the parties themselves, fears over the loss of corroborative evidence may prove less acute.145 While English and Australian courts have eschewed any inherent jurisdiction to operate outside limitation statutes, there is scope for scenarios such as the above to inform the exercise of the statutory discretion to extend time and, in some jurisdictions, has by statute actually translated to the removal of a time bar entirely.146

Impact on drafting limitation legislation 1.34 That the law of limitation, as a creature of statute, is designed to give effect to policy judgments made by the respective legislatures, informed by various (not always consistent) rationales, has translated to challenges in drafting the relevant provisions. The inherent arbitrariness of a specific time bar, and consequent attempts to mollify its rigidity, has required legislatures to balance competing considerations, and achieving this balance in a clear fashion has proven easier said than done. In 1830, some two centuries into the tenure of the Limitation Act 1623, Vaughan B noted that few Acts of Parliament had ‘generated more controversy, and been productive of more litigation’, than the 1623 statute, which ironically was passed — as its preamble declared — for the purpose of ‘quieting men’s estates, and for the avoiding of suits’.147 These remarks, made long before the reviews of English limitation law that generated the Limitation Act of 1939 and its successors, remained extant into the twentieth century. Against the backdrop of Rehnquist J’s

salient observation that ‘[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation’,148 the difficulties in drafting limitation provisions that balance the interests of plaintiffs and defendants, and those of the broader society, have nonetheless proven acute. For instance, in amendments effected via the Limitation Act 1963 (UK) — apparently designed to rectify the injustice arising out of the House of Lords’ decision in Cartledge v E Jopling & Sons Ltd,149 that a plaintiff’s cause of action for personal injury could be barred even though the injury was not discoverable until well after the limitation period expired — were described by Lord Reid having ‘a strong claim to the distinction of being the worst drafted Act on the statute book’.150 Parallel provisions enacted in New South Wales151 were, Kirby P opined years later, liable to confuse judges and lawyers, causing them to emerge ‘on the other side dazed, bruised and not entirely certain of their whereabouts’, and that the passage of time, and the tide of case law, had not removed the sense of disorientation.152 The language of the equivalent Queensland provision,153 which remains in force, has likewise been the subject of judicial reprobation.154 More generally, a New South Wales judge has observed that the various exceptions to the limitation periods, often designed to redress the balance towards the plaintiff, that have ‘come [page 21] about in a somewhat ad hoc manner over the years … do not necessarily operate coherently so as to achieve justice in all cases’.155

Impact on construing limitation legislation 1.35 The challenges involved in balancing potentially competing interests have also impacted upon the approach to construing limitation provisions. Relatively recently Lord Millett opined that statutes of limitation ‘are regarded as beneficial enactments and are construed liberally’,156 but did not elaborate the point. It remains to be asked: beneficial to whom? And in speaking of a liberal construction, again it may be queried: in whose favour?

Some insight may be derived from the remarks, half a century earlier, by Lord Goddard CJ that there is ‘no good reason for unduly limiting words which can apply to a particular case as courts always lean against stale claims’.157 The flipside to this aligns with multiple judicial remarks to the effect that, as a limitations statute takes away (a plaintiff’s) existing rights, it should be construed strictly.158 To this end, it has been said, ‘any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated’,159 namely the plaintiff. At the same time, a progressive explosion of the assumption that limitation statutes reflect only the interest of defendants160 begs whether any predisposition one way or the other is justified. 1.36 When, however, speaking instead of provisions directed to extending time — which benefit the plaintiff, not the defendant — there are judicial remarks branding them ‘protective and beneficial’,161 to be thus construed in a ‘beneficial and reformatory’ fashion.162 This, opined Kirby J, means that such provisions ‘should not be narrowly construed or applied’,163 so that when alternative interpretations are available, ‘it is more consistent with the reformatory purposes of [the provisions] to adopt the “beneficial” or “liberal” approach, to the full extent that doing so is consistent with the statutory language’.164 While some other judges share this view,165 it by no means enjoys judicial unanimity. At least two other High Court judges have refused to countenance a liberal construction [page 22] of these provisions,166 informed in part by an object of limitations statutes being to stave off uncertainty. An approach to construction punctuated by a predisposition one way or another — whether towards strictness or liberality — is arguably less conducive to certainty than one that simply interprets the statutory wording literally. This approach, which has merit for the reasons noted, has judicial support going back almost two centuries. In 1830

Vaughan B opined that the ‘multiplicity of cases and the many contradictory decisions’ found in the law reports on the construction of the 1623 Act ‘afford the strongest evidence of the inconvenience and mischief occasioned by a departure from the plain and literal sense of the [A]ct, and from too much refinement in construing its provisions’.167 ______________________________ 1. 2. 3. 4. 5.

6. 7. 8.

9.

10. 11. 12.

See Cairns, pp 515–21. For instance, by the award of interest as part of, or on, a judgment: see Cairns, pp 643–50. For instance, in the context of default judgment: see Cairns, pp 477–95. Smith v Central Asbestos Co Ltd [1973] AC 518 at 547 (dissenting but not on the observations cited in the text). Smith v Central Asbestos Co Ltd [1973] AC 518 at 547. See also Halford v Brookes [1991] 3 All ER 559 at 573 per Lord Donaldson MR (‘It is the general policy of the law that claims of all sorts shall be prosecuted promptly. Justice delayed can be justice denied, not only to the claimant, but also to the person against whom the claim is made’). Smith v Central Asbestos Co Ltd [1973] AC 518 at 547. Smith v Central Asbestos Co Ltd [1973] AC 518 at 547. When speaking of ‘rough’ justice, Lord Simon was not intending, it can be surmised, to suggest outcomes or processes that lacked sufficient rigour. ‘Rough justice’, in being contrasted with justice ‘warn smooth and fragile with the passage of years’, appears instead suggestive of precisely the opposite. See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; Supreme Court Rules 1987 (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7; Supreme Court Rules 1971 (WA) O 1 r 4B. See, for example, Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27; BC200906905 (where the court held, inter alia, that the Court Procedures Rules 2006 (ACT) r 21 should inform the curial attitude to the exercise a discretion to grant leave to amend pleadings marked by undue and unexplained delay: see at [36] per French CJ, at [90]—[103], [114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ). Smith v Central Asbestos Co Ltd [1973] AC 518 at 547 per Lord Simon. See generally J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Australia, 2015, Ch 5. It is common in civil law countries, deriving from a concept first developed in Roman law, to use the language of ‘prescription’ when referring to time bars. This reflects the notion, inter alia, that a failure to comply with a time bar often affects the substantive rights involved in the civil claim or dispute (although it should not be assumed that every form of prescription in civil law countries is of this nature: Vaudin v Hamon [1974] AC 569 at 582 per Lord Wilberforce (PC)). In common law countries, such a failure is ordinarily procedural rather than substantive, and does not extinguish the rights in question (see 2.2–2.5), although statute has modified this consequence in some contexts (see 2.24–2.31). The language of ‘prescription’ is used in common law systems primarily when speaking of entitlements over land by reason of ‘long user’, and retains its relevance as a method by which a servitude (chiefly an easement or profit-a-prendre) is

13. 14. 15.

16.

17. 18. 19.

20.

acquired: see B Edgeworth, ‘Adverse Possession, Prescription and Their Reform in Australian Law’ (2007) 15 APLJ 1 at 7–11. Notions of ‘adverse possession’ of land (as to which see 8.23–8.33) are also occasionally described by reference to ‘prescription’ (see D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 454–6) but for the purposes of this work the language of prescription is avoided because it misaligns with the language adopted in relevant statutes. In this context, it has been observed that ‘[t]he essential difference between prescription and limitation is that in the former case title can be acquired only by possession as of right’, which ‘is the antithesis of what is required for limitation, which can be described as possession as of wrong’: Buckinghamshire County Council v Moran [1990] Ch 623 at 644 per Nourse LJ. See further P Omar, ‘Limitation and Prescription in English Law: Arguments and Pressures for Reform’ (2006) 14 APLJ 72 at 73–7. See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; BC200500919; G E Dal Pont, Lawyers’ Professional Responsibility, 5th ed, Lawbook Co, Australia, 2013, pp 188–205. As to laches see 13.2–13.31. As to equity’s application of statutes of limitation by way of analogy see 13.32–13.41. Gregory v Torquay Corporation [1911] 2 KB 556 at 559 per Pickford J (emphasis supplied) [affd Gregory v Torquay Corporation [1912] 1 KB 442] (where the meaning of a ‘statute of limitations’ arose in the context of a form, under a statute, which stated that ‘the claim … is barred by a statute of limitations’, without specifying the year, chapter, and section or the title of the statute). Windeyer J in Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; BC6200490 adopted a similar characterisation. Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; BC6200490 per Windeyer J. See, for example, Airey v Airey [1958] 2 QB 300 at 310 per Jenkins LJ, reading the judgment of the English Court of Appeal (refusing to characterise a statutory provision imposing a condition that ‘the cause of action arose not earlier than six months before [the deceased’s] death’ as a period of limitation, remarking that ‘[i]t is not a period within which action must be taken [but] is an ambulatory restriction upon the injured party’s right to proceed against the estate of a deceased tortfeasor after his death’; ‘it imposes as a condition precedent to the maintainability of an action against the estate of a deceased tortfeasor the requirement that the tort should have been committed within six months of his death’). Gregory v Torquay Corporation [1911] 2 KB 556 at 559 per Pickford J [affd Gregory v Torquay Corporation [1912] 1 KB 442]. As to this distinction see 2.2–2.5, 2.24, 2.25. See, for example, NSW s 78(1) (which defines a ‘limitation law’ as ‘a law (including but not limited to this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced’); WA s 9(2) (which states that a ‘limitation provision’ includes: (a) a provision that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action; (b) a provision prescribing the time within which an action can be commenced (including a law providing for the extension or shortening of that time); (c) a provision in respect of the limitation or exclusion of liability or the barring of a right of action if an action is not commenced within a particular time limit). The statement by the Northern Territory Court of Appeal in Verschuuren v Tom’s Tyres Corporation Ltd (1992) 86 NTR 1 at 7 that ‘[t]he Limitation Act was plainly intended to codify the law on the limitation of actions and to make provision for extensions of limitation periods in appropriate cases’ should not be construed as suggesting that time bars are, in the Territory,

21. 22. 23.

24.

25. 26.

27.

28. 29.

30.

confined to that Act, but as indicating that the Act was a repository for the core principles of limitation law. Such as, for instance, Limitation Act 1939 (UK) and the Limitation of Actions Act 1955 (Vic). Park v Brady [1976] 2 NSWLR 329 at 332 per Hutley JA, at 341 per Samuels JA. See, for example, Motor Accidents Compensation Act 1999 (NSW) s 109 (discussed at 3.15–3.17). Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [219] per Callinan J (dissenting, but not on this point) (noting that, in the absence of relevant statutes of limitation, equity recognised that ‘there comes a time when, in relation to some civil wrongs or derelictions of duty, the wrongdoer should no longer be vexed with the possibility or actuality of legal proceedings’, but that ‘it has never been part of the law of Australia that [equitable defences] are available in common law cases’: see generally 3.26–3.31). In State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 at 397 Kirby P opined that at common law ‘the presumption arose, after a long time, that the claim had been satisfied’. Yet the case example his Honour cited (Jones v Tuberville (1792) 4 Bro CC 115; 29 ER 806) did not involve any judicial initiative at common law but instead one where, in equity, the limitation period was applied by way of analogy (as to which see 13.32–13.41). Firman v Ellis [1978] QB 886 at 903. See also Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 300 per Lord Diplock. See, for example, Walton v Gardiner (1993) 177 CLR 378; BC9303612 (involving a stay of proceedings before a disciplinary tribunal for reasons including undue delay). In the context of abuses of process driven by delay, the factors that impact upon the court’s jurisdiction (as catalogued by Bray CJ in Ulowski v Miller [1968] SASR 277 at 280) have been applied vis-à-vis extensions of time under the limitations statutes: see 19.24, 19.25. The law governing the dismissal of an action for want of prosecution presents as an illustration of delay intersecting with abuse of process in this regard: see Cairns, pp 516–18. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [18] per Gleeson CJ, Gummow, Hayne and Crennan JJ (noting that this may operate to supplement the ‘long stop’ barriers imposed by limitation statutes: see, for example, NSW s 51(1) as to which see 4.62–4.64). See, for example, Teamsters & Employers Welfare Trust of Illinois v Gorman Brothers Ready Mix (2002) 283 F 3d 877 at 881 (7th Cir). A point made by Ormiston JA, in rejecting an attempt to raise the doctrine of equitable tolling in Australian law, in Kuek v Victoria Legal Aid [1999] 2 VR 331; [1999] VSCA 44; BC9902173 at [26] (referring to fraud (see Ch 15) or mistake (see Ch 16), the extension of the period in favour of persons under disability (see Ch 14), the revival of the right to sue and the effective substitution of a new period by reason of acknowledgement or part payment (see Ch 17) and the discretionary power in the court to extend the limitation period (see Chs 18–21)). His Honour (at [27]) surmised that ‘equitable tolling’ appears to reflect ‘a more general approach of American courts in certain circumstances, albeit limited, to ignore a specified limitation period where a defendant ought in good conscience not to be permitted to rely on such limitations’. See also at [18], [19] per Tadgell JA. See, for example, White v Taupo Totara Timber Co [1960] NZLR 547 (latent defect in building materials that manifested itself only many years later); Cartledge v E Jopling & Sons Ltd [1963] AC 758 (latent injury, discussed at 7.4–7.6); Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) at [599] per Ouseley J (rejecting the proposition that a court can suspend the effect of a

31.

32. 33.

34.

35. 36.

37. 38. 39. 40.

41. 42.

43. 44.

time bar where it would be unconscionable for the defendant to rely on it). Ward v Lewis (1896) 22 VLR 410 at 415–16 per Hood J (‘It is quite possible that the view [that the Statute of Limitations is a complete answer to the claim] may work considerable hardship on the plaintiff, and a great deal has been said to me on that point of view, but I have always held that it is no part of the duty of a judge to consider that effect of an Act of Parliament’); White v Taupo Totara Timber Co [1960] NZLR 547 at 551 per Gresson J (‘In fixing an arbitrary period of time within which action must be brought … the Legislature … intended to provide a degree of commercial stability and finality, notwithstanding that this might result in hardship in individual cases’). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 565; BC9604531 per Kirby J (dissenting, but not on this point). China v Harrow Urban District Council [1954] 1 QB 178 at 185 per Lord Goddard CJ; De Nier v Beicht [1982] VR 331 at 338 per Lush J, with whom Kaye and Brooking JJ concurred; Morgan v Banning (1999) 20 WAR 474 at 476; BC9902034 per Owen J. Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493 at 499 per Ambrose J, with whom Connolly and Thomas JJA concurred (who, absent any statutory provision to this effect, was unpersuaded that there was any power in the court, whether under its inherent jurisdiction or otherwise, to impose upon the appellant a limitation of time within which he must commence his action); Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 497 per McPherson J, with whom Connolly and Williams JJ concurred (‘Outside [the Limitation Acts’] prescribed field of operation, they do not apply at all’); Manufacturers Mutual Insurance Ltd v Government Insurance Office (1993) 7 ANZ Ins Cas ¶61-158 at 77,840; BC9303655 per Cohen J; Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] 2 All ER 304; [2005] EWCA Civ 92 at [2], [29] per Mummery LJ, with whom Brooke and Scott Baker LJJ concurred. See 13.2–13.31. 20 Hen III c 1 (which barred a writ of right for land-related claims to any time before the coronation of Henry II in 1154). In 1275, the Statute of Westminster (3 Ed I c 39) advanced this date to the coronation of Richard I in 1189. It should also be noted that the broad right of the citizen to a speedy hearing of an action that had been commenced (as opposed to limitation statutes, which focus on delay prior to the commencement of litigation) was acknowledged by Magna Carta in 1215 (cap 40). Using the language of Kirby P in State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 at 397. 32 Hen VIII c 2 (1540) (which set limitation periods for various land-related claims). 21 Jac I c 16. See the discussion in H T Banning, The Law of the Limitation of Actions, 3rd ed by A Brown, Stevens & Haynes, London, 1906, pp 1–2. See, for example, Harnett v Fisher [1927] AC 573 at 584 per Viscount Sumner, at 598 per Lord Blanesburgh; Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 615 per Viscount Cave LC, at 617 per Viscount Dunedin. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 181 per Priestley JA. Attorney-General v Stewart (1817) 2 Mer 143 at 160–1; 35 ER 895 at 900 per Sir W Grant MR (a case in which the question was whether the English Statute of Mortmain had been introduced into the colony of Granada). Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 at 310. Devine v Holloway (1861) 14 Moo PC 290; 15 ER 314.

45.

46.

47. 48. 49.

50. 51. 52. 53.

54. 55. 56. 57. 58. 59. 60.

61. 62. 63. 64. 65.

Australian Courts Act 1828 (9 Geo IV c 83) s 24. The concept of ‘administration’ of the law so that it can be ‘applied’ was elaborated by Griffith CJ in Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283 at 310–11. Limitation Act 1985 (ACT) (at the time of enactment, being a Commonwealth ordinance, the Limitation Ordinance 1985, which was converted in an ACT enactment, as from 1 July 1990, by the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) s 12). Civil Procedure Act 1833 (UK) (3 & 4 Will IV c 42); Real Property Limitation Act 1833 (UK) (3 & 4 Wm IV c 27). Real Property Limitation Act 1874 (UK) (37 & 38 Vict c 57). Limitation Act 1939 (UK) (which entered into force on 1 July 1940). This Act, which ensued upon the pioneering work of the Wright Committee in 1936, the New South Wales Law Reform Commission opined, made ‘sound provision for the general law of limitation of actions’, prompting the Commission to utilise it as a starting point for its 1967 Report that spawned what would become the Limitation Act 1969 (NSW): NSWLRC 3, p 8. The 1939 statute has been judicially described as ‘a notable monument of law reform’: Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] 2 AC 337; [2012] UKSC 19 at [179] per Lord Sumption JSC. Statute of Limitations 1957 (Ireland). Limitation Act 1950 (NZ) (see NZLC 6, Ch II). See 22.16–22.26, 23.5–23.12. Namely the Distress Replevin and Ejectment Act 1867 (Qld) and the Statute of Frauds and Limitations Act 1867 (Qld), together combining provisions from, inter alia, the Limitation Act 1623 (UK), the Civil Procedure Act 1833 (UK) and the Real Property Limitation Act 1833 (UK). Queensland Law Reform Commission, Bill to Amend and Consolidate the Law Relating to Limitation of Actions, Report No 14, 1972. See, for example, reforms surrounding disability (SA s 45: see 14.28) and extensions of time (SA s 48: see 19.1). Limitation Act 1981 (NT). Limitation Act 1981 (NT) Sch, Pts I, II. The Mercantile Law Act 1935 (Tas) s 3 retained a six year limitation period for causes of action in tort. Including Limitation of Actions Act 1836 (Tas); Limitation of Actions Act 1875 (Tas); Limitation of Actions Act 1934 (Tas): see TLRC A10, pp 2–5. There had also been an amending statute known as the Limitation of Actions 1965 (Tas), dealing with time limits for personal injury actions. This Act was repealed by the Limitation Act 1974 (Tas). TLRC A10, pp 13–14. Namely the Civil Procedure Act 1833 (UK), the Real Property Limitation Act 1833 (UK) and the Real Property Limitation Act 1874 (UK). Indeed, it has been noted that the Limitation Act 1935 (WA) ‘in no sense represented any reform of the law’ and ‘was no more than a consolidating measure’: WALRC 36(II), pp 49, 50. See WALRC 36(II). See P Handford, ‘A New Limitation Act for the 21st Century’ (2007) 33 UWALR 387.

66. 67.

68.

69.

70.

71. 72.

73. 74.

75. 76. 77.

78.

79. 80. 81.

Limitation Legislation Amendment and Repeal Act 2005 (WA) s 4(2). Including the Real Property Act 1907 (Vic), Supreme Court Act 1928 (Vic) Pt VII Div 7, Property Law Act 1928 (Vic) Pt IX and Trustee Act 1953 (Vic) Pt VI, as well as multiple others touching on the subject. Victorian Statute Law Revision Committee, Report on the Limitation of Actions Bill, 1949. The Committee also issued two subsequent reports, Limitation of Actions in 1950 and Limitation of Actions Bill 1955 in 1955. As catalogued in Mason v Mason [1997] 1 VR 325 at 327; BC9603830 per Callaway JA; Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [40] per Santamaria JA, with whom Warren CJ and Tate JA concurred. See, in particular, the amendments wrought by the Limitation of Actions (Amendment) Act 2002 (Vic) (which reduced the time bar in personal injury actions to three years: see 7.70), Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic) (see 7.38) and Limitation of Actions Amendment (Child Abuse) Act 2015 (see 7.26). See, for example, Bankruptcy Act 1966 (Cth) s 127; Corporations Act 2001 (Cth) s 1317K; Copyright Act 1968 (Cth) s 134; Patents Act 1990 (Cth) s 120(4). Commonwealth v Mewett (1997) 191 CLR 471 at 506 per Dawson J, at 552 per Gummow and Kirby JJ; BC9703255. On the operation of ss 79 and 80 of the Judiciary Act 1903 (Cth) see 3.7–3.10. Limitations legislation does not apply to criminal proceedings: see 3.25. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 181 per Priestley JA. See also Reidy v Trustee of the Christian Brothers (1994) 12 WAR 583 at 587; BC9402020 per Anderson J (‘The disadvantage to one party is balanced by the advantage to the other in the context of a public interest need for a degree of certainty and repose in ordinary affairs’). Haward v Fawcetts (a firm) [2006] 3 All ER 497; [2006] UKHL 9 at [32] per Lord Scott. Haward v Fawcetts (a firm) [2006] 3 All ER 497; [2006] UKHL 9 at [32] per Lord Scott. Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 782 per Lord Pearce. See also RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81 per Streatfeild J; Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 548; BC8100134 per Gibbs CJ (‘the limitation period provided by a statute whose object is to bar stale claims’); Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1024 per Lord Griffiths (‘The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal’; cited with approval in Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [6] per Lord Millett); New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 at 488–9; BC9303940 per Kirby P; Mazzeo v Caleandro Guastalegname & Co (2001) 3 VR 172; [2000] VSCA 230; BC200007587 at [4] per Winneke P; Chinnock v Wasbrough [2015] EWCA Civ 441 at [99] per Roth J. As one of the rationales for limitation periods, however, there is a prospect that the elapsing of time can prejudice the validity of the claim from the perspective of loss of relevant evidence: see 1.18–1.22. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [33] per Refshauge J. Cholmondeley v Clinton (1820) 2 Jac & W 1 at 140; 37 ER 527 at 577 [affd Cholmondeley v Clinton (1821) 4 Bli 1; 4 ER 721]. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [218] per Callinan J (dissenting, but not on this broader point) (emphasis

82.

83.

84.

85. 86.

87. 88. 89. 90. 91. 92. 93. 94.

95.

96.

97. 98.

supplied). See also Smith v Central Asbestos Co Ltd [1973] AC 518 at 547 per Lord Simon (dissenting, but not on this point) (referring to ‘social stability’). (1996) 186 CLR 541 at 552–3; BC9604531. It is by no means the only judicial recitation of the applicable rationales (although it does encapsulate the bulk of the others): see, for example, Archie v Archie [1980] Qd R 546 at 559 per Hoare J. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552; BC9604531 (emphasis supplied). See also R v Lawrence [1982] AC 510 at 517 per Lord Hailsham (‘Where there is delay the whole quality of justice deteriorates’). Phillips-Higgins v Harper [1954] 1 QB 411 at 419 per Pearson J. See also Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [184] per Basten JA (‘claims [must] be brought in a timely fashion, so that issues in dispute may be identified and, if necessary tried, when memories are fresh and documents available’); Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1185 (‘[a defendant] ought not to be called on to resist a claim when “evidence has been lost, memories have faded, and witnesses have disappeared”’; citing Order of RR Telegraphers v Railway Express Agency Inc (1944) 321 US 342 at 349). QLRC 53, p 7. Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [43] per Refshauge J. See also QLRC 53, p 8 (‘since the law is constantly evolving to meet changing societal conditions and cultural values, it will be harder to measure the conduct of a defendant against the standards prevailing at the time when the alleged infringement of the plaintiff’s rights took place’); Justice v Cairnie Estate (1993) 105 DLR (4th) 501 at 514 per Scott CJM; Wewaykum Indian Band v Canada [2002] 4 SCR 245; [2002] SCC 79 at [121] per Binnie J, delivering the reasons of the court. ALRI 55, p 19. Forbes v Wandsworth Health Authority [1997] QB 402 at 417 per Stuart-Smith LJ. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; BC9604531, citing from the United States Supreme Court in Barker v Wingo (1972) 407 US 514 at 532. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; BC9604531. See 19.26–19.31, 20.27–20.30, 20.83–20.86. RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81–2 per Streatfeild J. A’Court v Cross (1825) 3 Bing 329 at 332; 130 ER 540 at 541 per Best CJ. It has been observed, in this regard, that ‘a potential defendant should not have to defend a stale claim brought by a plaintiff who has chosen not to assert his or her rights diligently’: Novak v Bond [1999] 1 SCR 808 at 839–40 per McLachlin J (emphasis supplied). RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81 per Streatfeild J. See also Archie v Archie [1980] Qd R 546 at 559 per Hoare J (‘Persons with good causes of action should not stand by and omit to enforce them’). PJ Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1645. To this end, ‘waking up’ presupposes some knowledge of the cause of action, although this has not traditionally been a prerequisite for time to commence to run. This in turn creates potential for injustice to a (putative) plaintiff (see 7.4–7.6), which in some contexts has been addressed by statute: see 6.41, 7.12–7.91. Smith v Central Asbestos Co Ltd [1973] AC 518 at 551 per Lord Salmon (dissenting, but not on this broader observation). J O’C v Director of Public Prosecutions [2000] 3 IR 478 at 500 per Hardiman J.

99.

100. 101. 102. 103.

104. 105. 106. 107.

108. 109. 110. 111.

112.

113.

Harnett v Fisher [1927] AC 573 at 583 per Viscount Sumner. See also Smith v Central Asbestos Co Ltd [1973] AC 518 at 547 per Lord Simon (dissenting, but not on this broader observation); Murphy v Welsh [1993] 2 SCR 1069 at 1080 per Major J; Novak v Bond [1999] 1 SCR 808 at 839– 40 per McLachlin J. The point has also been made by commentators: O W Holmes, ‘The Path of the Law’ (1897) 10 Harv L Rev 457 at 477 (‘the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser’); Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1185 (identifying the primary consideration as ‘undoubtedly one of fairness to the defendant’). Lee v Rogers (1663) 1 Lev 110 at 110; 83 ER 322 at 323. See Ch 15. See Ch 16. Fersch v Power and Water Authority (1990) 101 FLR 78 at 86 per Asche CJ (citing a policy of limitations statutes as being ‘to make provision for the exceptional case where, by reason of unforeseen or newly discovered matters, it could be unfair to enforce a time limitation on a prospective plaintiff’); Murphy v Welsh [1993] 2 SCR 1069 at 1080 per Major J (‘A limitations scheme must attempt to balance the interests of both sides’); Novak v Bond [1999] 1 SCR 808 at 840 per McLachlin J (noting that ‘[c]ontemporary limitations statutes … seek to balance conventional rationales oriented towards the protection of the defendant … with the need to treat plaintiffs fairly, having regard to their specific circumstances’). See 7.12–7.91, 22.16–22.25. For instance, for reasons of disability: see Ch 14. See Chs 18–21. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [23] per Sulan and Layton JJ. See also Lovett v Le Gall (1975) 10 SASR 479 at 488 per Judge White (opining that the discretion to extend time ‘must be viewed against [a] background of progressive exceptions to the previous rigidity of the limitation laws, and, in particular, against the background of substantial easing of rigid time limits’). Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [7] per Lord Millett. Doe & Duroure v Jones (1791) 4 TR 301 at 308; 100 ER 1031 at 1035 per Lord Kenyon CJ; Bell v Morrison (1828) 1 Peters 351 at 360 per Story J. White v Parnther (1829) 1 Knapp 179 at 227; 12 ER 288 at 305 per Lord Wynford (PC). A’Court v Cross (1825) 3 Bing 329 at 332; 130 ER 540 at 541 per Best CJ. This descriptor was reiterated far more recently in Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [5] per Lord Millett (‘statutes of peace’). Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1185. See also Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563 per Lord Brightman (PC) (‘When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim’); Manufacturers Mutual Insurance Ltd v Government Insurance Office (1993) 7 ANZ Ins Cas ¶61-158 at 77,840; BC9303655 per Cohen J (noting that each of the limitations statutes ‘has been described as an act of peace founded on the public sentiment that litigation should be prevented after a certain period of time’). Fersch v Power and Water Authority (1990) 101 FLR 78 at 86 per Asche CJ. See also M(K) v M(H) [1992] 3 SCR 6 at 29 per La Forest J (‘There comes a time … when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations’); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552;

114. 115.

116. 117. 118.

119. 120.

121. 122.

123. 124. 125.

126.

BC9604531 per McHugh J (‘people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them’); Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [40]–[42] per Refshauge J. Peixeiro v Haberman [1997] 3 SCR 549 at 562 per Major J, delivering the judgment of the court. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552; BC9604531 per McHugh J. See also Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1185 (‘In ordinary private civil litigation, the public policy of limitations lies in avoiding the disrupting effect that unsettled claims have on commercial intercourse’). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; BC9604531 per McHugh J. Second Reading Speech, Limitation (Amendment) Bill 1990 (NSW), NSW Legislative Council, Hansard, 4 June 1990, p 4994. It has been observed, in this regard, that ‘[n]ot only potential defendants, but third parties need to have confidence that rights are not going to (be) disturbed by a long-forgotten claim’, for example, banks giving credit to businesses ‘have an interest in knowing that a borrower’s affairs will not be damaged by the revival of years old litigation’: Law Com 151, p 13. TLRC 69, p 1. See, for example, McKain v R W Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1 at 24; BC9102614 per Mason CJ (dissenting but not on this specific point) (identifying the ‘very object’ of statutes of limitation as ‘to prevent stale claims and therefore to relieve potential defendants from the uncertainty that such claims may be brought against them’); Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; BC200004311 at [131] per Callinan J (‘Limitations statutes are enacted to put an end to uncertainty’). NSWLRC 50, p 3. Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563 per Lord Brightman (PC) (‘He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone’); M(K) v M(H) [1992] 3 SCR 6 at 30 per La Forest J. The law comes to the assistance of those who are vigilant with their rights, and not those who sleep on their rights. Cox v Morgan (1801) 2 Bos & Pul 398 at 412; 126 ER 1349 at 1357 per Heath J (footnote supplied) (remark not made in the context of limitations legislation). Smith v Central Asbestos Co Ltd [1973] AC 518 at 547 per Lord Simon (dissenting but not on this broader observation). See also Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 628 per Lord Atkinson (‘The whole purpose of this Limitation Act, is to apply to persons who have good causes of action which they could, if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use’); M(K) v M(H) [1992] 3 SCR 6 at 30 per La Forest J (‘plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion’). Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; BC200004311 at [131] per Callinan J. See also Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 782 per Lord Pearce (‘intended to encourage and secure reasonable diligence in litigation’); New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 at 488; BC9303940 per Kirby P (‘The purpose of the Limitation Act is to ensure that litigants act with due speed in prosecuting their causes of

127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138.

139. 140.

141. 142.

action’); Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [6] per Lord Millett (‘It is in the public interest that a person with a good cause of action should pursue it within a reasonable period’); Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [184] per Basten JA (referring to the public interest in the expeditious administration of justice); Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [39] per Refshauge J (‘The provisions are intended to encourage the prompt pursuit of claims’). RB Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81 per Streatfeild J. See 1.2. Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [37] per Refshauge J. See Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [218] per Callinan J (dissenting, but not on this point). Hawkins v Clayton (1988) 164 CLR 539 at 589–90; BC8802597. Manitoba Metis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623; [2013] SCC 14 at [230] per Rothstein J (dissenting, but not on this specific point). See 13.13–13.16. Harnett v Fisher [1927] AC 573 at 597 per Lord Blanesburgh (dissenting, but not on this specific observation). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; BC9604531 per McHugh J.’ Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; BC9604531 per McHugh J. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555; BC9604531 per McHugh J. [2009] QB 754; [2008] EWCA Civ 1451 at [67] (who inferred that, in reducing the limitation period for personal injury actions from six to three years (see 7.2, which is also symptomatic of Australian statutes in this context: see 7.12), ‘Parliament must have thought that, in the context of that kind of action, unfairness to the defendant was likely to arise at an earlier date than in other actions’: at [66]). See also Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1025 per Lord Oliver (noting that ‘[t]he fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced’ but ‘merely means that he is not in a position to complain of whatever prejudice he suffers’); Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [120] per Campbell JA, with whom Giles and Ipp JJA agreed (noting that the risk that a significant witness might have died before the proceedings came on for hearing is one of the risks that are incident to any litigation that is commenced within time). Owen v De Beauviour (1847) 16 M & W 547 at 564; 153 ER 1307 at 1314 per Parke B. Consider, for example, the driver(s) for a short limitation period in the context of defamation (see 6.45, 6.46) as opposed to a much longer limitation period(s) vis-à-vis actions to recover land (see 8.5, 8.6). See also D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 466 (‘Any difference in the length of the periods must depend on the differing value placed by the legal system on the rights to which the periods apply’). In this context see the discussion of the advantages and drawbacks of the respective accrual and discovery approaches to the running of time: see 7.12–7.91. See Chs 14–16 (suspending time), 18–21 (extending time).

143. 144. 145. 146. 147. 148. 149. 150.

151. 152.

153. 154.

155. 156. 157. 158.

159. 160. 161. 162. 163.

M(K) v M(H) [1992] 3 SCR 6 at 29 per La Forest J. M(K) v M(H) [1992] 3 SCR 6 at 29 per La Forest J. M(K) v M(H) [1992] 3 SCR 6 at 30 per La Forest J. See 7.26, 24.13, 24.14. Chapple v Durston (1830) 1 Cr & J 1 at 7; 148 ER 1311 at 1313. Chardon v Fumero Solo (1983) 462 US 650 at 667. [1963] AC 758, as to which see 7.4. Smith v Central Asbestos Co Ltd [1973] AC 518 at 529 (having noted that while ‘[n]ormally one expects to be able to find at least some clue to the general purpose and policy of an Act by reading it as a whole in light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy … here I can find none’). See also Miller v London Electrical Manufacturing Co Ltd [1976] 2 Lloyd’s Rep 284 at 288 per Bridge LJ (describing the 1963 Act as ‘a notoriously obscure statute’). NSW ss 57, 58 (applicable to causes of action accruing before 1 September 1990: see 20.45, 20.46). Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 698. See also State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [1] per Gummow, Hayne and Crennan JJ, at [44] per Kirby J. Qld s 31: see 20.78, 20.79. See, for example, Carlowe v Frigmobile Pty Ltd [1999] QCA 527; BC9908475 at [9] per Thomas JA and Atkinson J; Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton [2001] QCA 335; BC200104983 at [62] per Atkinson J; Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [54] per Sackville AJA; Shaw v Broadbent [2010] QSC 433; BC201008640 at [5] per Atkinson J. New South Wales v Harlum [2007] NSWCA 120; BC200703974 at [149] per Basten JA. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [5]. China v Harrow Urban District Council [1954] 1 QB 178 at 185. Edmunds v Waugh (1866) LR 1 Eq 418 at 421 per Kindersley VC; Canadian Northern Railway Co v Robinson [1910] AC SCR 387 at 397–8 per Davies J (dissenting but not on this point) (‘to deprive the plaintiffs of their right of action the words of the limitation clause should be so plain and unambiguous as clearly to embrace the cause of action sought to be included within them’); Méthot v Montreal Transportation Commission [1972] SCR 387 at 397–8 per Hall J; Ackbar v C F Green & Co Ltd [1975] 1 QB 582 at 586 per Croom-Johnson J; Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471; BC8701767 per Mason CJ, Deane, Toohey and Gaudron JJ. Berardinelli v Ontario Housing Corporation [1979] 1 SCR 275 at 280 per Estey J. See 1.24. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 573; BC9604531 per Kirby J (dissenting). State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [53] per Kirby J. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 573; BC9604531 (dissenting). His Honour had made similar remarks years earlier as President of the New South Wales Court of Appeal: Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 703–4, with whom

164. 165.

166.

167.

Hope AJA concurred. State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [57]. See, for example, Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 554 per Hope JA (describing NSW s 58 (as to which see 20.45) as ‘a remedial provision, designed to give relief against what otherwise might be, and has been established in many cases to be, the harshness of the operation of the general limitation provisions’, so that ‘[i]t calls for a liberal construction’). Cf Hammet v Connor [1980] VR 538 at 542 per Crockett J (while endorsing a ‘beneficial construction’ in this context, adding that ‘this does not mean that a determination can be made other than by adoption of some intellectually acceptable solution or by resort to legitimate tenets of statutory interpretation’). See, for example, Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; BC200004311 at [131] per Callinan J (by way of obiter); State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [97] per Heydon J (dissenting, but not on this specific point). See also Firman v Ellis [1978] QB 886 at 911 per Ormrod LJ, at 915 per Geoffrey Lane LJ (rejecting a restrictive construction of a general discretion to extend time in personal injury cases: see 20.7); Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) BC9802336 at 23 (who was not convinced that it was Parliament’s intention, or ought necessarily be the interpretative approach of this court, that a ‘liberal’ interpretation be given to the legislation ‘simply because it is legislation to assist persons who have suffered injury through the wrongful and negligent actions of others’). Chapple v Durston (1830) 1 Cr & J 1 at 7; 148 ER 1311 at 1313.

[page 23]

CHAPTER 2

Nature of Time Bars Procedural Nature Impact of Procedural Nature Defendant to plead the statute Pleading where defendant acts in a representative capacity Defendant as personal representative Defendant as trustee Defendant as insolvency administrator Pleading the limitation defence Timing of pleading Onus of proof Impact on costs order in litigation over time bar Non-Procedural Aspects Substantive limitation provisions Substantive right extinguished by statute Limited extinction regimes General extinction regime in New South Wales Postponement from extinction for goods over which a possessory lien extends Substantive right extinguished by contract Substantive characterisation for choice of law purposes

2.2 2.6 2.6 2.9 2.10 2.13 2.14 2.15 2.18 2.19 2.23 2.24 2.24 2.26 2.26 2.28 2.31 2.32 2.33

Statutory provisions Backdrop to statutory provisions

2.33 2.35

2.1 Time bars found in limitations statutes have long been characterised as primarily ‘procedural’ in character, in the sense that they prescribe a procedural bar to pursuing an action rather than one that ousts the legal right in question. This chapter explains the impact of this procedural character, especially as to how it translates to the pleading of time bars. At the same time, it goes on to identify various ‘substantive’ aspects of limitations law, ensuing upon specific statutory provisions (for instance, that extinguish the relevant cause of action, or otherwise prescribe a substantive impact, as for choice of law purposes) or pursuant to contract.

Procedural Nature 2.2 Limitations statutes are not prescriptive; and so it is not strictly accurate to speak in terms of ‘breaching’ the Limitation Act.1 They simply stipulate a consequence for failing to [page 24] commence an action within the relevant limitation period. The nature of that consequence rests on the wording of the statute in issue. The traditional statutory language — expressed in terms that ‘no action … shall be brought after the expiration of [a stated time] after the cause of action accrued’ — while susceptible of being read as limiting a court’s jurisdiction to hear and determine an action of the kind described, has received no such construction. Instead, it has been held to bar the remedy (unless the plaintiff can adduce grounds to extend time),2 not the right.3 ‘The intention of the law of limitation’, it is said, is ‘not to give a right where there is not one, but

to interpose a bar after a certain period to a suit to enforce an existing right’.4 2.3 By barring the remedy rather than the right, the expiry of time does not, under the statutory language noted above, extinguish the cause of action.5 As the cause of action remains, technically speaking, expiry of the limitation period does not prevent the commencement of an action; rather, it provides the defendant a cast-iron defence to the cause of action, should the defendant choose to avail himself or herself of it.6 In other words, a defence of limitation permits a defendant to raise a ‘procedural bar’ that prevents the plaintiff from employing the procedure of the court to gain a remedy based on the cause of action.7 Being a procedural bar, it is not a denial of an essential ingredient of a cause of action and has nothing to do with the merits of the claim,8 which may well favour the plaintiff,9 but reflects the public policy mentioned in the preceding chapter10 that affords a defendant the opportunity to avoid meeting a stale claim.11 2.4 At the same time, the practical effect of this ‘procedural bar’, if successfully pleaded, differs little from the extinction of the cause of action (thus having a ‘substantive’ effect), which has prompted some to query the ‘procedural’ descriptor;12 indeed, the United States Supreme Court has conceded that ‘it is troublesome to sustain as a “right” a claim that can find no remedy for [page 25] its invasion’.13 This informed the New South Wales legislation’s explicit provision to the effect that the expiry of time serves to extinguish the relevant right or title.14 Yet other jurisdictions disclaim any broad role for limitations legislation to operate substantively, instead seeing the relevant statutory scheme as targeting chiefly the seeking of a remedy, and only incidentally to matters of right and title.15 2.5 This prevailing procedural character, as distinguished (and not always with precision) from substantive law, generates ramifications in various areas of limitation law. There is authority, for instance, that because most limitation provisions bar the action, and not the benefit thereof, if within a

class of persons there is one capable of maintaining the action (A), a person who would otherwise be barred from receiving the benefit of the action (B) is not barred from doing so if the action is brought and maintained by A.16 The distinction can also impact, as explained elsewhere, on the issue of whether or not a new or amended statutory (limitation) provision has retrospective application.17 Questions between substance and procedure moreover surface in the choice of law environment, a point elaborated at the end of this chapter.18 In each of these contexts, the cases reveal that time bars found in limitations legislation frequently evince substantive, not merely procedural, characteristics.

Impact of Procedural Nature Defendant to plead the statute 2.6 Arguably the most significant upshot of the procedural nature of traditional limitations regimes, however, is its translation to matters of pleading. As the plaintiff’s right remains, the defendant must plead the defence of limitation,19 essentially ‘by way of confession and avoidance of the plaintiff’s claim’.20 Absent a plea relying on the Statute of Limitations, it is assumed that the defendant intends to waive it;21 otherwise ‘the plaintiff is liable to be [page 26] surprised, and therefore … unprepared to answer’.22 And the court is ‘to adjudicate without reference to the [Statute]’,23 and ‘has jurisdiction to entertain the action … even though the period of limitation has elapsed’.24 There is no scope, to this end, for the court to consider the matter of the limitation period of its own motion; after all, the limitations defence is not ‘self-executing’ upon expiry of the relevant limitation period. That the common law imposed no limitation period25 — expiration of time per se did not defeat a plaintiff’s claim at common law — arguably provides a reason,

beyond procedural aspects, in support of this conclusion. Ultimately, therefore, ‘it is optional whether the defendant will insist upon the statute or waive it’;26 ‘it may be taken advantage of, or it may not be taken advantage of, according to the volition of the Defendant’.27 A defendant may consciously choose not to appeal to an applicable limitations statute for his or her protection. In this event, a subsequent application to extend time will face almost insurmountable hurdles.28 A failure to plead the statute may, conversely, be driven by apathy or ignorance (which may in some circumstances be a ground, amongst others, to make application to extend time).29 2.7 The impact of a failure to plead an applicable limitation period is illustrated by the South Australian Full Court’s decision in Robinson v Craven,30 in overruling its decision in Hill v Parke Davis & Co Ltd.31 In the earlier case, as the plaintiff’s writ, claiming damages for personal injury, was issued out of time, it contained a request to extend time. The plaintiff obtained an interlocutory judgment in default, which the court then vacated on the ground that the judgment could only be validly obtained were an extension of time granted. This was incorrect, ruled the court in Robinson, as the plaintiff in Hill v Parke Davis needed no extension of time because, no defence having been filed, the limitation time bar had not been pleaded.32 In Robinson, similarly, as no defence had been filed, indeed no appearance entered, there was no plea that the action was barred by limitation. The immunity from action otherwise available to the defendant had thus been waived, and the default judgment had been lawfully entered. 2.8 A ‘purely procedural’ limitation provision can be waived other than by the defendant’s omission to plead the limitation defence, expressly or by inference (including by way of waiver or estoppel).33 In Wright v John Bagnall & Sons Ltd,34 for example, the respondent employers had agreed to pay workers compensation to the appellant employees, but each party reserved a right to have the amount fixed by the court. In view of this mutual understanding, the English Court of Appeal ruled that the respondents were ‘debarred from raising the point that the statutory limitation applied’.35 [page 27]

Pleading where defendant acts in a representative capacity 2.9 While the defendant’s entitlement to elect whether or not to plead an available limitation defence is entirely defensible when acting in his or her own capacity, it may be queried whether such an election should lie in the mouth of a defendant who, in the proceedings, acts as a representative of another or others. The issue is of particular significance where the defendant acts in a representative capacity as an executor, administrator, trustee or insolvency administrator of the relevant estate, each elaborated below.

Defendant as personal representative 2.10 Part of the role of personal representatives of a deceased estate is to discharge the contractual obligations of the deceased. This assumes that those obligations survive the latter’s death36 and would, in any case, have been legally enforceable against the deceased.37 Yet the case law has acknowledged a qualification to the latter in its application to time-barred obligations. It holds that a personal representative is not bound to plead the relevant limitations statute, where it may otherwise apply, and so may pay a statute-barred debt, without committing a devastavit,38 unless a court has declared the debt statute-barred. This qualification, judicially branded as ‘an exception from the general rule’39 and ‘an anomaly’,40 apparently stemmed from the dislike some have historically entertained to pleading the Statute of Limitations41 and the fact that the latter bars the remedy but not the right. 2.11 Whether or not there is justification for treating the limitations scenario uniquely in this context — arguably there is not; after all, the deceased would be expected to plead the limitation period had he or she been alive, and after his or death others have an interest in the estate — the exception is not one the courts, going back to the nineteenth century, have been even remotely inclined to extend.42 This appears, inter alia, from the fact that the exception does not cover debts declared by a court to be statutebarred. It is ‘distinctly wrong’, said Lindley LJ in Midgley v Midgley,43 for a personal representative to pay a debt judicially

[page 28] declared as not recoverable out of the estate he or she is charged to protect. As explained by Lopes LJ in the same case:44 [A] co-executor, knowing what has taken place in proceedings such as this originating summons, who after an adjudication upon it pays the debt, commits a devastavit, and is liable to refund the money. It appears to me that to hold otherwise would be an unjustifiable disregard of the decision of the court that had adjudicated upon the debt. To hold otherwise would be against the principle which is admitted to be a good and sound principle, viz, that it is the duty of an executor to protect his testator’s assets, and it would be even worse — it would be an extending of this doctrine with regard to the payment of statute-barred debts which is admitted to be anomalous, and about which it has over and over again been said that it is a doctrine which ought not to be extended … After an adjudication that the debt is irrecoverable I am clearly of opinion that no executor would be justified in making payment of it.

2.12 In any event, in New South Wales, where the limitations legislation explicitly extinguishes the debt upon the expiry of the limitation period,45 a basis for the above anomalous exception has arguably been removed. In that jurisdiction, it stands to reason, as White J explained in McGrath v Troy, that:46 … an administrator who pays a statute-barred debt will be liable to make good the estate, unless the debt was paid after the administrator, having exercised due diligence and honest judgment, formed the view that the debt was not extinguished, perhaps because there was an answer to a limitation defence, or, if the administrator, having exercised due diligence and honest judgment, formed the view that the costs of defending the claim, or the delay in completing the administration whilst the claim is adjudicated, meant it was in the best interests of the estate to pay or compromise the claim.

Whether such a view can, absent a parallel statutory initiative, translate more broadly within the Australian legal landscape remains to be seen. While dicta can be found supportive of the anomalous exception,47 there are sound reasons in principle, aside from a dedicated extinguishment provision, for the approach espoused by White J above. Exceptions to established principle usually require compelling justification, as to which an historical distaste for the pleading of limitations periods seems most flimsy. It is therefore unsurprising that it has not endeared itself to all Australian judges.48

Defendant as trustee

2.13 The ‘anomalous exception’ has nonetheless seen application, via analogy, to trust estates. If, it is reasoned, a personal representative can legitimately elect to pay the deceased’s statute-barred debts, so should a trustee vis-à-vis similarly statute-barred debts of the trust. The logic appears similar, by reference to the notion that trustees are not bound to do anything dishonest for the sake of their beneficiaries, against a backdrop that the Statute of Limitations is ‘dishonestly pleaded’.49 Indeed, it has been said that, in this regard, ‘[a] trustee is in a much better position than an executor’ because the trustee ‘is paying his own debt’ whereas the executor is paying the testator’s debt, that is, ‘admitting a creditor to prove against another’s estate’.50 The trustee is ‘not admitting claims against another’s estate’,51 although it cannot [page 29] be denied that indirectly he or she is in effect doing so, namely against the ‘estate’ of the beneficiaries.52 But bearing the latter in mind, in tandem with the questionable ‘dishonesty’ foundation for pleading a time bar, there is sense in applying the same approach to trustees as White J above espoused vis-à-vis personal representatives.53

Defendant as insolvency administrator 2.14 That the law has never, it seems, countenanced that a liquidator, as the administrator of (a usually) insolvent estate, is entitled to pay statutebarred debts of the company54 speaks as to the dubious underpinning for any such discretion within personal representatives and trustees. The same may be said as regards the absence of discretion to pay statute-barred debts resting in a trustee-in-bankruptcy.

Pleading the limitation defence 2.15 The requirement that the defendant specifically plead the statute of limitations as a defence is not merely the upshot of traditional statutes of limitation ousting the remedy but not the right. It also serves at least two

other, related, purposes. First, it places the plaintiff on notice that the defence will be put in issue and that, if the plaintiff cannot overcome the defence, his or her claim is doomed to fail. This in turn invites the plaintiff — by way of reply — to show that, notwithstanding the limitation statute, he or she is nonetheless entitled to bring the action.55 If the plaintiff can prove, say, concealed fraud by the defendant,56 acknowledgement of the debt or claim,57 or for another reason the limitation period is deferred or suspended,58 expiry of the otherwise applicable limitation period may not preclude the plaintiff’s claim. The same may ensue if the plaintiff can convince the court to extend time under the courts’ (limited) statutory discretion to do so.59 Secondly, where the plaintiff is unable to point to any realistic grounds to withstand the defendant’s pleading of the limitation period, the latter serves to afford the court the opportunity to ‘nip in the bud’ the wastage of time and money that would occur were the plaintiff permitted to proceed with the claim. In Riches v Director of Public Prosecutions Lawton LJ explained the point as follows:60 One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statute barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that

[page 30] the plaintiff can bring himself within the exceptions set out in the Limitation Act … In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence. The delivery of the defence occupies time and wastes money; and even more useless and time consuming from the point of view of the proper administration of justice is that there should then have to be a summons for directions, and an order for an issue to be tried, and for that issue to be tried before the inevitable result is attained.

2.16 While the High Court of Australia has remarked the undesirability that ‘limitation questions … should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases’ because ‘insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question’,61 this caution cannot be taken entirely at face value. The facts

in issue — namely questions of when damage first occurred, likely to involve issues of fact that could only be properly determined at a trial — place their Honours’ remark in context. Australian case law, in line with the sentiment emanating from Lawton LJ’s words above, reveals frequent occasions where courts entertain applications for summary dismissal based on compelling limitation defences.62 Consistent with the foregoing, recent case authority has aligned a determination of the limitation point separately, ahead of trial, with civil procedure reforms directed to the quick and cheap resolution of disputes.63 The same may be said of interlocutory applications for an extension of time.64 2.17 The same cannot ordinarily be said of a defendant’s appeal on a single interlocutory issue, against a decision to extend time, in advance of the trial judge’s determination on the issue of liability.65 Instead, interlocutory matters of this kind are more appropriately [page 31] considered at the time of any substantive appeal. This reflects the need to foster the proper function of appellate courts, which is broadly (but not exclusively) inconsistent with them becoming regular venues for reviewing interlocutory steps preliminary to or during the course of a trial. It also does not deny the appellant any substantive right to appeal; it only impacts upon its timing.

Timing of pleading 2.18 Consistent with ensuring that the plaintiff is not beset by surprise in the pleading of a limitation period, and has a timely opportunity to muster evidence to overcome any time bar (if possible), it behoves defendants to plead any limitation defence as early in the proceedings as possible. This is, in turn, consistent with the quick and cheap resolution of disputes. The late raising of a limitation defence could potentially operate by way of an estoppel or waiver against the defendant,66 or otherwise sound in an adverse costs order. Certainly, any attempt to plead a limitation defence during the

course of the final oral argument, as transpired in Ketteman v Hansel Properties Ltd,67 is most unlikely to find judicial favour. As explained by Lord Griffiths:68 If … no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties. If both parties on this assumption prepare their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar.

His Lordship added that a defendant who decides not to plead a limitation defence, and instead fight the case on the merits, should not be permitted to fall back upon a plea of limitation as a second line of defence at the end of the trial when it becomes apparent that he or she is likely to lose on the merits. And if the defendant’s lawyers do not plead the defence of limitation because of an oversight, this should not prejudice the plaintiff; the defendant’s remedy is against his or her lawyers in this event.69

Onus of proof 2.19 That, in the context of the traditional form of limitation bars, the defendant must plead the limitation defence has not precluded some controversy over matters surrounding the onus of proof once the defence is pled. The incidence of the burden of proof will prove particularly significant in the event of some dispute as to whether or not time has run, and the evidence on the point is inconclusive.70 In English courts the prevailing view is that where the defendant has pleaded that the action is time-barred, the burden lies on the plaintiff to prove that the relevant limitation period has not expired. To this end, the House of Lords in Cartledge v E Jopling & Sons Ltd71 spoke of an ‘initial onus’ on the plaintiff to prove that the cause of action accrued within the statutory period. When that case was before the English Court of Appeal, Harman LJ similarly declared that ‘[w]here … the defendant raises the Statute of Limitations it is … for the plaintiff to show that he is not within it and not for the defendant to prove the opposite’.72 If the plaintiff

[page 32] can show, on the balance of probabilities, that the cause of action arose within the limitation period, English law then envisages a shifting burden to the defendant to prove that in truth the cause of action arose at an earlier date.73 2.20 The trajectory of Australian case law goes the other way, for which there is good reason. On the assumption that limitation statutes that bar the remedy, not the right, evince a distinct procedural flavour,74 it aligns with principle to say that the defendant should carry the onus of proving a procedural bar to the plaintiff’s action. As the procedural bar does not, as noted earlier, go to the merits of the claim but is instead pleaded by way of confession and avoidance,75 it seems odd to cast a burden on the plaintiff. So while it is true that a plaintiff must plead and prove the elements of the cause of action, if the accruing of the cause of action in time is no part of the cause of action, there is no need for the plaintiff to allege or prove it.76 So in what is arguably the leading case, Pullen v Gutteridge Haskin & Davey Pty Ltd,77 involving a claim for professional negligence against the defendant engineer, the Appeal Division of the Victorian Supreme Court held that the defendant carried the onus vis-à-vis the issue of limitation, ‘on the basis that it is no part of the cause of action for negligence that the claim is not statutebarred’. Their Honours noted that, in the cases supportive of the view that the plaintiff bears the burden, the matter is often mentioned by way of obiter dictum rather than by way of substantial discussion.78 And it derived, their Honours maintained, from the erroneous adoption, in two early nineteenth century English cases,79 of ‘an over literal reading of the rule that the burden of proof lies on the party who asserts the affirmative of the issue’.80 Instead, the court remarked, ‘it has been clear for many years now that the true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case the proof of the allegation rests on him’.81 Subsequent Australian case law supports the proposition that, in line with Pullen, where damage is the gist of the action, the defendant bears the onus of proving that actual and measurable loss occurred

outside the statutory period.82 In Western Australia this has translated to statute, which states that [page 33] the defendant has the burden of proving that the action cannot be commenced because the applicable limitation period has expired.83 2.21 The foregoing may not, however, apply without qualification. Other than in Western Australia (given the above provision), on those occasions where expiry of the limitation period extinguishes the plaintiff’s title or right84 — thus operating substantively rather than procedurally — there appears logic in throwing upon the plaintiff the onus of proving the cause of action nonetheless accrued within time.85 This aligns with the principle noted in the preceding paragraph from Pullen: that the onus of proving an allegation that forms an essential part of a party’s case must lie on the party making the allegation. But this too needs qualification vis-à-vis provisions dealing with the extinguishment of a relevant right or title in the Australian Capital Territory and New South Wales,86 which deny a party — here the defendant — the benefit in the proceedings of any such extinction unless this has been pleaded or otherwise appropriately claimed.87 This evidently places some onus on the defendant in this regard, and also gives the defendant an option to waive the benefit of the statutory limitation protection.88 2.22 In speaking of qualifications to the Pullen approach, there must also be considered questions of onus where a plaintiff relies on something to take the case outside the statute, say, an acknowledgement89 or disability.90 It stands to reason that, on these occasions, the plaintiff must reply specifically alleging an acknowledgement or disability.91 Also, and in line with the aforesaid, where the limitation statute grants the court a discretion to extend time,92 the burden of establishing that the discretion should be exercised in favour of an extension rests throughout the proceedings on the plaintiff (applicant).93 There is, moreover, at least some evidential onus, in cases involving provisions governed by questions of discoverability by a plaintiff,94

to introduce evidence as to what the plaintiff knew, or ought to have known, in this context.95

Impact on costs order in litigation over time bar 2.23 The primarily procedural character of traditional limitation time bars is capable of translating to the issue of costs where the parties litigate over the applicability or otherwise [page 34] of a limitation bar. Should the defendant, in this instance, succeed in establishing that the plaintiff’s claim is statute-barred, costs will, in the normal case, follow the event (the defendant’s success) and thus be payable by the plaintiff. But if the court finds the claim to be within time, application of a broad ‘costs follow the event’ schema must be more nuanced, as the court’s finding here does not go to the merits of the claim but to an alleged procedural bar to the claim itself. It simply gives the plaintiff a ‘green light’ to pursue the claim on the merits; it says nothing about the outcome (‘event’) on the merits. As the limitation issue is no more than an interlocutory threshold to the substantive proceeding, it is often inapt for the court, at this stage, to make any costs order on that issue. Instead it will usually await the outcome on the merits, and then make a costs order reflective of that outcome, including on the limitation issue. Should there be any costs order at the limitation stage, it will thus be one of ‘costs in the cause’. This dictates that should the plaintiff prevail on the merits, the costs of the action, including of the limitation issue, will likely be ordered against the defendant. If the defendant prevails, the converse may well ensue.

Non-Procedural Aspects Substantive limitation provisions 2.24

Not all limitation provisions are necessarily procedural in nature, in

the sense of barring the remedy but not the right. A ‘substantive’ limitation provision has been described as one where ‘a right, a new cause of action, has been created subject to compliance with a time limit for commencing proceedings to enforce this right’.96 As the statute here creates a cause of action that would not have existed had it not been passed, failure to commence proceedings within the time specified extinguishes the right. Windeyer J in Australian Iron & Steel Ltd v Hoogland explained the distinction as follows:97 Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right.

2.25 There are, moreover, limitation provisions that, while ostensibly procedural, couple with an extinguishment provision, which expressly extinguishes the cause of action after the limitation period has expired. In this event, unless statute provides otherwise, the defendant need not plead the time bar — but simply deny the plaintiff’s right — as the claim has been extinguished by the terms of the statute itself.98 For example, as is elaborated below,99 the Australian Capital Territory and New South Wales limitation statutes prescribe the extinction of right or title for various causes of action once the time bar is triggered. While substantive, in the sense that the statute thereby denies a substantive right, the extinction of the right or title is premised here on defendants having ‘pleaded or otherwise appropriately claimed in accordance [page 35] with the procedures of the tribunal that the right or title has been so extinguished’.100 This, it is said, deprives the intended defendant ‘of asserting its substantive right unless it pleads that the cause of action has been extinguished’.101 In Sorrenti v Crown Corning Ltd102 the defendants argued

that, in an application to extend time, a plaintiff bears the onus of proving that his or her right has not been extinguished by the expiration of the 30 year ultimate limitation period.103 In explaining how the above pleading provision interacts with provisions to extend time, Hunt J rejected this argument, reasoning as follows:104 For all the court may know in the particular case, the defendant … may not plead the expiration of the thirty year period if the extension of the six year limitation period is granted. There may well be good and sufficient reasons why the defendant would not want to do so in the particular case. As no question of an extinction of the plaintiff’s right arises unless the defendant does plead that extinction … the plaintiff cannot be required to negate an issue which may never arise. It is of course clear that, if the defendant asserts and the plaintiff concedes that the thirty year limitation period has already expired, the Court would not grant to the plaintiff any extension of the six year limitation period. To do so would be an exercise in futility. Similarly, if the defendant does assert, and is able to prove beyond any question, that the thirty year limitation period has already expired, it is difficult to see how the Court would grant to the plaintiff any extension of the six year limitation period. If, however, the defendant simply asserts that the thirty year limitation period has already expired, and if there remains an issue of fact as to whether the defendant has established that assertion, the Court would usually grant to the plaintiff an extension of the six year limitation period to enable that issue to be determined at the trial of the action.

It was the last of these situations that ensued in Sorrenti, and provided an avenue for Hunt J to extend time to a plaintiff suffering the onset of latent injury by reason of asbestos exposure. The subsequent exclusion of injuries of this kind from the ultimate 30 year time bar105 obviates a need for judicial creativity to this end.

Substantive right extinguished by statute Limited extinction regimes 2.26 The limitations statutes in New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia make provision to the effect that, upon the expiry of a limitation period within which a person may bring an action to recover land, that person’s title to the land is extinguished.106 As these provisions focus on actions to recover land, their impact is discussed in the chapter dedicated to land.107 2.27 The Australian Capital Territory legislation, conversely, provides for extinction vis-à-vis causes of action to recover or obtain goods. On the expiry of the relevant time bar, it operates to extinguish the right or title to

the goods of any person having that cause of action.108 But if, before the expiry of the applicable limitation period, an action is brought on a cause of action to which that period relates, the expiry of that period in no way affects the plaintiff’s right or title to the goods as to which the action is brought, either for the purposes of the action or so far as the right or title is established in the action.109 [page 36]

General extinction regime in New South Wales 2.28 In what has been described as ‘[t]he most notable departure’ from English limitations law,110 the Limitation Act 1969 (NSW) makes almost plenary provision for the extinguishment of causes of action on the expiry of the relevant time bar. This initiative, which in Australia remains unique,111 was propelled by a concern that leaving a claim or title in existence without the support of a remedy by action ‘is to leave settled expectations open for ever afterwards to disturbance by accident or by contrivance’.112 And it gives recognition, it is said, to the Act operating ‘as a final determination of the litigants’ rights and liabilities regardless of their respective merits in the substantive cause of action’.113 2.29 Under s 63(1), on the expiry of the limitation period for a ‘cause of action to recover any debt damages or other money’, the right and title of the person formerly having that cause of action is, as against the person(s) against whom the cause of action formerly lay (or their successors), declared to be extinguished. A parallel extinguishment provision is found in s 64(1), as to a ‘cause of action for an account founded on a liability at law to account in respect of any matter’,114 to which s 63 must yield.115 Finally, both ss 63 and 64 yields to the extinguishment provision located in s 65(1),116 which applies to causes of action:117 [1] for conversion or detention of goods; [2] to recover land; [3] to enforce an equitable estate or interest in land; [4] to redeem mortgaged property; [5] to recover principal money secured by mortgage or to recover possession of mortgaged property from a mortgagor or to foreclose the equity of redemption of mortgaged property …; [6] to recover trust property or property into which trust property can be traced.

In this event, the title of a person formerly having the cause of action to the relevant property is, as against the person(s) against whom the cause of action formerly lay (or their successors), extinguished. In the case of land, as a consequence, the claimant ceases to have an interest therein capable of supporting a caveat.118 But the statute adds that there is no such extinction in the case of a cause of action for conversion or detention of goods if, before the expiry of the relevant time bar, the claimant recovers possession of the goods.119 2.30 In each of the above instances, moreover, if an action is brought on the relevant cause of action before the applicable time bar expires, its expiration does not affect the plaintiff’s right or title as to the matter in issue for the purposes of the action, or so far as the right or title is established in the action.120 [page 37]

Postponement from extinction for goods over which a possessory lien extends 2.31 Driven by a concern as to the effect of extinguishment of a debt on collateral rights against property,121 the Australian Capital Territory and New South Wales Acts save from extinction the right and title to the claim of a person (A) who has a lien on the goods in his or her possession for a debt or other money claim payable by B, as against B and B’s successors.122 But this is so only for so long as a cause of action of B (or someone claiming through B) for the conversion or detention of the goods (or recovery of the proceeds of sale thereof) has not accrued or is not barred by the Act, and then only so far as is necessary to support and give effect to the lien.123

Substantive right extinguished by contract 2.32 Aside from statute, it is open to contracting parties to agree, by the terms of their contract, that the effluxion of time will eliminate a cause of action otherwise available under the contract itself. Here it is the consensus

of the parties, not any statutory time bar, that serves to oust the right, not merely the remedy. The contract, as a result, affects the substantive law between the parties, not merely matters of procedure.

Substantive characterisation for choice of law purposes Statutory provisions 2.33 Legislation in each Australian jurisdiction makes provision to the effect that, as to proceedings commenced from the date of its commencement,124 if a substantive law of another State or Territory (or New Zealand)125 is to govern a claim before a court126 of the State or Territory, a limitation law127 of that other State or Territory (or New Zealand) is to be regarded [page 38] as part of that substantive law and applied accordingly by the court.128 It adds that where a State or Territory applies a limitation law of another State or Territory (or New Zealand), a discretion conferred by that law must be exercised, as far as practicable, in the manner in which it is exercised in comparable cases by the courts of that other place.129 2.34 In Mason v Murray’s Charter Coaches & Travel Services Pty Ltd,130 for example, the plaintiff was employed in the Australian Capital Territory but injured in New South Wales in the course of his employment with the defendant. He brought proceedings in the Australian Capital Territory. Had he sued in New South Wales, the time bar would have been governed by s 151D(2) of the Workers Compensation Act 1987 (NSW), under which an injured employee must commence proceedings for damages in respect of the injury within three years of the injury ‘except with the leave of the court in which the proceedings are to be taken’. The plaintiff was out of time under this provision, and in the Australian Capital Territory too, but relied on provision in the latter’s limitation statute to extend time, premised on the

court deciding that it is just and reasonable to do so.131 An issue before the court related to how s 57 of the Limitation Act 1985 (ACT), which deals with the exercise of the court’s discretion as mentioned in the final sentence of the preceding paragraph, impacted upon how an Australian Capital Territory court should, in these circumstances, exercise its discretion to extend time. It was Sackville J who addressed the point most comprehensively, remarking as follows:132 In exercising the discretion conferred by s 151D(2) of the Workers Compensation Act, in conformity with the direction given in s 57 of the Limitation Act (ACT), the ACT court is considering whether, given the circumstances of the occurrence in NSW, the limitation period should be extended under the law of NSW. In effect, the ACT court has been required to consider what a NSW court would do if asked to extend the limitation period in a case arising out of an occurrence in NSW. The ACT court is not required to consider how a NSW court would exercise its discretion under s 151D(2) of the Workers Compensation Act in a case arising out of an occurrence in NSW, where proceedings have been instituted in the ACT. The ACT court is to exercise its discretion in the manner in which it is exercised in ‘comparable cases’ by the courts of NSW. The ‘comparable cases’ referred to in s 57 of the Limitation Act (ACT), in my opinion, are those in which NSW courts exercise the discretion conferred by s 151D(2) of the Workers Compensation Act in relation to occurrences which have taken place in NSW. It follows that

[page 39] an ACT court, if it is to exercise its discretion under the NSW law in the manner in which it is exercised in comparable cases by NSW courts, must take into account the factors a NSW court would consider in a case arising out of an occurrence in NSW.

Backdrop to statutory provisions 2.35 The rationale for, and impact of, these statutory initiatives cannot be appreciated without an understanding of their backdrop. As noted elsewhere, the law has historically treated limitation provisions that bar the remedy rather than the right as procedural rather than substantive. Among the various implications of this treatment133 is its impact on matters of private international law. Choice of law rules traditionally characterise matters of procedure as governed by the lex fori (laws of a forum), that is, the law of the jurisdiction in which the action is brought. The forum court cannot, it is reasoned, ‘be expected to apply every procedural rule of the [other] state

whose law it wishes to apply’ and the forum’s procedural rules ‘exist for the convenience of the court, and forum judges understand them’.134 Matters of substantive law, conversely, are governed by the lex loci, namely the law of the place of the alleged wrongdoing that triggered the cause of action. Given the (supposedly) procedural nature of limitations provisions, courts of a State or Territory applied the limitation laws of that State or Territory (lex fori) in any action before them, even if the acts or omissions giving rise to the action occurred in some other State or Territory.135 2.36 This traditional approach was exemplified by the outcome in McKain v R W Miller & Co (SA) Pty Ltd.136 The plaintiff, whom the defendant (a New South Wales employer) had employed as a steward on ships operating between South Australian ports, suffered injury in South Australia during a lifeboat drill. Proceedings lodged in the New South Wales Supreme Court six years later were, the defendant argued, statute-barred under s 36(1) of the Limitation of Actions Act 1936 (SA), which set a three year time bar.137 The proceedings were not, though, statute-barred under the New South Wales limitations legislation. A majority of the High Court endorsed the procedural–substantive distinction in its application to choice of limitations law, noting that courts had ‘long adopted the distinction that a true statute of limitation, which does no more than cut off resort to the courts for enforcement of a claim, is a procedural law, while a statute which extinguishes a civil liability and destroys a cause of action is a substantive law’.138 As s 36(1) did no more than cut off resort to courts for the enforcement of a claim rather than extinguish the claim entirely, it was procedural in nature and thus had no application to a claim made in New South Wales, the majority ruled. Its procedural status, their Honours added, was confirmed by s 48,139 which authorised an order extending the time for bringing action.140 [page 40] 2.37 Mason CJ and Deane J each delivered strong dissents,141 querying both the procedural–substantive distinction and its ramifications in the

choice of law context. Mason CJ opined that the standard analysis, which views most statutes of limitation as denying only a remedy but not touching a plaintiff’s rights, ‘seems to overlook the fact that the effect of such statutes is to confer upon a defendant a very important right’, being the right to plead the limitation period as an absolute defence.142 And for the purposes of conflicts of laws, classification of limitation provisions as procedural, with its capacity to produce an outcome in the forum that differs from that resulting via adopting the lex loci (which was the upshot of the majority’s reasoning), his Honour saw as giving ‘scant recognition to the substantive operation of limitation provisions’.143 In fostering different results depending on the jurisdiction in which the matter is litigated, Mason CJ feared that this classification would encourage forum shopping, both undesirable as a matter of policy144 and capable of frustrating the aim of limitations statutes to prevent stale claims.145 The foregoing prompted the Chief Justice to reject any rule that ‘all matters which touch upon a remedy are necessarily to be treated as procedural’, and to surmise that ‘even if it be correct to say that a statute of limitations only affects the availability or otherwise of a remedy, that circumstance, of itself, should not dictate that statutes of limitation be classified as procedural’.146 His Honour encapsulated his thinking on the point via the following conclusion:147 When account is taken of the circumstances and times in which the classification of statutes of limitation as procedural first occurred and it is accepted, as it must be, that the right/remedy distinction is artificial and that, in reality, statutes of limitation confer an important right or privilege on a defendant which, if exercised, is intended to have substantive consequences, then the conclusion is compelling that statutes of limitation should be classified as substantive and available to be pleaded as a good defence in circumstances where the statute of limitations forms part of the law of the cause applied by the forum court according to its choice of law rules. Such a conclusion also obviates the need to consider whether a given statute of limitations extinguishes both the right and the remedy or only withholds the latter.

2.38 Deane J, in similar vein, branded the traditional distinction between right and remedy as ‘no acceptable basis for classifying limitation provisions as procedural and not substantive’.148 Like Mason CJ, his Honour cited the practical effect of time bars, viewing the unavailability of a remedy by reason of a time bar as ordinarily ‘of immeasurably greater significance than the theoretical persistence of the underlying right’.149 Even as a matter of theory, Deane J added, there arose intractable difficulties, explaining the point as follows:150

Where the law of one jurisdiction, under which a cause of action arises, provides that the action can be brought only within a designated period, the barring of the action after that period is

[page 41] as much a substantive provision of the law of that jurisdiction as was the provision, whether statutory or customary law, which gave rise to the cause of action in the first place. To say that a law which gives rise to a cause of action is substantive but a law which confines the bringing of the action and bars the remedy is merely procedural seems to me to confound reality and good sense.

It was unsurprising, his Honour remarked, that the common law rule that limitation provisions are procedural and not substantive for conflicts of law purposes had long been subjected to criticism,151 which explained in turn why outside the common law world limitation provisions ordinarily constitute substantive law for these purposes, and why in some jurisdictions it had been reversed152 and in others was under increasing pressure.153 Deane J was prompted to conclude that the common law, given its unsound theoretical basis and discordant practical effect, ‘is inappropriate to be applied, within the context of the domestic law of this country, to the resolution of competition or conflict between the laws of the States of the Commonwealth’.154 The alternative approach, whereby time bars are treated as substantive, would disincentivise forum shopping and ensure that in Australia, at least, different legal consequences do not flow from a single set of events. 2.39 Concerns of this kind drove the legislation mentioned at the outset to reverse the decision in McKain,155 such that if a substantive law of another jurisdiction is to govern the claim before the courts of the forum, then the limitation law to be applied is that of the jurisdiction whose substantive law is also to be applied. This means that both time bars and extension of time provisions are treated as substantive.156 2.40 Even aside from statutory intervention, in due course the courts arrived at essentially the same destination. In 2000 a majority of the High Court saw it as ‘very hard, if not impossible, to identify some unifying principle’ that would assist in making the distinction, in a particular case,

between questions of substance and questions of procedure in the choice of rules context.157 This led their Honours not to follow McKain on this point, and to accept, in line with Mason CJ’s dissenting remarks in McKain, that matters affecting ‘the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance’.158 The logical upshot was that ‘the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure’, and thus governed (as the legislation requires) by the lex loci.159 ______________________________ 1. 2. 3.

4. 5.

6.

7.

8.

9.

10. 11.

Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [30] per McCallum J. As to the extension of time see generally Chs 18–21. Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 404 per Donaldson LJ; Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 493 per McPherson J, with whom Connolly and Williams JJ concurred (‘Few rules were better settled than that under the original Statute of Limitations … it was the remedy only that was lost and not the right’); WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34; BC201007673 at [31] (FC). This is made explicit by statute in New Zealand: NZ s 43. Hurrinath Chatterji v Mohunt Mothoor Mohun Goswami (1893) LR 20 Ind App 183 at 192 per Sir Richard Couch (PC). Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704 per Lord Goddard CJ, with whom Tucker and Singleton LJJ concurred; Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 405; BC9002931 per Mason CJ; Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 534; BC9703255 per Gummow and Kirby JJ. Walkley v Precision Forgings Ltd [1979] 2 All ER 548 at 558 per Lord Diplock. As to clash between the ‘right’ of a plaintiff to bring legitimate proceedings and the ‘right’ of the defendant to plead a limitation period (or some other procedural bar, such as abuse of process) see Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [62]–[65] per Gleeson CJ, Gummow, Hayne and Crennan JJ. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 300 per Lord Diplock; Ketteman v Hansel Properties Ltd [1987] AC 189 at 219 per Lord Griffiths; Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [46] per Pullin JA. Hilton v Southern Steam Laundry [1946] KB 65 at 73 per Lord Greene MR, with whom Du Parcq and Morton LJJ concurred (‘the statute of limitations is not concerned with merits. Once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations is entitled, of course, to insist on his strict rights’). It has been observed that ‘the passing of a statute of limitations affects neither the unlawfulness of an underlying wrong nor the moral obligation of the wrongdoer, but only the remedy of one party to recover’: R A McCormick, ‘Interference with Both Sides: The Case Against the NFL-NFLPA Contract’ (1996) 53 Wash & Lee L Rev 397 at 427 (n 139). See 1.15, 1.16, 1.30. Ketteman v Hansel Properties Ltd [1987] AC 189 at 219 per Lord Griffiths; Cain v Francis [2009]

12. 13. 14.

15. 16.

17. 18. 19.

20. 21.

22.

23.

24.

QB 754; [2008] EWCA Civ 1451 at [64], [65] per Smith LJ. See, for example, McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 23–9 per Mason CJ, at 47–52 per Deane J; BC910261 (each dissenting), as to which see 2.36–2.40. Chase Securities Corp v Donaldson (1945) 325 US 304 at 313 per Jackson J. See NSW ss 63–68 (discussed at 2.28–2.31), giving effect to the view of the New South Wales Law Reform Commission that ‘it is a useful reform to extinguish the right when the cause of action for its enforcement is barred and thus abolish a number of complicated rules of law which have little practical importance but stand merely as an occasional embarrassment to the student, the lawyer and the citizen’: NSWLRC 3, para 323. See, for example, the views expressed in NZLC 6, paras 308, 309; WALRC(II) 36, p 191; Law Com 151, pp 393–6; QLRC 53, p 19. Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Rep ¶80-223 at 68,253; BC8801838 per Greenwood M (where two younger children were able to maintain an action under the Compensation to Relatives Act 1897 (NSW) on behalf of two older siblings whose action had been barred by NSW ss 19 (see 7.32) and 52 (see 14.9, 14.10)). See 3.36–3.38. See 2.33–2.40. Thursby v Warren (1628) Cro Car 159; 79 ER 738; Lee v Rogers (1663) 1 Lev 110 at 110; 83 ER 322 at 323 (‘the Court shall not give the defendant advantage thereof if he will not plead it’); Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 58–9 per Earl Cairns LC; The Llandovery Castle [1920] P 119 at 124 per Hill J; Walkley v Precision Forgings Ltd [1979] 2 All ER 548 at 558 per Lord Diplock; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 404 per Donaldson LJ; Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 at 409 per Vincent J; Doundoulakis v Antony Sdrinis & Co [1989] VR 781 at 784 per Ormiston J, with whom McGarvie and Marks JJ concurred; Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 405; BC9002931 per Mason CJ; Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 591; BC9701370 per Sackville J; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159; [2000] WASCA 415; BC200008007 at [36] per Malcolm CJ; Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246; BC200204145 at [16] per Giles JA. Donmez v Neissa [2012] VSC 73; BC201200953 at [32] per Kaye J. Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; BC6200490 per Windeyer J. Note also that even though the Australian Capital Territory and New South Wales legislation envisages that the expiry of the limitation period causes the extinction of (in the Australian Capital Territory, some of) the relevant entitlements (see 2.28–2.31), there is explicit provision to the effect that a party does not have the benefit of the extinction unless it is pleaded or appropriately claimed: ACT s 45; NSW s 68A. As to the backdrop to these provisions see NSWLRC 12, paras 13–31. Chapple v Durston (1830) 1 Cr & J 1 at 9; 148 ER 1311 at 1314 per Vaughan B (and declaring that the same requirement of pleading applies in this context whether the claim is in assumpsit or in debt; historically the law had maintained a distinction between the two: see at 8–9; 1314). Robertson v Hobart Police & Citizens’ Youth Club Inc [1982] Tas R 102 at 106 per Nettlefold J. See also Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 534; BC9703255 per Gummow and Kirby JJ (‘Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the court’). Robertson v Hobart Police & Citizens’ Youth Club Inc [1982] Tas R 102 at 114 per Cox J.

25. 26. 27.

28. 29. 30. 31. 32. 33. 34. 35.

36.

37.

38.

39. 40. 41.

See 1.5–1.7. Chapple v Durston (1830) 1 Cr & J 1 at 9; 148 ER 1311 at 1314 per Vaughan B. Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 64 per Lord Penzance. See also at 66 per Lord O’Hagan (‘the pleading of the statute, in order to shew the suspension of liability, was a matter of discretion and of choice’); Norris v McGeachy [2010] TASFC 4; BC201004109 at [22] per Blow J, with whom Evans and Tennent JJ concurred. See 20.18, 20.19. See 20.15, 20.37, 20.66, 20.91, 20.96. (1994) 63 SASR 267 at 269; BC9405607 per King CJ. See also at 273–4 per Perry J. (1986) 41 SASR 349. (1994) 63 SASR 267; BC9405607. Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; BC6200490 per Windeyer J. [1900] 2 QB 240. Wright v John Bagnall & Sons Ltd [1900] 2 QB 240 at 244 per Collins LJ (the limitation provision being the Workmen’s Compensation Act 1897 (UK) s 2(1) (repealed), which required that the claim for compensation be made within six months). See also at 245 per Vaughan Williams LJ (concluding that, in view of the agreement between the parties, the lapse of time ‘cannot be set up as a bar to the claim’); Lubovsky v Snelling [1944] KB 44 at 46 per Scott LJ, at 47–8 per Goddard LJ. The terms of the contract may negate obligations post-death: see, for example, McDonald v McDonald (1935) 35 SR (NSW) 173. Also, in the case of contracts for personal services, the death of either party ordinarily brings the contract to an end, which in turn informs the obligations of personal representatives: see, for example, Farrow v Wilson (1869) LR 4 CP 744. If, for example, the contract is rendered unenforceable for failing to meet applicable statutory writing requirements and would be disadvantageous to the estate to perform, fulfilling its terms amounts to a devastavit by the personal representative, for which he or she may be personally liable to the estate (or creditors): Re Rownson (1883) 29 Ch D 358 at 361 per Cotton LJ, at 363 per Bowen LJ; Midgley v Midgley [1893] 3 Ch 282 at 304 per A L Smith LJ. Hill v Walker (1858) 4 K & J 166 at 169; 70 ER 69 at 71 per Wood VC (‘It certainly cannot be considered to be law at the present day, that executors, paying a debt against the recovery of which the Statute of Limitations might be pleaded as a legal bar, render themselves liable over to those who are interested in the testator’s property. Instances of such payments must very frequently have occurred, and yet I am not aware of any case in which an executor, paying such a debt, has been held to incur any liability’); Jackson v Stothard [1973] 1 NSWLR 292 at 299 per Sheppard J. As to devastavit see G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, pp 401–2. Re Rownson (1883) 29 Ch D 358 at 362 per Cotton LJ. Re Rownson (1883) 29 Ch D 358 at 365 per Fry LJ. Re Rownson (1883) 29 Ch D 358 at 362–3 per Cotton LJ (having earlier said that ‘[w]e know that there are some people, both Judges and other persons, who think that to plead the Statute of Limitations is unconscionable’: at 362); Lovell v Lovell [1970] 3 All ER 721 at 722 per Salmon LJ (‘The courts are not particularly tender towards defendants who rely on the Statute of Limitations’). Cf Abdulla v Birmingham City Council [2012] ICR 1419; [2012] UKSC 47 at [41] per Lord Sumption JSC (branding it as ‘unjustified’ to treat issues of limitation ‘as an unmeritorious procedural technicality’).

42. 43. 44. 45. 46. 47.

48. 49. 50. 51.

52. 53.

54.

55.

56. 57. 58. 59. 60.

Midgley v Midgley [1893] 3 Ch 282 at 299 per Lindley LJ (‘an anomalous principle is not to be extended, but is to be confined within the limits of its own anomaly’). [1893] 3 Ch 282 at 299 (adding that the executor or administrator, in these circumstances, ‘has no business to throw over the protection which the decision of the court has given him’: at 300). Midgley v Midgley [1893] 3 Ch 282 at 303. See also at 304 per A L Smith LJ. NSW s 63, as to which see 2.29. [2010] NSWSC 1470; BC201009720 at [58]. See, for example, Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56; BC200400430 at [67] per Young CJ in Eq; Ellis v Ellis [2015] WASC 77; BC201501125 at [45] per E M Heenan J. See, for example, Re O’Reilly [2015] VSC 708; BC201512591 at [77]–[79] per McMillan J (who, as a result, considered that the ‘anomalous exception’ was ‘unlikely to apply in Victoria’: at [79]). Budgett v Budgett [1895] 1 Ch 202 at 215 per Kekewich J, followed in Re Dallas (1910) 6 Tas LR 65 at 67 per McIntyre J. Budgett v Budgett [1895] 1 Ch 202 at 216, 217 per Kekewich J. Budgett v Budgett [1895] 1 Ch 202 at 217 per Kekewich J. Hence the reason why, it has been held, an executor may be required, by a residuary legatee or other party interested, to set up the Statute of Limitations as an answer to a claim founded on a debt already incurred, whereas there is no equivalent obligation in a trustee in the face of objections by the beneficiaries: Re Thomson’s Mortgage Trusts [1920] 1 Ch 508 at 514 per Eve J. A point conceded by Kekewich J in Budgett v Budgett [1895] 1 Ch 202 at 217. There is some indication to this effect in an English decision, albeit against the backdrop of a statute that constrained the trustee’s entitlement to relinquish trust assets: Attorney-General v Trustees of the British Museum [2005] Ch 397; [2005] EWHC 1089 (Ch). See further McGee, pp 275–6. Re General Rolling Stock Co Ltd (1872) 7 Ch App 646; Re Fleetwood and District Electric Light and Power Syndicate [1915] 1 Ch 486 at 490 per Astbury J; Re Art Reproduction Co Ltd [1951] 1 Ch 89 at 93–4 per Wynn-Parry J. See further I F Fletcher, The Law of Insolvency, 4th ed, Sweet & Maxwell, London, 2009, pp 754–5. Dismore v Milton [1938] 3 All ER 762 at 763 per Greer LJ; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 404 per Donaldson LJ; Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246; BC200204145 at [16] per Giles JA. As to concealed fraud see generally Ch 15. As to acknowledgement see generally Ch 17. For example, disability, as to which see generally Ch 14. See generally Chs 18–21. [1973] 1 WLR 1019 at 1027. See also at 1024 per Davies LJ (opining that, in the absence of ‘any room for an escape from the statute’, it is ‘difficult to see why a defendant should be called upon to pay large sums of money and a plaintiff be permitted to waste large sums of his own or somebody else’s money in an attempt to pursue a cause of action which has already been barred by the [Limitation Act] and must fail’), at 1026 per Stephenson LJ (‘it would be absurd for the court, faced with an application such as this to strike out, under its inherent jurisdiction or under the rules, a claim as an abuse of the process of the court, to shut its eyes to the fact that there is going to be raised an apparently unanswerable plea of the Limitation Act’); Ronex Properties Ltd v John

61.

62.

63.

64.

65.

66. 67. 68.

Laing Construction Ltd [1983] QB 398 at 408 per Stephenson LJ. Cf Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 at 409–10 per Vincent J. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; BC9202700 per Mason CJ, Dawson, Gaudron and McHugh JJ. See also Morgan v Banning (1999) 20 WAR 474 at 480; BC9902034 per Wheeler J (‘It is generally undesirable to attempt to determine questions of limitation other than in the context of a substantive trial’); Schijf v Mydomaine Pty Ltd [2015] WASC 428; BC201510934 at [40] per Mitchell J. See, for example, Samson v Zucker (CA(NSW), Gleeson CJ, Cole JA and Simos AJA, 11 December 1996, unreported) BC9606395; Cheney v Duncan (2001) 34 MVR 28; [2001] NSWCA 197; BC200103671; Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797; BC200907985 at [92] per Davies J; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98; [2009] WASCA 29; BC200900218 at [38] per Pullin JA, with whom Wheeler and Miller JJA concurred; Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591; BC201505017 at [12]–[16] per Young AJA. See also Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 598; BC9701370 per Sackville J, with whom Foster and Lehane JJ concurred. Cf Butler v Gaudron (CA(NSW), Handley, Sheller and Cole JJA, 17 November 1994, unreported) BC9403304 at 3–4 (declaring that the original application for the availability of the limitation defence to be determined as a preliminary question was misconceived because it would have to proceed on assumed facts). See, for example, Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3; BC201400245 (where the court noted (at [95]) that, having regard to the breadth of the applicant’s application and the considerations of cost, efficiency and case management that the Federal Court of Australia Act 1976 (Cth) s 37M requires the court to take into account in exercising its powers, the trial judge’s decision to order a separate trial of the limitation issues (see Kedem v Johnson Lawyers Legal Practice Pty Ltd [2013] FCA 432; BC201302358) was ‘entirely understandable’); Wells v Commonwealth of Australia [2014] NSWSC 148; BC201401070 (where Adamson J noted (at [18]) that ‘limitation questions are in one sense, in a notionally separate category from other matters to be determined in a separate hearing in that, if they are decided in favour of the defendant, they obviate the need for a trial altogether’, such that ‘[i]t is not uncommon that they be determined in advance of a hearing, and indeed, on occasions, on summons, in advance of the plaintiff filing a statement of claim’; on the facts his Honour found (at [65]) that the principles in the Civil Procedure Act 2005 (NSW) ss 56–59, which dictate that the just, quick and cheap resolution of the proceedings, would be advanced by having the plaintiff’s entitlement to pursue the proceedings determined separately and in advance of the trial, rather than having a full trial on all issues including the plaintiff’s application for extension of the limitation period). Norris v McGeachy [2010] TASFC 4; BC201004109 at [22] per Blow J, with whom Evans and Tennent JJ concurred. See, for example, Scott v Hazelwood (2001) 10 Tas R 67; [2001] TASSC 45; BC200101711. Ramton v Cassin (1995) 38 NSWLR 88 at 92–3; BC9501680 per Cole JA, with whom Meagher JA concurred; Brambles Australia Ltd v Hall (CA(NSW), Clarke and Powell JJA, Young AJA, 8 November 1995, unreported) BC9501751 at 2 per Clarke JA. See, for example, Commonwealth v Verwayen (1990) 170 CLR 394; BC9002931, discussed at 4.61. [1987] AC 189. Ketteman v Hansel Properties Ltd [1987] AC 189 at 219 (on the facts finding that the defendants ‘had no one but themselves to blame for not pleading limitation in the original defence if they had wished to do so’: at 223). Lords Templeman (at 217) and Goff (at 223) concurred on this

69. 70. 71. 72. 73. 74. 75. 76. 77.

78.

79.

80. 81. 82.

83.

84.

point. Ketteman v Hansel Properties Ltd [1987] AC 189 at 219. Law Com 151, pp 397–8. [1963] AC 758 at 784 per Lord Pearce, with whom Lords Reid, Evershed and Morris agreed. Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189 at 202. See also at 208 per Pearson LJ. London Congregational Union Inc v Harriss & Harriss (a firm) [1988] 1 All ER 15 at 30 per Ralph Gibson LJ, at 34 per Sir Denys Buckley. See 2.2–2.5. See 2.6. Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 at 74 (App Div). [1993] 1 VR 27 at 72. See also Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 283 per Mason CJ and Gaudron J, at 303 per Toohey J; BC9002932 (whose remarks can be interpreted as favouring an onus on the defendant). See, for example, Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 135–6 per Lord Blackburn (cited as the relevant authority by both Harman LJ (at 202) and Pearson LJ (at 208) in Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189) (which, when considered, is not a strong authority directly on point); O’Connor v Isaacs [1956] 2 QB 288 at 364 per Romer LJ (involving an entirely obiter observation on a point not in issue). See also Cohen v Cohen (1929) 42 CLR 91; BC2900026 (where, in answer to a plea in reliance on the Statute of Limitations in relation to sums of money claimed by a plaintiff wife against her defendant husband, the plaintiff pleaded an acknowledgement in writing (see Ch 17), but the court in Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 at 74 noted that the words used by Dixon J in Cohen (at 102) left doubt whether his Honour intended to endorse the proposition that the onus of proof lay on the plaintiff). Namely Hurst v Parker (1817) 1 B & Ald 92 at 93; 106 ER 34 at 35 per Lord Ellenborough CJ, at 94; 35 per Holroyd J; Wilby v Henman (1834) 2 Cr & M 658 at 661; 149 ER 924 at 926 per Vaughan B. Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 at 76 (App Div). Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 at 76 (App Div). Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159; [2000] WASCA 415; BC200008007 at [36]–[52] per Malcolm CJ, with whom Kennedy J concurred; Cassis v Kalfus [2001] NSWCA 460; BC200107761 at [65] per Hodgson JA; Segal v Fleming [2002] NSWCA 262; BC200204522 at [27] per Hodgson JA; Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [36] per Mason P; Donmez v Neissa [2012] VSC 73; BC201200953 at [32] per Kaye J; Oram v BHP Mitsui Coal Pty Ltd [2015] 2 Qd R 357; [2014] QSC 230; BC201408907 at [19] per McMeekin J; Piscioneri v Reardon [2015] ACTSC 61; BC201502638 at [61] per Refshauge J. It appears that New Zealand law is likewise: Humphrey v Fairweather [1993] 3 NZLR 91 at 98–101 per Tipping J. WA s 79(1). As to the backdrop to this provision see WALRC 36(II), pp 210–15 (recommending instead that the plaintiff bear the onus of proving that the action was commenced within the standard limitation period, but casting on the defendant the onus of proving that the action was not commenced with the proposed 15 year ultimate limitation period). The same has translated to statute in New Zealand: NZ s 11(3). See 2.24–2.31.

85. 86. 87. 88. 89. 90. 91.

92. 93.

94. 95. 96. 97.

98.

99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 73 (App Div); Grant v YYH Holdings Pty Ltd [2012] NSWCA 360; BC201208554 at [44] per McColl JA. Pursuant to ACT ss 43, 44; NSW ss 63–68, discussed at 2.28–2.31. ACT s 45; NSW s 68A. See NSWLRC 12, paras 13–31. See generally Ch 17. See generally Ch 14. This is made explicit, by way of statute vis-à-vis legal and mental disability, in Western Australia: WA s 79(2) (which states that the plaintiff has the burden of proving that the time mentioned in WA ss 32(1) (suspension of time while person under 18 and without guardian: see 14.34) or 35(1) (suspension of time while person has mental disability and without guardian: see 14.34) does not count in the reckoning of the limitation period). See generally Chs 18–21. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 303 per Lord Diplock; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 567; BC9604531 per Kirby J (dissenting, but not on this point); Sayers v Lord Chelwood [2013] 2 All ER 232; [2012] EWCA Civ 1715 at [52]–[56] per Jackson LJ, with whom Kitchin and Arden LJJ concurred. This is made explicit in WA s 79(3). See generally Ch 7. Donmez v Neissa [2012] VSC 73; BC201200953 at [33] per Kaye J. Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [47] per Pullin JA. (1962) 108 CLR 471 at 488; BC6200490. See also The Crown v McNeil (1922) 31 CLR 76 at 100; BC2290111 per Isaacs J; Commonwealth v Verwayen (1990) 170 CLR 394 at 497; BC9002931 per McHugh J; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 43; BC9102614 per Brennan, Dawson, Toohey and McHugh JJ. De Beauvoir v Owen (1850) 5 Ex 166 at 177; 155 ER 72 at 77 per Patteson J (remarking that ‘the true reason for requiring the statute to be pleaded is, that it confesses and avoids the declaration, and therefore is not comprehended within any plea, which merely denies the whole or part of the declaration’); Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 59 per Earl Cairns LC, at 64 per Lord Penzance, at 66 per Lord O’Hagan (in the context of title to real property being extinguished by statute upon the elapsing of time). See 2.28–2.31. ACT s 45; NSW s 68A. Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120; BC200904485 at [90] per Beazley JA. (1986) 7 NSWLR 77. Under NSW s 51, as to which see 4.62–4.64. Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 at 80. Under NSW s 51(2), as to which see 4.62. NSW s 65(1), Sch 4; Qld s 24(1); SA s 28; Tas s 21; Vic s 18; WA s 75(a). See 8.13–8.21. ACT s 43(1).

109. ACT s 43(2). 110. WALRC 36(II), p 56. 111. Cf WALRC 36(II), pp 207–8 (which recommended against following the New South Wales approach in order, inter alia, to ‘preserve the important principle that a defendant may choose not to rely on a limitation defence and instead defend the action on other grounds’ and to avoid the need, under its recommended scheme, ‘to make an exception to cover cases where the period was extended under the discretionary provision’). 112. NSWLRC 3, p 9 (and in so recommending the Commission addressed, and with limited exception (dealing with liens: see 2.31) discounted, the nine instances where the Wright Committee in 1936 (at para 24) considered that the continued existence of a right after the remedy way barred retained significance: paras 308–323). See also D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt I) (1970) 7 MULR 407 at 423–4 (who argues that concentrating on a remedy than the a right in this context is inconsistent with the ‘repose’ function of limitations statutes). 113. NSWLRC 50, para 1.9. 114. NSW s 64(1). 115. NSW s 63(3). 116. NSW ss 63(3), 64(3). 117. NSW Sch 4. 118. Verebes v Verebes (1995) 7 BPR 14,408 at 14,411; BC9505238 per Young J. 119. NSW s 65(3). This provision was inserted because, were NSW s 65(1) read literally, without regard to its obvious purpose, the result would be that if A’s goods are wrongfully withheld from him by B, so that a cause of action for conversion or detention of the goods accrued to A, A’s title to the goods would, upon the expiration of six years from the accrual of the cause of action, be extinguished as against B and his successors, even though in the meantime B has restored the goods to A: NSWLRC 12, paras 39–41. 120. NSW ss 63(2), 64(2), 65(2). 121. NSWLRC 3, paras 314, 315. 122. ‘Successor’, for a person liable on a cause of action, means someone on whom the person’s liability devolves, whether or not: (a) as personal representative or otherwise on death; or (b) bankruptcy, disposition of property, or ending of a limited interest in property: ACT Dictionary; NSW s 11(1). 123. ACT s 44; NSW s 68. See, for example, Coshott v Coshott [2015] FCA 1284; BC201511516 at [20], [21] per Buchanan J (application in the context of a solicitor’s general possessory lien). 124. Limitation Amendment Act 1993 (ACT) s 2 (30 November 2003); Choice of Law (Limitation Periods) Act 1993 (NSW) s 4 (3 December 1993); Choice of Law (Limitation Periods) Act 1994 (NT) (7 November 1994); Choice of Law (Limitation Periods) Act 1996 (Qld) s 3(1) (1 November 1996); Limitation of Actions (Recovery of Taxes and Substantive Law) Amendment Act 1994 (SA) s 2(2) (9 June 1994); Tas s 32B; Choice of Law (Limitation Periods) Act 1993 (Vic) s 2 (23 November 1993); Choice of Law (Limitation Periods) Act 1994 (WA) s 3(1) (27 May 1994). 125. In New South Wales, Queensland and Western Australia, the relevant provisions do not apply in relation to New Zealand until it is declared by proclamation (in Queensland, by regulation) that it does so apply: Choice of Law (Limitation Periods) Act 1993 (NSW) s 7(1); Choice of Law (Limitation Periods) Act 1996 (Qld) s 3(2); Choice of Law (Limitation Periods) Act 1994 (WA)

126.

127.

128.

129.

130. 131. 132.

s 3(2). They add that if the substantive law of New Zealand is to govern a claim before a court of the State and proceedings have been instituted on the claim before that declaration takes effect, the Australian statutes do not apply to those proceedings: Choice of Law (Limitation Periods) Act 1993 (NSW) s 7(2); Choice of Law (Limitation Periods) Act 1996 (Qld) s 3(3); Choice of Law (Limitation Periods) Act 1994 (WA) s 3(3). For this purpose, ‘court’ includes arbitrator: ACT s 55; Choice of Law (Limitation Periods) Act 1993 (NSW) s 3; Choice of Law (Limitation Periods) Act 1994 (NT) s 4; Choice of Law (Limitation Periods) Act 1996 (Qld) s 3; Tas s 32A; Choice of Law (Limitation Periods) Act 1993 (Vic) s 3; Choice of Law (Limitation Periods) Act 1994 (WA) s 4. There is no equivalent provision in South Australia. For this purpose, ‘limitation law’ means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in relation to a claim by reference to the time when a proceeding on, or the arbitration of, the claim is begun: ACT s 55; Choice of Law (Limitation Periods) Act 1993 (NSW) s 3; Choice of Law (Limitation Periods) Act 1994 (NT) s 4; Choice of Law (Limitation Periods) Act 1996 (Qld) s 3; SA s 3(1); Tas s 32A; Choice of Law (Limitation Periods) Act 1993 (Vic) s 3; Choice of Law (Limitation Periods) Act 1994 (WA) s 4. It has been suggested that this definition of ‘limitation law’ is wide enough to encompass a time limitation annexed by a statute to a right created by that statute, which goes beyond the concept of a ‘limitation law’ as understood at common law (as to which see 1.4): Rees and Chapman, p 107. ACT s 56; Choice of Law (Limitation Periods) Act 1993 (NSW) s 5; Choice of Law (Limitation Periods) Act 1994 (NT) s 5; Choice of Law (Limitation Periods) Act 1996 (Qld) s 5; SA s 38A(2); Tas s 32C; Choice of Law (Limitation Periods) Act 1993 (Vic) s 5; Choice of Law (Limitation Periods) Act 1994 (WA) s 5. The New South Wales and South Australian limitations legislation was amended, at the same time as the above enactments took effect, to provide that a limitation law of the State is to be regarded as part of the substantive law of the State: NSW s 78(2); SA s 38A(1). It has been said that these sub-sections cannot change the effect of a limitation law, such that ‘if the law merely bars the remedy and does not extinguish the right, a statute-barred cause of action continues to exist even though the law is regarded as part of the substantive law’; their intention, rather, ‘appears to be that a limitation law of New South Wales [or South Australia] which under the rules of private international law might otherwise not be applied in another place because it is procedural, should now be regarded as part of the substantive law and be applied in that other place’: Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 507; BC9703255 per Dawson J. If so, they do no more than replicate the substance of the primary provisions noted above. A parallel statutory initiative has ensued in the United Kingdom: Foreign Limitation Periods Act 1984 (UK) s 1 (see generally McGee, Ch 25; Canny, Ch 3). ACT s 57; Choice of Law (Limitation Periods) Act 1993 (NSW) s 6; Choice of Law (Limitation Periods) Act 1994 (NT) s 6; Choice of Law (Limitation Periods) Act 1996 (Qld) s 6; SA s 38A(3); Tas s 32D; Choice of Law (Limitation Periods) Act 1993 (Vic) s 6; Choice of Law (Limitation Periods) Act 1994 (WA) s 6. (1998) 88 FCR 308; BC9805974. Namely ACT s 36(2), as to which see 20.2, 20.3. Mason v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308 at 330; BC9805974. See also at 316 per Higgins J, at 320 per Drummond J (remarking that ACT s 57 is a direction to the ACT court ‘that it can mitigate the effect of the governing time bar created by the NSW law, but only by applying the provisions of the NSW limitation law that permit the

133. 134. 135.

136. 137. 138.

139. 140. 141. 142. 143. 144.

145. 146. 147. 148. 149. 150.

extension of its time bars as closely as possible to the way a NSW Court would apply those provisions if the case brought before the ACT Court had instead been brought in the NSW Court’). See 2.6–2.23. Tolofson v Jensen [1994] 3 SCR 1022 at 1067 per the court. Huber v Steiner (1835) 2 Bing (NC) 203; 132 ER 80; Harris v Quine (1869) LR 4 QB 653; Alliance Bank of Simla v Carey (1880) 5 CPD 429 at 430 per Lopes J; Pedersen v Young (1964) 110 CLR 162 at 166 per Kitto J, at 167 per Menzies J, at 169 per Windeyer J; BC6400110; John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 92–3; BC7300013 per Mason J; Black-Clawson Ltd v Papierwerke AG [1975] AC 591 at 630 per Lord Wilberforce (‘Classification of limitation as procedural means that in proceedings in an English court, English law, as the lex fori, will apply its domestic law as to limitation and will not apply foreign limitation provisions even if the foreign law is the proper law, unless, at least, they extinguish the right’). (1991) 174 CLR 1; BC9102614. See 7.63–7.65. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41; BC9102614 per Brennan, Dawson, Toohey and McHugh JJ. See also Stevens v Head (1992) 176 CLR 433 at 456–7; BC9303608 per Brennan, Dawson, Toohey and McHugh JJ. As to SA s 48 see 19.1, 19.2. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 44; BC9102614 per Brennan, Dawson, Toohey and McHugh JJ. Gaudron J also dissented, on different grounds, while nonetheless agreeing with the approach of Mason CJ. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 23; BC9102614. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 23–4 BC9102614. See, for example, the following remarks of Shepherdson J in Jones v Thiess Bros Pty Ltd (SC(Qld), Shepherdson J, 8 April 1993, unreported) BC9303029: ‘I do find distasteful the fact that the plaintiff in the present case has been able to litigate in the New South Wales Supreme Court a case in which all relevant elements occurred in Queensland and has done so solely because the defendant happened apparently to have been registered in New South Wales at the material time. The plaintiff has thereby been able to avoid the operation of the Queensland statute of limitations. The litigation framework should not in effect be akin to a game of chance whereby a litigant is enabled, by choosing a particular forum with which he can demonstrate a tenuous connection, to litigate a claim which in his home jurisdiction, the lex loci delicti, he would be barred from pursuing’. In approaching this issue, the law looks for the forum having the ‘closest and most real connection’ to the matter: see, for example, Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495 at [79]–[95] per Stevenson J. As to the objects of limitations statutes generally see 1.15–1.33. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 24; BC9102614. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 29; BC9102614. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 48; BC9102614. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 48; BC9102614. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 49; BC9102614.

151. See, for example, Harris v Quine (1869) LR 4 QB 653 at 657 per Cockburn CJ. 152. See, for example, NSW s 63 (which provides for the extinction of right and title upon the expiry of the limitation period, and thus a ‘substantive’ effect of the time bar), as to which see 2.28–2.30. 153. See Law Commission (England and Wales), Classification of Limitation in Private International Law, Working Paper No 75, 1980, paras 24–30; D Kelly and J Crawford, ‘Choice of Law Under the Cross-vesting Legislation’ (1988) 62 ALJ 589 at 590. 154. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 50; BC9102614. 155. See Gardner v Wallace (1995) 184 CLR 95 at 98–100 per Dawson J; Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 510–11; BC9703255 per Dawson J; Mason v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308 at 325–6; BC9805974 per Sackville J. See also P E Nygh, ‘The Miraculous Raising of Lazarus: McKain v R W Miller & Co (SA) Pty Ltd’ (1992) 22 UWALR 286. 156. See, for example, Berriman v Cricket Australia (2007) 17 VR 528; [2007] VSC 365; BC200708253 at [24]–[27] per Forrest J (in the context of extension of time). 157. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; BC200003351 at [97] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 158. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; BC200003351 at [99] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The Supreme Court of Canada had reached essentially the same conclusion some years earlier: Tolofson v Jensen [1994] 3 SCR 1022 at 1070–4 per the court. 159. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; BC200003351 at [100] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See also Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [45] per Sackville AJA.

[page 42]

CHAPTER 3

Application of Time Bars Application to the Crown Application to the Commonwealth Interaction between Commonwealth and State law Identifying the limitation statute to be applied Application to Derived Rights Application to Arbitrations Application by Way of Default Relationship with time bars prescribed in other statutes Motor accident compensation — New South Wales Motor accident compensation — Queensland No Application to Criminal Prosecutions Limited Application to Equity Equitable relief broadly not subject to limitation except by analogy Traditional exclusion of equity from limitation Statutory embracing of equity within limitation Attempts to couch a cause of action in equity to avoid limitations time bar Equitable defences preserved Statutory preservation of equitable defences Interaction between time bars at law and in equity

3.2 3.4 3.4 3.7 3.11 3.12 3.13 3.13 3.15 3.22 3.25 3.26 3.26 3.26 3.27 3.29 3.30 3.30 3.31

Application not Ordinarily Retrospective General principle as to retrospectivity Application to limitation statutes

3.33 3.33 3.36

3.1 Before diving headlong into limitation law in its application to particular causes of action, which forms the subject of Part II, it is necessary to identify the parameters for the application of limitations statutes. In some ways they are expansive in their application. As this chapter reveals, limitations statutes apply to government (including the Crown), as well as to arbitrations and vis-à-vis derived rights (that is, to persons who claim through a party to the cause of action). At the same time, though, they yield to time bars found in other Acts, and for chiefly historical reasons have traditionally limited application to causes of action in equity. Outside of the limitation umbrella entirely are criminal prosecutions. That limitations statutes, and their amendment, are not ordinarily construed as retrospective in operation is explained in the concluding part of the chapter. [page 43]

Application to the Crown 3.2 At common law, limitations periods could be used by the Crown to defend against actions, but could not be used by defendants pursued by the Crown.1 Statute now makes explicit, however, that there is no exclusion of the Crown2 (and government generally) from the binding effect of limitations legislation;3 in most jurisdictions it also confirms the existing position4 that the Crown (and government generally) can plead the limitation defence on its own behalf.5 Application of limitations periods to the Crown, it is said, ‘benefits the legal system by creating certainty and predictability’ and ‘serves to protect society at large by ensuring that claims

against the Crown are made in a timely fashion so that the Crown is able to defend itself adequately’.6 3.3 The application of limitations statutes to the Crown must yield to contrary provision, whether in the statutes themselves or another statute. Though this is made explicit in only the Australian Capital Territory, New South Wales, Tasmania and Victoria,7 it reflects a basic principle of statutory interpretation with application elsewhere. For example, excepting South Australia, actions by the Crown to recover any tax or duty, or interest thereon, are also exempted from limitations legislation.8 In most jurisdictions, similarly exempted are actions by the Crown in respect of the forfeiture of a ship.9 In the Northern Territory, Queensland, Victoria and Western Australia, the Crown’s right, title or interest to or in land cannot be affected by reason of the possession of the land adverse to the Crown for any period.10 It follows that no one can take title against the Crown by adverse possession in these jurisdictions, and that the Crown (or a person claiming through it) may [page 44] pursue an action to recover land at any time if it is brought on a cause of action that accrues to the Crown.11 Nor do limitation periods affect the Crown’s prerogative right to ‘mineral rights’ (in the Australian Capital Territory)12 or ‘gold and silver’ (in New South Wales).13

Application to the Commonwealth Interaction between Commonwealth and State law 3.4 That there is no Commonwealth statute of limitations has necessitated statutory provision governing how the State and Territory statutes can operate in Federal courts and where the Commonwealth is a party. As to the latter, s 64 of the Judiciary Act 1903 (Cth) states that ‘[i]n any suit to which the Commonwealth or a State is a party, the rights of

parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject’. This serves to apply the relevant limitations statute in proceedings to which the Commonwealth is a party; the Commonwealth’s rights, and those of other parties to the proceedings, are ‘subject to any statute of limitation which would apply if all parties were private persons’.14 That statute is so applied by force of Commonwealth law, and not by its own force as a State law.15 Two main issues have surfaced in this context. The first relates to the relationship between State limitation laws and Federal statutory schemes that impose time bars. The second stems from the fact that s 64, assuming that it applies, does not identify any particular (limitation) statute to be applied for its purposes. Each of these issues is addressed in turn below under separate sub-headings. 3.5 It should not be assumed that s 64 applies State limitation laws even in the face of time bars imposed by Federal statutes. As explained, in more encompassing terms, by the High Court in Dao v Australian Postal Commission:16 [Section 64] was intended to fill what would otherwise be lacunae or gaps in the law of the Commonwealth. It is not to be understood as intended to have the practical effect of overriding s 109 of the Constitution by indirectly applying a provision of a law of a State to circumstances to which its direct application is invalidated by reason of inconsistency with a provision of an existing law of the Commonwealth. A fortiori, s 64 should not be construed as intended to manufacture a new kind of indirect inconsistency between a provision of a State law and a provision of a law of the Commonwealth by applying a provision of a State law to a situation to which it does not purport to apply in circumstances where, if rendered directly applicable, it would be relevantly inconsistent with the direct operation of the provision of the law of the Commonwealth. Rather, the section should and must be construed as intended to extend a litigant’s rights in a suit in particular circumstances only if, and to the extent that, there be no directly applicable and inconsistent (in the relevant sense) Commonwealth law already regulating those circumstances.

The issue arose, vis-à-vis limitations legislation, in Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd.17 The respondent sought to withstand the appellant’s claim for unpaid income tax under the Income Tax Assessment Act 1936 (Cth) by arguing that it was time-barred by virtue of the application of the relevant State limitation statute under

[page 45] the auspices of s 64 of the Judiciary Act 1903. The High Court approached this argument by inquiring whether s 64 served to apply the limitation periods that would be applicable were the appellant’s action for unpaid tax, if possible, brought in the Supreme Court of the relevant State by a subject. It answered this question in the negative, reasoning that the provisions of the Income Tax Assessment Act 1936 themselves precluded any operation of s 64 that would have that effect. As their Honours explained, ‘where a Commonwealth legislative scheme is complete upon its face, s 64 will not operate to insert into it some provision of State law for whose operation the Commonwealth provisions can, when properly understood, be seen to have left no room’.18 Intrusion of State limitation statutes here, the court surmised, would ‘significantly undermine the scheme for collection and recovery of tax’ found in the Income Tax Assessment Act.19 It cited, by way of illustration, a potential conflict involved in applying State limitation law vis-à-vis the provisions of the Income Tax Assessment Act on the amendment of assessments, which impose ‘carefully structured time restrictions’ on the Commissioner’s power to issue an amended assessment.20 3.6 There is accordingly no room, under s 64 of the Judiciary Act, for State (limitation) law to apply in a federal statutory scheme if the latter is in effect a complete code or covers the field. In Moorebank the court phrased the test in terms of whether the relevant provisions of the federal legislation have ‘effectively covered the field and left no room for direct or indirect intrusion provisions of State Limitation Acts to limit the time in which an action can be brought’.21 This test, applied in Child Support Registrar v Meekin,22 led Hartnett FM to rule that the Limitation of Actions Act 1958 (Vic) did not apply for enforcement of child support, in the face of federal statutes23 prescribing a comprehensive scheme for the recovery of child support debts. It has been judicially observed, in this context, that a limitation period in a federal statute should ordinarily operate to oust the application of a State limitation period to what is essentially the same claim.24

Identifying the limitation statute to be applied 3.7 Whilst s 64 of the Judiciary Act 1903 (Cth) requires the rights of litigants in proceedings to which it applies to be determined by treating them as nearly as possible on the same footing, the body of law by which those rights fall to be ascertained is unspecified. That the section does not itself identify any limitation statute to be applied for that purpose is rectified by ss 79 and 80 of the Judiciary Act.25 Section 79(1) reads as follows: The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

The concluding words ‘in all cases to which they are applicable’ involve cases in which a federal court is exercising federal jurisdiction in the State, and to which the State law would in [page 46] its terms apply were it not that the proceedings are in a federal court.26 The broad purpose of s 79 — to ensure that State laws are applied by courts in the exercise of federal jurisdiction — requires that State laws be applied according to their terms; there is, by virtue of s 79, no power in a court exercising federal jurisdiction to alter the language of a State statute and apply it in that altered form.27 In other words, when s 79 applies it ‘does not purport to do more than pick up State laws with their meaning unchanged’.28 The change s 79 effects, by reference to time bars, was explained by Walsh J in John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd:29 The extent of the operation of State laws governed by s 79 is, of course, changed. Its purpose is to extend their operation so that they apply in courts exercising federal jurisdiction in that State. If a State law imposes a time limit for the commencement of action of a kind which may be heard by the court of that State, and if s 79 is held by a court exercising federal jurisdiction in that State to apply, then the law of the State operates in the same way in whichever court the action comes on to be heard and whether the court hearing it is exercising federal or State jurisdiction.

3.8

Under s 80 of the Judiciary Act:

… [s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

3.9 Taken together, ss 79 and 80 operate to apply to each proceeding the entire body of law in the relevant State, as federal law if not by its own force, except to the extent to which it is inconsistent with federal laws. In the case of limitation law, there is, in the face of ‘no Commonwealth statute of limitations’, no inconsistency in these cases.30 By way of chronology, it is apt to consider the question of (in)sufficiency of federal law in s 80, before turning to s 79 to ascertain whether a State law is picked up in the case at hand.31 And when considering s 79, as State laws are binding on the court exercising federal jurisdiction ‘in all cases to which they are applicable’, it is necessary first to determine whether a State law upon which reliance is placed is applicable.32 The issue has seen ventilation in the case law, for limitations purposes, particularly in relation to State choice of law rules. 3.10 It has been held, to this end, that s 79 does not pick up a State law that applies only to actions commenced in that State, if the proceedings are commenced in another State. Menzies J explained the backdrop to this, in the context of limitations legislation, in Pedersen v Young:33 Since [the Limitation Act 1623 (UK)] the usual form of a statute of limitation has been to provide that an action shall not be brought except within the time stated after the cause of action arose. A statute in this form, notwithstanding any generality of expression, must of necessity be construed as applying to the commencement of actions in courts subject to the power of the legislature enacting it and to no other courts. It follows that a Queensland statute of limitation … which is in common

[page 47] form, must be read as applying only to the commencement of proceedings in courts subject to the legislative power of the Parliament of Queensland. The statute cannot, therefore, of its own force apply to the commencement of proceedings in the High Court of Australia whether in Queensland or elsewhere. If the Queensland Parliament were to attempt to govern proceedings in this Court, the law so doing would to that extent be invalid.

While s 79 provides for the application of State law in federal proceedings — and so, in the context of the above quote, can extend the application of Queensland limitation law to proceedings in the High Court even if it is confined, on its proper constructions, to proceedings brought in Queensland34 — it does not ‘pick up’ the law of another State in those proceedings. In Pedersen the relevant Queensland limitation statute35 prescribed a time limit for commencing tort actions in Queensland. The action, arising out of a motor vehicle accident in Queensland as between residents of different States,36 was commenced in the New South Wales registry of the High Court. As s 79 picks up State laws with their meaning unchanged, the court ruled that it could not convert the Queensland limitation statute into a provision limiting the time for the commencement of actions outside Queensland.37 In subsequent High Court cases the same has been decided even though the proceedings were later remitted or transferred to a court within the State exercising federal jurisdiction.38

Application to Derived Rights 3.11 Limitations provisions are often expressed to apply vis-à-vis not just a party to the claim, but to a person who claims through that party. This explains why the limitations statutes contain a dedicated provision on derived rights in the limitations context. In the Australian Capital Territory, New South Wales and Western Australia these declare that a person (A) claims through someone else (B) in respect of any ‘property or right’ if A is entitled to the property or a right by, through, under or by the act of B.39 The Northern Territory, Queensland, Tasmanian and Victorian statutes convey an equivalent notion in stating that A is taken (or deemed) to claim through B if A became entitled by, through or under the act of B to the ‘right’ claimed.40 But in each of the above jurisdictions a person becoming entitled to a right, interest or estate by virtue of a special power of appointment is not taken to claim through the appointor.41 While only the Australian Capital Territory legislation adds that, for the above purposes, ‘a thing done to or by or suffered by an agent is done to or by or suffered by the agent’s principal’,42 as this reflects general agency law the same should presumably ensue elsewhere.

[page 48] The South Australian statute addresses a parallel notion, without a special power of appointment exception, in archaic language. It does so by defining a ‘person through whom another person claims’ as any person ‘by through or under or by an act of whom the person so claiming became entitled to the estate or interest claimed as heir issue in tail successor special or general occupant executor administrator legatee husband assignee appointee devisee or otherwise’.43 Though the actual phrase ‘person through whom another person claims’ is otherwise not found in the Act, it can be utilised to give meaning to the several occasions where the words ‘some person through whom he claims’ are adopted.

Application to Arbitrations 3.12 The limitations legislation in each jurisdiction applies to arbitrations in like way as it applies to actions.44 It follows that the relevant time bar aligns with that applicable to the corresponding civil proceeding; if time has expired to pursue that civil proceeding in a court or tribunal, it has likewise expired to pursue it by means of an arbitration. This is made explicit in the Territories, New South Wales and Western Australia, where the legislation states that an arbitration for any difference or matter under any provisions for arbitration45 cannot be commenced after the expiry of the period of limitation for a cause of action for relief of the kind sought in the arbitration.46 There is accordingly a need to identify when the arbitration commences for this purpose, a point elaborated in Chapter 12,47 which also addresses the specific provision made for time bars applicable to actions to enforce an arbitral award, once it is made.48

Application by Way of Default Relationship with time bars prescribed in other statutes

3.13 Time bars prescribed by dedicated limitations statutes operate by way of default. Those statutes, excepting South Australia, make clear that nothing found in them apply to an action or arbitration for which a time bar is fixed by some other statute that has application in the circumstances.49 The position in South Australia is, in any case, arguably the same, as a [page 49] ‘specific’ limitation provision in another Act should, on a process of statutory interpretation, prevail over the ‘general’ limitation statute. 3.14 The manifold statutory provisions that impose time bars outside of the respective dedicated Limitation Acts makes any attempt to catalogue them prone to incompleteness.50 Below are discussed, by way of illustration, the specific limitation schemes applicable to claims under motor accident legislation in New South Wales and Queensland, including distinct avenues to extend time for this purpose.51

Motor accident compensation — New South Wales 3.15 Under s 72 of the Motor Accidents Compensation Act 1999 (NSW)52 a claim must be made, by giving notice as prescribed, within six months of the date of the motor accident to which the claim relates or, if it is made in respect of the death of a person, the date of the person’s death. The Act adds, in s 109(1), that a claimant is not entitled to commence proceedings in respect of a claim more than three years after the date of the motor accident to which the claim relates or, again, if the claim is made in respect of the death of a person, the date of death. However, the proceedings can be commenced out of time ‘with the leave of the court in which the proceedings are to be taken’. The absence of criteria informing the exercise of the discretion to extend time, in the original version of this provision53 was rectified by an amendment,54 pursuant to which the leave of the court must not be granted unless ‘the claimant provides a full and satisfactory explanation to the court for the delay’ and the total damages likely to be awarded to the claimant should the claim succeed are not less than 25 per

cent of the prescribed amount.55 3.16 The Motor Accidents Compensation Act 1999, by making explicit that the Limitation Act 1969 (NSW) does not apply to or in respect of proceedings in respect of a claim under the 1999 Act,56 ousts both the extension of time provisions in the Limitation Act57 and those suspending the running of time because of incapacity or disability.58 Had the 1999 Act not explicitly ousted the operation of the Limitation Act, a legitimate question would have remained as to the extent to which, say, suspension of time provisions in the Limitation Act could apply for the purposes of the 1999 Act. The answer to this question would rest upon whether the statutory scheme prescribed under the 1999 Act could operate consistently with the application of the relevant provisions of the Limitation Act. [page 50] 3.17 The statutory ouster of the Limitation Act in motor accident compensation claims does not mean, however, that issues surrounding the applicant’s incapacity or disability are irrelevant. As the inquiry into whether the claimant has given ‘a full and satisfactory explanation to the court for the delay’ is construed objectively59 — whether a reasonable person in the claimant’s position would have been justified in the delay — it cannot entirely ignore any incapacity or disability suffered by the claimant. This, after all, could well explain why a reasonable person in the claimant’s position would have delayed the claim. As Allsop P explained in Walker v Howard:60 The positing of a ‘reasonable person in the position of the claimant’ clearly expresses a degree of objective analysis. This is in the statutory context which includes a mentally incapable person providing (at or about the time of seeking to commence proceedings) an explanation for the delay. It can be accepted … that the word ‘reasonable’ imports an objective standard, but that the degree of objectivity may vary according to the assumptions made about the person in question and that the breadth of those assumptions and the extent that the assumptions reflect the actual characteristics of the person in question will depend upon the reasons why the law imports an objective standard. The ‘position of a claimant’ with a legal or physical disability necessarily … includes that disability, at least if it be caused by the motor vehicle accident in question. It would be an extraordinary legislative policy that would deprive a claimant brain damaged by the accident and in a coma for three years of the possibility of an action for damages because a reasonable person suffering some other injury, but with full mental capacity, would not have failed to commence proceedings and would not have been justified in

experiencing the same delay. The nature and character of the injury caused by the accident in question must be taken to be part of the ‘position of the claimant’.

On the facts in issue, his Honour noted that the reasonable person in the position of the claimant was, as a result of the motor accident, brain damaged and accordingly unable to protect his own interests. Though the claimant ‘is to be objectified, the reality of his incapacity is to be recognised as part of his position’,61 which also included relatives who cared for him, but who were unable to fund the costs of preparation of a legal action. In these circumstances, the court unanimously held that a reasonable person in the claimant’s position was justified in experiencing the delay. Allsop P added that while some steps might have been pursued more expeditiously, ‘perfection or the most rapid despatch is not the test’.62 3.18 The foregoing was clearly informed by the terms of s 66(2) of the Motor Accidents Compensation Act 1999 (NSW),63 which states that a reference to a ‘full and satisfactory explanation’ for delay ‘is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation’. It adds that the explanation is not satisfactory ‘unless a reasonable person in the position of the claimant … would have been justified in experiencing the same delay’. The reference to being ‘justified in experiencing’ a delay means that the reasonable person in the claimant’s position would have been subjected to the delay, which subjection would have been justified, so that ‘[t]he hypothetical experiencing of delay must have the quality of a justified experiencing of delay’.64 The term ‘full’ in the phrase ‘full and satisfactory explanation’ requires [page 51] that the explanation be set out; ‘it is not sufficient that the court should be asked to draw inferences from correspondence, etc, at least where that is not obvious’.65 3.19 What will constitute justifiable delay on the part of a reasonable person in making a claim must, moreover, be seen against the backdrop of

the objects of the Motor Accidents Compensation Act 1999.66 These include encouraging the early investigation, assessment and resolution of claims, to reflect the interests of claimants (in having prompt treatment and rehabilitation, and in having the prompt payment of lost earnings) as well as those of insurers (in more accurately predicting claims frequency and formulating premiums). The Act seeks to achieve these objects by imposing time limits, and obligations to act expeditiously, on both claimants and insurers. At the same time, the statutory wording must be given effect, rather than being driven or influenced by approaches to extending time under differently worded statutes. For instance, questions of prejudice to the respondent stemming from an extension of time, while ordinarily germane to extending time under statutes of limitation, are not encompassed within the language of the 1999 Act, and so are extraneous to the issue of extending time under that Act.67 3.20 A ‘full and satisfactory explanation … for the delay’ may, as noted above by reference to the New South Wales Court of Appeal’s decision in Walker v Howard,68 be substantiated by reference to the impact of some disability on the part of the claimant. Legitimate difficulties in securing the relevant evidence, whether or not coupled with the spectre of impecuniosity, may also provide the requisite explanation for delay. For instance, in Zraika v Walsh,69 a mother claimed that a motor accident during her pregnancy caused her son to be born with profound disabilities. Rothman J granted leave to commence proceedings out of time because, beyond the claimant’s impecuniosity, the delay was satisfactorily explained by her inability to obtain the appropriate medical evidence in the proceedings — in view of ‘the small number of experts in the field [and] the smaller number who were prepared to give an opinion’70 — which involved difficult questions around causation. As in Walker v Howard, the determination to extend time was not precluded by a finding that there were periods during which the claimant ‘could have acted more expeditiously’, at least absent any extended period of time during which no activity occurred.71 3.21 Conversely, where the court finds that a claimant’s delay was inconsistent with how a reasonable person in his or her position would have behaved, the claimant will almost invariably prove unable to provide any ‘full and satisfactory explanation … for the delay’. In Lyu v Jeon,72 for

example, the New South Wales Court of Appeal refused to extend time for a claimant who sought to explain the delay by reference to her reliance on a promise by the driver to meet the shortfall of losses from her false claim under student health insurance. It ruled that a reasonable person in the claimant’s position would acted differently, explained by Meagher JA, with whom Macfarlan JA and Davies J concurred, as follows:73 A reasonable person in the [claimant’s] position would not have persisted in delaying notifying the insurer of her claim beyond late 2007. She was no longer hospitalised. Whereas she may have been confused and heavily sedated during her earlier period in hospital, that was no longer the case. Whilst she was young, in a foreign country, not familiar with local motor accident laws and no doubt concerned for the welfare of her friend, the [claimant] nevertheless appreciated that

[page 52] there was an insurer against whom a claim could be made and which should be notified of the accident. She also knew that there were solicitors who could advise as to what she should do. She knew that a false story had been told at the hospital. The applicant [being the driver] had agreed to meet her medical expenses. The [claimant] then agreed to participate in the making of a false claim against a different insurer, albeit encouraged by the applicant to do so.

This does not mean that reasonable conduct, for this purpose, is mutually exclusive from mistakes and errors of judgment, especially where the claimant may be young, fearful or pressured. At the same time, though, it expects that those errors, once appreciated, be corrected in due course. It is also, it seems, inconsistent with behaviour calculated to mislead or known to involve falsehood, as distinct from ‘rational and straightforward behaviour’, which clearly influenced the court’s decision in Lyu v Jeon.74

Motor accident compensation — Queensland 3.22 The Motor Accident Insurance Act 1994 (Qld) makes provision for an alteration of the otherwise applicable limitation period — namely the three years prescribed by s 11 of the Limitation of Actions Act 1974 (Qld) — premised on the giving of notice of a motor vehicle accident claim, or the making of an application for leave to bring a proceeding based on such a claim, within the limitation period.75 In either of these events, s 57 of the

1994 Act entitles the claimant to bring a proceeding based on the claim outside the limitation period if it is brought within six months after the notice was given or leave was granted, or a longer period allowed by the court.76 3.23 The court’s discretion to allow a longer period (and thus to extend time) seeks to ameliorate the position for claimants who face difficulty in complying with the technical requirements of the Act within the limitation period prescribed by the limitations legislation, ‘so that claims can be determined fairly on their merits’.77 It is not, however, an unbridled discretion uninformed by the considerations that explain its presence; like other judicial discretions, it must be exercised according to principle. It stands to reason, to this end, that a person who seeks an extension of time must show ‘good reason’ why that should occur ‘in terms of the exigencies of the Act’.78 The restrictions on extending time found in Pt 3 of the Limitation of Actions Act 197479 would otherwise be ‘written out of the law’ where notice of a motor vehicle claim was given under the 1994 Act.80 It could not be assumed that the legislature intended to entirely isolate s 57 from the limitations statute, given that it is premised on altering the impact of a time bar ostensibly sourced from that statute.81 [page 53] 3.24 The favourable exercise of the court’s discretion to extend time, in view of its object, is likely to be confined to occasions where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite conscientious efforts aimed at compliance, a claimant nonetheless does not do so within that three year time frame.82 Indeed, it seems that ‘good reason’ to extend time often converges with delay stemming from a ‘conscientious effort to comply’ with the Act83 — ‘claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may’, it is said, ‘have difficulty obtaining a favourable exercise of the discretion’84 — though the breadth of the curial discretion dictates that its absence need not be fatal to such an extension.85 That breadth invites

inquiry into considerations beyond the need to comply with the Act, including the length of the delay, the level of diligence in prosecuting the claim, whether the prospects of a fair trial have been diminished, and that extending time is apt to deny the respondent a complete defence to the claim.86 This in turn aligns with considerations that inform general discretions to extend time in limitations legislation,87 and indeed other legislation that envisages a general discretion to extend a time bar.88

No Application to Criminal Prosecutions 3.25 Limitations legislation does not apply to criminal prosecutions. Independent of clear provision to this effect, which appears only in the Northern Territory and Queensland legislation,89 this derives from its application to ‘causes of action’, which the law defines as encompassing only civil rather than criminal proceedings.90 In line with limitations time bars being creatures of statute,91 moreover, the absence of a statutory time bar on a criminal prosecution speaks against any limitation period, a point made explicit by criminal law statutes in some jurisdictions.92 Also, while equity, via the defence of laches, bars stale claims independent of statute,93 its application does not extend to the criminal law, reflecting the maxim ‘equity and penalty are strangers’. Statute may nonetheless set its own time bar on [page 54] prosecutions for certain offences.94 Also, it is not beyond a superior court’s inherent jurisdiction to stay the commencement of a criminal prosecution as an abuse of process by reason of delay.95

Limited Application to Equity Equitable relief broadly not subject to limitation

except by analogy Traditional exclusion of equity from limitation 3.26 As noted elsewhere, the Limitation Act 1623 (UK) did not apply to causes of action in equity, which instead developed in its own approach to delay.96 ‘Courts of equity’, it was said in 1899, ‘are not within the words of the statute, which only apply to certain legal remedies’.97 To this end, the Limitation Acts in New South Wales, the Northern Territory, Queensland, Tasmania and Victoria make explicit that limitation periods prescribed for certain non-land related claims98 do not apply, except if by analogy,99 to a cause of action for ‘specific performance of a contract or for an injunction or for other equitable relief’.100 The phrase ‘other equitable relief’ is not defined, but as a matter of language encompasses that which is done ‘by a court in the exercise of its equitable jurisdiction’.101 But it clearly has no application to actions in equity covered by specific sections of the legislation, for example, for breach of trust.102 The position appears the same in South Australia, where the Act imposes no limitation period on these equitable remedies. This, of course, does not preclude equity applying a time bar to any such claim via the defences of laches or acquiescence.103

Statutory embracing of equity within limitation 3.27 There is no equivalent provision in the Australian Capital Territory and Western Australia, where the limitations statutes are stated, via general provisions without counterparts elsewhere, to apply to claims in equity. The Australian Capital Territory legislation applies to ‘any cause of action’,104 which is defined as ‘the fact or combination of facts that gives rise to a right to bring a civil proceeding’.105 That the latter in no way distinguishes proceedings at law from those in equity speaks to a convergence for this purpose.106 [page 55] The same ensues under the Limitation Act 2005 (WA), which via s 13(1)

likewise applies to ‘any cause of action’, defined to mean any civil proceeding,107 thereby encompassing causes of action in equity. But in s 27(1) it adds that an ‘equitable action’ — which means an action ‘in which the relief sought is in equity’ and for which, had no limitation period been provided, ‘the limitation period would not be determined in equity by analogy to the limitation period for any other kind of action’108 — must be commenced within six years since the cause of action accrued or, if later, three years since time started running, on equitable principles (that is, on the basis of discoverability),109 for the commencement of the action. The object, it seems, was to expunge from the law of Western Australia the doctrine of analogy.110 At the same time, by making specific provision for an ‘equitable action’, as defined above, the legislation perpetuates at least some aspects of the common law–equity divide, as the s 27(1) limitation period may prove different to that in s 13(1).111 3.28 In favouring an approach that relegates the common law–equity division to history for limitations purposes, the Western Australian Law Reform Commission opined that ‘[m]ore than a century after the administration of law and equity was fused by the Judicature Acts, it would be wrong to perpetuate distinctions based on the jurisdiction of courts in England which have been extinct since the late 19th century’.112 Despite other law reform recommendations endorsing such an approach,113 and judicial admonitions to the same effect,114 legislative changes in the remaining Australian jurisdictions have yet to materialise. This contrasts, for instance, with the statutory trajectory in certain other common law countries, which has seen common law and equitable causes of action collapse for this purpose.115

Attempts to couch a cause of action in equity to avoid limitations time bar 3.29 To the extent that time bars in limitations statutes do not apply to causes of action in equity, it is unsurprising to find attempts by plaintiffs, whose actions are otherwise barred by limitation, to couch their claim under an equitable banner. These cases typically involve claims arising out of (alleged) abuse suffered in childhood or adolescence, which would ordinarily

fall under the umbrella of tort (and sometimes breach of statutory duty), and thus subject to limitations time bars. The case law reveals plaintiffs who have sought to avoid limitation in this context by framing their claim under (usually) breach of fiduciary duty. [page 56] Australian courts have proven unwelcoming to arguments of this kind, fearing that acceding thereto would dilute the fiduciary concept as understood by Australian law.116 Where a cause of action is one addressed by existing common law (or statutory) doctrines, Australian courts see no justification to ‘reconfigure’ equitable doctrine to provide an avenue for relief. ‘[I]t is inappropriate’, an Australian judge has said, ‘that a limitation statute can be circumvented by an equitable plea in a non-trustee type relationship arising from the same circumstances and particulars relied upon to support a tortious … liability’.117 In broader terms, the idea that the fiduciary concept should be expanded for a purely remedy-driven objective has received short shrift by the High Court.118 In any event, even if fiduciary law were accepted as a ‘substitute’ for tortious liability in this regard, the plaintiff may be met by the application of limitations time bars by analogy119 or, otherwise, a plea of the defence of laches by the defendant.120

Equitable defences preserved Statutory preservation of equitable defences 3.30 The limitations statutes in each Australian jurisdiction, following the original English lead,121 preserve the availability of equitable defences. They are expressed not to affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.122 That the New South Wales and Western Australian provision precedes the term ‘acquiescence’123 with ‘laches’124 evokes a distinction without a difference because ‘laches’ in the remaining jurisdictions is encompassed in the phrase ‘or otherwise’.125 Accordingly, scope exists for equitable claims not subject to statutory time bars to nonetheless be defeated by the elapsing of time, via laches or

acquiescence.126

Interaction between time bars at law and in equity 3.31 Limitations statutes, accordingly, do not exhaust the defences available to a defendant because of the passage of time. As, under Australian law, equitable defences can only be pleaded against claims in equity,127 there is arguably only some overlap between limitations statutes and equitable defences where the former purport to impose time bars on claims in equity. In this event, there arises the legitimate, and still unsettled, question as to whether an equitable defence can bar a claim commenced within the statutory limitation period, operating either expressly or by way of analogy.128 Those who argue that equity can outflank the statutory time [page 57] bar point to laches as a doctrine independent of statute, grounded in more than mere delay that underscores time bars imposed by statute, despite the legislative policy underscoring an otherwise applicable limitation period. The upshot is that, provided that delay is accompanied by actionable prejudice,129 laches can bar a claim within the limitation period.130 3.32 Those who oppose such an outcome cite the preeminence of statute — and the policy underscoring it — over the general law.131 While this arguably better represents how equity and statute should interact — after all, it seems odd that equity should preclude a plaintiff from bringing a claim within the period that Parliament has set for that claim — the balance of Australian authority seems to favours the former view. The point retains arguably the greatest significance now in the Australian Capital Territory and Western Australia, where the limitations legislation applies broadly to causes of action in equity;132 it has less scope to apply elsewhere in the face of limited application of limitations legislation to equitable claims.133

Application not Ordinarily

Retrospective General principle as to retrospectivity 3.33 The issue as to whether a statute, or an amendment to a statute, has retrospective operation, is commonly approached via an inquiry into whether the new statute (or amendment) affects existing substantive rights or, instead, affects only the existing curial practice and procedure for enforcing those rights.134 As to the former, the presumption is that the statute (or amendment) does not have retrospective effect, but applies as from its specified date of commencement. There are obvious reasons in justice why this is so; retrospectivity in this context could prejudice the rights or defences that would have been available to a litigant at the time of the relevant events. The presumption must nonetheless cede to statutory language [page 58] that explicitly, or by necessary implication, countenances that the Act (or amendment) has retrospective effect.135 3.34 Statutory changes to practice and procedure are, on the other hand, traditionally assumed to operate retrospectively. After all, Mellish LJ remarked in 1876, ‘[n]o suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done’.136 In Maxwell v Murphy Dixon CJ explained the procedural-substantive distinction for this purpose as follows:137 The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to

vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.

In an earlier case his Honour referred to the presumptive rule of construction against reading a statute in such a way ‘as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred’, to be contrasted with an alteration in the law regarding the mode in which rights and liabilities are to be enforced or realised, in which case he saw ‘no reason to presume that it was not intended to apply to rights and liabilities already existing’.138 Yet he was unwilling to be categorical in this latter scenario, preferring to retain flexibility, so that the question of retrospectivity ‘will depend rather upon its particular character and the substantial effect that such an operation would produce’.139 3.35 Acknowledging the potential for difficulties in applying the procedural–substantive distinction,140 Dixon CJ in Maxwell v Murphy opined that perhaps ‘no more practical summary of the principle’ emerged from the cases than the following:141 [U]nless the language used plainly manifests in express terms or by clear implication a contrary intention — (a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.

[page 59] The recognition of a third ‘intermediate’ category suggests that a binary procedural–substantive distinction is insufficiently nuanced to adequately address questions of retrospectivity. And it has proven utile in locating questions of this kind when it comes to limitations legislation.

Application to limitation statutes 3.36 Provisions in limitations (or other) statutes to the effect that a limitation law of a State or Territory is to be regarded as part of the substantive law of the State or Territory,142 while they appear to address the

issue of retrospectivity conclusively, in reality do no such thing. The context in which these provisions appears stands divorced from that of temporal application, and targeting instead matters of conflicts of laws.143 So far as the issue of retrospectivity is concerned, therefore, resort must be made to the case law. This in turn reveals that, while it is common to classify statutes of limitation as procedural144 — they do, after all involve a matter going to procedure — there is a more compelling case, under the intermediate category noted above, to view them as substantive when it comes to the question of retrospectivity. That this is so, at least on occasions where retrospectivity would function to alter the substantive position of one of the parties, appears from the following remarks of Williams J in Maxwell v Murphy:145 Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.

In other words, in its application to amendments to limitations legislation, the intermediate category rests not on the nature of the statutory change but on its effect on the proceedings as between the parties in issue. So in Doe d Evans v Page,146 decided in 1844, it was held that a limitation statute147 operated prospectively, and accordingly did not apply to tenancies at will that had determined before its commencement. Informing the decision was Lord Denman’s concern as to the outcome had the Act operated retrospectively:148 A different construction, even if the words permitted it, would cause the greatest hardship: for a person, who, as the law stood before the passing of the Act, was in ample time to bring his ejectment and recover property that undoubtedly was his, would by the operation of the statute be suddenly deprived of the means of asserting his right, there being no clause for the postponement of the operation of the statute for such a period as would enable persons, who would be otherwise affected by it, to assert their rights.

[page 60] 3.37 In the leading Australian case, Maxwell v Murphy,149 the relevant Act,150 which required every action under the Act to be commenced within 12 months of the death of the deceased person, was amended, as from 16 December 1953, by replacing the words ‘12 months’ with ‘six years’. The cause of action accrued on 19 March 1951, but was commenced by the plaintiff on 30 November 1954, that is, within time as extended by the amendment but not within time under the Act as it stood preceding its amendment. By a four-one majority,151 the High Court held that the amendment did not revive the plaintiff’s right to maintain an action that had been barred from 19 March 1952. The reasons for this were perhaps best explained in the judgment of Williams J:152 … the amendment introduced by the Act of 1953 is not merely procedural. Where the cause of action under the principal Act was out of time when it came into force and a consequential immunity had accrued to an alleged wrongdoer, the removal of that bar would necessarily affect his substantive rights. He would find himself exposed to an action to which he had previously a complete defence. The [amending Act] is not therefore an Act to which a retrospective operation should be given unless it appears by clear words that such was the intention of the legislature. But there are no such words. The amending Act simply substitutes one period of time for another and does so in a section both limbs of which are couched in the language of futurity.

3.38 As his Honour envisaged, the legislature can opt, by clear statutory language, to make changes to limitation law retrospective. While there are instances in the Australian legal landscape where this has ensued,153 these are infrequent because retrospective changes can prejudice the substantive position of a defendant where the time bar is extended (or removed), or otherwise that of a plaintiff where it is constricted. Apart from the obvious issues of fairness in balancing the scales evenly between the litigants, retrospectivity can thus undermine the certainty that forms a rationale for limitations legislation in the first place.154 So, as a matter of broader principle, it can be said that an amending statute that abridges or extends a time bar ‘should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time’.155 ______________________________

1.

2.

3.

4. 5.

6. 7. 8.

9. 10. 11. 12. 13. 14.

See P W Hogg, P J Monahan and W K Wright, Liability of the Crown, 4th ed, Carswell, Toronto, 2011, pp 98–9 (explaining that this was the upshot of the common law presumption that statutes do not bind the Crown). In New South Wales and Queensland, ‘Crown’ is defined to include not only the Crown in the right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities: NSW s 11(1) (see NSWLRC 3, para 62, noting that this obviates the application of any presumption that a reference in a New South Wales Act to the Crown would be confined to the Crown in right of New South Wales alone); Qld s 5(1). In the Northern Territory, ‘Crown’ includes not only the Crown in the right of the Territory, but also, so far as the legislative power of the Legislative Assembly permits, the Crown in the right of the Commonwealth and each State and Territory of the Commonwealth: NT s 4(1). In South Australia, the Crown includes: (a) a Minister, instrumentality or agency of the Crown; and (b) a body or person declared by the regulations to be an instrumentality or agency of the Crown for this purpose: Crown Proceedings Act 1992 (SA) s 4(1). In Tasmania and Western Australia, a reference in a written law to the Crown is ‘construed as a reference to the Sovereign for the time being’: Acts Interpretation Act 1931 (Tas) s 24(a); Interpretation Act 1984 (WA) s 11. In Victoria ‘Crown’ means the Crown in right of Victoria: Interpretation of Legislation Act 1984 (Vic) s 38. Legislation Act 2001 (ACT) s 121(1) (refers to statutes binding ‘all governments’; see also ACT s 7(1), which treats an action by a government entity (as defined in Legislation Act 2001 (ACT) s 121(6)) as an action by the government); NSW s 10(1); NT s 6(1); Qld s 6(1); Crown Proceedings Act 1992 (SA) s 5(1); Tas s 37(1); Vic s 32(1); WA s 10(1) (in so doing repealing s 6 of the Crown Suits Act 1947 (WA), which set a one year limitation period in this context: see WALRC 36(II), pp 520–4). See, for example, De Rossi v Walker (1902) 2 SR (NSW) 249. NSW s 10(1); NT s 6(1); Qld s 6(1); Crown Proceedings Act 1992 (SA) s 5(1); Tas s 37(1); Vic s 32(1). Broadly speaking, an action by or against an officer of the Crown as such, or a person acting on behalf of the Crown, is treated as an action by or against the Crown for this purpose: NSW s 10(2) (omitting the words ‘or against’); NT s 6(2); Qld s 6(2); Tas s 37(2); Vic s 32(2). Manitoba Metis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623; [2013] SCC 14 at [270] per Rothstein J (dissenting, but not on this specific point). ACT s 4(b); NSW s 7(b); Tas s 37(1); Vic s 32(1). ACT s 7(2)(a) (‘recovery of a penalty, tax or duty or of interest on a penalty, tax or duty’); NSW s 10(3)(a) (‘recovery of a tax or duty or of interest on a tax or duty’): NT s 6(3)(a)(ii); Qld s 6(3) (b)(i); Tas s 37(1); Vic s 32(1); WA s 10(2)(a) (‘recovery of a fee, tax, duty or other sum of money or interest on a fee, tax, duty or other sum of money’). As to time bars applicable to actions for the recovery of revenue amounts paid by mistake see 11.16–11.30. ACT s 7(2)(b); NSW s 10(3)(b); NT s 6(3)(a)(ii); Qld s 6(3)(b)(ii); WA s 10(2)(b). NT s 6(4); Qld s 6(4); Vic s 7; WA s 76. See further 8.11. This latter point is made explicit only in WA s 19(2). ACT s 7(3). NSW s 10(4). Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 552–3; BC9703255 per Gummow and Kirby JJ, referring to Maguire v Simpson (1977) 139 CLR 362 at 376–7; BC7700111 per Gibbs J.

15.

16. 17. 18. 19. 20. 21. 22. 23. 24.

25. 26. 27.

28. 29. 30.

31. 32. 33. 34.

Maguire v Simpson (1977) 139 CLR 362 at 377; BC7700111 per Gibbs J (on the facts ruling that that NSW ss 14(1)(a) and 63 applied in proceedings instituted in New South Wales by the Commonwealth Trading Bank of Australia (being ‘the emanation by which the Commonwealth operates in the field of general banking’: Inglis v Commonwealth Trading Bank of Australia (1970) 119 CLR 334 at 342; BC6900200 per Kitto J, with whom Barwick CJ and Windeyer J concurred) via Judiciary Act 1903 (Cth) s 64). (1987) 162 CLR 317 at 331–2; BC8701768 (FC) (emphasis supplied). (1988) 165 CLR 55; BC8802604. Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 64; BC8802604 (FC). Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 66; BC8802604 (FC). Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 67; BC8802604 (FC) (citing, in particular, the Income Tax Assessment Act 1936 (Cth) s 170). Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 64; BC8802604 (FC). (2008) 224 FLR 27; [2008] FMCAfam 877; BC200901783 at [20]. Namely the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth). Ortleib v Lloyd [2015] FCCA 377; BC201501087 at [22] per Judge Brewster (referring to amendments to the Child Support (Assessment) Act 1989 (Cth) ss 111, 112, which imposed a seven year limitation period, opining that ‘[i]t would be strange to choose this period if the intention of the Parliament was to leave in place a shorter period for enforcement [under the State limitation law]’). Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 505; BC9703255 per Dawson J. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80; BC7300013 per Menzies J. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 95; BC7300013 per Mason J; Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 at 487; BC9304922 per French J. Pedersen v Young (1964) 110 CLR 162 at 165; BC6400110 per Kitto J (emphasis supplied). (1973) 129 CLR 65 at 83; BC7300013. Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 506; BC9703255 per Dawson J. See also at 552 per Gummow and Kirby JJ (‘There is no law of the Commonwealth which prescribes a limitation regime of general operation to civil actions within federal jurisdiction’). Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 552; BC9703255 per Gummow and Kirby JJ. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (in liq) (1973) 129 CLR 65 at 83; BC7300013 per Walsh J. (1964) 110 CLR 162 at 167; BC6400110 (emphasis supplied). See also John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 87; BC7300013 per Gibbs J. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 88; BC7300013 per Gibbs J (reasoning that ‘[i]f the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible

35. 36. 37. 38. 39. 40.

41. 42. 43. 44.

45.

46. 47. 48. 49.

ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law’); Commonwealth v Dixon (1988) 13 NSWLR 601 at 622 per Mahoney JA. See, for example, Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581; BC9701370 (where, in proceedings instituted in the New South Wales registry of the Federal Court of Australia, the court ruled that the Judiciary Act 1903 (Cth) s 79 ‘picked up’ the Limitation Act 1969 (NSW) as a procedural law of New South Wales). Namely the Law Reform (Limitation of Actions) Act 1956 (Qld) s 5 (repealed). Under the Constitution s 75(iv), the High Court has original jurisdiction in all matters, inter alia, ‘between residents of different States’. Pedersen v Young (1964) 110 CLR 162 at 165 per Kitto J, at 166 per Taylor J, at 167 per Menzies J; BC6400110. Bargen v State Government Insurance Office (Queensland) (1982) 154 CLR 318; BC8200073; Fielding v Doran (1984) 60 ALR 342 at 346; BC8400452 per Dawson J. ACT s 8(a); NSW s 11(2); WA s 3(3). NT s 4(2); Qld s 5(4); Tas s 2(4) (which adds that ‘any person whose estate or interest might have been barred by a person entitled to an entailed interest in possession shall be deemed to claim through the person so entitled’); Vic s 3(4). ACT s 8(a); NSW s 11(2); NT s 4(2); Qld s 5(4); Tas s 2(5); Vic s 3(4); WA s 3(3). ACT s 8(b). SA s 3(1). ACT s 47(1); NSW s 70(1); NT s 46(1); SA s 3(1) (‘action’ includes ‘legal proceedings of all kinds’, and so is capable of being construed as encompassing arbitrations); Qld s 41(1); Tas s 33(1); Vic s 28(1); WA s 3(1) (‘action’ includes ‘an arbitration under an arbitration provision’) (cf WALRC 36(II), pp 480–1). As to the meaning of ‘action’ see 4.11–4.13. ‘Provisions for arbitration’ are the provisions of an agreement to submit present or future differences to arbitration, whether or not an arbitrator is named therein (in the Northern Territory adding ‘or whether or not the differences arise under the same or some other collateral agreement between the parties’), and the provisions of a written law requiring or permitting the determination of any matter by arbitration or relating to the arbitration (to which the limitations legislation is subject): ACT s 46(1), 46(2); NSW s 69(1), 69(2); NT s 45(1), 45(2); WA s 3(1), 3(7). ACT s 47(2); NSW s 70(2); NT s 46(2); WA s 29 (see WALRC 36(II), pp 480–1). See 12.11, 12.12. See 12.15, 12.16. ACT s 4(a); NSW s 7(a); NT s 5 (but omits any reference to arbitration); Qld s 7; Tas s 38; Vic s 33 (see, for example, Watson v Public Trustee [1984] VR 365 (involving the application of the limitation period imposed by s 29(3) of the Administration and Probate Act 1958 (Vic) in the context of a claim for damages for personal injuries arising out of a motor vehicle accident in which the tortfeasor died)); WA s 9(1) (referring to a ‘limitation provision’ in another written law, which is defined inclusively in s 9(2)). Equivalent provision is found in UK 1980 s 39 (as to which see Re Farmizer (Products) Ltd [1997] BCC 655 at 660–1, where the English Court of Appeal rejected the argument that the words ‘if in the course of the winding up’ certain statutory criteria were met (under the Insolvency Act 1986 (UK) s 214) were words of limitation such as to

50. 51. 52. 53. 54.

55.

56. 57. 58.

59. 60. 61. 62. 63. 64.

65. 66. 67. 68.

oust the time bar imposed by UK 1980 s 9). An attempt to argue that NT s 5 serves to deprive NT s 44 (dealing with curial discretion to extend time: see 19.1) was rejected by the Northern Territory Court of Appeal in Verschuuren v Tom’s Tyres Corporation Ltd (1992) 86 NTR 1 at 7 on the ground that s 5 deals with different subject matter to s 44, and reasoning that the broadly expressed power to extend time in s 44 ‘should only be confined within narrow limits if there is a plain and unambiguous provision elsewhere in the Act which requires this to be done’. The Ipp Report, para 6.8, referred to the ‘bewildering array of different limitation regimes in Australian jurisdictions’. Extension of time for the purposes of limitation statutes is addressed comprehensively in Part IV of this work. Being the successor to the Motor Accidents Act 1988 (NSW) s 43. Namely the Motor Accidents Act 1988 (NSW) s 52, as to which see Salido v Nominal Defendant (1993) 32 NSWLR 524; BC9302336. Motor Accidents Act 1988 (NSW) s 52(4B), inserted by the Motor Accidents Amendment Act 1995 (NSW), with effect from 1 January 1996. The parallel provision is now found in the Motor Accidents Compensation Act 1999 (NSW) s 109(3). Namely 25 per cent of the maximum amount that may be awarded for non-economic loss under the Motor Accidents Compensation Act 1999 (NSW) s 134 as at the date of the relevant motor accident, presently $284,000 (s 134(1)). Motor Accidents Compensation Act 1999 (NSW) s 109(5) (being the successor to the Motor Accidents Act 1988 (NSW) s 52(5)). As to general provisions governing the extension of time in New South Wales see 20.44–20.77. Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [47] per Allsop P. As to the Limitation Act provisions suspending the running of time because of incapacity or disability in New South Wales see 14.9–14.17. Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [64] per Allsop P, at [134] per Young JA. (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [64], [65] (paragraph break omitted). Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [107]. Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [108]. Being the successor to the Motor Accidents Act 1988 (NSW) s 40(2). Diaz v Truong (2002) 37 MVR 158; [2002] NSWCA 265; BC200204664 at [42] per Giles JA. This interpretation of what being ‘justified in experiencing’ a delay means is not controversial: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53; BC200305655 at [7] per Gleeson CJ, at [73] per Gummow and Hayne JJ; Buller v Black (2003) 56 NSWLR 425; [2003] NSWCA 45; BC200301129 at [46] per Mason P, at [94] per Giles JA; Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619 at [96], [97], [101], [102] per Allsop P. Ellis v Reko Pty Ltd (2010) 57 MVR 1; [2010] NSWCA 319; BC201008763 at [19] per Young JA, with whom Beazley JA and Handley AJA concurred. Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53; BC200305655 at [5], [7] per Gleeson CJ, at [74] per Gummow and Hayne JJ. Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53; BC200305655 at [7] per Gleeson CJ. (2009) 78 NSWLR 161; [2009] NSWCA 408; BC200911619.

69. 70. 71. 72. 73. 74. 75. 76.

77.

78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88.

89.

(2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372. Zraika v Walsh (2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372 at [37]. Zraika v Walsh (2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372 at [41]. (2012) 62 MVR 409; [2012] NSWCA 446; BC201210581. Lyu v Jeon (2012) 62 MVR 409; [2012] NSWCA 446; BC201210581 at [36]. (2012) 62 MVR 409; [2012] NSWCA 446; BC201210581 at [37]. Notice of a motor vehicle accident claim, and an application for leave to bring a proceeding based on such a claim, is the subject of the Motor Accident Insurance Act 1994 (Qld) Pt 4 Div 3. Motor Accident Insurance Act 1994 (Qld) s 57(1), 57(2). An equivalent schema is found in the Personal Injuries Proceedings Act 2002 (Qld) s 59(1), 59(2), to which the same principles accordingly apply vis-à-vis judicial discretion to extend time. Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254; BC200706286 at [11] per Keane JA, with whom de Jersey CJ and Mullins J concurred. See also Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480; BC200408761 at [32] per Williams JA (remarking that that the provisions of s 57(1) and (2) ‘are no more than a recognition of the fact that a claimant has to comply with a complex set of pre-trial requirements and, for example, on occasions it may not be possible to comply with all of those requirements and still commence the proceeding in court within the limitation period’), at [82] per Chesterman J (‘It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension’). Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254; BC200706286 at [11] per Keane JA, with whom de Jersey CJ and Mullins J concurred. Which include the subject matter of Chs 14–17. Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254; BC200706286 at [11] per Keane JA, with whom de Jersey CJ and Mullins J concurred. See Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480; BC200408761 at [12] per McMurdo P, at [28]–[32] per Williams JA. Cf at [80] per Chesterman J. Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480; BC200408761 at [82] per Winters v Doyle [2006] 2 Qd R 285; [2006] QCA 110; BC200602262 at [24] per Keane JA. Paterson v Leigh (2008) 51 MVR 508; [2008] QSC 277; BC200810347 at [8] per McMeekin J. See, for example, Jonathan v Mangera [2015] QDC 195. Winters v Doyle [2006] 2 Qd R 285; [2006] QCA 110; BC200602262 at [56] per Fryberg J. Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254; BC200706286 at [16] per Keane JA, with whom de Jersey CJ and Mullins J concurred. See 18.7–18.13. See, for example, Workers Compensation Act 1987 (NSW) s 151D(2) (which requires an injured employee to commence proceedings for damages in respect of the injury within three years of the injury ‘except with the leave of the court in which the proceedings are to be taken’), as discussed in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104; BC200201727 at [2] per Sheller JA, at [87] per Ipp JA; Murdock v Lipman [2012] NSWSC 983; BC201207050 at [93] per McCallum J. NT s 6(3)(b); Qld s 6(3)(a) (which explicitly exclude from their parameters the prosecution for a criminal offence). The same, though recommended in Western Australia (see WALRC 36(II), p

90.

91. 92.

93. 94.

95. 96. 97. 98.

99. 100. 101. 102. 103. 104. 105. 106.

478), has not translated to statute. Attorney General v Bradlaugh (1885) 14 QBD 667 at 687 per Brett MR (‘when the legislature is found using the words, “by action”, that word construed according to its ordinary meaning does not … include an indictment or a criminal information’); Johannessen v Miller (1977) 16 SASR 546 at 554–5 per Bray CJ, at 558 per Walters J, at 567–8 per Sangster J; Grzybowicz v Smiljanic [1980] 1 NSWLR 627 at 631 per Reynolds JA, with whom Glass JA concurred. See 1.5–1.7. See, for example, Criminal Procedure Act 2004 (WA) s 21(1) (‘A prosecution of a person for an indictable offence may be commenced at any time, unless another written law provides otherwise’). As to laches see 13.2–13.31. See, for example, Criminal Code (WA) ss 51 (unlawful military activities), 52 (sedition), 65 (riotous assembly), 103 (corrupt and illegal practices at elections); Criminal Procedure Act 2004 (WA) s 21(2) (‘A prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time’). See Walton v Gardiner (1993) 177 CLR 378; BC9303612 (albeit in the context of professional disciplinary proceedings). See Ch 13. Bulli Coal Mining Co v Osborne [1899] AC 351 at 363 per Lord James (PC). In New South Wales and the Northern Territory, to actions in contract, tort, etc (NSW s 14; NT s 12: see 5.2, 6.2), actions upon deeds (NSW s 16; NT s 14: see 5.42), enforcement of judgments (NSW s 17; NT s 15: see 12.8), recovery of penalties or forfeiture (NSW s 18; NT s 16: see 11.11), enforcement of awards of arbitrators (NSW s 20; NT s 18: see 12.15) and successive conversions (NSW s 21; NT s 19: see 6.27); in Queensland, to actions listed in Qld s 10(1)– 10(5) (‘Actions of contract and tort and certain other actions’); in Tasmania, to actions found in Tas Pt II Div 2 (‘Actions in contract, tort, etc’); in Victoria, to actions listed in Vic s 5(1)–5(7) (‘Contracts and torts’). As to the application of limitations statutes by way of analogy see 13.32–13.41… NSW s 23; NT s 21; Qld s 10(6); Tas s 9; Vic s 5(8). Poole Corporation v Moody [1945] 1 KB 350 at 355 per Morton LJ, with whom Lawrence and Uthwatt LJJ concurred. As to the limitations provisions applicable to actions for breach of trust see generally Ch 10. See 13.2–13.31. ACT s 11(1). ACT Dictionary. Paramasivam v Flynn (1998) 90 FCR 489 at 501; BC9807072 (FC) (ruling that the trial judge was ‘undoubtedly right’ in deciding that the general limitation period of six years, under ACT s 11(1), applies to an action alleging breach of fiduciary duty; this followed from the wide definitions of ‘action’ and ‘cause of action’ in ACT s 8(1) and because the Act does not provide another limitation period for breaches of fiduciary duty); Wagdy Hanna & Associates Pty Ltd v National Library of Australia (2012) 7 ACTLR 70; [2012] ACTSC 126; BC201205632 at [243] per Refshauge ACJ; Lallemand v Brown (2014) 9 ACTLR 313; [2014] ACTSC 235; BC201407935 at [148] per Mossop M.

107. 108. 109. 110.

111.

112. 113.

114.

115. 116.

117. 118. 119. 120. 121. 122.

123. 124. 125. 126. 127.

WA s 3(1). WA s 27(2). See 10.12 (in the context of trusts). See WALRC 36(II), p 355 (‘The doctrine of analogy, already reduced to a shadow of its former self by the fact that most equitable claims are now directly the subject of Limitation Act provisions, will disappear. The Commission sees this as a wholly desirable development’). Cf P Handford, ‘A New Limitation Act for the 21st Century’ (2007) 33 UWALR 387 at 401–2. See N Skead, ‘Limitation Act 2005 (WA) and Equitable Actions: A Fatal Blow to Judicial Discretion and Flexibility — How Other Australian Jurisdictions Might Learn from Western Australia’s Mistakes’ (2009) 11 UNDALR 1 at 15–17 (who laments this outcome). WALRC 36(II), pp 350–1 (footnote omitted). See QLRC 53, pp 106–110; NZLC 6, para 337 (‘any attempts to keep equity and its remedies separate from the common law and its remedies more than a century after the fusion of common law and equity are unhelpful’; note that the Limitation Act 2010 (NZ) applies, with limited exceptions, to ‘money claims’, which includes a claim for monetary relief ‘in equity’: s 12(1)). See further 22.9–22.11. Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; [1999] NSWSC 843; BC9905247 at [81] per Abadee J (who saw a strong case for amending limitations legislation to make it apply not only to the common law counts but to the equitable cause of action as well); Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 at 124 per Sir Christopher Staughton (‘It is not obvious to me why it is still necessary to have special rules for the limitation of claims for specific performance, or an injunction, or other equitable relief’). See 22.9–22.11. See, for example, Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; [1999] NSWSC 843; BC9905247 at [734], [735] per Abadee J; Woodhead v Elbourne [2001] 1 Qd R 220; [2000] QSC 42; BC200000927 (where the plaintiff claimed that the defendant, who was her parents’ friend, sexually assaulted her on numerous occasions when she was a child). Woodhead v Elbourne [2001] 1 Qd R 220; [2000] QSC 42; BC200000927 at [34] per White J. Breen v Williams (1996) 186 CLR 71; BC9604086. See 13.32–13.41. See 13.2–13.31. UK 1939 s 29 (now see UK 1980 s 36(2)). ACT s 6; NSW s 9 (referring to ‘rules of equity concerning the refusal’); NT s 7 (referring to ‘rules of equity concerning the refusal’); Qld s 43; SA s 26 (referring to ‘any rule or jurisdiction of courts of equity in refusing relief’); Tas s 36; Vic s 31; WA s 80 (see WALRC 36(II), p 355, noting that such a provision performs ‘a useful function in retaining important equitable doctrines without prejudicing the general scheme’). As to the equitable defence of acquiescence see 13.7–13.10. As to the equitable defence of laches see 13.2–13.31… Re Loftus (decd) [2006] 4 All ER 1110; [2006] EWCA Civ 1124 at [33] per Chadwick LJ, with whom Thomas and Lloyd JJ concurred. Re Loftus (decd) [2006] 4 All ER 1110; [2006] EWCA Civ 1124 at [33]–[41] per Chadwick LJ, with whom Thomas and Lloyd JJ concurred. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27;

128. 129.

130.

131.

132. 133. 134.

135.

136. 137.

BC200604226 at [219] per Callinan J (dissenting, but not on this point) (‘it has never been part of the law of Australia that [equitable defences] are available in common law cases’). As to the application of limitations statutes by way of analogy see 13.32–13.41… In the event, conversely, of a defence in the form of waiver or release, which focuses on the plaintiff’s conduct rather than any effect on the defendant, proponents of this view accept that the claim should not be barred in equity within the limitation period, on the ground that it would otherwise be inconsistent with the purpose of equity applying the limitation period: see, for example, Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [473] per Macaulay J. M(K) v M(H) [1992] 3 SCR 6 at 70 per La Forest J; Wewaykum Indian Band v Canada [2002] 4 SCR 245 at [108] per Binnie J; P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288; [2006] EWCA Civ 1717 at [52], [61] per Moore-Bick LJ, with whom Jonathan Parker and Buxton LJJ concurred; Walker v Melham [2007] NSWSC 264; BC200701985 at [63], [64] per White J; Lallemand v Brown (2014) 9 ACTLR 313; [2014] ACTSC 235; BC201407935 at [140]–[155] per Mossop M; Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [472]–[474] per Macaulay J. Cf Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181; BC201404422 at [27]–[29] per Meagher JA, with whom Beazley P and Emmett JA agreed. There is American authority to the same effect: see, for example, Fulton v Fulton (2014) 106 A 3d 127 at 131 (Penn). In the Canadian province of Alberta, pursuant to a law reform recommendation (see ALRI 55, p 36), statute avoids any debate by making explicit provision to this effect, including in relation to the defence of acquiescence: Limitations Act 2000 (Alta) s 10 (‘Nothing in this Act precludes a court from granting a defendant immunity from liability under the equitable doctrines of acquiescence or laches, notwithstanding that the defendant would not be entitled to immunity pursuant to this Act’; emphasis supplied). The same has been recommended, but not enacted, in England and Western Australia: Law Com 270, para 4.278; WALRC 36(II), p 330. See, for example, Archbold v Scully (1861) 9 HLC 360 at 383; 11 ER 769 at 778 per Lord Wensleydale; Re Baker (1881) 20 Ch D 230; Re Pauling’s Settlement Trusts [1961] 3 All ER 713 at 735 per Wilberforce J [affd Re Pauling’s Settlement Trusts [1964] Ch 303 at 353 per Upjohn LJ]; Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339; [1999] FCA 1315; BC9906222 at [58] per Finkelstein J. See 3.27. See 3.26. A parallel principle is reflected in Acts interpretation legislation: Legislation Act 2001 (ACT) s 84(1)(c); Interpretation Act 1987 (NSW) s 30(1)(c); Interpretation Act 1978 (NT) s 12(c); Acts Interpretation Act 1954 (Qld) s 20(2)(c); Acts Interpretation Act 1915 (SA) s 16(1)(c); Acts Interpretation Act 1931 (Tas) s 16(1)(c); Interpretation of Legislation Act 1984 (Vic) s 14(2)(e); Interpretation Act 1984 (WA) s 37(1)(c). R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 371; BC1690106 per Griffith CJ (referring to the ‘settled rule of construction’ of statutes that ‘a law is not to be construed as retrospective in its operation unless the Legislature has clearly expressed that intention’, and the further rule that ‘it is not to be construed as retrospective to any greater extent than the clearly expressed intention of the Legislature indicates’). See, for example, Millner v Raith (1942) 66 CLR 1; BC4200021 (involving an offence created by a retrospective statute). Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69. (1957) 96 CLR 261 at 267; BC5700130. See also Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 558–9 per Lord Brightman (PC); Rodgers v Revenue SA, Dept of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2; BC201400092 at [81]–[85] per Blue J, with whom

138. 139. 140.

141. 142. 143. 144. 145.

146. 147. 148. 149. 150. 151. 152.

153.

Vanstone J concurred. Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652; BC4515292. Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652; BC4515292. Identifying the difficulty as ‘traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance’: Maxwell v Murphy (1957) 96 CLR 261 at 267; BC5700130. See also Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 558–9 per Lord Brightman (PC) (remarking that the term ‘procedural’ is equivocal and therefore can be misleading, in that a statute that ‘is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation, revive or destroy the cause of action itself’); Gangar v Espinet [2009] 4 LRC 260; [2008] UKPC 48 at [18] per Lord Brown (confessing to ‘some difficulty’ in the concept of construing legislation such as the amending limitation statutes ‘so as to decide whether it operates retrospectively or not, by reference to the particular facts of the case’). (1957) 96 CLR 261 at 267; BC5700130, citing from Dixie v Royal Columbian Hospital [1941] 2 DLR 138 at 139–40 per Sloan JA, with whom O’Halloran JA concurred (CA(BC)). See 2.33. Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 507; BC9703255 per Dawson J. See 2.2–2.5. (1957) 96 CLR 261 at 277–8; BC5700130 (emphasis supplied). These remarks were endorsed in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 562–3 per Lord Brightman (PC). See also Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 at 242; BC7100330 per Gibbs J; Marsal v Apong [1998] 1 WLR 674 at 678–9 per Lord Slynn (PC). (1844) 5 QB 767; 114 ER 1439. Namely UK 1833 s 7. Doe d Evans v Page (1844) 5 QB 767 at 772; 114 ER 1439 at 1441. (1957) 96 CLR 261; BC5700130. Namely the Compensation to Relatives Act 1897 (NSW) s 2(a). Per Dixon CJ, Williams, Kitto and Taylor JJ, Fullagar J dissenting. (1957) 96 CLR 261 at 283; BC5700130 (emphasis supplied). See also Van Vliet v Griffiths (1979) 20 SASR 524 (where the plaintiff, having issued proceedings outside the limitation period, sought an extension of time pursuant to SA s 48, which came into operation after the claim had become statute-barred; King CJ, with whom Jacobs and Williams AJ concurred, ruled that s 48 did not operate retrospectively and, applying Maxwell v Murphy, reasoned that as ‘[t]he conferral of a power on the court to extend the time would amount to a potential deprivation of the vested right or immunity’, the common law presumption against retrospectivity ‘must apply with equal force’: at 530). Cf Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629; BC5900360 (where the court held that the appellant could avail himself of an entitlement to apply for an extension of time that had, by statutory amendment, been extended from 12 months to three years because the threshold for the entitlement to the relevant statutory benefits had already been triggered; Dixon CJ reasoned (at 638) that ‘the appellant’s rights of action had not been barred at the date the amendment took effect’ and so ‘considered in relation to the right of action the amendment was … truly procedural’, there being ‘no impairment or destruction of any substantive right belonging to the respondent’; see also at 649 per Menzies J, at 650–1 per Windeyer J). See, for example, Limitation Act 2005 (WA) s 7(2), under which an action on a ‘cause of action

(childbirth)’ (defined in s 7(1)) cannot be commenced if the cause of action accrued before 15 November 2005 (being the commencement day of the 2005 Act) and six years have elapsed since that date: see 7.90, 7.91. That s 4 states that the limitation periods provided for under the 2005 Act apply only to causes of action that accrue on or after 15 November 2005, but that this does not apply to s 7, suggests that the Parliament wished to alter the law retrospectively for ‘causes of action (childbirth)’. The legislative history, which revealed a desire to shorten the limitation period applicable to actions against obstetricians, confirmed the point: see Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [23]–[33] per Martin CJ, at [61]–[68] per Pullin JA. 154. Manitoba Metis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623; [2013] SCC 14 at [259] per Rothstein J (dissenting, but not on this specific point). As to the certainty rationale for limitations statutes see 1.23–1.27. 155. Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [53] per Pullin JA.

[page 61]

PART II

Time Prescribed Australian limitation law, in common with its English progenitor, mostly allocates time bars by reference to particular causes of action. It thereby proceeds on the assumption that different causes of action should, in policy, be amenable to different time bars. Hence, to pinpoint the applicable time bar, it is first necessary to ascertain the relevant ‘cause of action’. What must then be identified is when that cause of action ‘accrues’, and thus time begins to run for limitation purposes, and if the time bar has elapsed. These inquiries form the focus of Chapter 4. The remaining chapters in this Part, excepting its concluding chapter, target the particular causes of action for which the limitations statutes impose time bars. The concluding chapter explains how, outside of those statutes, equity recognises time bars either pursuant to the defence of laches or in applying the statutory time bar by way of analogy.

[page 63]

CHAPTER 4

Running and Computation of Time Approach to Specifying Applicable Limitation Periods Cause of Action Meaning of ‘cause of action’ Focus on facts material to be proven Impact of unfulfilled procedural steps Need for a plaintiff Meaning of ‘action’ Where multiple causes of action Joint causes of action (and liabilities thereon) Cause of action includes counterclaim and set-off Adding statute-barred cause of action by pleading amendment When Time Begins to Run Accrual of a cause of action Time runs from day after accrual Impact of contract on the running of time Impact of death on the running of time No interruption once time runs General rule Qualifications to general rule When the Running of Time Ends

4.1 4.4 4.4 4.4 4.7 4.10 4.11 4.14 4.16 4.18 4.24 4.33 4.33 4.35 4.37 4.42 4.45 4.45 4.47 4.49

By the commencement of proceedings Proceedings commenced by agent Identifying the date when time ends By an external event By the terms of a contract By way of estoppel or waiver By expiry of ultimate time bar in New South Wales Subject to a default minimum time bar in South Australia

4.50 4.52 4.54 4.56 4.57 4.61 4.62 4.65

Approach to Specifying Applicable Limitation Periods 4.1 The Australian limitations landscape reveals two main approaches to prescribing time bars. The traditional approach involves the applicable limitation periods being tied to particular causes of action, although it does not preclude multiple causes of action being the subject of [page 64] the one provision, and thus one limitation period. This is typified in encompassing provisions that stipulate a limitation period for, inter alia, causes of action in contract and tort, which may yield to a specific provision that sets a different time bar. This approach, which follows the English lead,1 is adopted in New South Wales, the Northern Territory, Queensland, South Australia, Tasmania and Victoria. It therefore largely underscores the cause of action-specific structure of the remaining chapters in this Part. 4.2

The Australian Capital Territory and Western Australia adopt a

different starting point. In the one provision they prescribe a single (six year) limitation period for all causes of action (a ‘general’ limitation period), but which must yield to occasions in which the statute prescribes another limitation period for a particular cause of action.2 In the Australian Capital Territory, the relevant provision states that ‘an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims’.3 In Western Australia it similarly states that ‘[a]n action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued’,4 and via a discrete provision adds that where relevant, for this purpose, accrual includes a reference to the accrual of the cause of action to someone through whom a person claims.5 The same trend appears in New Zealand law,6 and that of several Canadian provinces,7 but has not seen broader implementation in Australia (or at all in England) despite law reform recommendations to this effect.8 4.3 According to the standard phraseology adopted in Australian limitations schemas, time begins to run for the purposes of limitation periods at the moment the relevant ‘cause of action’ has ‘accrued’ to the plaintiff. At the outset, therefore, characterisation of the relevant ‘cause of action’ is essential to ascertaining the time bar applicable. And, in determining whether or not time has expired vis-à-vis that cause of action, it is critical to identify the moment when that cause of action ‘accrued’ to the plaintiff. Unless there are statutory grounds to defer9 or recommence10 the running of time in a given case, the outcome of the limitation issue will rest upon answers to these inquiries. Understanding is what is broadly meant by ‘cause of action’ — including its application limitations-wise vis-à-vis counterclaims, joint causes of action and pleading amendments — and the concept of ‘accrual’ thus assumes seminal significance. It is the focus of this chapter, which elaborates upon the commencement and termination of the running of time for limitations purposes generally. [page 65]

Cause of Action Meaning of ‘cause of action’ Focus on facts material to be proven 4.4 The phrase ‘cause of action’, though endemic and foundation to the limitations regimes, is not defined in limitations statutes (except the Australian Capital Territory). Resort must, accordingly, be had to the general law. The classic judicial expression of a ‘cause of action’ is that of Brett J in Cooke v Gill,11 who defined it to mean ‘every fact which is material to be proved to entitle the plaintiff to succeed — every fact which the defendant would have a right to traverse’. Even though Cooke v Gill did not involve a limitation statute, Brett J’s formulation has translated in substance to the limitations environment,12 where judges have, to this end, aligned a ‘cause of action’ with ‘the occurrence of all the facts which the plaintiff must prove as part of his case — that is, at the time when the plaintiff could first have brought his action and proved sufficient facts to sustain it’,13 ‘the essential ingredients in the title to the right which it is proposed to enforce’14 or, more tersely again, ‘simply the fact or combination of facts which gives rise to a right to sue’.15 Hence the reference, on occasion in this context, to a ‘complete’ cause of action16 or one ‘capable of being enforced’.17 The substance of these judicial characterisations of a ‘cause of action’ resonates in its statutory definition in the Australian Capital Territory, namely ‘the fact or combination of facts that gives rise to a right to bring a civil proceeding’.18 It is apparent from the above formulations that knowledge of the legal implications of the known facts is not an additional fact that forms part of a cause of action; they focus on the facts that a plaintiff must establish. A person may, after all, be well appraised of the facts that need to be proved to establish a cause of action but, for want of taking legal advice, not know that those facts give rise to a right to relief.19 Thus knowledge of the right to sue is not an essential ingredient of a cause of action; nor, as a matter of logic, is recognition of the right to sue by the courts.20 4.5

Where, however, statute proscribes the commencement of an action

‘except with the leave of the court’,21 the grant of leave is a necessary element of the cause of action. Accordingly, on the definition(s) of ‘cause of action’ catalogued above, for limitation purposes time does not run — as there is no ‘cause of action’ — at a time before leave is granted.22 [page 66] 4.6 The meaning of ‘cause of action’ feeds directly into the inquiry as to whether a cause of action has accrued — and therefore time has begun to run — for the purposes of limitations legislation. It follows that, as a matter of general principle, a cause of action accrues once the plaintiff ‘would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right of judgment’.23 And this remains so, as illustrated by the House of Lords’ decision in Central Electricity Board v Halifax Corporation,24 even if an element of the cause of action, if disputed, may have to be determined other than by a court of law. As elaborated later in this chapter,25 the concept of ‘accrual’ adopted by limitations legislation, to this end, is determined by the general law unless it is modified by the legislation itself.26

Impact of unfulfilled procedural steps 4.7 There arises, in this context, the legitimate question as to whether some ‘procedural’ bar to the action should, for limitations purposes, be seen as precluding a cause of action, and the running of time, until that bar is overcome or satisfied. The case law here broadly recognises a distinction between a procedural bar and the elements of a cause of action, although it should be understood that the distinction is not always a straightforward one to make. 4.8 The classic case is Coburn v Colledge,27 involving a statute, with equivalents in Australia,28 that proscribed the plaintiff lawyer from suing for his fees until 30 days had passed after delivering his bill. The defendant client had gone abroad and could not be found to give him the bill. The English Court of Appeal held that time had commenced to run because the

‘30 day rule’ (like most limitations provisions)29 barred only the remedy, not the debt itself, and that other remedies, such as set-off, remained open throughout. Parallel reasoning informed the decision of the House of Lords in Sevcon Ltd v Lucas CAV Ltd,30 involving an application for letters patent. Opposition followed publication of a complete specification in April 1971, and the letters patent were eventually sealed in October 1982. Infringement proceedings ensued in February 1984, complaining of infringements between 1974 and 1977. In the face of a six year limitation period, their Lordships rejected the claim as statute-barred on the basis that the cause of action accrued when the acts of infringement were committed. Statutory prohibition against instituting proceedings until a patent is sealed31 merely postponed the right to sue, it was reasoned, and did not defer the existence of a cause of action.32 [page 67] The same was held in New Zealand in Pacific Coilcoaters Ltd v Interpress Associates Ltd,33 on similar facts dealing with an equivalent statutory provision.34 A majority of the Court of Appeal branded any ‘general principle that a cause of action in tort does not accrue until such time as the plaintiff is procedurally entitled to institute proceedings and to obtain a remedy’ as not consistent with the concept of a ‘cause of action’.35 Their Honours viewed criticism levelled at Sevcon as grounded in perceived injustice or unfairness in its outcome rather than on established principle.36 4.9 Yet it cannot be gainsaid that questions of justice and fairness should inform legal principle. A dissenter in Pacific Coilcoaters, Thomas J, saw it ‘unacceptable in principle that time should run against a plaintiff when he or she cannot bring an action’,37 and opined that it makes ‘a mockery’ of the ‘cause of action’ concept to hold that ‘all the facts exist which are necessary to support the plaintiff’s right to the judgment of the Court at a time when the plaintiff has no right to seek the judgment of the Court’.38 His Honour distinguished the seminal case of Coburn, characterising the procedural ‘30

day rule’ there as a ‘vastly different prerequisite from a condition precedent that the plaintiff obtain the grant of a patent’,39 and disclaiming any application of the reasoning underscoring Coburn to the patent scenario.40 The proscription on instituting proceedings until a patent is sealed, he reasoned, was not merely a procedural bar postponing an applicant’s ability to sue for infringement, but in substance ‘an integral part of the cause of action for infringements pre-dating the sealing of the patent’.41 In so ruling, Thomas J expressed general dissatisfaction with the distinction between a procedural bar and an integral element of a cause of action for limitation purposes. His Honour endorsed the approach of the Alberta Court of Appeal in Costello v City of Calgary,42 which branded the distinction ‘narrow and technical’, and declared the reasoning in Coburn ‘unconvincing’. What concerned Côté JA, who delivered the reasons of the court, was both the difficulty and artificiality in distinguishing a procedural bar (which he described in terms of a condition precedent) from an element in a cause of action.43 This prompted the remark, with which Thomas J expressed full agreement,44 that ‘[i]t is fairer to craft a rule which aims at justice or moulds conduct, rather than relying on the difference between artificial ideas such like conditions precedent and causes of action’.45 On the facts in Costello, this meant that a ‘procedural’ hurdle — where no action could be brought under a city bylaw until one month had elapsed after the bylaw was quashed — was to be overcome before time commenced to run for limitations purposes. It is difficult not to have sympathy with such an approach, as it places substance over form, and avoids the prospect that time could run against a plaintiff at a time when he or she was unable in practical terms to pursue an action. [page 68]

Need for a plaintiff 4.10 There can be no cause of action, and thus no running of time, unless there is a plaintiff in whom that cause of action vests.46 Ordinarily the plaintiff has legal existence (well) before any cause of action, even if he or

she is under a legal disability, in which event a litigation guardian (or the like) may pursue the cause of action on the plaintiff’s behalf. In the latter context, in any case, limitations statutes provide for the running of time to be suspended for the period of the disability, albeit with certain qualifications.47 However, as an unborn child is not a ‘person’ in whom a cause of action can vest, should an unborn child be the victim of a defendant’s negligent wrongful act or omission, there is no cause of action, and thus time cannot begin to run, until the child secures status as a legal person, namely from when he or she is born alive.48

Meaning of ‘action’ 4.11 The term ‘action’ is defined for the purposes of the limitations statutes, to include ‘any proceeding in a court of law’,49 although South Australia adopts an ostensibly broader definition, extending to ‘legal proceedings of all kinds’,50 and Western Australia extends the term to ‘an arbitration under an arbitration provision’ (but exempting proceedings for habeas corpus and certain proceedings for certiorari, mandamus, prohibition or quo warranto).51 The broad South Australian definition clearly encompasses, but is not limited to, a reference to arbitration.52 Elsewhere, the reference to a ‘court of law’ invites a distinction between what amounts to a ‘court’ as compared to, say, a tribunal or other adjudicatory body.53 The reason, it seems, for including ‘any proceeding in a court of law’ in the meaning of the term ‘action’ is to address the fact that some of the actions dealt with by limitations statutes — such as those for foreclosure and redemption — may be commenced by originating summons rather than by the usual filing of a writ.54 Had the term ‘action’ remained undefined, it may have been construed as confined to proceedings commenced by writ. Yet whether this would necessarily have ensued is debatable.55 [page 69] 4.12 Whatever the historical reason, and justification, for so defining the term ‘action’, there is support for a broad construction56 (a point with greater

resonance again in South Australia and Western Australia, in view of the broader definition of ‘action’).57 In China v Harrow Urban District Council58 the English Court of Appeal, for instance, held that the issue of a distress warrant as a means to recover rates was an ‘action’, despite settled law that no such action lay, and that the only method to recover rates was by application for a distress warrant. Lord Goddard CJ, in so ruling, reasoned that the language used in the definition showed that it was intended to apply to proceedings ‘to which the term “action” would be inapplicable’.59 Accepting that the word ‘action’, thus defined, could embrace proceedings that are not actions in the ordinary sense, each judge accepted the invitation to construe the phrase ‘cause of action’ as ‘cause of proceeding’.60 This approach is consistent with the observation of Lord Denning MR, albeit in the context of a rule-based time bar, that ‘any application to the court, however informal, is a “proceeding”’.61 4.13 The broad construction trajectory nonetheless has limits. In particular, procedural steps within an existing action cannot ordinarily be conceived as an ‘action’. In Fernance v Nominal Defendant62 Gleeson CJ, with whom Clarke JA agreed, held that an order made by a Master that a named person be joined as a defendant in certain proceedings did not, of itself, constitute the commencement of an action against that person for the purposes of the relevant limitation statute. His Honour reasoned that, as the joinder application required not simply amending the statement of claim by adding the proposed defendant’s name, but the preparation and filing of a further statement of claim, the Master’s order did not, by itself, trigger the running of time.63 The mere filing of a motion seeking to join a person in the proceedings does not, on this logic, constitute the bringing of an ‘action’.64 Nor, according to the English Court of Appeal in National Westminster Bank plc v Powney,65 is an application to extend time for executing a warrant of possession an ‘action’ time barred by limitations legislation. The latter reflects the basic distinction between the right to sue on a judgment — that is, the ‘action’ — and the right to issue execution under it;66 reviving a judgment in order to issue execution on it is not itself an ‘action’ for the purposes of limitation periods imposed by statute.67

Where multiple causes of action

4.14 In recognition that a limitation statute might, in different sections, prescribe more than one limitation period to events that come within those disparate sections, the statutes [page 70] in the Territories and New South Wales state that if, under each of two or more provisions, ‘an action is not maintainable if brought after a specified time, the action is not maintainable if brought after the earlier or earliest of those times’.68 For example, where an action brought in tort — to which a general six year limitation period applies69 — can also be characterised, under the New South Wales legislation, as ‘founded on negligence, nuisance or breach of duty, for damages for personal injury’, subject to a three year limitation period,70 it is the shorter of those two periods that governs. Likewise, the six year limitation period applicable to an action founded in tort must yield to the three year period set for an action arising under the Compensation to Relatives Act 1897 (NSW).71 The foregoing obviate scope for the plaintiff to select, in his or her discretion, the more generous limitation period, at the defendant’s expense. While it seems inconsistent with the rationales for limitations legislation — which have traditionally focused on protecting defendants72 — to envisage an entirely one-sided election, for the plaintiff’s benefit, as to the applicable limitation period, authority in the other jurisdictions appears to support the same approach.73 Perhaps more defensible, however, is for the court to determine the provision that most closely approximates the nature of the claim. For instance, what may be an otherwise applicable limitation provision of general application could be construed as yielding to one, also applicable, with a more specific ambit.74 4.15 The position differs if the plaintiff can show separate causes of action arising out of separate incidents of damage. In this event, there is nothing to preclude the plaintiff from selecting the cause of action that accrues within the limitation period. At the same time, though, the court focuses on the substance of the matter and ‘not the formal framework that may have been

artificially erected by the plaintiff in an endeavour to gain a juridical advantage’.75

Joint causes of action (and liabilities thereon) 4.16 Limitations statutes in the Territories, New South Wales and Western Australia state that if persons would have a cause of action jointly and, by reason of a time bar imposed by the legislation, an action on the cause of action is not maintainable by one or more of them, it may nonetheless be maintained by the other(s), and judgment may be given accordingly.76 This provision aims to ensure that, should there be joint plaintiffs, the expiry of the limitation period against one plaintiff does not affect the other plaintiffs’ right to commence proceedings. An example may be where the limitation period for one joint plaintiff is still running, say [page 71] because that plaintiff has been under a disability,77 but another joint plaintiff’s right of action is statute-barred because the limitation period against that plaintiff has expired.78 In the above jurisdictions, statute similarly addresses the converse situation, namely where persons would be liable on a cause of action jointly but a time bar dictates that an action on the cause of action is not maintainable against one or more of them; again, an action on the cause of action is nonetheless maintainable against the other(s).79 4.17 The other jurisdictions make no equivalent statutory provision (although it has been recommended in Queensland).80 The closest in found in the South Australian Act, vis-à-vis the case of two or more co-contractors or co-debtors (whether bound jointly only or jointly and severally) or executors or administrators of any co-contractors. It declares that no such person will lose the benefit of the Act — that is, be denied protection from a stale claim — so as to be chargeable in respect, or by reason only, of payment of any principal, interest or other money by another co-contractor, co-

debtor, executor or administrator.81

Cause of action includes counterclaim and set-off 4.18 As a matter of principle, when applying the law of limitation, courts distinguished a matter in the nature of a defence from one in the nature of a counterclaim. No limitation period would apply to what is properly in the nature of a defence because it does not constitute a cause of action but instead goes directly to undermining the plaintiff’s cause of action. On the other hand, as a counterclaim is, by definition, in the nature of a claim against the plaintiff, and thus a cause of action, any time bar applicable to the claim could not be overlooked. A defendant who would have been timebarred for a separate action against the plaintiff in this regard was also treated as time-barred for a counterclaim.82 4.19 Typically, in this context, the case authority targeted the distinction between a defence by way of set-off and a cause of action relied upon by way of counterclaim.83 But this distinction was abolished in England via s 28 of the Limitation Act 1939 (UK), pursuant to which any claim by way of set off or counterclaim ‘shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set off or counterclaim is pleaded’.84 The same statutory language translated, and remains, in the limitations statutes in the Northern Territory, Queensland, Tasmania and Victoria.85 The Australian Capital Territory and New South Wales legislation, while similarly declaring a claim made by way of ‘set-off, counterclaim or cross-action’ to be a separate action, as elaborated below makes alterative provision as to when the ‘action’ accrues.86 The South Australian Act, in also seeking to assimilate the limitations treatment of setoff and counterclaims, applies ‘to the case of any debt or simple contract alleged in the way of set-off on the part of any defendant [page 72] either by his defence or notice or otherwise’.87 Dicta that the reference in these provisions to ‘set-off’ denote only a legal set-off, not an equitable set-

off,88 has not received unqualified endorsement,89 as there appears little reason in statutory construction, principle or policy to so confine its meaning. 4.20 The Western Australian legislation, while likewise deeming a counterclaim a separate action, maintains the earlier distinction by exempting ‘a counterclaim solely by way of defence’.90 It adds that a counterclaim by a defendant against a plaintiff is to be taken to have commenced as against the plaintiff when the defendant became a party to the action.91 But if, in this event, the defendant then also joins a third party against whom the counterclaim is made, the counterclaim is to be taken to have commenced as against the third party when the latter is joined as a party to the counterclaim.92 4.21 As foreshadowed above, the Australian Capital Territory and New South Wales Acts declare a claim made by way of ‘set-off, counterclaim or cross-action’ to be a separate action. This ‘separate action’ accrues, for the purposes of limitations law, as against a person against whom it is directed, on the only or earlier of the date when he or she becomes a party to the principal action, or the date when he or she becomes a party to the ‘set-off, counterclaim or cross-action’. This language reveals that the foregoing can have application not only to a claim made by the defendant back against the plaintiff, but also to a claim made against a person the defendant joins as a cross-defendant.93 The Western Australian provision, noted above, makes the latter more overt, at least within its confines. The logic is that, if a defendant counterclaims against a person who is not a party to the original action, but is joined thereto, it would be unfair that the running of the limitation period should be stopped by the commencement of proceedings to which that person is not a party.94 4.22 In the remaining jurisdictions, the legislation does not, in its terms, explicitly apply as against third parties joined by the defendant. That the respective legislatures in the Australian Capital Territory, New South Wales and Western Australia elected to make specific reference to the third party scenario may speak to a belief that the English provision did not extend to it. At the same time, as the term ‘counterclaim’ has seen application in situations beyond a claim by the defendant directly against the plaintiff,95

there may be scope to construe the English provision (and accordingly that in the remaining Australian jurisdictions) as capable of extending to the third party joinder scenario. 4.23 While the legislation in no jurisdiction makes explicit reference to a set-off or counterclaim by the defendant against an existing co-defendant, the statutory language is wide enough (except maybe in Western Australia) to cover this event, as it does not limit against whom the set-off or counterclaim is pleaded.

Adding statute-barred cause of action by pleading amendment 4.24 One of the ‘rules’ that evolved around the operation of the Limitation Act 1623 (UK) concerned the amendment of pleadings. Occasions surfaced where a plaintiff commenced [page 73] proceedings against a defendant on one cause of action, but later sought to amend the pleadings to include a cause of action that, although not timebarred when the proceedings began, had become so by the time the amendment was sought. By doing so the plaintiff sought to ‘resurrect’ the otherwise expired cause of action by attaching it to the coat tails of the earlier writ. The courts’ general iciness to amendments of this kind was unsurprising, being concerned as to the injustice of allowing a cause of action to be raised when it was statute-barred. 4.25 While the most frequently cited case is Weldon v Neal,96 the three separate judgments of the members of the English Court of Appeal span no more than a page in total. Lord Esher MR explained the judicial attitude as follows:97 We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would

be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust.

Lopes LJ, while backing ‘all reasonable indulgence with regard to amending … if it can be allowed without injustice to the other side’, refused to allow the amendment on the facts, as it would deprive the defendant of the limitation defence and thereby unjustly prejudice the defendant.98 While the ‘rule’ traditionally focused on amending pleadings to introduce new causes of action, its application saw extension to instances where it was sought to add new parties to the proceeding.99 Two alternative bases for the latter — in the context of adding a defendant — have been proffered:100 (1) the action against the added defendant relates back to the date of the original writ, the plaintiff is deemed to have begun his action against the defendant when he began it against the original defendant, and so the defendant is deprived of his right to rely on the statute of limitations; (2) the action against the added defendant is begun at the date of the amendment joining him in the action, and so he can rely on the statute as barring the plaintiff from suing him. In most cases it will not matter which of the two possible dates is regarded as the date of the commencement of the action brought against the added defendant. If he applies to set aside the order joining him as co-defendant, he will succeed, either because he would be deprived of his right to rely on the statute if the earlier date were preferred or because he would be able to rely on the statute and defeat the plaintiff’s claim if the later date were preferred.

4.26 Aside from statutory or rule-based intervention, the issue remains as to the stringency with which Lord Esher MR’s ‘settled rule of practice’ should be applied. At the outset, it should be noted that his Lordship identified the ‘rule’ as one of ‘practice’, as opposed to one of ‘law’, itself suggesting some malleability. And despite an indication in some case authority of the inflexibility of the ‘rule’,101 even Lord Esher surmised that ‘[u]nder very peculiar circumstances [page 74] the Court might perhaps have power to allow such an amendment’.102 Indeed, it could not be said that before the Judicature Act the practice in England had been so strict; the cases reveal that the Court of Exchequer and the Court of Common Pleas permitted such amendments.103 Also, there were judicial voices around the time of Weldon v Neal

bemoaning any rigid rule,104 which have seen replication in Australian courts via some judicial discretion. For example, Hoare J in Archie v Archie105 Hoare J readily accepted that the discretion should only be exercised ‘in peculiar circumstances’ or ‘special circumstances’, but branded it contrary to principle to countenance a rule of rigid application. There may be occasions where the party seeking amendment has been misled in some material way by the opponent, or a third party, such that allowing the amendment, including one that permits the joinder of the third party, may not be unjust to the opponent or third party. More generally, it has may be queried whether a strict application of Weldon v Neal, given it applies vis-à-vis proceedings that have already been commenced, aligns with the repose and diligence purposes of limitation statutes.106 4.27 The Northern Territory and Victorian limitations statutes now in any event provide for the court to allow the amendment of a document in a proceeding notwithstanding the expiry of a time bar.107 The relevant subsections, operative from 1 January 1987 in Victoria and 1 November 1987 in the Northern Territory,108 read as follows: If a court would, but for the expiry of a relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court shall allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party’s claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.

As the phrase ‘a relevant period of limitation’ is not defined, it could mean either a period of limitation in the limitations legislation or instead any period of limitation, howsoever imposed. Yet given its location in a limitation statute, and the absence of any words to make it explicit that its application is more extensive, the former appears the more defensible position.109 At the same time, though, the above statutory provision is essentially reiterated in the court rules (albeit in permissive language),110 in a context outside a limitations statute, in turn suggesting a potentially broader scope for application. 4.28 In Queensland, to the same end, statute empowers the court to order an amendment — here encompassing an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding — to be made, or grant leave to a party to

[page 75] make an amendment, even though a relevant period of limitation, current when the proceeding was started, has ended.111 4.29 In New South Wales, statute entitles a plaintiff, after the expiry of the relevant limitation period for an action commenced within time, to seek leave of the court to amend the originating process so as to, inter alia, add or substitute a new cause of action, together with a claim for relief on the new cause of action, that arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.112 This does not, however, limit the court’s broader powers, exercisable at any stage of proceedings, to order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings.113 4.30 Elsewhere, the role for judicial discretion, with an attendant shift from rigid rules, has seen confirmation in court rules, wherein courts may allow (certain) amendments notwithstanding a time bar.114 These, it is said, ‘displace the settled rule of practice laid down in Weldon v Neal, and all the finespun distinctions which it engendered’, in its place substituting ‘a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires’.115 Even lacking a specific rule addressing the interaction between amendment and limitation, the very existence of a leave requirement, with its attendant curial discretion, speaks against any fixed rule. At the same time, statutory and rule-based civil procedure reforms directed to the cheap, quick and just resolution of disputes116 can, when confronted with delay that is undue and unexplained, operate to disincline a court to exercise its discretion in this context.117 4.31 That the Australian Capital Territory and New South Wales statutes of limitation purport to extinguish, not merely bar recovery upon, a cause of action118 does not deprive the court of its power effectively to amend a statement of claim because, inter alia, a duly made amendment of a statement of claim takes effect not from the date of the amendment, but from the date the statement of claim was filed.119

[page 76] 4.32 Importantly, merely because the court, in its discretion, opts to allow the amendment in question in no way prejudices the defendant’s right to plead any available limitation point in the proceedings.120 The court rules give the court no power to override or affect the defendant’s accrued rights under a statute of limitations.

When Time Begins to Run Accrual of a cause of action 4.33 Australian legislative limitations schemas peg the commencement of time running with the moment at which the relevant cause of action ‘accrues’. This reflects the traditional approach to limitations law, established at an early time in the United Kingdom. Questions of accrual are determined according to the cause of action in question, and for this purpose rest on accrual as understood by the general law for those causes of action.121 The accrual rules are therefore addressed according to causes of action in separate chapters in this Part. 4.34 It should not be assumed, though, that accrual represents the only suitable trigger for the running of time for limitation purposes. Australian law, again following the English lead, has recognised that time should not begin to run for certain personal injury causes of action until a plaintiff has, or should have, discovered what substantiates the cause of action.122 Several Canadian provinces have adopted a corresponding discoverability test more broadly via their limitations statutes, but no equivalent initiative has translated to Australian, English or New Zealand law notwithstanding recommendations to similar effect.123 Discoverability does not, in any event, exhaust the alternative(s) to an accrual approach. For instance, there is the option to start time running from the ‘act or omission’ on which the claim is based, which now reflects New Zealand law.124

Time runs from day after accrual 4.35 A clear line of case authority supports the proposition that when statute prescribes a time limit within which to do an act or thing, time commences to run for this purpose from the day after the event in question.125 The main reason why the common law adopted this approach was to avoid argument over fractions of days. Its effect, said Sir William Grant MR in 1808, ‘is to render the day a sort of indivisible point’, such that ‘any act, done in the compass of it, is no more referrible to any one, than to any other, portion of it; but the act and the day are co-extensive; and therefore the act cannot properly be said to be passed, until the day is passed’.126 The same has been applied to statutes of limitation. In Gelmini v Moriggia,127 dealing [page 77] with the general six year limitation period found in the Limitation Act 1623 (UK), Channell J explained in the context of a claim in debt:128 An action cannot be brought until the cause of action is complete, and in all cases of contract the person who has to pay has the whole of the day upon which payment is due in which to pay; therefore until the expiration of that day an action cannot be brought because until then there is no complete cause of action. The result is that an action cannot be brought until the next day; but it can be brought on that day because the cause of action is complete at the commencement of that day.

4.36 The approach of the common law to this end aligns to that found in Acts Interpretation statutes, to the effect that in any statute where a period of time dating from a given day, act or event, is prescribed for any purpose, the running of time is calculated exclusively of that day or the day of that act or event.129

Impact of contract on the running of time 4.37 That the question of accrual is usually one determined by the general law does not preclude the parties to an agreement from prescribing prerequisites to the accrual of a cause of action between them. This must be

seen against the backdrop of the principle, and indeed policy, that prohibits parties from contracting to oust the courts of their jurisdiction between them. In Scott v Avery130 Alderson B phrased the rule in terms that ‘any agreement which is to prevent the suffering party from coming into a court of law, or, in other words, which ousts the courts of their jurisdiction, cannot be supported’. The jurisdiction of the court cannot be ousted, it is reasoned, because ‘justice cannot be done without the exercise of that jurisdiction’.131 What this dictates, for instance, is that an agreement to refer a dispute to arbitration is not sufficient to oust the courts of their jurisdiction as regards the subject matter of the dispute.132 4.38 However, Scott v Avery envisages that contracting parties may, via their agreement, legitimately introduce a condition precedent as to settling the amount of damage, or time of paying it, being a condition that does not go to the root of the matter in dispute.133 Indeed, the case stands as authority for the proposition that a person may validly covenant (under what has become known as a ‘Scott v Avery clause’) that no right of action will accrue until a third party, such as an arbitrator, has decided on a dispute that may arise between the person and another contracting party. This does not oust the court’s jurisdiction vis-à-vis the dispute, but imposes a condition precedent, to which the court will give effect, to a dispute being commenced before the court.134 In the event of uncertainty surrounding the relevant accruing event, it accords with contract law principle that it be resolved against the party who drafted the contract.135 [page 78] The point has significance when it comes to the accrual of causes of action for the purposes of limitations statutes. It dictates that contracting parties may, via their agreement, prescribe a condition precedent to the accrual of any cause of action between them, and that the performance of that condition precedent serves as the trigger for the accrual of the cause of action for limitations purposes. Again, this is legitimate because it does not function to oust the court’s jurisdiction to determine matters of limitation; it instead identifies, in the ‘accrual’ language of the limitations legislation,

when the matter may come before the court. 4.39 Of course, any such outcome must be read subject to inconsistent terms in limitations legislation. Other than in South Australia, for instance, the legislation states that if, under a term of any provisions for arbitration, a cause of action in relation to any difference or matter referable to arbitration under those provisions does not accrue until the making of an arbitral award, the cause of action is deemed to accrue, for the purposes of the limitations legislation, on the date when it would accrue apart from that term.136 This provision was designed to reverse the outcome in Board of Trade v Cayzer, Irvine & Co Ltd,137 where a charterparty required that any dispute between the parties be referred to arbitration and that ‘such arbitration shall be a condition precedent to the commencement of any action at law’. 4.40 Although superseded by statute, the reasoning in this case remains extant outside the arbitration arena. The ship the subject of the charterparty in Cayzer was lost in July 1917, but the claimants did not proceed to arbitration until December 1923. It followed that, if the cause of action accrued as at the date of the loss, it was time-barred by the applicable six year limitation period. The House of Lords ruled, however, that under the above condition precedent clause, no cause of action accrued until an arbitral award was made. Time did not, as a result, run from the date of the loss, and so the claim was not barred.138 If a contract is ‘so framed as to give no cause of action unless a certain condition is performed’, Lord Atkinson remarked, ‘no question arises as to ousting the jurisdiction of any Court’.139 Translated to time bars, this meant that the Statute of Limitation had no application to ‘actions or suits which, by the contracts of the parties to them, are placed in such a position that they cannot be commenced, begun, or enforced’.140 Expressed another way, the condition precedent dictated that, until the matter has been addressed by the arbitrator, the claimant ‘ha[d] no complete cause of action’,141 which is a prerequisite to time running for limitations purposes.142 By giving effect to the condition precedent, the defendants in Cayzer argued, claimants under documents of this kind might delay their proceedings indefinitely, and thus prejudice the rationale for limitation periods in the first place. This argument did not appeal to their Lordships, for

several reasons. First, as Viscount Cave LC observed, ‘if so, it is a feature which results from the form of contract which the parties have chosen to adopt’,143 and it is not for the courts to make an alternative agreement for the parties. Secondly, either party may, at any time, expedite the matter by instituting proceedings for arbitration. Thirdly, as Lord Phillimore noted, ‘[i]t would be easy to amend the form of charterparty and introduce a clause such as one finds in a number of similar commercial instruments, making it incumbent upon a claimant to [page 79] make his claim in writing within some brief defined period after the occurrence of the event which gives rise to the claim’.144 Fourthly, and in any event, undue delay will not in most instances represent the practical reality, as ‘people do not generally indefinitely stand out of money which they conceive is due to them’.145 4.41 Ultimately, the Cayzer line of authority establishes that, under a Scott v Avery clause, the effect of the arbitral award is not to declare that a liability had existed but to create for the first time a right and a liability that only came into existence at the date of the award.146 For limitation purposes, inter alia, it therefore does not translate to scenarios involving a pre-existing liability, even though it may face a procedural impediment going to its proof. The point is illustrated by Central Electricity Board v Halifax Corporation,147 against a backdrop of the vesting, pursuant to statute, of the assets of electricity undertakings in electricity boards as from 1 April 1948, except cash, which was to vest in the appellant. The respondent, an electricity undertaker, in anticipation of the event scheduled to occur on 1 April, transferred a cash amount of £34,500 from its electricity account to its general rate account on 31 March. The appellant claimed the £34,500, but nearly nine years elapsed before the question was referred (in January 1957) to the Minister, who in 1958, ignoring the issue of whether the claim was then statute-barred, declared that the sum in question should have been paid to the appellant. On an

action to recover the sum, the House of Lords distinguished these facts from those in Cayzer, where the effect of the arbitral award was to create for a right and a liability, because the effect of the Minister’s decision here was merely to prove that the sum in question had belonged to the appellant from the vesting date. It created no new right of property or chose in action, said Lord Reid, but ‘merely enabled a pre-existing right to be enforced’,148 a preexisting right, as from 1948, sourced in the relevant statute as opposed to being dependent on an arbitral award.149 The Minister’s decision, to this end, was not a condition precedent to the cause of action arising, but rather a procedural matter relating to proof of the cause of action.150 The outcome may have been different if, say, the Minister’s decision involved a discretion in awarding the property to the transferees; it might well have been arguable, in this event, that no rights accrued to them until that discretion was exercised. But the Minister, in the circumstances, merely had to decide a question of fact, which when decided revealed that the money had vested on 1 April 1948. On that date, the appellant would have been able to issue a writ, claiming payment of the money, which would not have been struck out as disclosing no cause of action. It followed that the cause of action accrued on 1 April 1948, and so was time-barred by a six year limitation period.

Impact of death on the running of time 4.42 Statute in each jurisdiction prescribes a general rule that, when a person dies, all causes of action vested in the person survive for the benefit of his or her estate, and all causes of action [page 80] existing against the person survive against the estate.151 The rule is expressed not to apply to causes of action for defamation,152 and is subject to various restrictions as to the quantification of damages.153 As the cause of action survives the deceased’s death, and is therefore the very same cause of action that would have vested in or existed against the deceased were he or she not

to have died, it stands to reason that no hiatus in the running of time for the law of limitation stems from the deceased’s death. The date of accrual of the cause of action accordingly remains the same, and is by no means postponed or restarted by the death.154 4.43 The foregoing, though, must be read against the statutory provisions that, in the Northern Territory, South Australia and Tasmania, impose shorter time bars on proceedings in respect of a cause of action in tort that survives against the estate.155 These state that no proceedings are maintainable in respect of a cause of action in tort that has survived against a deceased’s estate unless those proceedings were pending at the date of death, or the cause of action arose within 12 (six in South Australia) months before death and proceedings are taken in respect of it within 12 (six in South Australia) months of the personal representative taking out probate or letters of administration (or within such further period as the Supreme Court allows). 4.44 It also needs qualification in South Australia, where s 46A of the Limitation of Actions Act 1936 provides for an extension of time in circumstances where a cause of action survives for the benefit of the estate of a deceased person. The time prescribed for commencing the action ‘shall be extended’, it states, by the lesser of the following two periods: the period between the death of the deceased and the grant of probate or letters of administration to the personal representative of the estate; or a period of 12 months. In preventing an action becoming statute-barred in the wake of death, the section seeks to avoid the strict operation of the Act in cases where no party is capable of instituting the action.156 Though s 46A provides for an extension of time, it does not oust scope for the court to order a (further) extension of time under its general power to extend time located in s 48.157 [page 81]

No interruption once time runs General rule

4.45 Except to the extent that statute makes alternative provision, as a general rule once time begins to run for the purposes of the law of limitation, it runs unimpeded until the action is either commenced or time expires.158 In addition to drawing support from the statutory language, as noted below, reasons of practicality informed the courts’ approach in this context, as the following judicial remarks reveal:159 It appears to me that if the statute begins to run it must continue to run — that is to say, as soon as there is a cause of action, a plaintiff that can sue and a defendant that can be sued in [the jurisdiction], from that time the date of six years begins to run: and unless that were so, great inconvenience would follow; for it would be very difficult, in almost every case, to ascertain whether the statute had or had not run, and we should be obliged to take a great many documents and statements, a great many beginnings and endings, and should have to add up those precise periods of time, out of which the six years would have to be made out; so that great inconvenience would result: and therefore it is better to apply the law as it at present stands; it being far better that a particular injury should be inflicted on one individual, than that great inconvenience should be applied to all the community.

4.46 For instance, the assignment of the relevant cause of action does not cause the running of time to restart from the date of the assignment; rather, time still runs from when the cause of action accrued to the assignor.160 Nor does the intervening event of death, as noted above,161 ordinarily serve to interrupt the running of time. Also, while Limitation Acts make provision for the deferral of the running of time in the event that the plaintiff is under a disability,162 it cannot be assumed that the limitation period is always postponed in the event that the plaintiff suffers a disability after time has already begun to run.163 In this context, it has been said that the court ‘ought to give the words of the statute their obvious meaning, and not strain them farther in order to avoid the hardship of a particular case’.164 Any consequent injustice nowadays may be sought to be addressed via an application to extend time.165

Qualifications to general rule 4.47 There are, however, instances in the limitations legislation where the running of time can recommence. The most obvious is the doctrine of acknowledgement or confirmation, where the act(s) of the defendant serve to restart time running for the plaintiff’s benefit.166 Also, English law acknowledges that time can recommence to run as a result of a subsequent deliberate concealment, for which there is some support in Australia.167

Statute in some jurisdictions, moreover, envisages that supervening incapacity can suspend the running [page 82] of time.168 A fourth qualification to the general principle stems from scope for a court, in determining whether or not to exercise its discretion to extend time, to take account of a plaintiff’s disability suffered post-accrual of the action.169 Statutory provisions in each State except South Australia, operating in defined circumstances in the context of arbitrations,170 function as a fifth qualification to the general principle. 4.48 There may, independent of the foregoing, be scope at general law to suspend the running of time where, for a time, a person occupies two competing positions in the claim. On the basis that limitations statutes apply only where there are two distinct persons171 — a putative plaintiff and defendant — ‘the coalition of the two interests’,172 wherein ‘the hand to pay and the hand to receive are one and the same’,173 is said to be capable of excluding the statute. The point has arisen in the case law for a time where, say, a person is concurrently a personal representative and a legatee of a deceased estate,174 entitled to periodical payments from land of which he or she is nonetheless in possession (in which case payment is presumed for this purpose),175 or concomitantly a debtor and administrator of a creditor’s estate.176 Circumstances of this kind have led courts to suspend time running for the duration of the ‘coalition of interests’, during which time any cause of action would essentially involve the paradox of a person suing himself or herself. Yet nothing explicit in limitations statutes speaks to such a course;177 it is pursued, it seems, instead as a matter of common sense.

When the Running of Time Ends 4.49 Once it is determined that a cause of action has accrued, and thus time has started to run, for the purposes of the law of limitation, whether or not the cause of action is time-barred ordinarily rests on whether the action

is commenced within the applicable limitation period (or, in limited circumstances, an external event). This does not, however, preclude a role for contract or estoppel to provide rights that outlast that period. Once the limitation period expires, the cause of action otherwise expires with it. Each of these points sees elaboration below, as well as default limitation periods in New South Wales (a 30 year long-stop) and South Australia (a 12 month minimum). [page 83]

By the commencement of proceedings 4.50 The limitations statutes in Queensland, Tasmania and Victoria, in their principal operative provision, state that an action ‘shall not be brought’ after the expiration of the limitation period.178 As an action is ‘brought’, for this purpose, ‘when the writ is issued, or more specifically, when it is sealed’,179 prima facie it is this act that must be performed within time; acts or intentions short of this will not suffice. The position is likewise in the Territories and New South Wales, where the principal limitations provision uses the language of an action being ‘not maintainable if brought’ after the end of the limitation period.180 The same may be said of the law in Western Australia, albeit in the face of different terminology. There the legislation provides that an action ‘cannot be commenced’ outside the limitation period,181 before aligning the ‘commencement of an action’ with the issue in the appropriate court of a writ or other originating application in relation to the action.182 The South Australian legislation requires that actions ‘shall be commenced’ within limitation period and not after,183 but does not define what is meant by ‘commenced’. It is difficult, though, to conceive the position in that State as differing in substance from that elsewhere. Once the plaintiff has done all that is necessary for him or her to do in order to ‘bring’ or ‘commence’ the proceeding, some infelicity or error in the court that delays its actual bringing or commencement beyond the limitation

period should not, as a matter of fairness, prejudice the plaintiff’s claim. The expiry of a limitation period is ‘fixed by reference to something which the claimant has to do’, not ‘something which someone else such as the court has to do’.184 It would be ‘surprising and harsh’, it has been observed, ‘if a party who had done all that was required of him, should find himself unable to obtain the assistance of the court because the court itself had failed in some matter of procedure’.185 4.51 Importantly, the bringing or commencement of an action halts the running of time only for the purposes of the action in question; it does not preclude time running vis-à-vis other actions.186 In Manby v Manby,187 for example, a creditor issued (but did not serve) a writ against an administrator of a deceased estate for a debt at the time not statute-barred, and thereafter took out an administration summons at a time when the debt was statutebarred unless saved by the writ. Malins VC ruled that the statute was a bar to the latter suit. [page 84]

Proceedings commenced by agent 4.52 A duly authorised agent of a putative plaintiff can commence the plaintiff’s action on the latter’s behalf. In a typical instance, the agent will be the plaintiff’s lawyer; in other instances, where the plaintiff is incapable, it will be a relevant representative of the plaintiff who instructs the lawyer. In each instance the running of time for limitations purposes is accordingly stopped, because the claim has been commenced. 4.53 But if the agent is not authorised to commence the proceedings on the putative plaintiff’s behalf, the agent’s act here does not itself stop the running of time against the plaintiff. The law of agency, however, recognises that a principal is able to ratify the unauthorised acts of his or her agent, and in so doing take the benefit (and bear the burden) thereof, and that the effect of a valid ratification ‘relates back’ to the time at which the agent committed the unauthorised act.188 It stands to reason, therefore, that a valid ratification can have this effect even if it occurs after the expiry of the

limitation period applicable to the cause of action. And indeed, there is case authority to this effect where lawyers commence proceedings without client authority.189 Importantly, though, the foregoing is premised on a ‘valid’ ratification’; that this requires a purported ratification to, inter alia, be effected within a ‘reasonable time’ in the circumstances — being in turn informed by considerations of prejudice to third parties — serves to bookend the otherwise potentially open-ended ‘ratifications’.190

Identifying the date when time ends 4.54 Correctly identifying the day on which time begins to run for limitations purposes ordinarily makes it easy to identify the date upon which time is to expire. It requires the simple process of calculating the time elapsed by reference to the time bar imposed by the statute. For this purpose, the day on which the cause of action is brought is included within the computation of time. 4.55 As most limitation provisions are phrased in terms that ‘no action … shall be brought’ outside the limitation period, a putative plaintiff could be disadvantaged if the day on which the limitation period is scheduled to expire is a weekend or public holiday. On these days it is not ordinarily possible to bring an action. The point is addressed by Acts Interpretation Acts, which broadly state that where an ‘act’ or ‘thing’ is required or allowed to be done within a time frame that is to expire on a weekend or public holiday, it may be done on the first day following that weekend or public holiday.191 In its application to time bars imposed by limitations statutes — after all, an ‘action’ is an ‘act’ or ‘thing’ in this regard — the above functions as a de facto (brief) extension of time. As explained by Harris J in Thomson v Les Harrison Contracting Co,192 dealing with an equivalent earlier version of the current Victorian provision193 phrased by reference to ‘the time limited by any Act for the doing of any act or thing’:194 What [the section] speaks of is ‘the time limited by any Act for the doing of any act or thing’. The expression ‘for the doing of any act or thing’ is a very wide one. In my opinion, the inclusion of the word ‘for’ in the [above] phrase … is insufficient to lead to construing the section as only applying

[page 85] to cases where the provisions of an Act positively require a person to do an act or thing within a limited time. In my opinion, the language is just as apt to cover cases where the time which is limited for the doing of the act or thing is a time within which a person has to do the act or thing, if he is going to do it at all.

His Honour concluded that the issue of a writ, or the commencement of proceedings by some other process, is ‘the doing of an act or thing’. Omission of the word ‘proceeding’ in the relevant section did not preclude this outcome, as ‘[t]he draftsman has chosen to use wide, simple words and not to complicate the situation by endeavouring to specify with particularity what is covered by the section’.195

By an external event 4.56 Time can also cease to run for limitations purposes by the occurrence of an external event, namely where the party in question becomes bankrupt or insolvent. As explained by Bacon CJ in Re Westby:196 The Statute of Limitations has nothing to do with the bankruptcy laws. When a bankruptcy ensues, there is an end to the operation of that statute, with reference to debtor and creditor. The debtor’s rights are established and the creditor’s rights are established in the bankruptcy, and the Statute of Limitations has no application at all to such a case, or to the principles by which it is governed.

The above is confined to the operation of the Statute of Limitations as between debtor and creditor. It is no assertion that the bankruptcy puts an end altogether to its operation in relation to all matters affecting the debtor’s property; the cesser of operation does not affect rights or remedies outside the bankruptcy. In Re Benzon197 a testator, whose status as a bankrupt spanned 19 years until his death, by his will exercised a general testamentary power and thereby made the subject matter of that power assets for payment on his own death. The issue was whether this enabled his creditors (time having started to run before bankruptcy) to say that they were entitled to participate in the distribution of those assets and were not statute-barred. While the English Court of Appeal accepted that ‘a debt does not become barred by lapse of time if it was not so barred at the commencement of the bankruptcy’, this was so ‘only in the bankruptcy’.198 This prompted it to rule

that although the appointment under the testamentary power gave creditors a new fund from which they could get payment and a new mode of proceeding in order to get it, this was only a new remedy and not a new cause of action — the cause really being the old debt — so that the Statute of Limitations, triggered to run against the creditors before the commencement of the bankruptcy, continued to run notwithstanding the bankruptcy. As a result, the claims of the creditors, not being claims ‘in the bankruptcy’, were statute-barred.

By the terms of a contract 4.57 Contracting parties cannot ordinarily contract out of statutory requirements unless the terms of the relevant statute expressly or by necessary implication so provide.199 As statutes of limitation impose no requirements, but instead provide for the availability of a procedural defence, there is arguably no reason in principle why, barring any vitiating factor,200 the court should not give effect to an agreement to pursue a relevant cause of action within a timeframe [page 86] shorter than an otherwise applicable statutory limitation period.201 Here it is not a matter of ousting a viable cause of action — an agreement of that kind may infringe public policy as an attempt to oust the jurisdiction of the court202 — but merely abbreviating the time within which the cause of action must be commenced. 4.58 The point has seen illustration in the case law primarily in the context of contracts for the carriage of goods in maritime law, which commonly contain clauses (including those incorporated via the HagueVisby rules) that require claims as between the parties, typically in contract or tort, to be brought within a much shorter time than applicable under limitations law.203 4.59

That the law allows parties via contract to abbreviate the length of a

limitation period for some or all of the incidents of their relationship makes it logical for the law to likewise allow parties, by contract, to disclaim reliance on a limitation period, whether generally or for a specified period.204 Again, absent vitiating factors, the law in this instance simply gives effect to the parties’ agreement205 (which is, incidentally, nonetheless subject to the limitation period applicable to actions for breach of contract).206 Merely because the parties are in negotiations in relation to the matter does not, however, operate to suspend time or otherwise preclude the effect of the expiry of a time bar,207 unless some legally enforceable undertaking subsists or [page 87] can be gleaned in this context (whether by contract,208 estoppel or waiver).209 Nor does a bare admission of liability,210 or a continuation of payments the subject of the claim.211 4.60 In Australia only Western Australia has given the foregoing statutory recognition, via a provision wherein nothing in the Limitation Act 2005 ‘prevents a person from agreeing to extend or shorten a limitation period provided for under this Act’.212 But it specifies exceptions to this freedom; any such provision has no effect if it purports to oust the time frames available in s 33 (defendant in close relationship with minor on accrual of cause of action),213 s 36 (defendant in close relationship with person with mental disability)214 or s 38 (court extension of time for fraud or improper conduct).215 Nor does it have any effect if it purports to extinguish (rather than bar) a right or title in relation to an action in a manner that would be inconsistent with a provision of Pt 5, which deals with the effect of the expiration of a limitation period.216

By way of estoppel or waiver 4.61 There may be circumstances where a party may be precluded from pleading an otherwise available limitation period, not by virtue of clear agreement to this effect, but because his or her behaviour operates to waive

that entitlement or otherwise functions as an estoppel. This ensued in Commonwealth of Australia v Verwayen,217 where the appellant had earlier represented to the respondent that it would not plead the limitations time bar, but subsequently resiled therefrom. A majority of the court held that the appellant was not free to resile from its representation, by reason of estoppel according to Deane and Dawson JJ, and on the basis that it had waived its right to contest liability, reasoned Toohey and Gaudron JJ.218 As to estoppel [page 88] in this context, which is grounded in proof of unconscionable conduct,219 it has been judicially observed that limitations legislation ‘does not exist for the purpose of aiding unconscionable … conduct’.220 What is unjust in this regard is not the limitations statute, but the acts and omissions of the representor.221

By expiry of ultimate time bar in New South Wales 4.62 New South Wales is the only Australian jurisdiction to prescribe a general provision setting an ultimate time bar for limitations purposes, judicially described as a ‘long stop provision’.222 It states that notwithstanding the provisions of the Limitation Act 1969 directed to the postponement of a time bar, an action on a cause of action for which a limitation period is fixed is not maintainable if brought after the expiry of 30 years, as from the date from which the limitation period for that cause of action runs.223 It recognises a sole exception to the ultimate 30 year time bar,224 namely vis-à-vis a cause of action for which an order has been made to extend time for latent injury,225 thereby acknowledging that some types of injuries or diseases may only be manifest or causally attributed over a period exceeding 30 years.226 Subject to this exception, it may be observed that ‘[o]nly upon the expiration of the relevant ultimate limitation period can the potential defendant truly be assured that no plaintiff may bring an action against him or her’.227 The above provision, introduced into the New South Wales Act on its

enactment, had no precise antecedent in English limitations statutes. The closest was s 17 of the Real Property Limitation Act 1833 (UK), under which an action to recover land could not to be brought after 40 years from the date when the cause of action accrued, notwithstanding any extension for disability. Parallel provision appeared in the subsequent Limitation Act 1939 (UK), but subject to a 30 year ultimate bar.228 This time frame operated as a support to the security of old system titles to land, given that in general a vendor of old system title land must show a chain of title commencing at least 30 years before the date of the contract.229 In recommending a broadly applicable ‘long stop provision’, the New South Wales Law Reform Commission, to this end, saw it as strange that the English Act, nor the New South Wales law at the time, fixed no ultimate bar where the expiry of the limitation period was postponed for other reasons, say, acknowledgment, fraud or mistake.230 In what has been described as ‘an important feature’ of [page 89] various proposals,231 the Commission explained the rationale for a generally applicable long-stop provision in the following terms:232 We think … that, quite apart from questions of title to land, a statute of limitations ought not to allow an indefinite time for the bringing of actions even if the disabilities and other matters dealt with in Part III of the Bill [dealing with postponements of the time bar] do exist. These disabilities and other grounds of postponement may well be outside the knowledge of the defendant and we think it right that, after a period of thirty years has elapsed, there should be no further postponement of the statutory bar on any ground.

4.63 In Canada, various provincial legislatures have likewise propounded ‘ultimate limitation periods’,233 chiefly by reference to the ‘repose’ foundation for limitations law.234 A Supreme Court judge has, in this vein, made the following remarks:235 As a counterweight to newer exceptions like discoverability and expanded disability provisions, legislatures have also adopted ultimate limitations periods. The purpose of these ultimate limitations periods is to provide true repose for defendants, even against undiscovered claims. Even if a claim is not discovered, meaning that the basic limitations period has not been engaged, an ultimate limitation period can bar a claim. While basic limitations periods are often in the range of two to six years, ultimate limitations periods are usually 10 to 30 years

long.

Typically, those provinces that prescribe shorter ultimate limitation periods qualify these by disability, fraud or concealment,236 whereas those that fix longer ultimate limitation periods do not.237 The latter is evidently the approach adopted by the New South Wales provision, the language of which makes it patent that the 30 year ultimate bar cannot be extended by fraudulent concealment, disability, mistake or acknowledgement.238 This explains why attempts to postpone the ultimate time bar by reference to, say, fraudulent concealment, have proven fruitless.239 It has been judicially observed, in this vein, that:240 [w]hen … a legislature has enacted an express and clear period of limitation, it is not for the courts to subvert it, or to seek to qualify it, by the introduction of words embodying the concept that the specified period might be shortened or lengthened, in the discretion of the court according to whether the court thinks that a period is too long or too short … [T]he line drawn at 30 years by the legislature here should be accepted and applied without qualification.

4.64 Courts have also baulked at other attempts to assuage the strictness of the language in which the long-stop provision is phrased. So, for instance, an attempt to argue that the 30 year period should run from the expiry of the statutory limitation period otherwise fixed, [page 90] as distinct from its point of commencement, has been held to be inconsistent with the statutory language.241

Subject to a default minimum time bar in South Australia 4.65 The Limitation of Actions Act 1936 (SA) is unique, within the Australian legal landscape, in setting what at first blush appears a default 12 month minimum limitation period, applicable across the breadth of South Australian Acts, regulations, rules and by-laws. Under s 47(1), described as a ‘self-executing’ provision of ‘general operation’,242 where any such statutory instrument limits the time within which an action may be brought to a

period of less than 12 months from the moment the cause of action arises, then, notwithstanding that limitation, that action may be brought at any time within 12 months from that moment. 4.66 There are, however, limits to the application of s 47(1). First, s 47(2) makes explicit that s 47(1) does not apply to: a criminal action; an action to try the validity of an election or of title to an office; an action to try the validity of an assessment, rate or loan made by or to a local government body; or ‘any other action to the nature or purpose of which the limitation is, in the opinion of the court, essential’. The word ‘essential’ here means ‘necessary’ or ‘indispensable’ to the efficient working of the relevant statutory scheme.243 In Hall v Director of Public Prosecutions244 the appellant argued that s 74 of the Criminal Assets Confiscation Act 2005 (SA) — which declares that property subject to a restraining order is automatically forfeited once six months expires from the day of the conviction of a serious offence, unless an extension order is in force pursuant to s 75 — should be subject to the default 12 month limitation period prescribed by s 47(1) of the 1936 Act. The Full Court of the South Australian Supreme Court, endorsing the trial judge in this regard, rejected this argument, ruling that the six month limitation was essential to the nature and purpose of the forfeiture regime. As explained by Gray J, with whom Stanley and Parker JJ concurred:245 To allow s 47(1) of the Limitation of Actions Act to have any operation in regard to the provisions the subject of consideration in this proceeding would materially disrupt the comprehensive integrated scheme set out in the legislation. There would be a marked impact on the efficient operation of the scheme … However, I consider that the disruptive effect would go beyond an impairment of efficiency. There would be a clear disruption of the planned legislative scheme. The scheme would no longer operate as intended. Accepting for the moment that s 47(1) has prima facie application to the Criminal Assets Confiscation Act, that application is excluded by the terms of s 47(2)(d).

Secondly, it has been queried whether s 47(1) was intended to have other than a retrospective application. In Re Litchfield, in remarks that were strictly obiter, Cox J stated the following:246 There must be a question … whether s 47 … can ever apply to a time limit specified in an Act that was passed after the date (27 March 1975) on which s 47, in its present form, came into force. Section 47 … is expressed in objective or absolute terms … which means that Parliament, whenever it legislates in a special Act for a new time-limit procedure, will be in a position to see whether or not it falls within the exceptive provisions of [s 47(2)]. If it does not, then it is hardly to be supposed that Parliament is deliberately engaging in the futile exercise of specifying a time limit of less than twelve months in the realisation that s 47 … will

automatically convert it into something quite different. The better view, one might think, is that when Parliament

[page 91] states, despite s 47, that something has to be done within one month, it means what it says. If that tentative interpretation of s 47 is correct, then it would appear to follow that the section may be applied, in accordance with ordinary rules of statutory construction, only to prior Acts and regulations.

While it is easy to have sympathy for his Honour’s view, which has been judicially described more recently as having ‘force’,247 it is not necessarily an easy one to defend purely from the literal words of s 47(1). Thirdly, s 47(1) does not impact upon any rule of law or equity under which a limitation period affecting a right to bring an action may be extended, or an action may be brought notwithstanding the expiration of any such limitation period.248 ______________________________ 1. 2.

3. 4. 5. 6. 7. 8. 9. 10. 11.

See 1.8–1.14. ACT s 11(2); WA s 13(2) (referring to the particular causes of action listed in Div 3, namely ss 14 (Fatal Accidents Act 1959 (WA) actions: see 7.83), 15 (defamation actions: see 6.45), 16 (trespass to the person etc: see 6.2), 17 (contribution between tortfeasors: see 12.23), 18 (deeds: see 5.42), 19 (recovery of land: see 8.5), 20 (money secured on real property or on real and personal property: see 9.7), 21, 22 (interest secured on property: see 9.16, 9.20), 23 (possession: see 9.7), 24 (foreclosure: see 9.7), 25 (redemption: see 9.3), 26 (accounts: see 12.3); 27 (equitable actions (not analogous to other actions): see 3.27); 28 (tax mistakenly paid: see 11.27), 29 (arbitration: see 12.10)). ACT s 11(1). The meaning of ‘a person through whom he or she claims’ is prescribed by ACT s 8(a): see 3.11. WA s 13(1). WA s 3(2). What is meant by ‘a person claiming through another’ is prescribed by WA s 3(3): see 3.11. See NZ s 11(1). See Limitations Act 2000 (Alta) s 3; Limitation Act 2012 (BC) s 6; Limitation of Actions Act 2009 (NB) s 5; Limitations Act 2002 (Ont) s 4; Limitations Act 2004 (Sask) s 5. See 22.7–22.9. For instance, by reason of disability (see Ch 14) or fraud (see Ch 15). For instance, by reason of acknowledgement or part payment of a monetary obligation: see Ch 17. (1873) 8 LR CP 107 at 116. See also Read v Brown (1888) 22 QBD 128 at 131 per Lord Esher MR

12.

13. 14.

15.

16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26.

27. 28. 29. 30. 31.

32.

(‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court’; albeit another case not involving a limitation statute). See, for example, Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 617 per Viscount Dunedin; Darke v Eltherington [1963] Qd R 375 at 383 per Stable J; Harris v Gas and Fuel Corporation of Victoria [1975] VR 619 at 623–4 (FC). Bradford Old Bank v Sutcliffe [1918] 2 KB 833 at 848 per Scrutton LJ. Williams v Milotin (1957) 97 CLR 465 at 474; BC5700520 (FC). See also Coburn v Colledge [1897] 1 QB 702 at 707 per Lord Esher MR (‘If the plaintiff alleges the facts which, if not traversed, would prima facie entitle him to recover, then I think he makes out a cause of action’); Central Electricity Board v Halifax Corporation [1963] AC 785 at 806 per Lord Guest (aligning to when ‘the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment’). Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245; BC8400527 per Wilson J. See also Zhang v State of New South Wales [2012] NSWSC 606; BC201204922 at [38] per Schmidt J (‘a right which has been infringed’). See, for example, Wilkinson v Verity (1871) LR 6 CP 206 at 209 per Willes J. Tuckey v Hawkins (1847) 4 CB 655 at 665; 136 ER 665 at 669 per Wilde CJ. ACT Dictionary. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245; BC8400527 per Wilson J. Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 595–6; BC9701370 per Sackville J, with whom Foster and Lehane JJ concurred. See, for example, Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 6(4). New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 at 490 per Kirby P (as ‘such leave is a necessary part of the cause of action which is thereby conferred by statute upon a person wishing to bring proceedings against an insurer to enforce the charge’, pending leave, ‘the cause of action is not complete’), at 504 per Mahoney JA; BC9303940. Central Electricity Board v Halifax Corporation [1963] AC 785 at 806 per Lord Guest. [1963] AC 785, as to which see 4.41. See 4.33, 4.34. Hare v Hare (2006) 83 OR (3d) 766 at [74] per Juriansz JA (dissenting but not on this point) (‘the common law determined when one was first entitled to sue, and [the limitations statute] stipulated that the limitation period began to run on that day’). [1897] 1 QB 702. See G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013, pp 70–3. See 2.2–2.5. [1986] 2 All ER 104 at 108–10 per Lord Mackay, with whom Lords Keith, Fraser, Brandon and Goff concurred. Pursuant to the Patents Act 1949 (UK) s 13(4), proviso (‘Provided that an applicant shall not be entitled to institute any proceedings for infringement until the patent has been sealed’). Cf Patents Act 1990 (Cth) s 120(4) (which requires patent infringement proceedings to be started within three years ‘from the day on which the relevant patent is granted’ or, if later, six years ‘from the day on which the infringing act was done’). This reflected the tenor of its earlier decision in General Tire and Rubber Co v Firestone Tyre and

33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

47. 48.

49. 50. 51. 52.

53. 54.

Rubber Co Ltd [1975] 2 All ER 173, where the issue was one of jurisdiction to award interest on damages for infringement from a date before sealing of the patent. The House of Lords held that the cause of action ‘arose’ for the purposes of the Law Reform (Miscellaneous Provisions) Act 1934 (UK) s 3 when the acts of infringement were committed. [1998] 2 NZLR 19. Patents Act 1953 (NZ) s 20(4), proviso (repealed; now see Patents Act 2013 (NZ) s 149(1)). Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 27 per Henry J (also delivering the judgment of Richardson P), at 62 per Tipping J. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 23 per Henry J (also delivering the judgment of Richardson P. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 44. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 38. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 41. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 41–2. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 42. (1989) 60 DLR (4th) 732 at 738 per Côté JA, delivering the reasons of the court. Costello v City of Calgary (1989) 60 DLR (4th) 732 at 739, 743. Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 43. Costello v City of Calgary (1989) 60 DLR (4th) 732 at 740. Albeit in a different context, the following remark in the dissenting judgment of Thomas J in Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 at 38 reflects the notion expressed in the text: ‘The notion of plaintiffless causes of action at large in the community has as much appeal to me as the proverbial headless chickens running around the yard’. See generally Ch 14. Kosky v Trustees of Sisters of Charity [1982] VR 961 at 969 per Tadgell J (applying Watt v Rama [1972] VR 353, where the Full Court the Victorian Supreme Court held that a plaintiff who suffers injuries caused by acts or omissions of the defendant at a time preceding the plaintiff’s birth has a cause of action against the defendant in respect of those injuries; Winneke CJ and Pape J remarked that ‘the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person’ (at 360); Gillard J stated that ‘the newly born child, at the time of the accident, has already the capacity to sue whilst the unborn child only attains that capacity on birth’ (at 374)). ACT Dictionary; NSW s 11(1); NT s 4(1); Qld s 5(1); Tas s 2(1); Vic s 3(1). SA s 3(1). WA s 3(1). Westfield Design & Construction Pty Ltd v LR & M Construction Pty Ltd (1999) 204 LSJS 50; [1999] SASC 319; BC9904455 at [56] per Olsson J, with whom Mullighan and Nyland JJ concurred (ruling that a reference to arbitration under legislation such as the Commercial Arbitration Act 1986 (SA) (now the Commercial Arbitration Act 2011 (SA)) can, for the purposes of the limitations legislation, properly be categorised as a ‘legal proceeding’ founded on a simple contract). As to limitations law in the context of arbitration see 12.10–12.16. Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [68] per Barker J. W T Lamb & Sons v Rider [1948] 2 KB 331 at 338 per Scott LJ, delivering the reasons of the court; Tonkin v Johnson [1999] 2 Qd R 318 at 325; BC9706070 per McPherson JA, with whom Williams

55.

56. 57.

58. 59. 60. 61. 62. 63. 64. 65. 66.

67. 68. 69. 70. 71. 72. 73.

74.

and Cullinane JJ agreed. See Zhang v State of New South Wales [2012] NSWSC 606; BC201204922 at [37] per Schmidt J (remarking that what the statutory definition of ‘action’ adds to the ordinary meaning of the word is not entirely clear). Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [106], [107] per Sackville AJA. See, for example, Westfield Design & Construction Pty Ltd v LR & M Construction Pty Ltd (1999) 204 LSJS 50; [1999] SASC 319; BC9904455 at [56] where Olsson J, with whom Mullighan and Nyland JJ concurred, held that, as the word ‘action’ is defined to include ‘legal proceedings of all kinds’ (SA s 3(1)), a reference to arbitration under legislation such as the Commercial Arbitration Act 1986 (SA) (now the Commercial Arbitration Act 2011 (SA)) could for this purpose be categorised as a ‘legal proceeding’ founded on a contract. The same outcome would ensue in Western Australia in view of the definition of ‘action’, explicitly extending to ‘an arbitration under an arbitration provision’, in WA s 3(1). [1954] 1 QB 178. China v Harrow Urban District Council [1954] 1 QB 178 at 185. China v Harrow Urban District Council [1954] 1 QB 178 at 185 per Lord Goddard CJ, at 187 per Sellers J, at 191 per Havers J. Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 735. (1989) 17 NSWLR 710. Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 717–18. Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [112] per Sackville AJA. [1991] Ch 339. See, for example, Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158; BC200304204 (ruling that Vic s 5(4), as to which see 12.8, only affects new actions upon a judgment and does not deal with steps taken in the enforcement of a judgment: see at [10]–[18] per Finkelstein J, with whom Madgwick and Dowsett JJ concurred). Lowsley v Forbes [1999] 1 AC 329 at 342 per Lord Lloyd, with whom Lords Browne-Wilkinson, Nolan, Hoffmann and Hope concurred. ACT s 10; NSW s 13; NT s 11. See 6.2. NSW s 18A: see 7.32. NSW s 19(1)(b): see 7.32. See 1.23–1.27. See, for example, Williams v Milotin (1957) 97 CLR 465; BC5700520 (election to sue in negligence, to which a six year limitation period applied, as opposed to trespass, which was subject to a three year limitation period: see at 473–4 per the court); Parsons v Partridge (1992) 111 ALR 257 at 259–60 per Morling CJ; Wilson v Horne (1999) 8 Tas R 363; [1999] TASSC 33; BC9901200 at [21], [22] per Wright J. In the Australian Capital Territory and Western Australia, where the limitations statutes contain limitation provisions directed to ‘causes of action’ generally (ACT s 11(1); WA s 13(1): see 4.2), these are expressed not to apply to causes of action for which the statutes prescribe another limitation period in a different section: ACT s 11(2); WA s 13(2). In these jurisdictions, therefore, the statutory order rests on the general–specific distinction rather than the length of

75. 76. 77. 78. 79. 80. 81. 82. 83.

84. 85. 86.

87. 88.

89. 90. 91. 92. 93. 94. 95. 96. 97. 98.

the applicable limitation period(s). That the South Australian, Tasmanian and Victorian provisions that set a general six year time bar for actions in contract, tort etc are expressed to be subject to alternative provision in the relevant Acts (SA s 35; Tas s 4(1); Vic s 5(1)) reflects a similar approach. Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [64] per Mason P, with whom Tobias JA concurred. ACT s 52; NSW s 75; NT s 49; WA s 82 (see WALRC 36(II), p 320). As to the impact of disability on limitations law see generally Ch 14. QLRC 53, p 216. ACT s 53; NSW s 76; NT s 50; WA s 83 (see WALRC 36(II), p 320). QLRC 53, p 217. SA s 41. Lowe v Bentley (1928) 44 TLR 388. As to counterclaims generally see Cairns, pp 272–8. Walker v Clements (1850) 15 QB 1046; 117 ER 755; McDonnell & East Ltd v McGregor (1936) 56 CLR 50 at 55–61; BC3600023 per Dixon J; Henriksens Rederi A/S v T H Z Rolimpex (‘The Brede’) [1974] 1 QB 233 at 245–6 per Lord Denning MR, at 254 per Cairns LJ; O’Neill v Forster (2004) 61 NSWLR 499; [2004] NSWSC 906; BC200406789 at [49]–[54] per Campbell J. The substance (albeit not the precise wording) of the former UK 1939 s 28 remains in UK 1980 s 35(1), 35(2). NT s 8; Qld s 42; Tas s 35; Vic s 30. ACT s 51; NSW s 74(1). The New South Wales provision adds that it extends to a claim by way of set off made by a defendant under the Civil Procedure Act 2005 (NSW) even if one or more of the debts giving rise to the set off became due and payable after the date on which the defendant became a party to the principal action, so long as at least one of those debts became due and payable on or before that date: NSW s 74(2). SA s 44. Henriksens Rederi A/S v T H Z Rolimpex (‘The Brede’) [1974] QB 233 at 245–6 per Lord Denning MR; Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890 at 943–6 per Hobhouse J; Philip Collins Ltd v Davis [2000] 3 All ER 808 at 831 per Jonathan Parker J. Indeed, in Henriksens Rederi A/S v T H Z Rolimpex (‘The Brede’) [1974] QB 233 Cairns LJ (at 254) and Roskill LJ (at 264) were unwilling to accede to this interpretation. WA s 81(1) (cf WALRC 36(II), pp 485–7, which had recommended adoption of the New South Wales model). WA s 81(2). WA s 81(3). Nelson v Wyong Shire Council (1989) 68 LGRA 164 at 167–9 per Giles J. NSWLRC 3, para 341. Nelson v Wyong Shire Council (1989) 68 LGRA 164 at 168 per Giles J. See further Cairns, pp 273–4. (1887) 19 QBD 394. Weldon v Neal (1887) 19 QBD 394 at 395. Weldon v Neal (1887) 19 QBD 394 at 396. See also at 295–6 per Lindley LJ (whose entire

99.

100. 101.

102. 103.

104. 105.

106. 107.

108. 109. 110.

111. 112. 113. 114.

judgment is found in the statement that ‘I do not think it would be just to the defendant to allow these amendments, the effect of which would be to deprive him of his defence under the Statute of Limitations’); Hewett v Barr [1891] 1 QB 98 (where the English Court of Appeal, again in three very brief judgments, applied the Weldon v Neal rule of practice to justify a refusal to extend the time for renewing a writ of summons after the expiration of the relevant limitation period). See, for example, Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485; Davies v Elsby Brothers Ltd [1960] 3 All ER 672 (substitution of a party); Archie v Archie [1980] Qd R 546; Liff v Peasley [1980] 1 All ER 623. Liff v Peasley [1980] 1 All ER 623 at 632 per Stephenson LJ. See also at 639 per Brandon LJ. See, for example, Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485 at 487 per Scrutton LJ (‘the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause of action sought to be added are barred, I am unable to understand how it is possible for the Court to disregard the statute’), at 498 per Greer LJ. Weldon v Neal (1887) 19 QBD 394 at 395. See, for example, Staples v Holdsworth (1838) 4 Bing NC 717; 132 ER 965 (Common Pleas); Jones v Corry (1840) 6 Bing NC 247; 133 ER 97 (Common Pleas); Christie v Bell (1847) 16 M & W 669; 153 ER 1358 (Exch); Carne v Malins (1851) 6 Exch 803; 155 ER 770. See, for example, Hewett v Barr [1891] 1 QB 98 at 99–100 per Kay LJ. [1980] Qd R 546 at 561. See also Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 182–3 per Priestley JA; Adam v Shiavon [1985] 1 Qd R 1 at 6–10 per Campbell CJ, with whom Sheahan and McPherson J concurred. See S Campbell, ‘Amendments and Limitations: The Rule in Weldon v Neal’ (1980) 54 ALJ 643 at 657. NT s 48A(1); Vic s 34(1). Equivalent provision has been recommended in Western Australia (see WALRC 36(II), pp 490–1) but this has not translated to statute. See also S Campbell, ‘Amendments and Limitations: The Rule in Weldon v Neal’ (1980) 54 ALJ 643 (which supplies the backdrop to the Victorian provision). NT s 48A(2); Vic s 34(2). Being the view espoused in Keller v Bayside City Council [1996] 1 VR 356 at 375; BC9502600 per Batt J. NT RSC r 36.01(6); Vic RSC r 36.01(6). As to the interaction between these rules and the relevant section in the limitations statutes see Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63; [2003] VSCA 6; BC200300516 at [45]–[52], [76]–[82] per Ormiston JA, with whom Chernov JA and O’Bryan AJA concurred [affd but not on this point: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38; BC200505627]. Civil Proceedings Act 2011 (Qld) s 16(1), 16(2). Civil Procedure Act 2005 (NSW) s 65(1), 65(2). Pursuant to Civil Procedure Act 2005 (NSW) s 64. See Federal Court Rules 2011 (Cth) r 16.53 (as to the position preceding this rule see Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 29 at 37–8; BC9103380 per Einfeld J, espousing the continuing application of Weldon v Neal in the Federal Court); Court Procedures Rules 2006 (ACT) r 503; Supreme Court Civil Rules 2006 (SA) r 54(6), 54(7) (as to the former equivalents see Karasaridis v Kastoria Fur Products (1984) 37 SASR

115.

116.

117.

118. 119. 120. 121.

122. 123. 124. 125.

126. 127. 128.

345; Brook v Flinders University of South Australia (1988) 47 SASR 119; Danae Investment Trust plc v Macintosh Nominees Pty Ltd (No 2) (1993) 10 ACSR 11 at 18 per Olsson J)); Supreme Court Rules 2000 (Tas) r 427(2A); Supreme Court Rules 1971 (WA) O 21 r 5(2)–(5) (see, for example, Schijf v Mydomaine Pty Ltd [2015] WASC 428; BC201510934; but see the limits to this discretion explained in Morgan v Banning (1999) 20 WAR 474 at 476–7 per Owen J, at 480–7 per Wheeler J, with whom Ipp J concurred; BC9902034). See further Cairns, pp 291–4. McGee v Yeomans [1977] 1 NSWLR 273 at 280 per Glass JA (speaking of the former NSW RSC Pt 20 rr 1(2), 4 to this effect (now see Civil Procedure Act 2005 (NSW) s 65), which were phrased in terms similar to the current Supreme Court Rules 1971 (WA) O 21 r 5(2)–(5)). See also Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 170–1, 175 per Moffitt P, at 183–4 per Priestley JA; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 at 217–19 per Clarke J (applying the rule also to a contractual limitation period); Williams v Minister Aboriginal Land Rights Act 1983 (SC(NSW), Bruce J, 23 July 1997, unreported) BC9703174 at 12–14. Cf Lynch v Keddell [1985] 2 Qd R 103. See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; Supreme Court Rules 1987 (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7; Supreme Court Rules 1971 (WA) O 1 r 4B. See generally Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27; BC200906905 at [36] per French CJ, at [90]–[103], [114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. See 2.28–2.31. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 174–5 per Moffitt P, at 181 per Glass JA, at 183–6 per Priestley JA. Schijf v Mydomaine Pty Ltd [2015] WASC 428; BC201510934 at [39] per Mitchell J. At the same time, the Limitations Acts in the Australian Capital Territory and New South Wales state that the provisions of those Acts that relate to the date of accrual of a cause of action have effect for the Acts ‘but not for any other purpose’: ACT s 8A; NSW s 11(5). There is no reason to conclude that the position is any different in other jurisdictions, independent of a provision to this effect, because it is contrary to statutory interpretation principle (and indeed logic) to apply concepts, provisions or definitions found in one Act to another Act (or the general law), except to the extent, if any, that the Act so provides. See generally Ch 7. See 22.16–22.19. NZ s 11(1), as to which see 22.26. See, for example, Hardy v Ryle (1829) 9 B & C 603; 109 ER 224; Watson v Isell (1890) 16 VLR 607 at 609–10 per Higinbotham CJ (opining that it is a rule ‘founded on clear and satisfactory reasons’: at 10), at 12 per Hodges J (speaking in terms of a rule ‘upon a very reasonable basis’); Radcliffe v Bartholomew [1892] 1 QB 161 at 163 per Wills J, with whom Lawrance J concurred; McPherson v Lawless [1960] VR 363 at 364–7 per Sholl J; Marren v Dawson Bentley & Co Ltd [1961] 2 QB 135 at 142–3 per Havers J. See further McGee, pp 27–8. Lester v Garland (1808) 15 Ves 248 at 257; 33 ER 748 at 752. [1913] 2 KB 549. Gelmini v Moriggia [1913] 2 KB 549 at 552 (adding that ‘I do not think that the day on which the cause of action arises is excluded. It is the previous day which is excluded, ie, the day at the

129.

130. 131. 132. 133.

134. 135. 136.

137. 138. 139. 140.

141. 142. 143. 144. 145. 146. 147. 148. 149.

150.

expiration of which the cause of action becomes complete’), applied by Sholl J in McPherson v Lawless [1960] VR 363 at 366. Legislation Act 2001 (ACT) s 151(2), 151(3); Interpretation Act 1987 (NSW) s 36(1); Interpretation Act 1978 (NT) s 28(1); Acts Interpretation Act 1954 (Qld) s 38(1); Acts Interpretation Act 1915 (SA) s 27(1); Acts Interpretation Act 1931 (Tas) s 29(1); Interpretation of Legislation Act 1984 (Vic) s 44(1); Interpretation Act 1984 (WA) s 61(1)(b). See, for example, Gscheidle v Gscheidle [1990] 2 Qd R 54; Segal v Young [2001] NSWCA 141; BC200102434. (1856) 5 HLC 811 at 844; 10 ER 1121 at 1135. Scott v Avery (1856) 5 HLC 811 at 853; 10 ER 1121 at 1138. Kill v Hollister (1746) 1 Wil KB 129; 95 ER 532. Scott v Avery (1856) 5 HLC 811 at 844; 10 ER 1121 at 1135 per Alderson B. See also at 854; 1138–9 per Lord Campbell (noting that ‘in this contract of insurance it is stipulated, in the most express terms, that until the arbitrators have determined, no action shall lie in any court whatsoever. That is not ousting the courts of their jurisdiction, because they have no jurisdiction whatsoever, and no cause of action accrues until the arbitrators have determined’). See Scott v Avery (1856) 5 HLC 811 at 854; 10 ER 1121 at 1138–9 per Lord Campbell. Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1182. ACT s 48; NSW s 71 (see NSWLRC 3, paras 335–337); NT s 47; Qld s 41(2); Tas s 33(2); Vic s 28(2); WA s 63. These provisions are based on UK 1939 s 27(2). The current English equivalent provision is found in the Arbitration Act 1996 (UK) s 13(3). [1927] AC 601. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 614–15 per Viscount Cave LC, at 617 per Viscount Dunedin, at 622–3, 627–8 per Lord Atkinson, at 629–30 per Lord Phillimore. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 627–8. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 628 (adding that ‘the [Limitation] Act cannot apply to a cause of action which the person entitled to it cannot, because of his own contract, enforce against any one’). Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 615 per Viscount Cave LC. See 4.4–4.6. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 615. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 631. Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601 at 617 per Viscount Dunedin. Central Electricity Board v Halifax Corporation [1963] AC 785 at 801 per Lord Reid. [1963] AC 785. Central Electricity Board v Halifax Corporation [1963] AC 785 at 801. It should be noted, though, that merely because statute gives a right to a monetary sum (whether by way of compensation or otherwise) in defined circumstances might not always create a cause of action once that right accrues. If the amount of the sum in question is founded upon an arbitral award, and that alone, it may be amenable to being construed as a condition precedent to the cause of action, as in Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601: see, for example, Turner v Midland Railway Co [1911] 1 KB 832 at 834–5 per Ridley J. Central Electricity Board v Halifax Corporation [1963] AC 785 at 806 per Lord Guest, at 807 per Lord Pearce.

151. Civil Law (Wrongs) Act 2002 (ACT) s 15(1); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(1); Qld s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(1); Tas s 27(1); Vic s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). These provisions are based on the Law Reform (Miscellaneous Provisions) Act 1934 (UK). 152. Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(2); Qld s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(2); Vic s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). 153. Excluded is an award of exemplary damages (Civil Law (Wrongs) Act 2002 (ACT) s 16(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(i); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(a); Qld s 66(2)(b); Survival of Causes of Action Act 1940 (SA) s 3(1)(b); Tas s 27(3) (a); Vic s 29(2)(a); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(a)), and there are restrictions on damages recoverable where the act or omission that gave rise to the cause of action caused the person’s death (Civil Law (Wrongs) Act 2002 (ACT) s 16(3), 16(4); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(c), (d) (and see Dust Diseases Tribunal Act 1989 (NSW) s 12B); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6; Qld s 66(2)–(2B); Survival of Causes of Action Act 1940 (SA) s 3; Tas s 27(3)(c), 27(3A)–27(3C); Vic s 29(2)(c), 29(2A); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2), 4(2a)). 154. Martinus v Kidd (1982) 150 CLR 648 at 653–4; BC8200113 per Gibbs CJ, Murphy and Wilson JJ. 155. Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 7(1); Survival of Causes of Action Act 1940 (SA) s 4; Administration and Probate Act 1935 (Tas) s 27(5), 27(6). 156. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [142] per Sulan and Layton JJ. 157. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [143] per Sulan and Layton JJ. As to SA s 48 see 19.1. 158. Rhodes v Smethurst (1838) 4 M & W 42 at 59; 150 ER 1335 at 1342 per Lord Abinger CB (‘where an action has once accrued, and the statute has begun to run, there being then a capacity of suing and of being sued, the statute continues to run’). See, for example, Prideaux v Webber (1660) 1 Lev 31; 82 ER 282 (where it was held that even the temporary usurpation of the Government by rebels, with the consequent closure of the King’s Courts, did not suspend the running of time for limitations purposes). 159. Rhodes v Smethurst (1838) 4 M & W 42 at 63; 150 ER 1335 at 1344 per Alderson B. 160. Tosich v Tasman Investment Management Ltd (2008) 250 ALR 274; [2008] FCA 377; BC200801857 at [41], [42] per Gyles J. 161. See 4.42. 162. See generally Ch 14. 163. Rhodes v Smethurst (1838) 4 M & W 42 at 62; 150 ER 1335 at 1343 per Lord Abinger CB (‘the period of time from which the computation is to begin, is when the action accrued; and that when the statute has once begun to run, any portion of time in which the parties are under disabilities must nevertheless form part of the six years’); Homfray v Scroope (1849) 13 QB 509 at 512; 116 ER 1357 at 1359 per Lord Denman CJ (‘it is a well known and settled rule, that, where the time has once begun to run, no subsequent disability, however involuntary, will suspend [the] operation [of the Statute of Limitations]’).

164. 165. 166. 167. 168. 169. 170. 171.

172. 173. 174. 175.

176.

177.

178. 179. 180. 181. 182.

Homfray v Scroope (1849) 13 QB 509 at 513; 116 ER 1357 at 1359 per Lord Denman CJ. See generally Chs 18–21. See Ch 17. See 15.41–15.47. Namely in the Territories, New South Wales, South Australia and Western Australia: see 14.5, 14.6. See 20.34–20.36. See 12.13. Thomson v Lord Clanmorris [1900] 1 Ch 718 at 728–9 per Vaughan Williams LJ (‘A Statute of Limitations cannot begin to run unless there are two things present — a party capable of suing and a party liable to be sued’). Topham v Booth (1887) 35 Ch D 607 at 610–11 per Kekewich J. Hodgson v Salt [1936] 1 All ER 95 at 98 per Clauson J. See, for example, Binns v Nicholls (1866) LR 2 Eq 256 at 260–1 per Page-Wood VC. See, for example, Topham v Booth (1887) 35 Ch D 607 at 612 per Kekewich J (remarking that any reasonable person in this position would say: ‘I being entitled to receive, I being in fact for all intents and purposes liable to pay, I will not have time and trouble and expense wasted in passing money or documents from hand to hand’); Re England [1895] 2 Ch 820 at 825 per Lindley LJ, at 826 per Lopes LJ, at 827 per Rigby LJ. See, for example, Seagram v Knight (1867) LR 2 Ch App 628 at 632–3 per Lord Chelmsford LC. In Bowring-Hanbury’s Trustee v Bowring-Hanbury [1943] Ch 104 at 111–15 the English Court of Appeal refused to suspend the running of time for the period in which a creditor was executor of the debtor’s estate, distinguishing Seagram v Knight on the ground that it dealt with an administrator rather than an executor. It may be queried, however, whether there are reasons in principle to make the said distinction: see R E Megarry (1943) 59 LQR 117. Yet there is earlier Australian authority that distinguishes Seagram v Knight on precisely the same ground: Re George [1935] VLR 26 at 29 per Mann J (characterising Seagram v Knight as a ‘very unusual’ case, before opining that ‘it may be that the true justification for the decision is to be found in the fact that it would be inequitable as against third parties to allow the debtor by taking out administration of the creditor’s estate to prevent the statute running so as to bar the debt’). Being a reason for the English Court of Appeal’s unwillingness to extend the principle in BowringHanbury’s Trustee v Bowring-Hanbury [1943] Ch 104 at 110, mentioned in the preceding footnote. Qld s 10(1); Tas s 4(1); Vic s 5(1). Cameron v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133 at 136 per McPherson SPJ, with whom Moynihan J agreed. ACT s 11(1); NSW s 14(1); NT s 12(1). WA s 13(1). WA s 12(1). See also Morgan v Banning (1999) 20 WAR 474 at 476; BC9902034 per Owen J. The relevant provision was enacted as a response to the recommendation of the Western Australian Law Reform Commission that time stops running with the issue of proceedings (as opposed to the service of proceedings on the defendant): WALRC 36(II), p 484. A similar recommendation has issued in the United Kingdom: see Law Com 270, paras 5.1–5.4. Cf NZ s 6(1) (which adopts the terminology ‘the date on which the claim is filed’, which is defined to

183. 184.

185.

186. 187. 188. 189.

190. 191.

192. 193. 194. 195. 196. 197. 198. 199. 200. 201.

mean ‘the date on which a statement of claim, or any other initiating document, that contains the claim, is filed in, or lodged with, the specified court or tribunal in accordance with rules of court or other laws relating to the claim’; the backdrop to this provision appears in NZLC MP16, para 155; cf the former recommendation that it align with the date of service: NZLC 6, para 174). SA s 35. Barnes v St Helens Metropolitan Borough Council [2007] 3 All ER 525; [2006] EWCA Civ 1372 at [16] per Tuckey LJ, with whom Arden and Lloyd LJJ concurred (where the court held that the plaintiff should not have to take the risk that the court would fail to process the claim within time: at [18]–[20]). Aly v Aly (EWCA, 1 January 1984, unreported) per Eveleigh LJ. Cf Page v Hewetts [2012] CP Rep 40; [2012] EWCA Civ 805 (and on remitter: Page v Hewetts [2014] WTLR 479; [2013] EWHC 2845 (Ch)); Lewis v Ward [2016] 4 WLR 6; [2015] EWHC 3503 (Ch) (each cases where the plaintiff had not accompanied their claim forms with the appropriate court fee, and so had not done what was reasonably necessary for them to do to ‘bring’ or ‘commence’ the relevant proceedings). See McGee, pp 25–6. (1876) 3 Ch 101. See generally G E Dal Pont, Law of Agency, 3rd ed, LexisNexis Butterworths, Australia, 2014, Ch 5. See, for example, Dillon v Baltic Shipping Co (The ‘Mikhail Lermontov’ (No 2)) (SC(NSW), Carruthers J, 28 May 1993, unreported) BC9301730 at 98; Presentaciones Musicales SA v Secunda [1994] Ch 271. See further G E Dal Pont, Law of Agency, 3rd ed, LexisNexis Butterworths, Australia, 2014, pp 130–2. See further G E Dal Pont, Law of Agency, 3rd ed, LexisNexis Butterworths, Australia, 2014, pp 114–16. Acts Interpretation Act 1901 (Cth) s 36(2); Legislation Act 2001 (ACT) s 151A; Interpretation Act 1987 (NSW) s 36(2); Interpretation Act 1978 (NT) s 28(2); Acts Interpretation Act 1954 (Qld) ss 36, 38(2), 38(5); Acts Interpretation Act 1915 (SA) s 27(2); Acts Interpretation Act 1931 (Tas) s 29(3) (does not refer to a Saturday); Interpretation of Legislation Act 1984 (Vic) s 44(3), 44(4); Interpretation Act 1984 (WA) s 61(1)(e), 61(2). [1976] VR 238. Namely Acts Interpretation Act 1958 (Vic) s 31A. Thomson v Les Harrison Contracting Co [1976] VR 238 at 242. Thomson v Les Harrison Contracting Co [1976] VR 238 at 242. (1879) 10 Ch D 776 at 784. See also Christensen v Davison [1971] Qd R 208 at 211 per Douglas J. [1914] 2 Ch 68. Re Benzon [1914] 2 Ch 68 at 75 per Channell J, delivering the reasons of the court (emphasis in original). See also Cotterell v Price [1960] 3 All ER 315 at 319–20 per Buckley J. See D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Australia, 2014, pp 448–9. Such as, for instance, mistake or undue influence. See, for example, Atlantic Shipping & Trading Co Ltd v Louis Dreyfus & Co [1922] 2 AC 250 (where the House of Lords proceeded on the assumption as to the validity of a clause in a charterparty whereby, in the words of Lord Sumner (at 261), ‘the parties … provided their own

202. 203.

204. 205.

206.

207.

208. 209. 210.

statute of limitations’, even though it was held not to apply on the facts in issue); H Ford & Co Ltd v Compagnie Furness (France) [1922] 2 KB 797 (where Atlantic Shipping was distinguished and effect given to a charterparty arbitration clause that, inter alia, shortened the time within the matter was to be pursued); Inframatrix Investments Ltd v Dean Construction Ltd [2012] 2 All ER (Comm) 337; [2012] EWCA Civ 64 (where effect was given to a clause that prescribed a one year limitation period on actions or proceedings under a construction contract). See Carter, pp 565–7. See, for example, Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 (although the issue focused on the availability of a contractual time bar to a third party); Anglo Irish Beef Processors International v Federated Stevedores Geelong [1997] 2 VR 676; BC9604702 (although the case ultimately rested on issues over the ambit of the relevant clause). Tolofson v Jensen [1994] 3 SCR 1022 at 1073 per the court. See further McGee, pp 394–6. See, for example, Wright v John Bagnall & Sons Ltd [1900] 2 QB 240 (agreement not to plead a limitation period imposed by workers compensation legislation; cf Rendall v Hill’s Dry Docks and Engineering Company Ltd [1900] 2 QB 245 (where no such agreement, in the same statutory context, was found)); Lubovsky v Snelling [1944] KB 44 (implied agreement that the limitation period would not be pleaded); Newton Bellamy & Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431 (where a statement that ‘[i]t is confirmed that liability is not an issue’ was held to amount to a contractual undertaking not to plead the limitations time bar). Newton Bellamy & Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431 at 437 per Andrews ACJ and Derrington J, at 446 per McPherson J. See, for example, Waters v Earl of Thanet (1842) 2 QB 757; 114 ER 295 (where the defendant debtor, in consideration of plaintiff creditor agreeing not to proceed against him, contractually debarred himself from pleading the Statute of Limitations and promised to pay the sums due ‘whenever my circumstances may enable me to do so’; on the question of accrual of the cause of action on his promise, Lord Denman CJ ruled that ‘when the defendant became of ability to pay, there was a complete right to bring an action’: at 769; 299). As to limitation periods for causes of action in contract see generally Ch 5. See, for example, Hewlett v London County Council (1908) 24 TLR 331 (without prejudice communication held not to estop the defendant from relying on a limitation defence); In the Matter of Order 64 Rule 1BB of the Supreme Court Rules (Qld); In the Matter of Wyatt v Orrell (1992) Aust Torts Rep ¶81-172 (letter from defendant insurer, in the course of settlement negotiations with the plaintiff, that it was ‘prepared to effect a reasonable settlement’ held not to deny the insurer an entitlement to rely on an available limitation defence). Sometimes termed a ‘standstill agreement’: see, for example, Braceforce Warehousing Ltd v Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB). As to estoppel and waiver in this context see 4.61. See, for example, The ‘Sauria and the ‘Trent’ [1957] 1 Lloyd’s List LR 396; Maracle v Travellers Indemnity Company of Canada [1991] 2 SCR 50 (where no estoppel was found to arise from the insurer’s admission of liability; Sopinka J, who delivered the reasons of the court, remarked that ‘the admission of liability is simply an acknowledgment that, for the purpose of settlement discussions, the admitting party is taking no issue that he or she was negligent, liable for breach of contract, etc’ and that ‘[t]here must be something more for an admission of liability to extend to a limitation period’: at 58); Cotterell v Leeds Day (a firm) (QBD, Buckley J, 21 December 1999, unreported). Cf Lubovsky v Snelling [1944] KB 44 (where an admission was construed, in the relevant circumstances, as reflecting an (implied) agreement not to plead an applicable limitation period; but see the treatment of this case by the respective judges in The ‘Sauria and the ‘Trent’ at

211. 212.

213. 214. 215. 216. 217. 218.

219. 220. 221. 222.

223. 224. 225. 226.

400–1 per Lord Evershed MR, at 403 per Morris LJ); Murphy v Grealish [2009] 3 IR 366; [2009] IESC 9 at [24] per Geoghehan J, with whom Kearns and Macken JJ concurred (who, in the context of an admission of liability, remarked that ‘some added facts would be necessary to create an estoppel but not much addition would be required’; such an approach, it seems, ‘is overly forgiving of claimant inertia’: Canny, p 10). See, for example, Rendall v Hill’s Dry Docks and Engineering Company Ltd [1900] 2 QB 245. WA s 45(1). The backdrop to this provision is found in WALRC 36(II), pp 434–5. The same has been recommended in Alberta (ALRI 55, p 90), England (Law Com 270, paras 3.170–3.175), Manitoba (MLRC, pp 50–2) and New Zealand (NZLC 6, paras 263–7). It has since been implemented in New Zealand (NZ s 41), partly implemented in Alberta, Ontario and Saskatchewan (envisaging extension of time by contract but not its reduction: Limitations Act 2000 (Alta) s 7; Limitations Act 2002 (Ont) s 22; Limitations Act 2004 (Sask) s 21), but not elsewhere. As to WA s 33 see 14.38. As to WA s 36 see 14.38. WA s 45(2)(a). As to WA s 38 see 15.13. WA s 45(2)(b). WA Pt 5 is comprised of ss 74–78, as to which see 8.13 (s 75), 8.11 (s 76), 8.14 (s 77), 8.22 (s 78). (1990) 170 CLR 394; BC9002931. The dissenters, Mason CJ, Brennan and McHugh JJ, did not deny that estoppel could, in an appropriate case, function to preclude reliance on statutory limitation periods. On the facts, however, their Honours found that the detriment suffered by the respondent under the auspices of the law of equitable estoppel could be rectified by a means short of enforcing the appellant’s representation (namely an award of costs). See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 377– 85. O’Reilly v Granville [1971] IR 90 at 100 per Walsh J. See also Doran v Thompson Ltd [1978] IR 223 at 225–6 per Henchy J. Murphy v Grealish [2009] 3 IR 366; [2009] IESC 9 at [33] per Geoghehan J, with whom Kearns and Macken JJ concurred. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [114] per Kirby J (dissenting but not on this point). There are other long-stop type provisions in some other jurisdictions, but these are more targeted in nature: see, for example, Vic s 5(4) (which it states that an action ‘shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable’: see 12.8). NSW s 51(1). NSW s 51(2) (introduced by the Limitation (Amendment) Act 1990 (NSW), with effect on 1 September 1990). See NSW ss 60F—60J, discussed at 20.56–20.70. McGrath, Price and Davidson, p 61 (citing from the remarks of the (then) Attorney-General when introducing the relevant Bill to Parliament). This legislative change largely obviates the form of litigation that confronted Hunt J in Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 (involving the application of the 30 year ultimate time bar to an action to recover damages as a

227. 228. 229. 230. 231.

232. 233. 234. 235.

236. 237. 238.

239. 240. 241.

242. 243. 244. 245. 246. 247. 248.

consequence of being exposed to asbestos dust). Novak v Bond [1999] 1 SCR 808 at [70] per McLachlin J. UK 1939 s 22(1)(c). This remains the case in New South Wales: see Conveyancing Act 1919 (NSW) s 53(1). NSWLRC 3, para 240. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [119] per Kirby J (dissenting but not on this point) (adding that it ‘was a feature of the law given much emphasis in the Minister’s Second Reading Speech supporting the Bill that became the 1969 Act’: see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1969, p 5152). NSWLRC 3, para 241. See generally 23.1–23.12. As to limitations statutes as ‘statutes of repose’ see 1.25–1.27. Manitoba Metis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623; [2013] SCC 14 at [249] per Rothstein J (dissenting, but not on this specific observation). See also MLRC, p 26 (‘In order to address the important repose aspect of limitations, there must be some ability to ensure that, after a certain period of time, no action may be brought regardless of the claim’s discoverability of late occurring damage’). See, for example, Limitation Act 2012 (BC) s 21 (15 years). See, for example, Limitation of Actions Act (Man) ss 7(5), 14(4) (30 years). Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [177] per Kirby J (dissenting, but not on this point) (disability); Ciantar v New South Wales [2008] NSWSC 191; BC200801333 at [47] per Michael Grove J (disability); Cork v AAL Aviation Ltd [2014] FCA 1085; BC201408357 at [57]–[62] per Foster J (fraudulent concealment). See, for example, Cork v AAL Aviation Ltd [2014] FCA 1085; BC201408357 at [57]–[62] per Foster J. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [220], [221] per Callinan J (dissenting, but not on this point). Ciantar v New South Wales [2008] NSWSC 191; BC200801333 at [46] per Michael Grove J (reasoning that ‘[h]ad the Parliament intended the latter to be measured from expiration, an identity of language could be expected’). Hall v Director of Public Prosecutions (2015) 122 SASR 12; [2015] SASCFC 19; BC201501293 at [36] per Gray J, with whom Stanley and Parker JJ concurred. Re Litchfield (1989) 51 SASR 87 at 90 per Cox J, with whom King CJ and Millhouse J concurred. (2015) 122 SASR 12; [2015] SASCFC 19; BC201501293. Hall v Director of Public Prosecutions (2015) 122 SASR 12; [2015] SASCFC 19; BC201501293 at [50]. (1989) 51 SASR 87 at 90–1 (emphasis supplied). Hall v Director of Public Prosecutions (2015) 122 SASR 12; [2015] SASCFC 19; BC201501293 at [51] per Gray J, with whom Stanley and Parker JJ concurred. SA s 49.

[page 92]

CHAPTER 5

Contractual Causes of Action Time Bars for Contractual Claims General provisions Specific provisions Seamen’s wages Frustrated contracts Arrears of interest Arrears of income Accrual of Cause of Action for Breach of Contract General rule Application to contractual indemnities Application to sale of goods contracts Breaches of single promise as opposed to multiple promises Anticipatory breaches of contract Accrual of Cause of Action to Recover Moneys Under a Contract General rule Where moneys repayable ‘on demand’ Ouster of general rule Ouster by contractual expression Ouster by contractual implication

5.2 5.2 5.5 5.5 5.6 5.7 5.10 5.11 5.11 5.12 5.13 5.14 5.15 5.16 5.16 5.19 5.25 5.26 5.30

Qualification in banker–customer cases Quasi-Contractual Claims

5.33 5.35 5.35 5.40 5.41 5.45

Time bars for quasi-contractual claims Accrual of quasi-contractual claims Action Upon a Deed or Specialty Action to Enforce a Recognisance

5.1 The limitations legislation in each jurisdictions sets time bars for causes of action in contract, including in some instances for specific contractual claims. These are identified immediately below, following which is a discussion of the concept of accrual vis-à-vis causes of action for breach of contract and for the recovery of moneys due under a contract. The chapter proceeds by reference to time bars and accrual for causes of action in quasicontract, under a deed (or specialty) and to enforce a recognisance, all of which have a contractual-like flavour. [page 93]

Time Bars for Contractual Claims General provisions 5.2 In New South Wales an action ‘founded on contract’, which is expressed to include ‘quasi-contract’, cannot be maintained after the expiration of a limitation period of six years from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.1 The same applies in the Northern Territory, except a three year limitation period is stipulated.2 In each jurisdiction, this does not apply to causes of action founded on a deed,3 which are subjected to its own time

bar.4 In Queensland, an action ‘founded on simple contract or quasi-contract’ is also subject to a limitation period of six years from the date on which the cause of action arose.5 A six year limitation period is likewise set in South Australia, which requires the commencement of actions founded upon any simple contract, ‘express or implied’, within six years next after the cause of action accrued.6 The Tasmanian and Victorian provisions apply a six year time bar to ‘actions founded on simple contract (including contract implied by law)’.7 Here the reference a contract that is ‘implied’ is intended as synonymous with ‘quasi-contract’,8 reflecting that the law of ‘quasi-contract’ was historically aligned with implied contract.9 It does not, as a result, use the phrase ‘implied contract’ to distinguish an ‘express’ contract from one implied from the circumstances. 5.3 Reference to ‘simple contract’, as opposed to ‘contract’, creates no distinction of significance in this regard. The term ‘simple contract’ is used merely to distinguish the contract from one that is under seal (that is, by deed), to which dedicated limitations provisions apply in each Australian jurisdiction.10 5.4 The Australian Capital Territory and Western Australia statutes obviate the above textual differences via the application, as noted earlier, of a six year time bar to all ‘causes of action’, subject to alternative provision, which clearly encompass actions founded on contract (including quasicontract).

Specific provisions Seamen’s wages 5.5 The New South Wales, Northern Territory, South Australian and Tasmanian legislation makes explicit that the above extends to a right to bring an action to recover a seaman’s wages.11 The same necessarily comes within the general time bar imposed by the Australian Capital Territory and Western Australian Acts,12 and in Victoria under the time bar applicable to actions in contract.13 The position may differ in Queensland, as in exempting the Act from applying to admiralty actions in rem,14 no

exception for seamen’s wages exists. [page 94]

Frustrated contracts 5.6 As the law governing the consequences of frustration of contracts has received statutory form in New South Wales, via the Frustrated Contracts Act 1978,15 it is unsurprising that limitations legislation should set a time bar in this context. Under the latter, an action on a cause of action arising under Part 3 of the Frustrated Contracts Act — which prescribes adjustments on frustration — by virtue of the frustration of a contract, or avoidance of any contract for the sale of goods by reason that they have perished before sale,16 is not maintainable if brought after six years running from the date of the frustration or avoidance.17

Arrears of interest 5.7 Aside from statutory provision to the contrary, the case law supports the general rule that if a limitations statute bars a lender’s contractual entitlement to recover the principal, absent an independent contract to pay interest,18 the interest is treated as a mere accessory of the principal, making its recovery subject to the same time bar.19 Statute in the Territories and New South Wales largely replicates this common law position, as an action to recover arrears of interest on principal money is not maintainable if brought after the end of the limitation period fixed by or under the statutes for an action between the same parties to recover the principal money.20 The latter relates to the limitation period on an action to recover a debt, namely six years (three years in the Northern Territory).21 But the foregoing is expressed not to apply to a cause of action to recover interest secured by a mortgage,22 which is governed by a dedicated provision.23 5.8 The common law position is altered in Tasmania and Victoria, where statute distinguishes between principal and interest. It applies the extant six year time bar to actions to recover arrears of interest in respect of any sum of money, or damages in respect thereof, except as otherwise provided in the

statute itself.24 Discrete provision for interest also appears in the parallel South Australian provision, albeit confined in its application to the recovery of arrears of interest in respect of sums of money charged upon land or rent, or in respect of a legacy. It likewise imposes a six year limitation periods on actions to recover those sums, and damages in respect of any such arrears of rent or interest.25 5.9 The Australian Capital Territory and Western Australia Acts make no dedicated provision for the recovery of arrears of interest because this scenario falls within the six year [page 95] limitation period applicable to causes of action generally.26 While it thus remains unclear whether this serves to confirm or rather alter the common law in this context, to the extent that an action to recover interest is separate from one to recover principal, it can be argued that there is no necessary alignment of the respective limitation periods.

Arrears of income 5.10 The New South Wales and Northern Territory limitations statutes make explicit provision for a time bar — six years and three years, respectively — on actions to recover arrears of income from any person (whether as principal, surety or otherwise), time running from when the cause of action first accrues to the plaintiff (or a person through whom he or she claims).27 This provision yields to that dedicated to actions to recover interest secured by a mortgage.28 A six year time bar also applies in the remaining jurisdictions, but under the above general provision dealing with causes of action in contract (in the Australian Capital Territory and Western Australia, under the cover of the general limitation provision).29

Accrual of Cause of Action for Breach of Contract

General rule 5.11 Any cause of action available in breach of contract accrues when the breach of the contractual term occurred, irrespective of when damage occurs or whether the contract has been terminated. The reason for this is that breach of contract is actionable without proof of damage;30 nominal damages, in any event, can be awarded for breach of contract. It is central to any limitation issue, therefore, to identify the breach of contract upon which the action is to accrue. In most instances this will not prove too challenging. A contract is breached, in the usual case, by failure to perform a contractual obligation in accordance with its terms — including where the obligation is triggered by a set time31 or the occurrence of a contingency32 — or failure to abide by a contractual prohibition. The cause of action, in each case, accrues once that failure occurs.

Application to contractual indemnities 5.12 Perhaps less intuitive in this context is the scenario of a cause of action on a contractual indemnity.33 Here common law and equity historically adopted different approaches vis-à-vis indemnities that operated by way of reimbursement. At common law time began to run from when the plaintiff paid the amount in respect of which he or she was entitled to indemnity. In equity, which approach has prevailed,34 time instead ran from the moment when the fact and [page 96] extent of the liability to indemnify was ascertained or established.35 As explained by McNair J in Bosma v Larsen:36 Before the fusion of law and equity by the Judicature Act 1873 … at common law no action could be maintained until actual loss had been incurred … But even before payment the person claiming to be indemnified could obtain relief in equity in appropriate cases by obtaining from the Court of Chancery an order for the setting up of a fund by the party subject to the indemnity to meet the liability as and when it arose so that the person entitled to the indemnity need not be ruined by having to pay the full amount in the first instance.

In the case of an indemnity against liability, as opposed to reimbursement, there is case authority to the effect that accrual of the cause of action occurs at the moment when the liability is incurred (unless the contracts states otherwise).37 This ostensibly stems from judicial apprehension that, were an insured’s cause of action against an insurer to accrue only once the insured had made a claim and the insurer declined to pay, ‘an insured could postpone the beginning of the relevant limitation period by delaying giving notice’.38 Yet such an apprehension has been queried, as indemnity policies commonly expressly oblige an insured to make claims in a timely manner, such that undue delay may give the insurer a basis to resist the claim.39 Moreover, aligning the relevant cause of action to when the liability is incurred could prejudice an insured who remains unaware of this until the applicable limitation period has expired.40

Application to sale of goods contracts 5.13 The sale of goods legislation in each jurisdiction makes provision for the accrual of a cause of action for the breach of a contract for the sale of goods. It temporally aligns the accrual of a cause of action in the seller with the moment when, in the event that the property in the goods has passed, the buyer wrongfully neglects or refuses to pay according to the terms of the contract.41 If the contract stipulates the price as payable on a particular day irrespective of delivery, the buyer’s wrongful neglect or refusal to pay serves to accrue a cause of action in the seller for the price even if the property in the goods has not passed.42 Conversely, a cause of action accrues in the buyer at the moment the seller wrongfully neglects or refuses to deliver the goods as per the terms of the contract.43 [page 97]

Breaches of single promise as opposed to multiple promises 5.14

If the contract prescribes one promise to be performed at one time,

separate or successive breaches of that promise do not prevent time from running from the date of the first breach.44 But if the promise relates to a continuing obligation, each day when the obligation remains unperformed triggers the running of time.45 An example is the usual form of repairing clause in a tenancy agreement, wherein the relevant obligation to keep the property in repair is breached afresh every day the property is out of repair.46 Hence, non-repair for the duration of the limitation period does not make that obligation statute-barred while the tenancy subsists. As to multiple discrete promises in the one contract, similarly, the breach of each is, for limitations purposes, a separate cause of action; the period of limitation thus differs for each breach.47 So if, say, a lease requires periodical payments of rent, a new cause of action arises every time a periodical payment becomes payable and is not paid.48 The same may be so in respect of a loan agreement that prescribes periodical payments of interest49 and an insurance policy requiring payments out of the policy to be made from time to time.50 In these events, a plaintiff who elects to confine the claim to a later breach, occurring within the limitation period, cannot thereby cover earlier breaches that have since become time-barred.

Anticipatory breaches of contract 5.15 The occurrence of an anticipatory breach of contract — wherein a contracting party indicates his or her intention not to perform a contractual obligation that has yet to crystallise — is not by itself sufficient to cause time to run for limitations purposes. After all, this expression of intention may, before the time comes to perform the relevant obligation, yield to a change of mind. But in circumstances where anticipatory breach can justify the innocent party terminating the contract — typically where it amounts to a repudiation51 — time begins to run, in an action to sue for any loss, against the innocent party from the moment he or she elects to terminate.52

Accrual of Cause of Action to Recover Moneys Under a Contract

General rule 5.16 As a general principle, in speaking of the accrual of a cause of action in debt, it has been said that ‘the cause of action arises at the time when the debt could first have been recovered by action’, and that while ‘the right to bring an action may arise on various events … the [Statute of Limitations] runs from the earliest time at which an action could be brought’.53 It follows [page 98] that the date of the accrual of a cause of action for sums due under a contract usually rests on the terms of the contract itself. This applies not only to moneys lent — so that time begins to run once the moneys are advanced (albeit to be qualified where moneys are advanced by cheque)54 — but to debts arising out of services performed.55 As to the latter, the law has been phrased as follows:56 [I]n the absence of any contractual provision to the contrary, a cause of action for payment for work performed or services provided will accrue when that work or those services have been performed or provided. In such circumstances, the right to payment does not depend on the making of a claim for payment by the party who has provided the work or services.

5.17 In cases involving proceedings brought by lawyers to recover fees, for instance, the case law holds that the cause of action accrues when the work was completed, rather than upon the delivery of the bill of costs or the expiration of one month from the delivery of the bill of costs (the latter being prescribed by statute as a hiatus to give the client time to decide whether or not to have the bill taxed or assessed).57 The relevant principle is not confined to moneys due for legal services. In Swansea City Council v Glass,58 for example, the English Court of Appeal held that the Council’s cause of action to recover expenses incurred by it, as a result of works effected to the defendant’s property, accrued when the works were completed and not when demands for payment were served. As more than six years had expired from completion of the works, the Council’s claim was statutebarred, even though its demands were made within the limitation period.59 Similarly, in Foyle Enterprises Pty Ltd v Steve Parcell Building Services60 the

District Court of Queensland ruled that moneys due under a building contract were recoverable, and thus any cause of action to this effect accrued, from the moment the building works were completed. 5.18 Of course, the terms of the contract are critical to identifying the moment when the cause of action accrues. In circumstances where the contract itself prescribes an entitlement to payment(s) prior to the completion of the services under it — typically involving periodic or progress payments, whether triggered by temporal or performance milestones — the right of action vis-à-vis the payment(s) in question accrues once the relevant milestones occur.61

Where moneys repayable ‘on demand’ 5.19 The limitations case law on recovery of moneys owed under a contract reveals an ostensibly disproportionate incidence of litigation over the significance of references, in contracts for loan or otherwise for the payment of money, to ‘payment on demand’ (or equivalent). For limitation purposes, the inquiry targets the effect of a ‘payment on demand’ [page 99] clause on the date the cause of action is to accrue, specifically as to whether time runs from the date the funds are advanced or instead from when a demand is made.62 5.20 It has been accepted for centuries that if a contract of loan is silent about repayment, the lender’s right to repayment accrues at the time the money is advanced, at which time therefore begins for limitation purposes. As a general principle, it is said, ‘[a] loan of money payable on request creates an immediate debt’.63 And it is no different, it seems, vis-à-vis an obligation expressed as being payable ‘on demand’; the tide of judicial determinations declare that no demand is necessary and the cause of action arises once money is advanced, on the (implied) promise to repay. As ‘the payment … had remained so long unclaimed’,64 the rationale was that ‘some good excuse

for the non-payment might be presumed’65 and ‘the evidence of it might be lost by reason of the persons not pursuing their rights’.66 5.21 At the outset, though, it must be noted that statute has altered the legal position in Western Australia,67 such that a cause of action for the repayment of a debt repayable on demand ‘accrues when there is a failure to comply with a demand for repayment’.68 This approach has merit, as ‘it makes no sense to consider [a defendant] as having breached a duty to pay a demand debt before a demand for payment was ever made’.69 It also avoids the implicit harshness of a rule that can result in lenders finding that their action statute-barred before repayment is ever demanded. The scenario of loans between friends or family,70 whose expectation is often that moneys advanced are not repayable until a request, are pregnant with potential injustices in this regard.71 These may upset the asset position of the parties, say, in the event of distributions [page 100] upon insolvency or death,72 by reason of the ‘windfall’ to the borrower in failing to repay the loan. If statute makes time run from the date of demand, it is then apt to consider whether some long-stop time bar ought to apply from the moment the moneys are advanced — in the absence thereof, any claim could be open-ended73 — and if any requirements should be necessary to substantiate a ‘demand’. Neither point is addressed in Western Australia but law reform recommendations can be found in support of a long-stop period in this context74 and that the demand be expressed in writing.75 In any case, ‘demand’ requires ‘a clear intimation that payment is required’, and even though the language is immaterial, ‘it must be of a peremptory character and unconditional’.76 5.22 It is difficult, to this end, to perceive the justification for the ‘rule’, which remains extant at general law, that time runs from the date the money is advanced, and is not premised on a demand, even for an obligation to repay ‘on demand’. Historical justifications by reference to protecting a debtor who has paid a debt but has since destroyed proof of payment, and to

some notion of vindictiveness in reviving dormant claims,77 are unpersuasive.78 The longevity of the ‘rule’, more than anything else, appears to animate it. It was settled by the outset of the eighteenth century. In Collins v Benning,79 decided in 1705, in an action of indebitatus assumpsit the plaintiff sought to enforce a promise to pay on demand, which the defendant pleaded was time-barred. In response the plaintiff demurred to the plea on the ground that no action was maintainable until a demand was made. The judgment of the court, as reported, consumes only one sentence, namely ‘[i]f the promise were for a collateral thing, which would create no debt till demand, it might be so; but here it is an indebitatus assumpsit, which shews a debt at the time of the promise, therefore the plea is good’. It highlights that while not every instance of debt triggers time to run from the date of the advance — as elaborated below80 — the cause of action to enforce a loan repayable ‘on demand’ simpliciter does accrue at that date. There are manifold English nineteenth century authorities to the same effect. In the context of a promissory note, for instance, Parke B in his 1844 decision in Walton v Mascall said:81 [I]t is clear that a request for the payment of a debt is quite immaterial, unless the parties to the contract have stipulated that it shall be made; if they have not, the law requires no notice or request; but the debtor is bound to find out the creditor and pay him the debt when due. It is clear, therefore, that the defendant was bound to pay the amount of the promissory note when it had become due and was dishonoured, unless there was some condition precedent to be performed by the plaintiff, which has not been performed.

In Norton v Ellam,82 decided seven years earlier, Parke B analogised a ‘promise to pay £400 on demand, with lawful interest’ in a promissory note with the case of money lent repayable upon request with interest, where no demand or notice was necessary before bringing the action. [page 101] Time, for limitations purposes, thus commenced to run upon the moneys being advanced. The reference to ‘lawful interest’ did not, according to his Lordship, evince any intention for time to elapse before a demand; it simply dictated that the amount of the debt would continually increase. On this reasoning, it would make no difference whether the interest in issue was

calculated on a simple or a compound basis.83 Australian law reflects this historical approach, as acknowledged by Fullagar J in Ogilvie v Adams:84 The common law has always regarded the fact of indebtedness as a continuing detention by the debtor of the creditor’s money, and this whether the creditor brought an action of debt or an action in indebitatis assumpsit. Therefore if A lends money to B, then instantly B is detaining A’s money. In order to prevent a cause of action for recovery arising in A instantaneously on paying the money, the parties must expressly contract out of that situation by words clearly inconsistent with that situation. The courts have long since settled it that a mere statement or agreement that the money is repayable on demand (or request or at call) is not sufficient to contract out of that situation where all else that is known of the terms of the contract is that A has paid money to B by way of loan. The lender’s cause of action still arises instanter on the receipt of the money by the borrower, so that the lender’s cause of action becomes statute barred at the expiry of six years after the receipt of the money.

5.23 Echoing what Fullagar J described later in his reasons as a ‘rule of construction’,85 the foregoing dictates that the law treats the words ‘on demand’ as surplusage, adding nothing to the implied promise immediately to repay.86 Those words, it seems, simply reinforce and declare what the law takes to be implicit anyway: that a lender’s right to repayment, and thus the trigger for the purposes of limitations law, arises when the money is advanced unless the agreement states otherwise. It is conceivable that, by choosing the words ‘on demand’, contracting parties could be understood as evincing an intention to premise enforcement upon the making of a demand. Yet the law stands largely against this construction, at least prima facie, and insists on attributing to those words a meaning that even judges have conceded differs from what they might literally at first sight appear to mean,87 as there is no necessity for any demand. 5.24 Ogilvie v Adams88 presents as a leading, and frequently cited, ‘modern’ Australian case to this end. There the plaintiff, as trustee of a bankrupt’s estate, sued the defendants, who were the personal representatives of the estate of the bankrupt’s wife, for money the bankrupt lent to his wife in 1957. Under the terms of the loan, the wife acknowledged receipt of £31,600 ‘being a loan to me repayable on demand’. The defendants conceded that demands for the repayment were made in 1972, but refused payment on the ground that the alleged debt was time-barred. In ruling that the defendants had acted correctly, Fullagar J distinguished the wording of the loan document in issue from words apt to create a condition precedent to the exercise of the right to repayment:89

[T]he acknowledgment … cannot be construed as meaning anything other than: ‘I have received from you £31,600 upon a loan of that species which is called a loan repayable on demand’. And the law … that that description of loan (repayable on demand or repayable on request) is used in contradistinction to loans where something must be done, or must happen, in order to constitute

[page 102] a cause of action in the lender for recovery of the money. In truth, a loan repayable on request (or on demand, or on call) is ‘a loan simpliciter’. It is quite different if the parties choose to say ‘being a loan upon terms that the money shall be repayable on three days notice’ or (which is the same thing) ‘upon terms that the money shall be repayable three days after demand made’. The law is settled that where a loan is said to be of that kind which is recoverable on request, or on demand, it means of that species which is continuously recoverable at all times from the moment of the creation of the relationship of debtor and creditor.

Fullagar J’s approach has been endorsed on multiple occasions in Australian courts.90 A recent illustration is Fischer v Nemeske Pty Ltd,91 involving a loan document wherein the mortgagor covenanted that it would repay the principal moneys on demand by the mortgagee (cl 5), which ‘shall at the option of the Mortgagee … immediately become payable without the necessity for any demand … upon the Mortgagor’ (cl 7(a)). Barrett JA, with whom Beazley P and Ward JA concurred, ruled that while cl 7(a) identified circumstances in which the principal moneys were to be payable without any demand by the mortgagee, that served merely to reinforce the nature of the cl 5 debt as one that, in the ordinary course of events, was payable on demand. It had this reinforcing effect because it impliedly confirmed the need for demand unless one of the specified events had happened. Hence, read together, the clauses rendered the debt as one payable on demand or on earlier occurrence of one of the cl 7(a) events.92 But, his Honour explained, this went only to the question of the time at which or event upon which the debt was payable; it did not go to the existence of the debt or, more precisely, the cause of action in debt. There was accordingly nothing to preclude the operation of the ‘rule of construction’ that a cause of action accrued preceding any demand.93

Ouster of general rule

5.25 The question focuses, therefore, on those occasions in which the general ‘rule’ does not apply. Prima facie, this must rest on the terms upon which the money is advanced, and specifically whether those terms evince, expressly or by clear and necessary implication, an intention that the liability to repay arises subsequent to the time of the advance, whether resting upon a demand or on some other triggering event.94 In this event, the existence of the [page 103] demand, or the occurrence of the event, forms part of the creditor’s cause of action. The extent to which, if at all, extrinsic evidence is admissible to assist in this exercise rests on ordinary principles in contract law governing the admission of extrinsic evidence.95

Ouster by contractual expression 5.26 If the agreement between the parties is that the loan is repayable only upon the happening of a certain event or upon compliance with a condition precedent to liability, the debt is not immediately due and payable. As a result, the cause of action does not accrue, and so time does not begin to run, until the occurrence of the event or compliance with the condition. So in Atkinson v Bradford Third Equitable Benefit Building Society,96 where the appellant (A) lent money to the respondent (B) upon the terms that the money should be repayable after A had given notice of his intention to withdraw it, and that no money would be paid out by B, except on production, of a passbook given to A when the loan was made, the English Court of Appeal saw the contract as one whereby A lent money on terms that B would return it to A upon the fulfilment of certain stipulations. Accordingly, ‘no cause of action arises against [B] until all those stipulations have been fulfilled’.97 Another illustration is Murphy v Lawrence,98 where the instrument acknowledging the debt required quarterly £5 payments pending demand for the principal. Turner J construed this provision for quarterly payment to mean that, until some event happened, only instalments were due, such that time did not begin to run until demand.

5.27 Hence, if the debt is not ‘present’ but instead is to accrue — say, at a set time after demand99 or default on the part of the borrower100 — there is no justification for the accrual of any cause of action for its repayment at the date of the advance. In DFC New Zealand Ltd v McKenzie101 Tipping J opined that the same should ensue when an obligation to repay is expressed to be ‘on demand in writing’, not merely ‘on demand’. This distinction ‘might appear strange’, his Honour conceded, but reasoned that the parties must ‘have intended as a condition of the obligation to repay that there be an antecedent demand in writing’, such that ‘unless [page 104] the lender can show that there was a demand in writing he has no cause of action against the debtor’.102 It may be queried, however, whether the law should make such fine distinctions. In any case, what also led Tipping J to conclude, on the facts in issue, that a cause of action accrued upon a written demand was that, under the terms of the loan, the lender could appoint a receiver once the moneys became due and payable. In this regard, his Honour found that ‘[i]t cannot have been the intention of the parties to allow the lender to appoint a receiver without demand, on the premise that the moneys were immediately repayable from the moment of the advance, irrespective of whether a demand was made’.103 5.28 The case law recognises that what can fairly be described as a ‘collateral promise’ — in the sense of being in addition to the main obligations between the parties — is not immediately enforceable, but its accrual is premised on a demand.104 So, for example, a ‘collateral promise’ in the form of a surety’s promise to pay on demand should the principal debtor not meet its obligations does not ordinarily give rise to a present debt for this purpose. In Bradford Old Bank Ltd v Sutcliffe,105 directors of a corporate borrower gave a guarantee, in which they agreed to pay to the lenders on demand all sums owing by the company, with interest ‘from the time of default of payment by the company or from the time of your demanding payment thereof from us’. This clause, coupled with provision that ‘neither we nor any or either of us … shall be entitled to require you to accept

payment of the amount of this guarantee or any part thereof until you have demanded payment of such amount’, prompted a finding of no cause of action against the guarantors accrued until a demand was made against them.106 5.29 It should be noted that, unless the terms of a guarantee so require, accrual of a cause of action against the guarantor is not premised upon a demand upon the guarantor; at the same time, though, the very ‘collateral’ nature of the promise of guarantee ordinarily dictates that the cause of action against the guarantor does not accrue until, at least, the moment of the debtor’s default.107 After all, under a standard guarantee the guarantor has no obligation unless the principal debtor defaults.108 But in each case it rests on the terms of the guarantee itself. These may evince, say, a continuing guarantee — the repayment of each net debit balance being guaranteed as it is incurred from time to time whilst the guarantee remains on foot — in which case the cause of action against the guarantor accrues with this incurrence unless the guarantee states otherwise.109 [page 105]

Ouster by contractual implication 5.30 The ordinary ‘rule of construction’ — that for limitation law a debt accrues immediately upon its advance — may yield not merely to express contractual terms evincing an event as a condition precedent to accrual, but potentially an implied term that the cause of action is not to arise until some period of notice is given or another condition precedent. The prerequisites for contractual implication, chiefly to give business efficacy to the parties’ dealings,110 require proof that an intent to alter the prima facie position is necessarily implicit in the contract. Proof of some purpose or motive, real or supposed, by reason of which the loan was made, but as to which the terms of the contract are silent, is insufficient for this purpose.111 5.31 In particular, the principles of contractual implication dictate that implied terms cannot be inconsistent with the express terms chosen by the parties, and this is so even if those terms are oral (assuming that they can be

proven) as opposed to documented in writing.112 This constrains the scope for contractual implication where the parties have documented matters going to accrual of the debt, and correspondingly imposes a heavy burden on a party wishing to oust the ordinary ‘rule of construction’ via an alleged implied term. Where, conversely, there is no written agreement, the need (and justification) for implied terms may well intensify. As explained by King CJ in Re Brookers (Aust) Ltd (in liq):113 Where there is no written agreement, the question may be determined by reference to express oral terms which are proved and interpreted in the ordinary way. Where, however, there are no express terms, an agreement as to the circumstances in which liability to repay arises must be implied from the surrounding circumstances and the conduct and relationship of the parties. It becomes a question of whether the parties, if they had applied their minds to the issue, would reasonably be expected to have agreed to depart from the general rule of immediate liability to repay and to have agreed that some notice would be a prerequisite of such liability.

In Brookers, upon the conversion of a family business into a company, members of the business left on loan to the company the surplus of their capital funds, to be used as working capital for the company. The company’s financial statements identified the member deposits as deferred liabilities, but when the company entered liquidation some 20 years later, the liquidator rejected the members’ proofs of debt for being statute-barred. The Full Court of the South Australian Supreme Court held that the liquidator was wrong, finding an implied term of the contract that the member loans would not be repayable without notice. King CJ reasoned that the parties’ relationship, their course of conduct in relation to the operation of the accounts, coupled with the common assumption that the funds would be used as working capital, ‘combine[d] to compel the implication of an agreement that liability to repay would not arise until at least some notice was given’.114 There was accordingly no immediate liability to repay, and no right of action had accrued. 5.32 On ostensibly parallel reasoning, case authority supports the proposition that, for limitations purposes, time does not begin to run against a person who entrusts money to another [page 106]

(as bailee) for safety until demand, and this is so even if it was contemplated that the bailee might use the money in business. As the money is to be kept in safe custody, the depositor is entitled ‘only to have it back when he asked for it back’.115

Qualification in banker–customer cases 5.33 The law treats the banker and customer relationship as an exception to the general rule relating to the accrual of a cause of action for moneys advanced by way of loan. It adopts the converse starting point. Subject to any express term to the contrary, it is an implied term of the banker– customer contract that money owed by a banker on a current account only becomes due and payable once a demand is made for it. The law has adopted a discrete approach in the banker–customer context chiefly on practical grounds, as explained by Warrington LJ in the leading case of N Joachimson (a firm name) v Swiss Bank Corporation:116 If the general rule [whereby a cause of action accrues independent of demand] were applicable, the banker would be bound to seek out his customer and pay him, and the customer would be bound at any time and without notice to receive the amount due, but it is well settled that a banker is not at liberty to close an account in credit by payment of the credit balance without giving reasonable notice, and making provision for outstanding cheques. This restriction on a banker’s liberty to discharge his debt, seems to me inconsistent with an obligation on his part to pay without demand.

Thus, his Lordship ruled, in this context ‘a demand, either by the issue of a writ or otherwise, is an essential ingredient in the cause of action, and that without such demand no cause of action accrues’.117 The upshot of the decision in Joachimson, which has been endorsed in Australian courts,118 is that for money standing to the credit of a customer on a current account, there is, absent a special agreement, an implied term that the customer must demand ‘the payment of the amount so standing to his credit as a condition precedent to the right to sue for it’.119 5.34 In the converse situation — where the bank lends money to the customer — what similarly ensues is that any contractual reference to ‘payment on demand’ means precisely what it says, albeit via the relevant implied term entitling the customer to a reasonable time to pay.120 Otherwise the bank could sue on the debt ‘on the very day after it was executed without making a demand and giving the customer a reasonable

time to pay’,121 which could prove greatly disadvantageous to the customer. [page 107]

Quasi-Contractual Claims Time bars for quasi-contractual claims 5.35 ‘Quasi contract’ was the legal category of reference, at the time when the majority of Australian limitations statutes entered into force, for common law claims to recover money for services performed outside of an enforceable contract. Pleaders resorted, for this purpose, to the common money count for work done, known by the Latin tag of quantum meruit (‘what one has earned’). The historical orthodoxy explained the common law’s recognition of such a claim through the vehicle of implied contract.122 This explains both the terminology ‘quasi-contract’ (that is, resembling contract) and the decision to locate its limitation bar under the broader (implied) contractual banner. The terminology remains a staple of Limitations Acts in most Australian jurisdictions; in New South Wales, the Northern Territory and Queensland via the actual use of the term ‘quasi-contract’, and in Tasmania and Victoria by reference to a ‘contract implied by law’.123 In South Australia the parallel reference is simply to a contract ‘express or implied’, which presumably aims to address the same scenario as encompassed by the Tasmanian and Victorian provision. Any debate over the issue is obviated in the Australian Capital Territory and Western Australia, where a uniform limitation period applies to civil causes of action, which encompass so-called quasi-contractual claims.124 5.36 Yet modern Australian law has rejected the implied contract foundation for relief via a quantum meruit, and with it the quasi-contract label.125 In the leading case, Pavey & Matthews Pty Ltd v Paul,126 the High Court held that recovery on a quantum meruit rested on a claim to restitution, based on unjust enrichment. The latter it characterised as a

‘unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make a fair and just restitution for a benefit derived at the expense of a plaintiff’.127 5.37 That the statutory language of ‘quasi-contract’ is now inapt to cover restitutionary claims grounded in unjust enrichment128 does not mean that ‘quasi-contract’ has ceased to exist as a legal category in the context of limitations legislation.129 Adopting an interpretation [page 108] aligning with statute ‘always speaking’, and reflecting substance over form, Mason P explained the point as follows:130 That Act continues to speak according to its plain intent to claims, however labelled or packaged, and whatever general principles may be perceived to underpin them, which depend on the well established common law cause of action stemming from quantum meruit. Whether or not it is now passe to use the old language of quasi-contract and whether or not there now exist causes of action ‘in’ unjust enrichment has no bearing on the matter because ‘a sovereign legislature is not bound to respect legal orthodoxy’.131

5.38 A cause of action for the recovery of money paid under a mistake, also traditionally addressed via quasi-contract but now coming under the unjust enrichment umbrella, is likewise covered by the limitation period imposed on quasi-contractual actions.132 By parity of reasoning, the same may presumably be said of other causes of action traditionally explained by reference to quasi-contract.133 5.39 The South Australian legislation adds a stand-alone provision imposing a six year limitation period on ‘an action for the recovery of money paid under a mistake (either of law or of fact) or otherwise based on restitutionary grounds’.134 Here the phrase ‘restitutionary grounds’ has been interpreted by reference to what would historically have been claims in quasi-contract, which focus on non-contractual claims for the recovery of money paid. While it is not unusual for judges to use the language of restitution in, say, the object of equitable compensation135 or recipient liability,136 this has not translated to extend the scope of the phrase for limitations purposes. In Duke Group Ltd (in liq) v Alamain Investments Ltd137

Doyle CJ refused to construe a claim against a company’s former directors for breach of fiduciary duty — giving rise to a claim for equitable compensation for the loss suffered by the company — as one ‘for the recovery of money … based on restitutionary grounds’. That the claim was made for relief in equity, to which limitations legislation applies only by explicit reference or analogy,138 rather than at common law (from which the law of quasicontract derived), may likewise explain his Honour’s disinclination to expansively construe the statutory language.

Accrual of quasi-contractual claims 5.40 In a recognised restitutionary claim, such as a quantum meruit, time runs from the date the party receives a benefit that gives rise to an obligation to make restitution.139 In the case where this involves the payment of money, the cause of action accordingly accrues upon payment, including where the payment is made under duress140 or mistake, or in respect of money paid to a third party to the plaintiff’s use. And, where mistake is involved, this remained [page 109] so at common law (but not equity) even if the mistake was not discoverable until a later time,141 although statute has since mollified this position.142 In the face of an action based on a total failure of consideration, conversely, the application of the above principle dictates that time runs from the date when the consideration failed as opposed to when the money was paid.143 This is because the cause of action here concerns not the receipt of money but refusal to fulfil a contractual obligation. The absence of an existing contractual obligation that has been breached, which in contract would trigger the accrual of the claim, necessitates the above approach (even though quantum meruit claims were historically grounded in implied contract).

Action Upon a Deed or Specialty 5.41 The limitations legislation in some Australian jurisdictions, following an English statutory precedent,144 sets a limitation period for actions upon a ‘specialty’ (or the like) much longer than the standard six year contract time bar. A ‘specialty’ is a written document, signed (historically sealed) and delivered — thereby exhibiting the characteristics of a deed — given as security for payment of a specifically identified debt.145 It was an obligation historically treated as distinct from an ordinary debt (that is, a simple contract); indeed, the act of creating a specialty by deed was at one time possible only to men of the highest rank. Unlike debt, it was enforced by an action of covenant; the deed itself was the foundation of the action — any original debt being merged — the terms of which were conclusive.146 This ‘higher nature’ of specialties over debts rendered it perhaps unsurprising that different (longer) limitation periods should apply, as Wilde J explained in the context of the English precedent:147 The object of the statute of limitations was, to prevent parties from being harassed by stale demands, brought forward against them at a period when all their witnesses might reasonably be presumed to be dead, and when the circumstance of the plaintiffs’ having lain by so long without challenging them to make payment, afforded fair ground for presuming that the debt had been paid.

[page 110] The legislature has thought twenty years a convenient period beyond which the obligor in a bond ought to be relieved from the necessity of preserving evidence in discharge of his liability.

The foregoing proceeded on an assumption that contracting parties should, via the appropriate formalities, be able to order their affairs so as to have longer than the usual six years to enforce contractual rights.148 5.42 The Queensland, Tasmanian and Victorian Acts (as well as the current English Act)149 state, to this end, that no action upon a specialty150 can be brought after the expiration of 12 (in Victoria, 15) years from the date on which the cause of action accrued.151 But this is expressed not to affect an action in respect of which a shorter time bar is set by any other

provision of the legislation.152 In South Australia, a 15 year time bar is set for ‘[a]ll actions of covenant or debt upon any bond or other specialty’,153 without exception, it seems. In the remaining jurisdictions the legislation eschews the archaic language of specialty,154 instead imposing a 12 year limitation period, running from the date when the cause of action first accrues, upon actions on a cause of action founded on a deed.155 5.43 It has been recommended that no special limitations regime should apply to specialties (or deeds), but only the existing regime applicable to simple contracts,156 which has translated into law in New Zealand.157 This appears an entirely defensible reform, thereby obviating for this purpose scope for argument over whether a contract is indeed effected by way of deed.158 It would also avoid the anomaly whereby if, say, a guarantee is effected by deed but the contract of loan with the principal debtor is found in a simple contract, the creditor’s cause of action against the guarantor outlasts any case of action against the principal debtor.159 5.44 A cause of action for breach of a specialty accrues at the date of the relevant breach,160 a rule consistent with the principle that the cause of action for breach of contract ordinarily [page 111] accrues as at the date of the breach, not the date on which damage is suffered as a result of that breach.161

Action to Enforce a Recognisance 5.45 A ‘recognisance’ has been described as ‘an obligation entered into before a court conditional on the obligor or some other person doing some act such as appearing before a court to stand trial for a criminal offence, give evidence at a trial or keep the peace’.162 Thereunder the obligor undertakes to pay a fixed sum on non-fulfilment of the condition, and if that undertaking is not met, an action may be brought to enforce it, similar to an action to enforce a judgment.

5.46 A limitation period applies to actions to enforce a recognisance. It is three years in the Northern Territory, and six years in New South Wales, Queensland, Tasmania and Victoria.163 It is likewise six years in the Australian Capital Territory and Western Australia, albeit under a general limitation period applicable to all causes of action.164 By contrast, in South Australia all actions upon any recognisance are subject to a 15 year limitation period.165 5.47 As in the case of contract, of which a recognisance is a form, the cause of action to enforce a recognisance accrues on the date it is breached, not the date it was entered into. ______________________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

16. 17. 18.

NSW s 14(1)(a). NT s 12(1)(a). In the Northern Territory, ‘evidenced by’ a deed. See 5.41–5.44. Qld s 10(1)(a). SA s 35(a). Tas s 4(1)(a); Vic s 5(1)(a). Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [454] per Macaulay J. See 5.35. See 5.41–5.44. NSW s 22(1); NT s 20(2); SA s 35(g); Tas s 8(1). This provision emanated from the Administration of Justice Act 1705 (UK) s 17. See 4.2. See 5.2. Qld s 10(6)(a). That the South Australian and Victorian Parliaments have likewise statutorily prescribed consequences for frustration (see generally Carter, pp 794–809) has not, however, translated to an equivalent provision in limitations legislation in those jurisdictions. Under the Sale of Goods Act 1923 (NSW) s 12. NSW s 14A. See, for example, Parr’s Banking Co v Yates [1898] 2 QB 460 (involving a case between creditor and guarantor, rather than between creditor and debtor, it being held that the liability of the guarantor to pay a sum that, as between creditor and debtor, was interest, was a liability of such a character that the liability of the guarantor to pay that sum continued, irrespective of the question whether or not the principal upon which that sum, as between creditor and debtor, was interest, had ceased to be recoverable; A L Smith LJ, in giving the leading judgment of the English Court of Appeal, remarked that ‘[t]he doctrine that interest is an accessory which falls to the ground with the principal does not apply to a case like this, because the payment of interest,

19.

20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33. 34.

35.

commission and other banking charges due from the guaranteed party is as much guaranteed as payment of the sums advanced themselves’: at 465). Hollis v Palmer (1836) 2 Bing NC 713; 132 ER 275; Cheang Thye Phin v Lam Kin Sang [1929] AC 670 at 676–7 per Lord Warrington (PC); Skene v Cook [1901] 2 KB 7 at 15 per Channel J; Elder v Northcott [1930] 2 Ch 422 at 427–30 per Clauson J; Re Otway Coal Co Ltd [1953] VLR 557 at 565 per O’Bryan J. ACT s 20(1); NSW s 24(2); NT s 22(2). See 5.2. ACT s 20(2); NSW s 24(3); NT s 22(3). This provision, it is said, ‘gives statutory expression to the judge-made rule that interest on principal money cannot in general be recovered after the right to recover the principal money is statute-barred’: NSWLRC 3, para 145. ACT s 25; NSW s 43; NT s 28: see 9.15. Tas s 4(5); Vic s 5(7) (see, for example, Re Pollock (deceased) [1964] VR 554 at 561–2 per Gillard J). SA s 35(e), 35(f). ACT s 11(1); WA s 13(1): see 4.2. NSW s 24(1), 24(4); NT s 22(1), 22(4). NSW s 24(3); NT s 22(3). The dedicated provision is NSW s 43; NT s 28: see 9.15. ACT s 11(1); WA s 13(1): see 4.2. Iverson v Howen [2008] NSWSC 1246; BC200812459 at [12] per Hidden J; Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32; BC201406817 at [52] per the court. See, for example, Re McHenry [1894] 3 Ch 290 (debtor’s failure to repay moneys advanced at time required by contract). See, for example, Waters v Earl of Thanet (1842) 2 QB 757; 114 ER 295 (debtor’s contractual promise to pay sums due ‘whenever my circumstances may enable me to do so’). See generally McGee, pp 195–8. See, for example, R & H Green & Silley Weir Ltd v British Railways Board [1985] 1 All ER 237 at 240–2 per Dillon J; Hunter v Stronghold Insurance (Aust) Ltd (SC(Vic), Nathan J, 18 January 1991, unreported) (where it was held that the cause of action of the insured under a burglary policy arose only once the insurer refused indemnity and not when the burglary occurred or when the insured gave notice of his loss); Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564 (where, in the context of a professional indemnity insurance policy, the insurer’s breach, and therefore the accrual of the cause of action therefor, was held to occur only once it ‘has been required to pay or do some other act in performance of its promise and has failed or refused to do so’: at 571 per Giles J); Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495 at [127]–[156] per Stevenson J. The same has been applied vis-à-vis implied contractual indemnities: see Telfair Shipping Corp v Inersea Carriers SA (‘The Caroline P’) [1985] 1 All ER 243 at 254–5 per Neill J. Re Richardson [1911] 2 KB 705 at 709 per Cozens Hardy MR, at 712–13 per Fletcher Moulton LJ; Country and District Properties Ltd v C Jenner & Son Ltd [1976] 2 Lloyd’s Rep 728 at 733–4 per Swanwick J; State Government Insurance Commission v Teal (1990) 2 WAR 105 at 119; BC9003832 per Commissioner Williams QC. This result is also consistent with the statutory right of contribution of a joint tortfeasor against another arising when liability is ascertained: see

36. 37.

38. 39. 40. 41.

42.

43.

44.

45. 46. 47. 48.

49. 50. 51. 52. 53. 54.

12.24. [1966] 1 Lloyd’s Rep 22 at 29. Bosma v Larsen [1966] 1 Lloyd’s Rep 22 at 28 per McNair J (remarking that ‘[i]ndemnity against liability seems … to be different from reimbursement against sums paid in pursuance of a legal liability’); Callaghan v Dominion Insurance Co Ltd [1997] 2 Lloyd’s Rep 541 at 544–6 per Sir Peter Webster; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159; [2000] WASCA 415; BC200008007 at [73]–[88] per Pidgeon J, with whom Malcolm CJ (at [32]) and Kennedy J (at [56]) agreed on this point; Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd [2015] TASFC 6 at [94]–[97] per Blow CJ, with whom Porter and Wood JJ concurred. Callaghan v Dominion Insurance Co Ltd [1997] 2 Lloyd’s Rep 541 at 546 per Sir Peter Webster. Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495 at [139] per Stevenson J. Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495 at [140] per Stevenson J. Sale of Goods Act 1954 (ACT) ss 52(1), 53(1); Sale of Goods Act 1923 (NSW) ss 51(1), 52(1); Sale of Goods Act 1972 (NT) ss 51(1), 52(1); Sale of Goods Act 1896 (Qld) ss 50(1), 51(1); Sale of Goods Act 1895 (SA) ss 48(1), 49(1); Sale of Goods Act 1896 (Tas) ss 53(1), 54(1); Goods Act 1958 (Vic) ss 55(1), 56(1); Sale of Goods Act 1895 (WA) ss 48(1), 49(1). Sale of Goods Act 1954 (ACT) s 52(2); Sale of Goods Act 1923 (NSW) s 51(2); Sale of Goods Act 1972 (NT) s 51(2); Sale of Goods Act 1896 (Qld) s 50(2); Sale of Goods Act 1895 (SA) s 48(2); Sale of Goods Act 1896 (Tas) s 53(2); Goods Act 1958 (Vic) s 55(2); Sale of Goods Act 1895 (WA) s 48(2). Sale of Goods Act 1954 (ACT) s 54(1); Sale of Goods Act 1923 (NSW) s 53(1); Sale of Goods Act 1972 (NT) s 53(1); Sale of Goods Act 1896 (Qld) s 52(1); Sale of Goods Act 1895 (SA) s 50(1); Sale of Goods Act 1896 (Tas) s 55(1); Goods Act 1958 (Vic) s 57(1); Sale of Goods Act 1895 (WA) s 50(1). See Wilkinson v Verity (1871) LR 6 CP 206 at 209 per Willes J (speaking in terms, applicable in both contract and tort, that ‘once been a complete cause of action’, the statute begins to run, and ‘subsequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are disregarded’). Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 at 438–9 per Oliver J; Bell v Peter Browne & Co [1990] 2 QB 495 at 501 per Nicholls LJ. See further McGee, pp 193–5. Spoor v Green (1874) LR 9 Ex 99 at 110–11 per Bramwell B. Conquer v Boot [1928] 2 KB 336 at 344 per Talbot J. Archbold v Scully (1861) 9 HL Cas 360 at 376; 11 ER 769 at 776 per Lord Cranworth (‘The legal principle is, that the rent is incident to the reversion, and on every day on which rent becomes due, under the deed constituting the tenancy, whether it be made payable yearly, half-yearly, or oftener, a right of distress accrues’). Bowyer v Woodman (1867) LR 3 Eq 313. Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd [2015] TASFC 6 at [96]–[98] per Blow CJ, with whom Porter and Wood JJ concurred. See Carter, p 680. See Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1207–9; McGee, p 187. Reeves v Butcher [1891] 2 QB 509 at 511 per Lindley LJ. Time does not begin to run where moneys are advanced by cheque until the cheque is cashed at

55. 56. 57.

58. 59. 60. 61. 62.

63. 64. 65. 66. 67.

the lender’s bank — not merely from its physical delivery to the borrower or even when it is paid into the borrower’s bank — because it is only then that the moneys are at the borrower’s disposal: Garden v Bruce (1868) LR 3 CP 300. The seminal case is Emery v Day (1834) 1 CM & R 245; 149 ER 1071 (involving a contract to build a toll-house). Birse Construction Ltd v McCormick (UK) Ltd [2004] EWHC 3053 (TCC) at [7] per Peter Coulson QC. See, for example, Coburn v Colledge [1897] 1 QB 702 at 707 per Lord Esher MR, at 709 per Lopes LJ, at 710 per Chitty LJ (discussed at 4.8); Edwards v Bray [2011] 2 Qd R 310; [2011] QCA 72; BC201102251 at [23] per Margaret Wilson AJA, with whom White JA and Peter Lyons J concurred. As to the statutory one month hiatus see G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013, pp 70–3. [1992] QB 844. Swansea City Council v Glass [1992] QB 844 at 850–3 per Taylor LJ, with whom Ralph Gibson and Purchas LJJ concurred. [2015] QDC 225 at [122]–[137]. See, for example, Henry Boot Construction Ltd v Alstom Combines Cycles Ltd [2005] 3 All ER 932; [2005] EWCA Civ 814 (where the milestones related to certification in building work). The relevance of the issue is not confined to limitation law. It also has carriage where it is necessary to identify the events constituting a cause of action that must have occurred before proceedings for recovery of the debt are commenced, and to this end discerning whether a demand must be articulated before the proceedings are commenced or may be taken to be involved in commencing the proceedings: see, for example, Bank of Adelaide v Lorden (1970) 127 CLR 185; BC7000140. Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566; BC5600800 per Dixon CJ and McTiernan and Taylor JJ. Thomson v Eastwood (1877) 2 App Cas 215 at 248 per Lord Hatherley. A’Court v Cross (1825) 3 Bing 329 at 333; 130 ER 540 at 542 per Best CJ. Thomson v Eastwood (1877) 2 App Cas 215 at 248 per Lord Hatherley. Pursuant to the recommendation of the WALRC 36(II), p 177. The same has been recommended in Queensland (QLRC 53, p 221), New South Wales (see NSWLRC 105, p 11), Singapore (SLRC, p 30) and Manitoba (MLRC, pp 54–6), and adopted in Alberta (Limitations Act 2000 (Alta) s 3(3)(c)), Ontario (Limitations Act 2002 (Ont) s 5(3)), Saskachewan (Limitations Act 2004 (Sask) s 10), New Brunswick (Limitation of Actions Act 2009 (NB) s 11), New Zealand (NZ s 5(1)(a)) and British Columbia (Limitation Act 2012 (BC) s 14, applying BCLI 19, pp 26– 7). It has also been recommended by commentators: see, for example, Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1211; J Tarrant, ‘Limitation Legislation and Loans Repayable on Demand’ (2004) 1 UNELJ 249. See also UK 1980 s 6, which provides that, in relation to certain types of loans (see UK 1980 s 6(2)), where a demand in writing for repayment of the debt under a contract of loan is made by or on behalf of the creditor, the limitation period applicable to actions founded on simple contract (in UK 1980 s 5) applies ‘as if the cause of action to recover the debt had accrued on the date on which the demand was made’: UK 1980 s 6(3). As a result of this provision, accordingly, if no date of repayment is specified, the cause of action is deemed to accrue upon the making of a demand. But once a demand is made (that has not been retracted), time begins to run, and cannot be restarted by a

68. 69. 70. 71.

72.

73.

74. 75.

76. 77. 78. 79. 80. 81. 82. 83.

84. 85.

fresh demand, as this would render the section effectively ‘a dead letter’: Bank of Baroda v Mahomed [1999] CLC 463 at 470 per Simon Brown LJ. As to the backdrop to this initiative see Orr Committee, paras 3.19–3.26. The Law Commission has since recommended the retention of this approach: Law Com 270, paras 4.4–4.6. WA s 59. ALRI 55, p 71. The issue is far less pressing in arm’s length commercial loans, which almost invariably specify expressly the dates when interest and principal are to be repaid. Woodward v McGregor [2003] NSWSC 672; BC200304071 at [85] per McLaughlin M; NSWLRC 105, pp 4–6 (opining that ‘to the extent to which the parties can be taken to have thought of time limits when making their contract, and remembering that they are unlikely to have the benefit of legal advice in such informal circumstances, they would not expect that the mere lapse of six years (or any other time) from the date of receipt of the loan would defeat the claim’: p 6); SLRC, p 30 (maintaining that ‘[t]hose who make loans to family and friends are the very people likely to be unaware of the existence of the rule’, and the rule ‘operates to defeat the general intention and expectations of the parties to the loan’). See, for example, Ogilvie v Adams [1981] VR 1041 (insolvency of lender: see 5.24); Tay Ivy v Tay Joyce [1991] 2 SLR(R) 752 (death of borrower); Woodward v McGregor [2003] NSWSC 672; BC200304071 (death of borrower); Hong Guet Eng v Wu Wai Hong (liquidator of Xiang Man Lou Food Court Pte Ltd) [2006] 2 SLR(R) 458 (insolvency of lender). Hare v Hare (2006) 83 OR (3d) 766 at [41] per Gillese JA, with whom LaForme JA concurred (viewing this as ‘contrary to the foundational notions underlying the creation of limitation periods, namely, the need for the law to promote finality and certainty in legal affairs and to prevent indefinite liability’). See SLRC, pp 32–3 (favouring a 20 year period). See Law Com 270, paras 4.5, 4.6; SLRC, p 33. Contra NSWLRC 105, p 13 (recommending against a writing requirement in view of the general nature of the loans in question being between family and friends). Re Colonial Finance, Mortgage, Investment and Guarantee Corporation Ltd (1905) 6 SR (NSW) 6 at 9 per Walker J. As catalogued by Fullagar J in Ogilvie v Adams [1981] VR 1041 at 1053. NSWLRC 105, pp 6–7. (1705) 12 Mod 444; 88 ER 1440. See 5.25–5.34. (1844) 13 M & W 452 at 458; 153 ER 188 at 191. (1837) 2 M & W 46; 150 ER 839. Jackson v Ogg (1859) Johnson’s Reports 397; 70 ER 476 (where money was advanced to a firm to be repaid on demand with compound interest, it was held that the Statute of Limitations ran from the date of the advance). [1981] VR 1041 at 1043. Ogilvie v Adams [1981] VR 1041 at 1049 per Fullagar J (explaining the choice of the expression ‘rule of construction’ to take into account the prospect that other words or terms may appear in the contract that may prove in the circumstances sufficient to show an intention that the cause of action is not to arise until some form of demand is made or some period after demand has elapsed:

86.

87. 88. 89. 90.

91. 92. 93. 94.

95.

see 5.26–5.29). Re Brown’s Estate [1893] 2 Ch 300 at 304–5 per Chitty J; Bradford Old Bank Ltd v Sutcliffe [1918] 2 KB 833 at 840 per Pickford LJ, at 848 per Scrutton LJ; DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583 per Tipping J. See, for example, DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583 per Tipping J. [1981] VR 1041. Ogilvie v Adams [1981] VR 1041 at 1051. See, for example, Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 382 per King CJ; Drinkwater v Caddyrack Pty Ltd (No 3) (SC(NSW), Young J, 28 November 1997, unreported) BC9706991 at 4–5; Brott v Grey (2000) 181 ALR 617; [2000] FCA 1727; BC200007311 at [46]– [48] per Cooper J; Switz Pty Ltd v Glowbind Pty Ltd (2000) 18 ACLC 343; [2000] NSWSC 222; BC200001560 at [25] per Hodgson CJ in Eq; VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [40]–[49] per Nettle J; Mackenzie v Albany Finance Ltd [2003] WASC 100; BC200304180 at [243]–[245] per McLure J [appeal allowed but on other grounds: Mackenzie v Albany Finance Ltd [2004] WASCA 301; BC200408887]; Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224; BC200504341 at [26]–[35] per Keane JA, with whom de Jersey CJ and Mullins J agreed; Chidiac v Maatouk [2010] NSWSC 386; BC201002731 at [236] per Ward J; Fischer v Nemeske Pty Ltd [2015] NSWCA 6; BC201500486 at [93] per Barrett JA, with whom Beazley P and Ward JA concurred. It has also been endorsed in New Zealand: see, for example, Murphy v Lawrence [1960] NZLR 772 at 774–5 per Turner J; DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583 per Tipping J (but cf Commercial Union Assurance Company Ltd v Revell [1969] NZLR 106 at 108 per Perry J). While Bryson J in Gleeson v Gleeson [2002] NSWSC 418; BC200203016 criticised Fullagar J’s approach in Ogilvie v Adams on the ground that it applied a rule of law rather than one of construction, and sought to relax the relevant rule, this criticism and relaxation was rejected by Nettle J in approach in VL Finance Pty Ltd v Legudi at [45]–[49] (in so doing rejecting the argument that the appropriate test was to consider whether it was reasonably open to infer that the parties would have agreed that the cause of action to recover the money loaned would not accrue until a demand had been made), whose remarks were endorsed by Keane JA in Haller v Ayre at [31], [32]. [2015] NSWCA 6; BC201500486. Fischer v Nemeske Pty Ltd [2015] NSWCA 6; BC201500486 at [97]. Fischer v Nemeske Pty Ltd [2015] NSWCA 6; BC201500486 at [98]–[100]. See, for example, Waters v Earl of Thanet (1842) 2 QB 757; 114 ER 295 (debtor’s contractual promise to pay sums due ‘whenever my circumstances may enable me to do so’); Re McHenry [1894] 3 Ch 290 (debtor’s contractual promise to repay moneys advanced at a particular future time); Lakshmijit v Faiz Sherani [1974] AC 605 (PC) (contract for the sale of land construed as obliging the purchasers to pay the entire purchase price on default in payment of instalments thereof only if the vendor elected to demand such payment: see at 616–18 per Lord Cross). Ogilvie v Adams [1981] VR 1041 at 1047 per Fullagar J (who rejected the plaintiff’s submission that further evidence demonstrated that the debt acknowledged by the written instrument was not merely one payable ‘on demand’, viewing that acknowledgment, in which there was no ambiguity, as the only admissible evidence relating to the terms upon which the loan was made; his Honour conceded, however, that evidence would be admissible to show, say, that the borrower’s liability was undertaken as surety for some other principal debtor or was otherwise collateral to some other transaction: see 5.28, 5.29). As to the principles governing the admission of extrinsic evidence in contract see Carter Ch 12.

96. 97.

98. 99. 100.

101. 102. 103. 104. 105. 106. 107.

108.

(1890) 25 QBD 377. Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377 at 380 per Lord Esher MR. See also at 381 per Lindley LJ (remarking that the rights of the parties are governed by the special contract they have entered into, which distinguished the case from those in which the general rule was applied); Re Australia and New Zealand Savings Bank Ltd [1972] VR 690 (where a condition in the bank’s passbooks — which required depositors to produce their passbook ‘whenever money is paid into or withdrawn from your account’, complete a withdrawal form and then hand the form together with their passbook to the teller — was construed as a condition precedent to any obligation on the part of the bank to repay moneys deposited to the credit of the accounts); Gleeson v Gleeson [2002] NSWSC 418; BC200203016 (where the mortgage document contained a clear specification of the date for repayment of principal, and a supplementary provision obliging repayment of the principal on demand if some intervening events happened, Bryson J ruled that ‘literal weight must be given to the reference to the demand, as it is very unlikely that the parties intended that a complete change of their arrangements for repayment of the principal, perhaps precipitating repayability by some years, could take place without clear indication by the mortgagee and a clear opportunity for the mortgagor to comply’: at [49]). [1960] NZLR 772. See, for example, Re Rutherford (1880) 14 Ch D 687 (promissory note payable three months after demand). See, for example, Reeves v Butcher [1891] 2 QB 509 (where for a loan, expressed to be for five years, ‘subject to the power to call in the same at an earlier period … if the borrower should default in payment of any quarterly payment of interest for 21 days’, time began to run from 21 days after the first instalment of interest became due). [1993] 2 NZLR 576 at 583. DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583, 584. DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 584. Re Brown’s Estate [1893] 2 Ch 300 at 305 per Chitty J; Commercial Union Assurance Company Ltd v Revell [1969] NZLR 106 at 108–9 per Perry J. [1918] 2 KB 833. Bradford Old Bank Ltd v Sutcliffe [1918] 2 KB 833 at 840–1 per Pickford LJ, at 844 per Bankes LJ, at 849 per Scrutton LJ. Wallis v Crowe [1942] SASR 23 at 25–6 per Cleland J; Moschi v LEP Air Services Ltd [1973] AC 331 at 348 per Lord Diplock (it may be noted that while Mason CJ in Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 255–6 disapproved the explanation given by Lord Diplock for the principle that the guarantor is not entitled to notice or demand before his or her liability arises, Mason CJ did not disapprove the principle itself); Clyde Industries Ltd v Dittes (SC(NSW), Cole J, 5 June 1992, unreported) BC9201832 at 9 (‘The obligation under a guarantee, and thus the cause of action, arise upon default of the principal debtor unless the guarantee contains a condition precedent to liability, such as the making of demand upon the guarantor’); Wardman v Hatfield [2003] NSWCA 283; BC200305885 at [21] per Tobias JA, with whom Meagher JA and Foster AJA concurred (noting that, accordingly, ‘the guarantor’s liability arises at the same time as the creditor’s cause of action against the debtor accrues, this being so even if the creditor’s loss is not quantified’); Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797; BC200907985 at [67]–[80] per Davies J. See J C Phillips, The Modern Contract of Guarantee, 2nd English ed, Sweet & Maxwell, London, 2010, pp 33–4.

109. See, for example, Wright v New Zealand Farmers Co-operative Association of Canterbury Ltd [1939] AC 439 at 448–50 per Lord Russell (PC) (involving what the contract described as ‘a continuing guarantee [that] shall apply to the balance that is now or may at any time hereafter be owing’). See also Commercial Bank of Australia Ltd v Colonial Finance, Mortgage, Investment and Guarantee Corporation Ltd (1906) 4 CLR 57; BC0600029 (where the principal debtor’s failure to pay a portion of the debt on demand triggered, according to the terms of the guarantee, a cause of action to accrue against the guarantors for that portion but not the entire amount guaranteed). 110. As to the prerequisites for contractual implication see Carter, pp 229–34. 111. Ogilvie v Adams [1981] VR 1041 at 1050 per Fullagar J; VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [41] per Nettle J. 112. The suggestion, by Perry J in Commercial Union Assurance Company Ltd v Revell [1969] NZLR 106 at 108, that issues of this kind do not arise in the context of implied contracts ‘because the Court is not faced with the difficulty of enforcing or alternatively disregarding words used by the parties’, cannot be accepted at face value. As revealed by the decision in Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 (discussed in the text), questions as to accrual of debts can (although perhaps not commonly) likewise arise in the context of implied contracts. 113. (1986) 41 SASR 380 at 383. 114. Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 384. See also at 391 per Olsson J (seeing it as the only reasonable inference ‘that it was mutually agreed that the deposits should stand without further interest accruals and not be payable or paid or be subject to a pro rata payment until the net financial position of the Company was resolved’). 115. Re Tidd [1893] 3 Ch 154 at 157 per North J (citing Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377, discussed at 5.26). 116. [1921] 3 KB 110 at 125. Cf Lloyds Bank Ltd v Margolis [1954] 1 All ER 734 at 738 per Upjohn J (who viewed a charge in the ordinary form as between a banker and a customer, to secure a running account, as a ‘collateral security’). 117. N Joachimson (a firm name) v Swiss Bank Corporation [1921] 3 KB 110 at 126. See also at 121 per Bankes LJ (‘it seems to me impossible to imagine the relation between banker and customer, as it exists to-day, without the stipulation that, if the customer seeks to withdraw his loan, he must make application to the banker for it’). 118. See, for example, Ogilvie v Adams [1981] VR 1041 at 1051 per Fullagar J; Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 382 per King CJ, at 390 per Olsson J; ANZ Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 484–5 per McPherson J, with whom Connolly and Williams JJ agreed; Mackenzie v Albany Finance Ltd [2003] WASC 100; BC200304180 at [245] per McLure J [appeal allowed but on other grounds: Mackenzie v Albany Finance Ltd [2004] WASCA 301; BC200408887]. It has also been endorsed in New Zealand: see, for example, DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583 per Tipping J. 119. Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 390 per Olsson J. 120. What is a ‘reasonable time’ here must depend, it is said, ‘on the circumstances of each case bearing in mind the peremptory nature of an on-demand obligation’: DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 583 per Tipping J. 121. Lloyds Bank Ltd v Margolis [1954] 1 All ER 734 at 738 per Upjohn J. 122. See K Mason, J W Carter and G Tolhurst, Restitution Law in Australia, 2nd ed, LexisNexis Butterworths, Australia, 2008, pp 23–33. 123. See 5.2.

124. See 4.2. 125. Cf NSWLRC 3, para 103 (in 1967 opining that although ‘quasi-contract’ is ‘an unhappy name’, it has a clearer meaning that ‘contract implied in law’). 126. (1987) 162 CLR 221; BC8701760. 127. Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256–7; BC8701760 per Deane J. 128. In Portman Building Society v Hamlyn Taylor Neck (a firm) [1998] 4 All ER 202 at 209 Brooke LJ remarked that ‘the law of limitation has grown up piecemeal over the last 450 years before the modern remedy of restitution was properly developed’. This explains the recommendation in England that restitutionary claims should clearly be brought within the limitations regime: Law Com 270, paras 4.76–4.79. 129. Cf the position in the United Kingdom, where limitations legislation persists in making no reference to ‘quasi-contract’, ‘implied contract’ or ‘restitution’, requiring the courts to be inventive so as to bring restitutionary claims under the limitations umbrella: see H M McLean, ‘Limitation of Actions in Restitution’ (1989) 48 CLJ 472. See, for example, Re Diplock [1948] Ch 465 at 514 per Lord Greene MR (who, in delivering the reasons of the English Court of Appeal, was prepared to assume that the words ‘action founded on simple contract’ in UK 1939 s 2(1)(a) could cover actions for money had and received, even though ‘the words used cannot be regarded as felicitous’). In Singapore, which follows the English model (see Limitation Act 1959 (Sing) s 6), the case law indicates that restitutionary claims can fall outside the limitation net: Management Corporation Strata Title Plan No 473 v De Beers Jewellery Pte Ltd [2001] 2 SLR(R) 669; [2001] SGHC 206 at [66]–[79] per Judith Prakash J [affd Management Corporation Strata Title Plan No 473 v De Beers Jewellery Pte Ltd [2002] 1 SLR(R) 418; [2002] SGCA 13]. Reform has been recommended (SLRC, pp 17–21, recommending an amendment to prescribe a six year limitation period for ‘restitutionary claims’) but not implemented to date. 130. Coshott v Lenin [2007] NSWCA 153; BC200705105 at [16], with whom Spigelman CJ and Campbell JA concurred. 131. Citing Sharpe v Goodhew (1990) 96 ALR 251 at 257 per Pincus J. 132. Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 593; BC9701370 per Sackville J, with whom Foster and Lehane JJ concurred. 133. Say, in respect of, money paid in pursuance of an ineffective contract (see, for example, Maskell v Horner [1915] 3 KB 106, involving money paid under duress), money had and received from a third party to the plaintiff’s use, or an action based on a total failure of consideration. 134. SA s 38(1) (being expressed to be subject to s 38(2), which deals with money paid by way of a (purported) tax is recoverable because of the invalidity of the tax: see 11.22). 135. See, for example, Re Dawson (decd) [1966] 2 NSWR 211 at 214 per Street J. 136. See, for example, Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 at 386 per Lord Nicholls. 137. (2003) 232 LSJS 58; [2003] SASC 415; BC200308348 at [102]–[104]. An appeal from Doyle CJ’s judgment was dismissed: Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979. 138. See 3.26–3.28. 139. Coshott v Lenin [2007] NSWCA 153; BC200705105 at [17] per Mason P, with whom Spigelman CJ and Campbell JA concurred (citing Stinchcombe v Thomas [1957] VR 509, although the point appears implicit rather than explicit in the judgment of Monahan J in that case); Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32; BC201406817 at [52] per the court.

140. 141. 142. 143. 144.

145.

146. 147. 148. 149.

150. 151. 152. 153.

See, for example, Maskell v Horner [1915] 3 KB 106 at 125 per Buckley LJ. Baker v Courage & Co Ltd [1910] 1 KB 56 at 62–5 per Hamilton J. See 16.2–16.5. Cowper v Godmond (1833) 9 Bing 748; 131 ER 795; Crombie v Crombie [1903] SASR 147 at 150 per Way CJ. See Civil Procedure Act 1833 (UK) (3 & 4 Will 4, c 42) s 3 (setting a 20 year limitation period). The Limitation Act 1623 (UK), so far as debts were concerned, applied to debts arising only out of simple contracts. Accordingly, early in the history of that Act, it was held that it did not apply to a debt recoverable by virtue of a deed or statute: Talory v Jackson (1638) 4 Croke Car 513; 79 ER 1043; Jones v Pope (1666) 1 Wms Saund 34; 88 ER 45; Thomson v Lord Clanmorris [1900] 1 Ch 718 at 725 per Lindley MR; Re Lacey [1907] 1 Ch 330 at 353 per Buckley LJ. It was via the 1833 Act that debts due under any bond or other specialty were first made subject to a period of limitation. In 2001 it was recommended that the limitations treatment of specialties be subsumed within the same (shorter) limitation period that applies to contractual claims (Law Com 270, paras 4.7–4.9), but this has not transpired. Aiken v Stewart Wrighton Members’ Agency Ltd [1995] 3 All ER 449 at 459–60 per Potter J. For the purposes of the English precedent mentioned in the text, courts also viewed statutory debts as specialty debts, which before the statute in question had fallen outside of the Limitation Act 1623 (UK). This was first expressly laid down in Cork and Bandon Railway v Goode (1853) 13 CB 826; 138 ER 1427. See further Gustell v Reeve [1936] 1 KB 272 at 280–2 per Lord Wright MR. The Limitation Act 1939 (UK) effected a material change in the law in this respect, by making debts recoverable ‘by virtue of an enactment’ subject to the same period of limitation as those arising from simple contract (see s 2(1)(d)), whilst retaining a different period for specialties (see s 2(3)). The same has broadly translated to the limitations statutes in Australia: see 11.2–11.5. For the purposes of limitations law, therefore, ‘specialties’ are now arguably confined to deeds or contracts under seal: Leivers v Barber, Walker & Co Ltd [1943] KB 385 at 398 per Goddard LJ. Cf Collin v Duke of Westminster [1985] QB 581 at 602–3 per Oliver LJ, with whom May LJ and Sir Roger Ormrod concurred (querying whether, in view of the history underscoring the concept of a ‘specialty’, the term could necessarily be so confined); Rahman v Sterling Credit Ltd [2001] 1 WLR 496 at 501–2 per Mummery LJ, with whom Simon Brown LJ concurred (involving a counterclaim based on a statute, which the court treated as ‘an action on a specialty’ under UK 1980 s 8(1)). R v Williams [1942] AC 541 at 555 per Viscount Maugham (PC). Tuckey v Hawkins (1847) 4 CB 655 at 665; 136 ER 665 at 669. NSWLRC 3, para 114 (adding that ‘[t]o say that only a deed has this consequence is to specify a clear criterion by which contracting parties can be guided’). In England, the reduction from 20 years to 12 years was the product of a recommendation of the Wright Committee (para 5), which spawned the Limitation Act 1939 (UK) (see s 2(3) in this context), which is now replicated in UK 1980 s 8. In Victoria, ‘a bond or other specialty’. Qld s 10(3); Tas s 4(3); Vic s 5(3). Qld s 10(3A); Tas s 4(3); Vic s 5(3). See, for example, Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants VOF (The Gilbert Rowe) (No 2) [1999] CLC 1461. SA s 34 (which follows the language of Civil Procedure Act 1833 (UK) s 3, as did WA 1935 s 38(1)(e)(i); see State Government Insurance Commission v Teal (1990) 2 WAR 105 at 114–19; BC9003832 per Commissioner Williams QC).

154. See NSWLRC 3, paras 113, 114 (which recommended the term ‘deed’ in place of ‘specialty’ because the latter is ‘archaic’ and ‘inapt where it is not intended to comprehend statutory obligations’; on the ‘statutory obligations’ point see above n 142). 155. ACT s 13; NSW s 16 (see, for example, Lang v Le Boursicot (1993) 5 BPR 11,782 at 11,786; BC9301960 per McLelland J (who characterised an action for contribution by way of subrogation wherein the creditor’s remedies arose under a deed as a claim that is, or is analogous to, a ‘cause of action founded on a deed’ in NSW s 16)); NT s 14(1); WA s 18. The term ‘deed’ is statutorily defined, in inclusive terms, in the Territories and New South Wales: ACT Dictionary; NSW s 11(1); NT s 4(1). The term takes its meaning at general law in Western Australia, namely any written legal instrument, that passes, affirms or confirms some interest, right or property, that meets the traditional formality requirements of being signed, sealed and delivered. 156. WALRC 36(II), pp 292–4; NZLC MP16, para 78. 157. NZ ss 11, 12 (falling within the concept of a ‘money claim’). 158. See, for example, Morley v Spencer [1994] 1 NZLR 27 (where it appears that the sole reason for seeking to characterise a building contract as a deed was to secure an extended limitation period; the New Zealand Court of Appeal did not, in any case, find in the contractual terms a sufficient indication of a deed: see at 30–1 per Richardson J, at 36–7 per McKay J). 159. See, for example, Re Powers (1885) 30 Ch D 291. 160. Tuckey v Hawkins (1847) 4 CB 655 at 665; 136 ER 665 at 669 per Wilde CJ; Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979 at [168] per White J. 161. See 5.11. 162. WALRC 36(II), p 310. 163. NSW s 14(1)(c) (see NSWLRC 3, para 106); NT s 12(1)(c); Qld s 10(1)(b); Tas s 4(1)(b); Vic s 5(1)(b). These followed the course of UK 1939 s 2(1)(b) (see Wright Committee, para 5), but no equivalent appears in UK 1980. 164. ACT s 11(1); WA s 13(1): see 4.2. 165. SA s 34. The same was formerly the case in Western Australia (albeit with a 20 year limitation period, following the Civil Procedure Act 1833 (UK) s 3): WA 1935 s 38(1)(e)(ii).

[page 112]

CHAPTER 6

Tortious Causes of Action Time Bars for Tortious Claims General time bar Exclusions from general time bar Accrual of Tortious Claims Accrual of tortious claims actionable per se Accrual of tortious claims not actionable per se General principle — accrual tied to proof of damage ‘Actual’ damage contrasted with ‘prospective’ or ‘contingent’ damage Prospective damage stemming from actual damage Where overlap between contract and tort Accrual covers subsequent loss General rule Ouster where discrete causes of action Application in the context of successive conversions Alternative ‘discoverability’ approach to running of time ‘Discoverability’ for latent building defects Case law backdrop in England Shift in Australian case law Long-stop limitation periods for building actions Application to defects in title

6.2 6.2 6.3 6.4 6.4 6.5 6.5 6.8 6.14 6.16 6.18 6.18 6.20 6.25 6.30 6.33 6.35 6.37 6.41 6.42

Defamation Actions

6.45 6.45 6.47

Time bar for defamation actions Accrual of defamation causes of action

6.1 The time bars applicable to causes of action in tort, and the moment when those causes of action accrue for limitation (and indeed other) purposes, form the primary focus of this chapter. So far as accrual is concerned, it is in the tort environment that the greatest pressure has emanated to alter accrual rules. Legislatures have yielded to this pressure in the context of (latent) personal injuries; as statutory initiatives in this context are not, however, confined to injuries that are the product of a tort, they are addressed discretely (in Chapter 7). Within the extant chapter appears a discussion of the ‘discoverability’ alternative to accrual, in particular in its application to latent building defect cases. The chapter concludes by addressing the time bar, and accrual rules, applicable to tortious actions for defamation. [page 113]

Time Bars for Tortious Claims General time bar 6.2 In New South Wales, the Northern Territory, Tasmania and Victoria an action founded on tort, expressed to include a cause of action founded on a breach of statutory duty, is subject to a six year limitation period (three years in the Northern Territory), from the date on which the cause of action first accrued.1 The Queensland and South Australian legislation likewise imposes a six year limitation period on actions founded on tort.2

The Australian Capital Territory and Western Australian Acts set a six year limitation period for all causes of action (unless alternative provision is made), which can therefore encompass actions founded on tort (and breach of statutory duty);3 in Western Australia, though, this is qualified by provision imposing a three year time for causes of action pertaining to trespass to the person, assault, battery and false imprisonment.4

Exclusions from general time bar 6.3 In Queensland, the above provision excludes from this six year limitation period both defamation actions and tort actions where the damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person. Each is the subject of discrete statutory limitations regimes, not only in Queensland but across Australia,5 reflecting the diverging policy issues surfacing in these contexts. Also, the New South Wales and the Northern Territory provisions6 make explicit that the six year limitation period mentioned does not apply to causes of action for compensation for death7 or for contribution between tortfeasors.8 Specific limitation provisions address these, as they do elsewhere.9 Also, in these jurisdictions, as well as Queensland, proceedings brought for damages for personal injury arising from a dust disease, often arising out of a tort or a breach of statutory duty, are explicitly excluded from limitation time bars.10

Accrual of Tortious Claims Accrual of tortious claims actionable per se 6.4 Torts actionable per se are, by definition, actionable without proof of damage. The torts of trespass (whether to the person, goods or land) and false imprisonment represent obvious examples. Because proof of damage does not form part of what a plaintiff must establish to [page 114]

secure relief — that is, to substantiate a ‘cause of action’ — the relevant cause of action accrues, and so time begins to run for the purposes of limitation law, when the tort is committed,11 even if the plaintiff suffers damage at a later time.

Accrual of tortious claims not actionable per se General principle — accrual tied to proof of damage 6.5 For torts where the existence of a cause of action rests not only upon identifying a duty and its breach, but in showing that damage has been caused by the breach, it stands to reason that the cause of action is incomplete until damage has been suffered. This translates to limitation law such that a cause of action does not ‘accrue’, and thus time does not begin to run, until that damage is sustained.12 The tort of negligence is the principal illustration in this context, but others premised on proof of damage include the torts of deceit,13 nuisance14 and inducing a breach of contract. 6.6 Several observations must be made regarding this bald statement of principle. First, for the cause of action to accrue, and time to begin to run, the damage in question must be more than ‘minimal’15 or ‘negligible’.16 It seems, to this end, that the law is concerned to ensure that the availability of the cause of action, and with it the running of time, should not rest upon trifling matters. Secondly, and building on the first point, accrual is premised upon the plaintiff suffering ‘actual’ damage of a ‘measurable kind’.17 Difficulties in measurement do not preclude damage from being measurable; rather, the ‘measurable kind’ requirement is directed at the need for the damage to be legally recognisable. Judicial reference to ‘actual’ damage serves to distinguish it from ‘prospective’ or ‘contingent’ damage, a point elaborated below.18 Thirdly, unless altered by statute, these principles apply equally whether or not the damage was discovered or discoverable by the plaintiff at the time it was sustained; the plaintiff’s ignorance of the damage does not preclude time from running for the purposes of limitations law.19 That this may prove unfair to a plaintiff in instances of latent damage caused to his or her person by the defendant’s negligence has prompted statutory modifications, usually grounded in

[page 115] discoverability.20 Independent of statutory provision, it has also driven courts to treat latent building (and title) defects as a special class in this context.21 Fourthly, the foregoing applies to instances of economic loss equally as it does to other forms of loss that trigger a cause of action in negligence.22 6.7 Essentially the same principles underscore time bars on statutory causes of action premised upon proof of loss or damage. For example, the Australian Consumer Law requires a person who seeks to recover loss or damage suffered as a result of another’s contravention of its consumer protection provisions23 to commence the action within six years after the day on which the cause of action accrued.24 This cause of action, resting as it does on proof of loss or damage, is incomplete, and thus will not accrue, until that loss or damage has been sustained. Accordingly, the principles governing accrual of causes of action in negligence have parallel application in this context.25 It follows that the limitation period begins to run, not at the date of the statutory contravention, but at the moment the plaintiff first suffered damage as a result.

‘Actual’ damage contrasted with ‘prospective’ or ‘contingent’ damage 6.8 While the loss of a chance having commercial value is ‘actual’ damage that can complete a cause of action in tort,26 the ‘loss of a chance’ must, in this regard, be distinguished from the ‘chance of a loss’. Hodgson JA in Segal v Fleming explained the point, for the purposes of limitation law, as follows:27 In the former case, where a chance is lost, it will never be known how things would have turned out if the chance had not been lost, so that the only possible compensation a plaintiff can obtain is compensation for the value of the chance itself. Accordingly it is reasonable to require a plaintiff to commence proceedings within the limitation period once the chance has been lost, and reasonable to award damages on that basis against a defendant. On the other hand, where a person incurs a chance, even a substantial chance, of suffering a loss, in due course it may become clear that no loss is ultimately suffered; and so long as there is some appreciable chance that no loss will be suffered, it is unreasonable to require a plaintiff to commence proceedings and unreasonable to award damages against a defendant.

6.9

The ‘chance of a loss’ can be described as ‘contingent’ loss or damage,

as it rests upon an event that may or may not occur in the future. And, as Lord Hoffmann has observed, ‘[a] contingent liability is not as such damage until the contingency occurs’.28 In making this observation, his Lordship endorsed the reasoning in Wardley Australia Ltd v Western Australia,29 where the High Court of Australia was asked to determine the timing of the accrual of economic loss in the context of entry into a contract of indemnity. In a joint judgment, Mason CJ, Dawson, Gaudron and McHugh JJ rejected the view that the mere fact that negligent misrepresentations induced the plaintiff to enter into a contract inevitably meant that damage was then suffered.30 The contract in question exposed the plaintiff to a contingent loss or liability, so that until the [page 116] contingency occurred, the loss was no more than ‘prospective and may never be incurred’.31 Their Honours supported this conclusion by reference to practical considerations of justice and reasonableness to the plaintiff:32 It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date it will fail if … it becomes clear that no loss is or will be incurred. Moreover the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered.

Brennan J, in a separate judgment, distinguished between a misrepresentation that has induced a plaintiff to enter into a contract exposing him or her to a loss upon becoming bound, whatever extrinsic circumstances may transpire, and occasions where the actual loss suffered depends not only on entry into an agreement but also on circumstances extrinsic thereto.33 In the latter event, consistent with the views espoused in the joint judgment, his Honour stated that the loss is not suffered, and time does not commence to run for limitations law, until those circumstances have transpired. 6.10 That the court’s reasoning in Wardley was driven, as noted above, chiefly by considerations of fairness and justice means that judicial assessments in this sphere (as in most others) are informed by considerations

of substance ahead of form. It is therefore incorrect to interpret the decision in Wardley as suggesting that any hint of a contingent liability means that the cause of action accrues only once every chance that might affect the amount of the loss has played out.34 6.11 It also follows that no inflexible rule should apply, such that questions surrounding the accrual of causes of action must be governed primarily by the facts of each case.35 It cannot be said, for instance, every guarantee transaction the subject of some vitiating event has its limitation trigger at the time of the transaction, or in the alternative the date the guarantee is sought to be enforced. In Forster v Outred & Co (a firm),36 for example, the plaintiff sued for economic loss suffered as a result of the defendant solicitor’s negligent advice pursuant to which the plaintiff executed a mortgage as guarantor. That the plaintiff may not have been liable to satisfy the guarantee until the occurrence of a future contingency — the principal debtor’s default — did not prevent the English Court of Appeal from declaring that the plaintiff’s cause of action accrued from the date of the guarantee itself. This was because the guarantee, being [page 117] effected by way of mortgage, caused an immediate reduction in the value of the plaintiff’s equity of redemption in her property. Before executing the mortgage deed the plaintiff owned the property free from encumbrance; thereafter she became its owner subject to a mortgage. That, Dunn LJ explained, ‘was a quantifiable loss and as from that date her cause of action against her solicitor was complete, because at that date she had suffered damage’.37 That the High Court in Wardley viewed the decision in Forster as explicable by reference to the immediate effect of the execution of the mortgage on the value of the plaintiff’s equity of redemption38 suggests that the correct outcome would have differed had the guarantee transaction not been effected via a mortgage over the plaintiff’s property. In this event, all else being equal, it seems that no loss or damage would ensue, and thus no

cause of action accrue, unless and until the plaintiff is called upon to meet the guarantee. 6.12 It may not be as easy to explain the House of Lords’ later decision in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2),39 which held that the plaintiff lender’s cause of action in negligence against the defendant valuers (stemming from the latters’ overvaluation of properties upon which the plaintiffs advanced loans) accrued at the date the loans were made, not the later date when the security was realised and the loss crystallised. In line with the concerns expressed in Wardley, Lord Nicholls, with whom the other Law Lords agreed, accepted that quantifying a lender’s loss is, to a greater or lesser extent, bound to be less certain, and thus less satisfactory, if that exercise is pursued before, rather than after, the security is ultimately sold. But this did not mean, said his Lordship, that at the earlier stage a lender suffered no measurable loss and had no cause of action.40 There were practical reasons underscoring this view. First, to align the accrual of the cause of action with the lender realising the security would effectively preclude the lender from taking proceedings until the security is realised, even if the money is evidently irrecoverable. Secondly, and most likely to have influenced their Lordships’ conclusion, was that the borrower defaulted at once, and the amount lent at all times exceeded the true value of the security. It is therefore understandable why the plaintiff could have been viewed as suffering loss immediately on entering into the loan agreement. The ruling again highlights the need for a close analysis of the facts to identify the date on which the loss has actually been suffered. 6.13 Unsurprisingly, difficult cases remain. An example is Winnote Pty Ltd (in liq) v Page,41 stemming from incorrect advice given by the defendant solicitors (P) in 1988 to the plaintiff client (W) as to its acquisition of a right to extract peat from a site. W advised that a lease should be executed with the owner of the site; in reality the right depended upon the grant of a mining licence. Relying on this advice, W and the site owner entered into a five year lease (with an option to renew exercisable seven times), which granted W the exclusive right to extract peat from the property. W did so between 1988 and 1993 pursuant to the lease, but a third party then obtained a mining licence over the deposit, which prevented W from extracting further peat. P defended W’s 1995 claim in negligence on the

basis that it was statute-barred. Mason P, with whom Tobias JA concurred, upheld P’s defence, refusing to characterise the case as one of contingent loss. His Honour ruled that W suffered ‘clearly demonstrable actual [page 118] damage’ in 1988 as a result of P’s negligence,42 having got significantly less than it should have.43 Measurable damage had occurred in 1998, it was held, even though its assessment would have been difficult at the time, and a substantial loss had occurred at a later point of time. The latter, Mason P explained, ‘does not establish that there was no damage stemming from the same breach occurring at an earlier date’,44 which on the facts was damage that occurred outside of the limitation period, thus barring the entire claim. Yet it could equally have been argued that the damage in question was contingent upon a third party securing a mining licence, something that may never have actually happened. This line of argument endeared itself to the dissenting judge, Basten JA, namely that ‘so long as the mining tenement was available, [W] did not suffer a loss through the failure of the solicitors to obtain it’.45 It does seem unfair to the plaintiff to bar an otherwise strong claim against its lawyer for negligence, where the latter could come to light, to a reasonable plaintiff, only upon an event triggered by a third party. That event, had it occurred earlier, would not have prejudiced the plaintiff’s claim against its lawyers, who on the facts were serendipitously protected from liability by the event occurring later. What distinguishes this case from those in which the courts have rejected a deferral of time running for reasons of lack of discoverability46 is that here the loss was unlikely to crystallise except upon a third party (legitimately) acting adversely to the plaintiff.

Prospective damage stemming from actual damage 6.14 Consistent with the foregoing, once a plaintiff first suffers actual damage, provided it is measurable and not negligible, the cause of action in negligence accrues even if there is the chance of further loss stemming from

the same negligence (sometimes described in terms of ‘prospective’ loss).47 And in line with the notion that courts assess damages ‘once and for all’,48 the prospect of further loss provides no cushion against the expiry of time for limitations purposes, which has already commenced to run. Courts are accustomed, after all, to making assessments of damages reflecting prospective loss by reference to probabilities, as to which cogent evidence is called.49 6.15 The point is illustrated by the New Zealand Supreme Court’s decision in Thom v Davy Burton,50 where the plaintiff sued the defendant solicitors in negligence for failing to draft a pre-nuptial agreement that effectually contracted out of the statutory matrimonial property regime. The plaintiff discovered the agreement’s flaws years later when the marital relationship broke down, and sought to withstand the solicitors’ defence that the claim was statute-barred by arguing that he had not suffered damage until well after March 1990, when the agreement was signed. In three separate judgments, the members of the court each rejected this argument. In the words of Elias CJ:51 [The plaintiff] did not obtain the benefit he should have secured if the defendant had not been negligent: the exclusion of the provisions of the Matrimonial Property Act. He suffered immediate loss on his marriage without the protection of a valid contracting out agreement because he ‘did not get what he should have got’. His assets were diminished by an existing, not contingent,

[page 119] liability through attachment of the Matrimonial Property Act regime. Although the extent of the loss became much worse when the house was used as the matrimonial home and when the marriage failed, [the plaintiff] would have had an immediate cause of action in March 1990 to compensate him for the defective agreement.

That the value of his diminished package of rights may have proven difficult to assess with precision at the date of the agreement, at which time his measurable loss would have been subject to discount for future contingencies, this difficulty and uncertainty was not unusual in the assessment of damages, her Honour reasoned.52 Wilson J, who also delivered the judgment of Tipping and McGrath JJ, likewise conceded that the

valuation exercise would not have been easy — involving both ‘an assessment of the likelihood of the marriage failing and the likelihood in that event of the court validating the agreement’ — but viewed that type of contingency as not of the same kind as one resulting in the plaintiff not suffering any loss at all until it is fulfilled.53 Moreover, that the damage suffered by the plaintiff at the time of the agreement — involving a less valuable asset and, had he then known of its flaw, the incurrence of costs to obtain an effective agreement — ballooned once the marriage broke down did not, their Honours added, render it any less ‘immediate and actual’, and did not make the case one of contingency relevant to existence (as opposed to valuation) of damage.

Where overlap between contract and tort 6.16 From the perspective of the relevant limitation period, whether a cause of action is in contract or in tort is inconsequential; the limitation period is ordinarily the same.54 But there is potentially a difference in substance, which stems from the relevant date of accrual — and thus from when time begins to run for limitations purposes — being the date of breach in the case of contract, but the date when the damage is caused in tort (unless the tort is actionable per se).55 Where the facts are capable of giving rise to a cause of action in both contract and tort — scenarios that have broadened in scope by reason of the common law’s greater confluence between contract and tort56 — there is the prospect, say, that a claim in contract would be statute-barred whereas one in tort may not; the former may have accrued some time before the latter. In this instance, the law adopts the view that, barring statutory provision to the contrary, a plaintiff can rely on the cause of action placing him or her ‘in the more favourable position’ in limitations law.57 The same may be said for different causes of action within the tortious umbrella, such as trespass as opposed to negligence.58 The foregoing is defensible because the limitations statutes impose time bars for both causes of action in tort (and different types of torts) and those in contract, and do not, as a general principle,59 purport to interfere with the general law rules as to when the relevant cause(s) of action accrue. But the plaintiff’s election in this context presupposes, as foreshadowed above, that

the facts can substantiate either cause of action. There may be instances, say, where the parties stand in a contractual relationship, but the cause of action is one that derives from tort law rather than a breach of a contractual (express or implied) term. Here there may be no claim for breach of contract, or at least not one grounded in facts that potentially attract tortious liability. With the spread of tort law nowadays, however, the converse is more likely, namely that claims for breach of contract can concurrently be branded as tortious. [page 120] 6.17 Ultimately it is a matter of inquiring into the substance of the claim — whether it is contractual or tortious in nature. As a legal relationship that may often arise from contract, can exist independently thereof, bailment provides a useful example. In Turner v Stallibrass60 the plaintiff delivered his horse to the defendants to be agisted and cared for at an agreed fee. The horse was injured by reason of a concealed fence in the defendants’ field, for which the plaintiff sued in tort or, in the alternative, breach of contract. The English Court of Appeal saw the action as ‘founded on tort’ under the relevant (non-limitations legislation),61 reasoning as follows:62 The question is whether upon the facts of the case this was an action which could be maintained without relying on the contract of agistment. I think that the plaintiff showed a good cause of action by proving a bailment on which a duty arose at common law on the part of the defendants not to be negligent in respect of the plaintiff’s horse, independently of any contract, and a breach of that duty.

Turner was followed in Chesworth v Farrar,63 where F, who had been C’s landlord, took possession of C’s goods pursuant to a judgment F had obtained against C. Subsequent to F’s death, C issued a writ against the administrators of F’s estate, claiming damages for, inter alia, the loss of some of C’s goods whilst in F’s possession. The issue was whether this claim was one ‘in respect of an action in tort’ under a statute that set a time bar, which on the facts would have expired, on such claims.64 Edmund Davies J held that this claim was statute-barred because it rested ‘basically upon the simple fact of possession of the plaintiff’s goods and [was] independent of the circumstances which gave rise to that possession’.65 That the facts did not involve a

contract as the source of the bailment — it was essentially involuntary, being a product of a court order — made it difficult for his Lordship to find any contractual basis for the claim. The absence of contract as a source of obligation in Chesworth v Farrar did not, though, deny scope for C’s claim in quasi-contract for repayment of the proceeds of sale of other goods that F had allegedly sold. To the latter a longer time bar applied, deriving from the limitations legislation,66 making that claim within time.67

Accrual covers subsequent loss General rule 6.18 As a general rule, once there has been a complete cause of action,68 time begins to run for limitations purposes, such that ‘subsequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are disregarded’.69 Applied to causes of action in tort,70 once a tortious cause of action has accrued, ‘it covers all subsequent loss and [page 121] damage which is attributable to the same cause, even if that loss and damage only manifests itself later on by stages’.71 In the late nineteenth century, in remarks endorsed in Australia,72 Lord Halsbury illustrated the point as follows:73 No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once shew all the damage done to it, but it is damaged none the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage clone, and consequent upon the injury originally sustained.

In the same case Lord Bramwell explained that a man who is beaten or

wounded ‘cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action’.74 In Johnson v Chief Constable of Surrey,75 involving a claim for damages brought after six years from the alleged false imprisonment, Russell LJ noted that as the tort of false imprisonment is actionable per se (that is, without proof of damage), the cause of action was complete (and thus accrued) at the moment of arrest. This meant that new facts that might make the plaintiff’s case stronger or his right to damages more readily capable of proof did not operate to extend the time of accrual. The claim was therefore statute-barred. The same would have ensued for other trespasses to the person, or to goods, being likewise actionable per se — accruing at the date of the wrongful act76 — even if any damage did not occur or was not discovered (or even discoverable) until a later time.77 There are also instances where damage is suffered from a tortious nuisance as at the date when the nuisance is committed, despite its effect being ongoing. In this event — say, where a permanent structure illegitimately impedes a plaintiff’s amenity — the tort is not continuous, and the cause of action is aptly seen as accruing at that date.78 (It should be understood, though, that the foregoing leaves room for a continuing intentional tort, say, an ongoing false imprisonment79 or an ongoing trespass to land,80 to support a continuing cause of action for the purposes of questions surrounding accrual). [page 122] 6.19 The logic for this approach derives from the core notion that time begins to run, for limitations purposes, on the ‘accrual’ of the relevant ‘cause of action’. As a ‘cause of action’ is premised on the occurrence of all the facts that the plaintiff must prove to sustain the action,81 once those facts have occurred, time is triggered. It makes sense, then, that merely because events subsequent to that moment may impact on the damage caused by the tort that substantiated the cause of action, they play no role in deferring or restarting time.

Ouster where discrete causes of action

6.20 The position is different, accordingly, where the event gives rise to more than one discrete cause of action. This may be because they are different causes of action altogether, under different tortious heads. If, using the above example of Lord Bramwell of a man who receives a blow, should he sustain two injuries from it, one to his person, another to his property, say, damage to a watch, he could maintain two actions in respect of the one blow.82 Another example is where the same facts give rise to claim in contract and claim in tort, to which, even if the same limitation periods apply, accrual may occur at different dates.83 6.21 Discrete causes of action could, alternatively, arise even under the same tortious head, if their occurrence is sufficiently separated — whether by time, place and/or nature — to be treated as separate causes of action. A classic illustration is Darley Main Colliery Co v Mitchell,84 where lessees of coal beneath the respondent’s land caused subsidence of the land and injury to houses thereon in 1868, for which they paid compensation. In 1882 another subsidence caused further injury, that would have been avoided had an adjoining owner not worked his coal, or had the lessees left sufficient support under the respondent’s land. The argument centred on whether the cause of action for each subsidence had accrued at the date of the first one — in which case the claim for damages arising out of the later subsidence would have been statute-barred — or whether there had been a ‘new’ accrual vis-àvis the later subsidence. By a three-one majority, the House of Lords found a ‘new’ accrual had occurred, and so the claim in relation to it was within time. Lord Halsbury reached this conclusion with the aid of the following illustrations:85 A man keeps a ferocious dog which bites his neighbour; can it be contended that when the bitten man brings his action he must assess damages for all possibility of future bites? A man stores water artificially … the water escapes and sweeps away the plaintiff’s house; he rebuilds it, and the artificial reservoir continues to leak and sweeps it away again. Cannot the plaintiff recover for the second house, or must he have assessed in his first damages the possibility of any future invasion of water flowing from the same reservoir?

Ultimately, the 1868 subsidence, though in its nature involving the same tort and the same type of damage as the l882 subsidence, was sufficiently discrete from the 1882 subsidence. Had the court decided otherwise, it would have meant that, as noted by Lord Bramwell, ‘on the least subsidence happening’, a cause of action would have accrued once and for all, and the

Statute of Limitations begun to run, requiring the plaintiff to ‘bring his action, and claim and recover for all damage, actual, possible, or contingent for all time’.86 Aside from matters going to proof of damage,87 and attendant reasonable foreseeability, it would be odd were torts separated by [page 123] well over a decade, albeit similar in nature, to constitute a single cause of action and thus come under the one umbrella for limitations purposes.88 6.22 In the case of a continuing duty of care, it has been judicially stated, ‘a fresh cause of action will only arise if a fresh breach causes loss going beyond the loss resulting from the barred cause of action’.89 The decision in Darley Main Colliery can be viewed as fitting within this description. It also explains the case law supportive of the proposition that ‘in cases where it is alleged that, as the result of continuing negligence on the part of an employer, the health and well-being of an employee progressively deteriorates, a new cause of action will accrue from time to time as the worker suffers further not insignificant damage to his or her health or wellbeing’.90 In Adams v Ascot Iron Foundry Pty Ltd,91 for instance, the plaintiff, though time-barred as regards lung disease caused by the defendant’s negligence, was able to prove subsequent negligent exposure to dust that worsened his condition beyond that caused by the statute-barred negligence. The tort of nuisance may be amenable to the same reasoning, if the nuisance is continuing and there is a recurrence of the special damage sufficient to substantiate a discrete action.92 6.23 The case law also reveals instances, consistent with Darley Main Colliery, wherein separate causes of action in tort, to which different accrual times apply, arise in relation to building defects.93 This may ensue, say, in the event that initial damage has been repaired, but it is later found that the cause of damage is more deep-rooted. In Mount Albert Borough Council v Johnson94 defective foundations in a house caused cracks to appear in 1967, which were at the time the subject of remedial work, but in 1970 the subsequent owner (J) noticed further cracks appearing. The New Zealand

Court of Appeal held that the 1970 damage was distinct from the earlier damage, so that J’s claim was not time-barred by reason of the earlier damage, Cooke and Somers JJ reasoning as follows:95 [A] cause of action arose in 1967. The damage then was not trivial. But it was remedied, although without eradicating the underlying cause. The filling of the cracks and the underpinning may have arrested the problem temporarily, or subsidence may have abated naturally for a few years. Whatever the explanation it is reasonable to accept that there was no further damage of any significance until [J’s] ownership … Between the slight damage during the ownership of the original purchasers and the considerable damage after [J] bought there was a difference and an interval marked enough to justify treating the later damage as distinct.

6.24 Ultimately, in each case it is a question of fact and degree whether damage is sufficiently distinct to result in a separate cause of action. On the other side of the line, for example, sits [page 124] Pullar v Secretary for Education,96 involving a building plagued with leaks, defects first identified some eight years before proceedings for their rectification were commenced. On the defendants’ summary judgment application, the New Zealand Court of Appeal declared the claim out of time, as the damage first identified (within time), which it described as ‘readily apparent’ and ‘obvious’,97 was no different in substance from the subject matter of the suit. The case thus involved continuous damage of the same kind, and so was incapable of substantiating a separate action to accrue at a later time.

Application in the context of successive conversions 6.25 Until altered by the Limitation Act 1939 (UK), and thereafter by limitation statutes in each Australian State and Territory except South Australia, the limitation law governing conversions of property separated, for the purposes of accrual and thus the running of time, the first from any subsequent conversions. It declared that if the defendant was not the first converter, but received the property from the first converter and converted it to his or her own use (being thus the second converter), the period of limitation applicable to an action by the plaintiff against the second

converter ran from the moment of second conversion, not the first conversion.98 This, it may be argued, was logical given that the conversions were separate torts, committed at different times and by different persons. It accordingly fell outside the principle wherein the accrual of a tortious cause of action covers all subsequent loss and damage attributable to the same cause.99 The alternative view — namely that the action against the second converter ‘relates back’, for limitations purposes, to the first conversion — was rejected by Lord Esher MR in Miller v Dell, who reasoned as follows:100 … it is sought on behalf of the defendant to [argue] that if one man is guilty of a wrongful conversion, and afterwards a second man is guilty of a wrongful conversion of the same thing, then the cause of action against the second man is barred by the statute if the cause of action against the first man accrued more than six years before action, although the conversion in respect of which the second man is sued may have occurred within the six years, or indeed within six months. It is said that to hold otherwise would be contrary to reason and natural law; that is to say, that because the legislature, in order to prevent litigation after a certain period, has said that no action shall lie against A in respect of an act done by him more than six years before action brought, therefore B cannot be sued in respect of an act done by him within the six years. To me that proposition seems contrary to reason; but whether it be so or not, I am of opinion that in the present case the Statute of Limitations does not apply; it applies only to an action brought against the defendant in respect of a wrongful act done by the defendant himself. The property in chattels, which are the subject-matter of this action, is not changed by the Statute of Limitations though more than six years may elapse, and if the rightful owner recovers them the other man cannot maintain an action against him in respect of them.

6.26 The same applied where, as could eventuate, the one action (as opposed to discrete actions in the course of time)101 could be framed in detinue, conversion and/or breach of contract, as opposed to successive torts. The common law espoused, to this end, a general rule that ‘where there has once been a complete cause of action arising out of contract or tort, the statute begins to run, and that subsequent circumstances which would but for the prior [page 125] wrongful act or default have constituted a cause of action are disregarded’.102 The common law remains extant in South Australia. 6.27 As foreshadowed above, limitations statutes in other Australian jurisdictions,103 following the English lead,104 altered the common law

position by making the period of limitation in conversion run from the date of conversion by the first converter, including in the event of a second conversion. In the latter event, time runs in favour of the second converter from the date of the first conversion. The same applies vis-à-vis detinue (wrongful detention of goods); time runs from the first demand and refusal.105 Expressed in more comprehensive terms, statute now declares that ‘[t]ime runs from the accrual of the original cause of action, and does not recommence on the happening of any successive conversion or wrongful detention’.106 More specifically, the legislation states that where a cause of action in respect of the conversion or wrongful detention of goods has accrued to a person,107 and then a further action for conversion or wrongful detention of the goods108 (or to recover the proceeds of their sale)109 accrues to that person (or someone claiming through him or her), an action brought upon the second (or subsequent) conversion or wrongful detention cannot be maintained after the expiration of the limitation period applicable to the original conversion or detention.110 In all jurisdictions the limitation period is six years, excepting the Northern Territory, where it is three years. The foregoing presupposes that the plaintiff has not, in the meantime, recovered possession of the good(s) in question.111 It also presupposes that the second (or subsequent) conversion or wrongful detention relates to the same goods as the first; there may be occasions, therefore, where the court is called upon to distinguish the relevant goods, which may prompt different starting points for the running of time.112 6.28 Other than in Western Australia, the legislation adds that the expiry of the relevant limitation period, whether in relation to the first or subsequent conversion or wrongful detention, serves to extinguish the plaintiff’s title to the good(s) (albeit only against a purchaser, mortgagee or other person who secures title or an interest in the goods bona fide and for value in the Northern Territory and Queensland).113 6.29 In some jurisdictions the legislation makes specific provision to the effect that if, before the expiration of the prescribed limitation period, an action in respect of the further conversion or wrongful detention is brought, the expiry of the limitation period does not affect

[page 126] the plaintiff’s right or title to the good(s), whether for the purposes of the action or so far as the right or title is established.114 This provision seems to have been aimed at precluding any argument that the above extinguishment could be triggered even though proceedings for conversion or detinue proceedings have been commenced within time.

Alternative ‘discoverability’ approach to running of time 6.30 It seems inherently unfair to a plaintiff to allow time to run for limitations purposes notwithstanding that, most commonly in either latent injury or economic loss cases, the damage already suffered was not known to, or even discoverable by, the plaintiff within the limitation period. This unfairness, which has not been lost on members of the judiciary,115 has been addressed by statute in relation to (latent) personal injuries discussed in Chapter 7, which in the main adopts a discoverability approach to triggering the running of time. (Indeed, it has been urged that a parallel approach ought to translate to causes of action more generally; in some Canadian jurisdictions it has).116 It has also been addressed judicially vis-à-vis latent building (and title) defects, which are treated exceptionally on the ground, inter alia, that the plaintiff may never suffer economic loss stemming from the defects; he or she may, blissfully unaware of them, sell the property to another, who may then on-sell the property likewise. In this context, what could be described as a curial discoverability test (albeit superseded by a long-stop time bar in some jurisdictions)117 governs the commencement of time in limitation law.118 6.31 It is therefore unsurprising that courts have faced attempts to argue that the same should apply, by analogy, to overcome perceived unfairness in the context of other latent economic losses. Yet Australian courts (and their English counterparts) have resisted these arguments, viewing the latent building defect scenario as one that is unique and therefore distinguishable. Deane J explained the distinction as follows:119

Commonly in [building] cases, the building never existed and was never owned without the defect and (in the absence of consequential collapse or physical damage or injury) the only loss which could have been sustained by the owner was the economic loss which would be involved if and when the defect was actually discovered or became manifest, in the sense of being discoverable by reasonable diligence, with the consequence that the damage was then sustained by the then owner … The position is different in cases where all or some of the damage, be it in the form of physical injury to person or property or present economic loss, is directly sustained in the sense that it does not merely reflect diminution in value or other consequential damage which occurs or is sustained only when a latent defect which has existed at all relevant times becomes manifest. In those cases, damage is sustained when it is inflicted or first suffered and the cause of action accrues at that time.

For example, in Mulcahy v Hydro-Electric Commission,120 where the defendant employer failed to notify the plaintiff employees of their statutory right to elect to contribute to a superannuation fund, the plaintiffs argued that their cause of action against the employer only accrued upon their becoming aware, prior to the termination of employment, of the right to contribute. In rejecting this argument, Heerey J found no analogy with cases involving liability in respect of latent building defects, as the critical knowledge here (the right of election for employees) was reasonably discoverable, and ‘not comparable to hidden cracking in a building’, having been enshrined in statute for over a decade. An English appellate judge similarly disclaimed any proper analogy between the building defect cases and those involving latent personal injury, reasoning that the plaintiff ‘can get rid of his house before any damage is suffered’ but ‘[n]ot so with his body’.121 [page 127] 6.32 As an alternative avenue to postponing the running of time in the face of the plaintiff’s ignorance of a cause of action, Deane J in Hawkins v Clayton122 saw it as arguable that the notion of unconscionable reliance on the provisions of limitations legislation — being a foundation of the venerable equitable jurisdiction to grant relief where a cause of action has been concealed until after the limitation period has expired — should by analogy ‘be extended to cover cases … where the wrongful act at the one time inflicts the injury and, while its effect remains, precludes the bringing of an action for damages’. The problem with this reasoning is that the equitable

doctrine of fraudulent concealment targets the unconscionable conduct that constitutes the concealment itself; it says nothing about the nature of the conduct that gave rise to the cause of action,123 and yet the latter is how the purported analogy is framed. Deane J in any case considered it preferable to recognise that it could not have been the legislative intent that the effect of limitation periods should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings. In so doing, his Honour presumably sought to overcome the above difficulty with analogising to the doctrine of fraudulent concealment by converging the wrongful conduct that triggered the cause of action with its impact of concealing that cause of action. This approach requires, Deane J admitted, construing a statutory reference to a cause of action ‘first accruing’ as ‘excluding any period during which the wrongful act itself effectively precluded the institution of proceedings’.124 Yet this too is problematic, given the absence within the relevant statutory language of anything to ‘read down’ or qualify its literal terms. It is unsurprising, therefore, that the case law reveals instances where courts have distanced themselves from this approach.125

‘Discoverability’ for latent building defects 6.33 Australian law recognises that negligent latent damage to real property need not accrue at the time when the damage is effected but when it is discoverable. This represents a qualification to the general principle, which governs personal injury claims, a cause of action in negligence accrues once the damage is suffered, whether or not the plaintiff is aware (at the time) of the damage. The injustices that may ensue from the latter ‘rule’ have been addressed by statute, most commonly in the form of ‘discoverability’ rules.126 6.34 As to latent damage to property, only the Australian Capital Territory has addressed the matter by statute. It empowers the court, where a person has a cause of action for latent damage to property, or for economic loss in relation thereto, to extend the limitation period, if it is just and reasonable to do so, for a further period not exceeding 15 years from the day

when the act or omission that gave rise to the cause of action occurred.127 In exercising this power the court must have regard to all the circumstances of the case, including those listed by way [page 128] of example.128 As the latter largely parallel those that influence extensions of time in personal injury claims, the case law on extending time in the personal injury context assumes potential relevance here.129

Case law backdrop in England 6.35 English law, in line with the established approach in personal injury claims,130 originally refused to apply a discoverability rule to accrual of causes of action for latent defects in buildings. The English Court of Appeal in its 1976 decision in Sparham-Souter v Town and Country Developments (Essex) Ltd131 took a different view: that ‘when building work is badly done — and covered up — the cause of action does not accrue, and time does not begin to run, until such time as the plaintiff discovers that it has done damage, or ought, with reasonable diligence, to have discovered it’. But in late 1982 Sparham-Souter was overruled by the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm),132 a case involving negligent design of a chimney, where the relevant damage was discovered occurring outside the limitation period. Lord Fraser, with whom the other Law Lords concurred, favoured an analogy here between personal (latent) personal injury and latent building defects, reasoning as follows:133 It seems to me that there is a true analogy between a plaintiff whose body has, unknown to him, suffered injury by inhaling particles of dust, and a plaintiff whose house has unknown to him sustained injury because it was built with inadequate foundations or of unsuitable materials. Just as the owner of the house may sell the house before the damage is discovered, and may suffer no financial loss, so the man with the injured body may die before pneumoconiosis becomes apparent, and he also may suffer no financial loss. But in both cases they have a damaged article when, but for the defendant’s negligence, they would have had a sound one.

His Lordship rejected the view, espoused in Sparham-Souter, that the earliest moment at which time could begin to run against each successive

owner of the defective property was when that person bought, or agreed to buy, it. ‘If that is right’, he surmised, ‘it would mean that if the property happened to be owned by several owners in quick succession, each owning it for less than six years, the date when action would be time-barred might be postponed indefinitely’.134 His Lordship expressed concern that postponing the accrual of the cause of action until the date of discoverability ‘may involve the investigation of facts many years after their occurrence … with possible unfairness to the defendants, unless a final longstop date is prescribed’.135 6.36 Yet Lord Fraser conceded that ‘such a result appears to be unreasonable and contrary to principle’,136 and in a brief concurring speech, Lord Scarman similarly saw it as ‘unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury (or damage)’, adding that ‘[a] law which produces such a result … is harsh and absurd’.137 [page 129] Notwithstanding these admissions, their Lordships did not feel able to break the shackles of existing legal principle, but called for legislative intervention.138 In 1996, the Privy Council, on an appeal from New Zealand, branded Pirelli as ‘an unfortunate decision’,139 not only because that was how the House of Lords itself regarded the decision, but also because it had been subjected to a barrage of judicial and academic criticism ever since.140 A trenchant criticism, to this end, is that damage in cases of this kind is purely economic, which is accordingly suffered (and thus accrues) only where there is an economic loss, not when physical damage is done. On this reasoning, in latent building defects cases, the element of loss or damage necessary to support a claim for economic loss should not exist, and so the cause of action should not accrue, so long as the market value of the building remains unaffected. Pirelli dictated otherwise, however, and gave rise to ‘a real fear of the failure to note what may be damage and the resulting forfeiture of all rights to claim in negligence’.141

Shift in Australian case law 6.37 While various Australian courts followed Pirelli in its immediate aftermath,142 the passing of time has seen the above criticism produce a willingness to accept that accrual of causes of action in latent building defect cases can be governed by a ‘discoverability’ rule. Its genesis can be traced to the judgment of Deane J in Sutherland Shire Council v Heyman,143 being a claim for the cost of rectifying a structural defect in property that already existed at the time the respondents acquired it. His Honour saw it as arguable that any such loss could be seen as being sustained at the time of acquisition when, because of ignorance of the inadequacy of the foundations, a higher price was paid than warranted by the intrinsic worth of the estate being acquired. But this did not commend itself to Deane J, who reasoned as follows:144 Militating against that approach is the consideration that, for so long as the inadequacy of the foundations is neither known nor manifest, no identifiable loss has come home: if the purchaser

[page 130] or tenant sells the freehold or leasehold estate within that time, he or she will sustain no loss by reason of the inadequacy of the foundations. The alternative, and in my view preferable, approach is that any loss … involved in the actual inadequacy of the foundations is sustained only at the time when that inadequacy is first known or manifest. It is only then that the actual diminution in the market value of the premises occurs.

6.38 On this approach, which had precursors in the highest courts in New Zealand145 and Canada,146 and has seen endorsement in Australian courts (and as well as by the Privy Council),147 the law is that ‘where the owner of a building suffers loss because of the existence of latent defects in a building … such loss accrues if and when the defects become manifest or are otherwise discovered, and not before’.148 For the cause of action to accrue, what must become ‘known’ or ‘manifest’ is the actual physical defect in the structure, not who is legally responsible (say, the architect, engineer, builder or inspector) for the cause of the defect.149 What ensues is that, once the relevant defect is ‘known’ or ‘manifest’, time begins to run, requiring the plaintiff to ascertain who is responsible, and to commence proceedings

against that person, within the time allowed. It is not necessary, for this purpose, to be able to pinpoint with precision the exact cause of each defect; otherwise time would not start running, in many instances, until the remedial work was underway, and an owner would be precluded from suing in advance of the repair work, as no cause of action would have by then accrued.150 6.39 A relatively recent case illustration is Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970,151 involving a residential apartment building completed in 2001, which had defects that manifested themselves in, inter alia, water penetrating several units and the rusting of the steel structure supporting the roof. The Owners Corporation (the respondent) commenced proceedings against the builder in 2005, and was granted leave in 2008 to join the architect (the appellant) to the proceedings. It obtained judgment in 2009 against both the appellant and the builder, and the builder obtained judgment for contribution against the appellant. An issue on appeal was whether the six year limitation period had expired before proceedings were commenced against the appellant. Basten JA, [page 131] in delivering the reasons of the court, made the following observations as to the water penetration:152 [T]he relevant defect in the building was not the design, installation or inspection of the windows, but the windows themselves. Once it was appreciated that the windows themselves were defective (in that they were not adequately watertight) the defect was known. The physical consequence of the defect, namely the ingress of water, was not itself the defect, although it might well have been sufficient to lead a reasonable person to make inquiry and thus discover the defect. In this respect, there is an important distinction between a case of water penetration into a room, where the point ingress can readily be investigated, and the adequacy of footings or foundations to a building, which can often only be inspected with difficulty …

His Honour found that the respondent, through its caretaker, was aware of water penetration in April or May 2001, and by November 2001, at the latest, the defect in the windows was ‘manifest’. As a consequence, any cause of action against the appellant accrued at this time, making the action

against the appellant out of time. The same could be said of the rusting of steelwork supporting the roof, which the evidence revealed also to have commenced no later than 2001, even though the responsibility for it was not established until later. The limitation defence pleaded by the appellant should, accordingly, have succeeded. 6.40 The decision in Cyril Smith highlights that the moment a defect becomes ‘known’ or ‘manifest’ rests on the circumstances of each case. It relies, moreover, upon what a reasonable person in the position of the plaintiff would have known or investigated in those circumstances. The plaintiff cannot postpone the running of time by shutting his or her eyes to the obvious.153 In Dennis v Charnwood Borough Council,154 a case antedating Pirelli in England, Templeman LJ remarked that time would begin to run ‘if the building suffers damage or an event occurs which reveals the breach of duty … or which would cause a prudent owner-occupier to make investigations which, if properly carried out, would reveal the breach of duty’. So, as Lord Lloyd uttered in the Privy Council in Invercargill City Council v Hamlin155 — on appeal from New Zealand and free to reject Pirelli — ‘the cause of action accrues when the cracks become so bad, or the defects so obvious, that any reasonable homeowner would call in an expert’.

Long-stop limitation periods for building actions 6.41 The foregoing must be read subject to dedicated statutory provisions — in the Territories, New South Wales, South Australia, Tasmania and Victoria — designed to address any floodgates arguments relating to undue (including successive) prolongations of the ordinary time bar by reason of the discovery or discoverability (including by subsequent purchasers) of building defects a long time down the track.156 These apply, to the exclusion of time bars157 (and qualifications thereto)158 in limitations (and other) statutes, a ten year limitation period on actions for damages for economic loss and rectification costs resulting from defective building [page 132]

work.159 The moment when the cause of action accrues is prescribed for this purpose.160 But the provisions do not apply to or affect any right to recover damages for death or personal injury arising out of or concerning defective building work.161 New Zealand likewise places a long-stop ten year limitation period on building work.162

Application to defects in title 6.42 Although Australian judges have been unwilling to use the latent building defects cases to support what the Canadian Supreme Court described as ‘a general rule that a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence’,163 they have countenanced the use of those cases as a foundation for deferring the running of time, on the grounds of discoverability, of negligence claims arising out of a defect in title to property. 6.43 A leading case is Christopoulous v Angelos,164 involving a claim against the vendors and their solicitor for negligent misstatement on a conveyance of land. The transfer of the land was originally registered without an easement, but four years later the register was rectified to show the easement. The purchaser was unaware of the existence of the easement until the date of rectification. The issue was whether the purchaser suffered damage at date of transfer (making the action time-barred) or at the later date of subsequent rectification (in which case the action would be within time). While decrying a ‘general principle that loss is not incurred until it is discovered or discoverable’, Handley JA accepted that the principles deriving from latent building cases, grounded in discoverability, served as a close analogy to the facts in issue.165 These principles required a rejection of the view that the purchasers suffered damage when they completed their purchase. His Honour noted that for over four years the purchasers’ possession and use of the property remained undisturbed and the latent defect in their title undiscovered. Questions of discoverability, and over quantification of their loss, rested on the chance that the dominant owner would exercise its rights.166 Underlying this outcome was that the purchasers could not reasonably have discovered the easement in the meantime.

[page 133] In Registrar-General v Cleaver,167 stemming from an error in 1967, the benefit of a restrictive covenant was recorded on the plaintiffs’ certificate of title, but the burden was omitted from the certificate of title of the land burdened by the covenant. Both lots changed hands without incident until 1988. The plaintiffs acquired the land in 1978 but only discovered the defect in their title in 1988, when the other proprietor threatened to breach the covenant. The plaintiffs sued against the Registrar-General for damages caused by the omission in the register, and were met by a limitation defence. The plaintiffs suffered no economic loss, the New South Wales Court of Appeal ruled, until the omission in the register was discovered; after all, until then they could have honestly resold the property for its full market value and thus successfully avoided any economic loss. As the plaintiffs’ cause of action was incomplete until that discovery, it did not accrue before that moment, and so was not time-barred.168 6.44 In Cleaver a search of the title to the adjoining property would have disclosed the defect in title, but no conveyancing practice required this search to be made. The position would have differed had conveyancing practice been otherwise, as this would have made the error discoverable by the plaintiffs, and thus capable of triggering an earlier accrual date. The point is illustrated by Scarcella v Lettice169 where, had normal conveyancing practice been followed at the time the land was purchased by the plaintiffs, a defect in title (the absence of a right-of-way) would have been revealed. Handley JA, with whom Powell and Giles JJA agreed, held that the plaintiffs’ action, 12 years after the event, against the solicitor (the defendant) who had acted on the purchase was out of time. The facts were distinguishable from the latent defects in Cleaver and Christopoulos; the plaintiffs could not have sold the land and avoided economic loss, as solicitors acting on this transaction would have discovered the defect in the title.170 This would in turn have exposed the plaintiffs to a claim for compensation or rescission. Hence the plaintiffs suffered loss 12 years earlier, when completing their purchase. Yet it is difficult not to feel sympathy for the plaintiffs here, and ponder what in policy could justify being denied relief in circumstances where the

defendant’s negligence essentially precluded the defect from being discovered by the plaintiffs. The courts nonetheless continue to countenance similar outcomes.171

Defamation Actions Time bar for defamation actions 6.45 Statute in each jurisdiction declares that an action on a cause of action for defamation is not maintainable if brought after the end of one year running from the date of the publication of the matter complained of.172 This limitation period has been the outcome of a progressive shortening of time bars in this context over time, which ultimately proved the result of the [page 134] 2005 national defamation reforms,173 reflecting a trend that also transpired in the United Kingdom.174 A rationale is that time is of the essence in defamation actions, and the plaintiff is normally anxious — and is expected to be anxious — to seek relief at the earliest opportunity, especially given the ephemeral or transient nature of most media publications, to minimise or undo the damage to his or her reputation.175 This in turn derives from the fact that the tort of defamation is complete upon publication, at which time damage to the plaintiff’s reputation ensues in a manner ordinarily known to the plaintiff.176 From the defendant’s perspective, a short limitation period ensures that he or she knows relatively quickly that the publication has been impugned and relief is sought.177 And there is the broader public interest in the speedy commencement (and determination) of actions for defamation.178 6.46 Counterbalancing the introduction of a one year limitation period for defamatory publications, statute in each Australian jurisdiction envisages that a person claiming to have a cause of action for defamation can apply to the court for an order extending time even though the limitation period has

expired. The relevant law in this context is addressed in a separate chapter in the extension of time part of this work.179

Accrual of defamation causes of action 6.47 The Australian legislative provisions make explicit that the cause of action for defamation accrues as at the date of the defamatory publication. This will not usually prove too difficult to identify with some precision, although it cannot be assumed that the plaintiff will always be aware of its publication, whether at the time or subsequently. The latter explains why one of the principal grounds plaintiffs plead in attempts to disapply the limitation period is that their discovery of the offending publication postdated its expiry.180 6.48 The legislative provisions do not explicitly address the issue of multiple defamatory publications, but as a matter of construction it is logical to conclude that defamatory publications published on different occasions give rise to different dates of accrual. Indeed, longstanding case authority to this effect181 — described as the ‘multiple publication rule’ — continues to [page 135] reflect Australian law,182 at least in the limitation sphere.183 In the United Kingdom it has been replaced by a statutory ‘single publication rule’ for subsequent publication of substantially similar defamatory statements.184 There is sense in this change, which incidentally reflects a prevailing curial and legislative approach in the United States,185 as the corollary of the ‘multiple publication rule’ is that, because a fresh cause of action accrues on each communication of the defamatory matter, the defendant’s liability can accrue at a time far divorced from the original publication.186 The latter outcome contradicts not only a core purpose of limitations time bars — the need for repose187 — but in particular the shorter time bar applicable to defamation actions. ______________________________

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11.

12. 13.

14. 15. 16.

17.

18. 19.

NSW s 14(1)(b); NT s 12(1)(b); Tas s 4(1)(a); Vic s 5(1)(a). Qld s 10(1)(a); SA s 35(c). ACT s 11(1); WA s 13(1): see 4.2. WA s 16. See 6.45–6.48 (defamation proceedings), Ch 7 (actions where the damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person). NSW s 14(2); NT s 12(2)(c), 12(2)(d). See NSW s 19 (action under the Compensation to Relatives Act 1897 (NSW)); NT s 17 (action under Compensation (Fatal Injuries) Act 1974 (NT) ss 7 or 13). NSW s 26; NT s 24: see 12.23. As to the provisions governing contribution generally see 12.21–12.31. NSW s 8(2) (which states that the Limitation Act 1969 (NSW) has effect subject to Dust Diseases Tribunal Act 1989 (NSW) s 12A, which states that nothing in the Limitation Act or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Dust Diseases Tribunal in relation to dust-related conditions; ‘dust-related condition’ is defined in the Dust Diseases Tribunal Act 1989 (NSW) s 3(1)); NT s 12(2)(a) (which states that no limitation period applies to an action for damages for personal injury arising from a dust disease, which is defined in NT s 12(3) as a pathological condition of the lungs, pleura or peritoneum that is attributable to dust); Qld s 11(2) (‘a right of action relating to personal injury resulting from a dust-related condition is not subject to a limitation period’). O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906; BC200406789 at [46] per Campbell J, citing Clegg v Dearden (1848) 12 QB 576 at 601; 116 ER 986 at 995 per Lord Denman CJ (trespass to land); Ellis v Loftus Iron Co (1874) LR 10 CP 10 (trespass to land); Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 (trespass to a fishery) (although none of these cases were explicit in addressing the point, but proceeded on the way of assumption, and none addressed any limitation issue). Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [5] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. As the cause of action in deceit is grounded in fraud (Derry v Peek (1889) 14 App Cas 337), the running of time is in any event postponed until the plaintiff discovers or could with reasonable diligence have discovered the fraud: see 15.7, 15.10–15.12, 15.20, 15.21. See, for example, Vinnicombe v MacGregor (1902) 28 VLR 144. Ratcliffe v VS & B Border Homes Ltd (1987) 9 NSWLR 390 at 398; BC8701312 per Hunt J. Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772 per Lord Reid; Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289; BC200006725 at [14] per Handley JA, with whom Powell and Giles JJA concurred; Christie v Purves (2007) 69 ATR 155; [2007] NSWCA 182; BC200705733 at [39] per Ipp JA, with whom Beazley and Campbell JJA concurred. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526, 527, 531; BC9202700 per Mason CJ, Dawson, Gaudron and McHugh JJ; Law Society v Sephton & Co (a firm) [2006] 2 AC 543; [2006] UKHL 22 at [60] per Lord Mance. See 6.8–6.13. Cartledge v E Jopling & Sons Ltd [1963] AC 758 (discussed at 7.4); Hawkins v Clayton (1988) 164 CLR 539 at 560–1 per Brennan J, at 587–8 per Deane J, at 598–602 per Gaudron J; BC8802597; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 540 per Deane J, at 554–5 per

20. 21. 22. 23. 24. 25.

26. 27. 28. 29. 30. 31.

32.

33. 34.

Toohey J; BC9202700; Christopoulous v Angelos (1996) 41 NSWLR 700 at 703; BC9605273 per Handley JA; Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [40] per Mason P; Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [6] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; Christie v Purves (2007) 69 ATR 155; [2007] NSWCA 182; BC200705733 at [35] per Ipp JA, with whom Beazley and Campbell JJA concurred. See 7.7–7.22. See 6.33–6.40. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527; BC9202700 per Mason CJ, Dawson, Gaudron and McHugh JJ. Found in the Australian Consumer Law Chs 2 and 3. Australian Consumer Law s 236(2). See, for example, Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; BC9202700 (involving a contravention of the Trade Practices Act 1974 (Cth) s 52, now the Australian Consumer Law s 18); Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91 at 130–1; BC9700678 per Merkel J (involving a contravention of the Trade Practices Act 1974 (Cth) s 51AA, now the Australian Consumer Law s 20); Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 245; BC9802262 per Heerey J; Christie v Purves (2007) 69 ATR 155; [2007] NSWCA 182; BC200705733 at [40] per Ipp JA, with whom Beazley and Campbell JJA concurred. See, for example, Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; BC9404621. [2002] NSWCA 262; BC200204522 at [25], [26] (paragraph break omitted). Law Society v Sephton & Co (a firm) [2006] 2 AC 543; [2006] UKHL 22 at [18]. (1992) 175 CLR 514; BC9202700. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 528, 531–2; BC9202700. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 532; BC9202700 per Mason CJ, Dawson, Gaudron and McHugh JJ. See also at 558 per Toohey J, at 643 per Deane J (each noting that the plaintiff may never have sustained any actual financial loss as a result of entering into the indemnity); Tanna v Deutsche Bank (Asia) AG [1997] ANZ Conv R 598 at 601–2; BC9604178 per Hodgson J. The same principle has been applied in the context of actions to recover loss or damage under the Australian Consumer Law: see, for example, SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commission (1990) ATPR ¶41-045; BC9003514 (where an insured sued its insurer for misleading or deceptive conduct under statute for loss suffered as a result of a misrepresentation regarding the extent of indemnity or liability under a contract of insurance, von Doussa J held that actual loss (as opposed to a mere potential for loss) occurred only upon the insured being called upon by a third party to make payments against which it would have been entitled to be indemnified under the contract as represented — which would crystallise the liability — and so the cause of action would accrue at that time, and not at the time of the misrepresentation). Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; BC9202700. See also Law Society v Sephton & Co (a firm) [2006] 2 AC 543; [2006] UKHL 22 at [18] per Lord Hoffmann, at [78] per Lord Mance. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 537–8; BC9202700. Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591; BC201505017 at [26] per Young AJA. See also Highup Pty Ltd v Gubas (2014) 226 FCR 541; [2014] FCA 1170; BC201409286 at [67] per Buchanan J (who was unable ‘to accept the bald submission, unsupported by reference to

35. 36. 37. 38.

39. 40. 41. 42. 43. 44. 45. 46. 47.

48. 49.

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

authority, that a mere demand raises a contingent liability’). A point acknowledged by Deane J in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 540–1; BC9202700. [1982] 2 All ER 753. Forster v Outred & Co (a firm) [1982] 2 All ER 753 at 765. See also at 764 per Stephenson LJ, at 765–6 per Sir David Cairns. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 529, 531–2; BC9202700 per Mason CJ, Dawson, Gaudron and McHugh JJ, with whom several members of the House of Lords in Law Society v Sephton & Co (a firm) [2006] 2 AC 543; [2006] UKHL 22 expressed agreement on this point (see at [18] per Lord Hoffmann, at [33] per Lord Scott, at [49] per Lord Walker). [1998] 1 All ER 305. Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 at 310. See also at 316–17 per Lord Hoffmann. (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685. Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [44]. Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [60]. Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [66]. Winnote Pty Ltd (in liq) v Page (2006) 68 NSWLR 531; [2006] NSWCA 287; BC200608685 at [355]. As to which see 6.30–6.32. Segal v Fleming [2002] NSWCA 262; BC200204522 at [26] per Hodgson JA; Christie v Purves (2007) 69 ATR 155; [2007] NSWCA 182; BC200705733 at [39] per Ipp JA, with whom Beazley and Campbell JJA concurred. See 6.18–6.24. Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [57], [58] per Callinan J (dissenting but not on this point) (noting that while some contingencies take a lifetime to play out, courts do not wait a lifetime). [2009] 1 NZLR 437; [2008] NZSC 65; BC200862172. Thom v Davy Burton [2009] 1 NZLR 437; [2008] NZSC 65; BC200862172 at [25]. Thom v Davy Burton [2009] 1 NZLR 437; [2008] NZSC 65; BC200862172 at [25]. Thom v Davy Burton [2009] 1 NZLR 437; [2008] NZSC 65; BC200862172 at [50]. See 5.2 (contract), 6.2 (tort). See 5.11 (contract), 6.4–6.7 (tort). See the discussion in J Swanton, ‘Concurrent Liability in Tort and Contract: The Problem of Defining the Limits’ (1996) 10 JCL 21. Chesworth v Farrar [1966] 1 QB 407 at 416 per Edmund Davies J. Wilson v Horne (1999) 8 Tas R 363; [1999] TASSC 33; BC9901200 at [20]–[22] per Wright J. An important qualification to this statement concerns the discoverability rules applicable as regards personal injury actions: see generally Ch 7. [1898] 2 QB 56.

61. 62. 63. 64.

65. 66. 67. 68. 69. 70.

71. 72. 73.

74. 75. 76. 77. 78.

79.

80.

Namely the County Courts Act 1888 (UK) (51 & 52 Vict c 43) s 116 (which differentiated the entitlement to recover costs upon whether the action was in tort or in contract). Turner v Stallibrass [1898] 2 QB 56 at 58 per A L Smith LJ (emphasis supplied). See also at 59–60 per Collins LJ. [1966] 1 QB 407. Namely the Law Reform (Miscellaneous Provisions) Act 1934 (UK) s 1(3), which read as follows: ‘No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless … proceedings are taken in respect thereof not later than six months after his personal representative took out representation’. The sub-section has since been repealed. Chesworth v Farrar [1966] 1 QB 407 at 416. As to the time bar(s) applicable to quasi-contract claims see 5.35–5.39. Chesworth v Farrar [1966] 1 QB 407 at 416–17. As to the meaning of ‘cause of action’ for this purpose see 4.4–4.10. Wilkinson v Verity (1871) LR 6 CP 206 at 209 per Willes J, delivering the reasons of the court. The same also applies vis-à-vis causes of action in contract (see 5.14) and to causes of action for recovery of loss or damage under the Australian Consumer Law (see James v Australian and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 392 per Toohey J). Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305; BC200106995 at [440] per McLure J. See Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 490–2; BC8501096 per Brennan J. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 132–3. See, for example, Arbuckle v Shire of Boroondara (1896) 22 VLR 513 (time running from when a drain constructed by the defendant, which wrongfully diverted a watercourse, caused loss to the plaintiff; Hood J noted (at 518) that ‘[t]here is one wrongful act only … and it is the wrongful diversion of the watercourse, and for that the plaintiff, on the day after the act was done, if he could have proved his damage, could have recovered every penny that he can get in this action’). It should be noted that the point was established much earlier. In Fitter v Veal (1706) 12 Mod 542; 88 ER 1506, for instance, the plaintiff, who had recovered damages for assault and battery, was denied recovery in a later action for what proved more serious consequences of the assault and battery. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 144. EWCA, Rose, Russell and Neill LJJ, The Times, 23 November 1992. See 6.4. Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 22; BC9103603 per Hill J. See, for example, Green v Walkley (1901) 27 VLR 503 at 508–14 per Hood J, with whom Holroyd and A’Beckett JJ concurred (involving the defendant’s erection of a wall that impeded the plaintiff’s access to light; his Honour reasoned (at 512) that ‘here the injury is continuous and complete from the commencement, the same to-day as it was in the beginning’, and that the cause of action was not continuous because the act complained of was not repeated). See, for example, Coventry v Apsley (1691) 2 Salk 420; 691 ER 366; Hardy v Ryle (1829) 9 B & C 603; 109 ER 224; O’Connor v Isaacs [1956] 2 QB 288 at 338–42 per Singleton LJ, at 354–60 per Morris LJ. See, for example, Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465

81. 82. 83. 84. 85. 86.

87. 88. 89. 90.

91. 92. 93. 94. 95.

96. 97.

98.

(involving gravel deposited on the plaintiff’s land: see at 476 per Reynolds JA). See 4.4–4.6. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 144–5. See 6.16. (1886) 11 App Cas 127. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 133–4. See also at 149–51 per Lord FitzGerald. Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 147. Cf McGee, p 5 (who considers that treating the decision as one involving two separate causes of action makes it a difficult one to understand, as the damage in each instance seemed to emanate from the one breach of duty, and therefore maintains that the case was wrongly decided). As to the challenges underscoring contingent damage for the purposes of limitations law see 6.8–6.13. Cf Crumbie v Wallsend Local Board [1891] 1 QB 503 (Darley applied where the subsidences caused by excavation were separated by some three years). Hawkins v Clayton (1986) 5 NSWLR 109 at 124–5 per Glass JA. See also Sheldon v McBeath (1993) Aust Torts Rep ¶81-209 at 62,073; BC9302000 per Priestley JA. Dowell Australia Pty Ltd v Page (CA(NSW), Clarke and Powell JJA, Young AJA, 1 December 1995, unreported) BC9501904 at 16–17 per Powell JA, referring to Clarkson v Modern Foundries Ltd [1958] 1 All ER 33; Cartledge v E Jobling & Sons Ltd [1962] 1 QB 189; Berry v Stone Manganese & Marine Ltd [1972] 1 Lloyd’s Rep 182; John Lysaght Aust Ltd v Butfield (CA(NSW), Mahoney AP, Handley and Powell JJA, 8 December 1993, unreported) BC9302277; Commercial Minerals Pty Ltd v Hollins (CA(NSW), Meagher, Handley and Sheller JJA, 22 December 1993, unreported) BC9302366; Colorado v Haden Engineering Pty Ltd (CA(NSW), Priestley, Clarke and Powell JJA, 6 November 1995, unreported) BC9501729; Markarian v Woolworths Ltd (CA(NSW), Clarke and Powell JJA, Badgery-Parker AJA, 7 November 1995, unreported) BC9501756. (1968) 72 SR (NSW) 120. Cf Earl of Harrington v Corporation of Derby [1905] 1 Ch 205. As to accrual in building defects cases see 6.33–6.40. [1979] 2 NZLR 234. Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 at 240. See also at 243–4 per Richardson J. See also Burns v Argon Construction Ltd [2009] NZHC 561 (involving intermittent damage in a leaky building, where defects had been identified and repairs carried out, but later the defects were found to be more serious, going to design as well as construction, which arguably gave rise to a new cause of action). [2007] NZCA 389. Pullar v Secretary for Education [2007] NZCA 389 at [15], [16] per Chambers J, delivering the reasons of the court. See also Kay v Dickson Lonergan Ltd [2006] NZHC 605 (time running from when cracks in plaster first identified, even though the defect ultimately proved more serious than first imagined); Lee v Whangarei District Council [2015] NZHC 2777 (another continuous damage case not amenable to separate causes of action). Spackman v Foster (1883) 11 QBD 99 (ruling that time did not begin to run in favour vis-à-vis the second converter until he or she had refused the owner’s demand for return of the good).

99. See 6.18, 6.19. 100. [1891] 1 QB 468 at 471. See also at 472 per Lopes LJ, at 473 per Kay LJ. 101. See, for example, John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157; BC3200007 (involving new cause of action in detinue beyond existing causes of action in conversion and breach of contract). 102. Wilkinson v Verity (1871) LR 6 CP 206 at 209 per Willes J, delivering the reasons of the court, cited with approval in Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 at 412; BC6200450 per Kitto J. 103. ACT s 18; NSW s 21; NT s 19; Qld s 12; Tas s 6; Vic s 6; WA s 60 (see WALRC 36(II), pp 304– 5). 104. UK 1939 s 3 (now UK 1980 s 3(1)). 105. Philpott v Kelley (1853) 3 Ad & E 106; 111 ER 353; Miller v Dell [1891] 1 QB 468. 106. Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [35] per Santamaria JA. 107. The New South Wales and Northern Territory provision refers to where ‘a person has a right to bring an action in relation to the conversion or wrongful detention of goods’. 108. The reference to ‘goods’ in relation to the second (or subsequent) conversion refers to the ‘goods’ in respect of which a cause of action has accrued for the first conversion or detention: Grant v YYH Holdings Pty Ltd [2012] NSWCA 360; BC201208554 at [46] per McColl JA. 109. The addition of the words ‘or a cause of action to recover the proceeds of sale of the goods’, which did not appear in the English precedent (UK 1939 s 3), was designed to cover the case ‘where the further conversion consists in the sale of the goods and the plaintiff waives the tort and sues in quasi contract [now restitution] to recover the proceeds of sale’: NSWLRC 3, para 128 (citing Suttons Motors Pty Ltd v Campbell [1956] SR (NSW) 304 by way of example). 110. ACT s 18; NSW s 21; NT s 19(1); Qld s 12(1); Tas s 6(1); Vic s 6(1); WA s 60. 111. A point made explicit in NSW s 21(b); NT s 19(1)(b); Qld s 12(1); Tas s 6(2)(c); Vic s 6(2)(c); WA s 60(b). 112. See, for example, Grant v YYH Holdings Pty Ltd [2012] NSWCA 360; BC201208554 (where the court held that, although a cause of action in conversion and detinue in the original 16 sheep owned by two farmers had been extinguished through the effluxion of time, the progeny (and any embryos and semen) from the original 16 sheep were different ‘goods’ both for the purposes of the relevant torts and limitations law; as time had not expired in relation to the progeny etc, title therein accordingly continued to exist). 113. ACT s 43(1); NSW s 65(1); NT s 19(2); Qld s 12(2); Tas s 6(2); Vic s 6(2). This follows the language of UK 1939 s 3(2), now UK 1980 s 3(2). 114. ACT s 43(2); NSW s 65(2); NT s 19(3); Qld s 12(3). 115. See 7.4–7.6. 116. See 22.16–22.25. 117. See 6.41. 118. See 6.33–6.40. 119. Hawkins v Clayton (1988) 164 CLR 539 at 587–8; BC8802597. 120. (1998) 85 FCR 170 at 245; BC9802262. 121. Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858 at 880 per Geoffrey Lane LJ. See also Forster v Outred & Co (a firm) [1982] 2 All ER 753 at 765–6 per Sir David Cairns.

122. 123. 124. 125.

126. 127.

128.

129. 130. 131. 132. 133. 134. 135. 136. 137. 138.

(1988) 164 CLR 539 at 590; BC8802597. As to the equitable doctrine of fraudulent concealment see generally Ch 15. Hawkins v Clayton (1988) 164 CLR 539 at 590; BC8802597. See, for example, Butler v Gaudron (CA(NSW), Handley, Sheller and Cole JJA, 17 November 1994, unreported) BC9403304; Sampson v Zucker (CA(NSW), Gleeson CJ, Cole JA and Simos AJA, 11 December 1996, unreported) BC9606395. See generally Ch 7. ACT s 40(1). This provision was included in the belief (subsequently proven to have been inaccurate: see 6.37–6.40) that the law in Australia at the time aligned with Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 (discussed at 6.35, 6.36), and was the product of a recommendation by the Attorney-General’s Department (Proposals for the Reform and Modernisation of the Laws of Limitation in the Australian Capital Territory, Working Paper, 1984, p 38). ACT s 40(2) (namely: (a) the length of time between the occurrence of the damage or loss and the time when the damage or loss might reasonably have been discovered by the plaintiff; (b) the extent to which the plaintiff, after he or she became aware of the damage or loss, acted promptly and reasonably; (c) the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the defendant; (d) the conduct of the defendant after the relevant cause of action accrued to the plaintiff, including the extent to which the defendant took steps to make available to the plaintiff means of ascertaining facts in relation to the cause of action; and (e) the steps (if any) taken by the plaintiff to obtain, for the purposes of the cause of action, legal or other expert advice and the nature of any such advice). See generally Ch 20. See 7.4–7.6. [1976] QB 858 at 868 per Lord Denning MR. [1983] 2 AC 1. Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 at 16. Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 at 18. Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 at 19. Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 at 19. Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 at 19. The problem in Pirelli was (partially) addressed by UK 1980 s 14A, inserted by the Latent Damage Act 1986 (UK) s 1, which was the product of the Law Reform Committee, Twenty-Fourth Report (Latent Damage), Cmnd 9390, 1984 (Scarman Committee). Section 14A prescribes, in actions for damage for negligence (other than those in which the damages consist of or include personal injury), in addition to the normal six year limitation period running from the date of accrual, a secondary three year period running from the date of discovery or reasonable discoverability of the damage. Section 14B, however, sets a 15 ultimate time bar on this action. The detail in this statutory response has prompted debate over whether it exhibits the desired certainty: see N J Mullany, ‘Limitation of Actions — Where are we Now?’ [1993] LMCLQ 34; McGee, Ch 6; Canny, Ch 12. As to the response across the Commonwealth in this regard, albeit now dated, see N J Mullany, ‘Limitation of Actions and Latent Damage — An Australian Perspective’ (1991) 54 MLR 216; N J Mullany, ‘Reform of the Law of Latent Damage’ (1991) 54 MLR 349. In some Australian jurisdictions (and New Zealand), the issue has been addressed by way of a long-stop

139. 140.

141. 142.

143. 144.

145.

146.

147. 148.

149.

limitation period for building actions: see 6.41. Invercargill City Council v Hamlin [1996] AC 624 at 646–7 per Lord Lloyd. See, for example, S Todd, ‘Latent Defects in Property and the Limitation Act: A Defence of the “Discoverability” Test’ (1983) 10 NZULR 311; M A Jones, ‘Defective Premises and Subsequent Purchases — A Comment’ (1984) 100 LQR 413; C J Rossiter and M Stone, ‘Latent Defects in Buildings: When Does the Cause of Action Arise?’ (1985) 59 ALJ 606; I N Duncan Wallace, ‘Negligence and Defective Buildings: Confusion Confounded?’ (1989) 105 LQR 46. Yet it has not prevented Pirelli from being followed in Singapore: Lian Kok Hong v Ow Wah Foong [2008] 4 SLR(R) 165 at [24] per V K Rajah JA (CA). N J Mullany, ‘Limitation of Actions and Latent Damage — An Australian Perspective’ (1991) 54 MLR 216 at 226. See, for example, Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 290 per Hutley JA, at 315–16 per Glass JA; Burgchard v Holroyd Shire Council [1984] 2 NSWLR 164 at 172–4 per Roden J; Holden v Goodridge (1985) 55 LGRA 231 at 235–6 per Lee J; Page v Castlemaine City Council (1986) 66 LGRA 296 at 303 per Gobbo J; Gillespie v Elliott [1987] 2 Qd R 509 at 415–19 per Macrossan J, with whom Andrews CJ concurred; Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 267–8 per Nicholson J. (1985) 157 CLR 424; BC8501096. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 505; BC8501096 (emphasis supplied). His Honour followed this analysis in Hawkins v Clayton (1988) 164 CLR 539 at 587–8; BC8802597. See Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 at 239 per Cooke J, delivering a joint judgment with Somers J (explaining, in this context, that a cause of action in tort for economic loss ‘must arise … either when the damage occurs or when the defect becomes apparent or manifest’, and identifying the latter as ‘the more reasonable solution’). The relevant principle has subsequently been confirmed and applied: see, for example, Kay v Dickson Lonergan Ltd [2006] NZHC 605 at [60]–[63] per Ellen France J; Pullar v Secretary for Education [2007] NZCA 389 at [12]–[19] per Chambers J, delivering the reasons of the court; North Shore City Council v Body Corporate 188529 [2011] 2 NZLR 289; [2010] NZSC 158 at [10] per Elias CJ, at [66]–[75] per Tipping J (delivering the reasons also of Blanchard, McGrath and Anderson JJ); Lee v Whangarei District Council [2015] NZHC 2777 at [8]–[13] per R M Bell J. See Kamloops v Nielsen [1984] 2 SCR 2 (where, in a case involving serious structural defects in a building discovered by a subsequent purchaser, a majority of the Supreme Court rejected the Pirelli approach: at 40 per Wilson J, delivering the reasons of Ritchie, Dickson and Wilson JJ). Invercargill City Council v Hamlin [1996] AC 624 at 648–9 per Lord Lloyd. Christopoulous v Angelos (1996) 41 NSWLR 700 at 703; BC9605273 per Handley JA. See also Pullen v Gutteridge Haskin & Davey Pty Ltd [1993] 1 VR 27 at 69–74 (FC); Sherson & Associates Pty Ltd v Bailey (2001) Aust Torts Rep ¶81-591; [2000] NSWCA 275; BC200006231 at [83], [84] per Heydon JA; Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289; BC200006725 at [16] per Handley JA, with whom Powell and Giles JJA agreed; Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181; BC201104963 at [17]–[19] per Basten JA, delivering the reasons of the court; Melisavon Pty Ltd v Springfield Land Development Corp Pty Ltd [2015] 1 Qd R 476; [2014] QCA 233; BC201407639 at [43]–[53] per Margaret McMurdo P, with whom Ann Lyons J concurred. Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181;

150. 151. 152. 153. 154. 155. 156.

157.

158.

159.

160.

161.

162. 163.

BC201104963 at [10], [24] per Basten JA, who delivered the reasons of the court. Pullar v Secretary for Education [2007] NZCA 389 at [19] per Chambers J, delivering the reasons of the court. [2011] NSWCA 181; BC201104963. Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181; BC201104963 at [24]. Invercargill City Council v Hamlin [1996] AC 624 at 648 per Lord Lloyd (PC). [1983] QB 409 at 420. [1996] AC 624 at 648 (emphasis supplied). North Shore City Council v Body Corporate 188529 [2011] 2 NZLR 289; [2010] NZSC 158 at [10] per Elias CJ, at [71] per Tipping J (also delivering the reasons of Blanchard, McGrath and Anderson JJ). The New South Wales provision does, however, provide that it does not operate to extend any period of limitation under the Limitation Act 1969 (NSW): Environmental Planning and Assessment Act 1979 (NSW) s 109ZK(2). See, for example, Johnson v Watson [2003] 1 NZLR 626 (where the New Zealand Court of Appeal ruled that claims based on the original building work had been brought more than 10 years after the work and were therefore barred by statute (at the time, Building Act 1991 (NZ) s 91(2)), which time limit could not be extended by concealment or fraud (under then NZ 1950 s 28: see generally Ch 15) because not only was s 91(2) concerned with the date of an act or omission, as opposed to when a cause of action accrued (under NZ 1950 s 28), s 91(2) explicitly provided that NZ 1950 did not apply to the ten year time limit: at [6]–[8] per Tipping J, delivering the reasons of the court). Building Act 2004 (ACT) ss 6(1) (definition of ‘building work’), 140 (definition of ‘building action’), 142; Environmental Planning and Assessment Act 1979 (NSW) ss 4(1) (definition of ‘building work’), 109ZK; Building Act 1993 (NT) s 160(1); Development Act 1993 (SA) ss 4(1) (definition of ‘building work’), 73(1); Building Act 2000 (Tas) ss 3(1) (definition of ‘building action’), 255; Building Act 1993 (Vic) ss 129 (definitions of ‘building action’ and ‘building work’), 134, 134A. Building Act 2004 (ACT) s 142(1), 142(2); Environmental Planning and Assessment Act 1979 (NSW) s 109ZK(1); Building Act 1993 (NT) s 160(2); Development Act 1993 (SA) s 73(1); Building Act 2000 (Tas) s 256; Building Act 1993 (Vic) ss 134 (building action) (see Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165; BC201406219, where in a joint judgment the court held that s 134 applies to both contractual and tortious claims: at [135]; for comment see D Levin, ‘The Period of Limitation in Victorian Building Actions’ (2015) 31 BCL 268), 134A (plumbing action). Building Act 2004 (ACT) s 140(b) (definition of ‘building action’); Environmental Planning and Assessment Act 1979 (NSW) s 109ZL; Building Act 1993 (NT) s 159(3); Development Act 1993 (SA) s 73(2); Building Act 2000 (Tas) s 3(1) (definition of ‘building action’); Building Act 1993 (Vic) s 130(a). Building Act 2004 (NZ) s 393(2) (formerly Building Act 1991 (NZ) s 91(2)). Central Trust Co v Rafuse [1986] 2 SCR 147 at 224 per Le Dain J, delivering the reasons of the court (deriving this ‘general rule’ from the court’s earlier decision, in a latent building defect context, in Kamloops v Nielsen [1984] 2 SCR 2). In Rafuse, which involved a negligence claim against solicitors who had been retained to perform legal services relating to a mortgage, which

164. 165. 166. 167. 168. 169. 170.

171. 172. 173.

174.

175.

176. 177. 178.

was, after the expiry of time, found void for non-compliance with statutory requirements, Le Dain J saw ‘no principled reason’ for distinguishing here ‘between an action for injury to property and an action for the recovery of purely financial loss caused by professional negligence’: at 224. Australian judicial statements are against such a step: Hawkins v Clayton (1988) 164 CLR 539 at 588 per Deane J, at 600 per Gaudron J; BC8802597. (1996) 41 NSWLR 700; BC9605273. Christopoulous v Angelos (1996) 41 NSWLR 700 at 705; BC9605273. Christopoulous v Angelos (1996) 41 NSWLR 700 at 705 per Handley JA, at 711 per Cole JA; BC9605273. Contra at 707–9 per Powell JA dissenting. (1996) 41 NSWLR 713; BC9605264. Registrar-General v Cleaver (1996) 41 NSWLR 713 at 721 per Clarke JA, at 724–5 per Handley JA, at 725–6 per Abadee AJA; BC9605264. (2000) 51 NSWLR 302; [2000] NSWCA 289; BC200006725. Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289; BC200006725 at [23]. Handley JA noted that the plaintiffs’ only prospect of honestly avoiding that loss via a resale with the benefit of the right-of-way — rested on the solicitor for the subsequent purchaser being negligent in failing to discover the defect in title. But as contingent and future losses do not constitute immediate damage for limitation purposes (Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; BC9202700, discussed at 6.9), ‘the chance of avoiding loss which is dependent upon a speculative and improbable breach of duty by the solicitor for a future purchaser should not prevent the recognition of economic loss when an asset with a defective title such as this is purchased for more than its true value’: at [32]. See, for example, D’Agostino v Anderson [2012] NSWCA 443; BC201210580. ACT s 21B(1); NSW s 14B; NT s 12(2)(b); Qld s 10AA; SA s 37(1); Defamation Act 2005 (Tas) s 20A(1); Vic s 5(1AAA); WA s 15. Prior to these reforms, defamation actions were subject to the limitation period applicable to causes of action in tort (as to which see 6.2), namely six years (with the exception of the Northern Territory, which set a three year time bar). UK 1980 s 4A (being the culmination of a progressive reduction in the time bar since 1985 from six years to three, and then from three to one, ultimately the product of a recommendation of the Neill Committee: see Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation, July 1991). A later recommendation to reinstate the three year limitation period in this sphere (Law Com 270, paras 4.38–4.46), in view of feedback that the one year period gave claimants insufficient time to prepare a claim properly, in particular to carry out all the factual investigations necessary to serve a fully detailed statement of claim, has not been implemented. Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 at [29] per David Steel J; Brady v Norman [2011] EMLR 16; [2011] EWCA Civ 107 at [21] per the court; Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [5] per Sharp LJ, with whom Macur and Lewison LJJ concurred; Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) at [19] per Judge Richard Parkes QC. D Rolph, Defamation Law, Lawbook Co, Australia, 2016, p 71. Wan-Jen Sun v Hojunara International Group Pty Ltd [2013] NSWSC 2044; BC201319176 at [12] per Rothman J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [67] per Chesterman JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [42] per Fraser JA.

179. See 21.2–21.29. 180. See 21.13–21.17. It also provides some insight into why law reform recommendations for longer limitation periods in this context, absent any discretion to extend time, align the date of accrual with the date when the publication first comes to the notice of the plaintiff: see, for example, SLRC, pp 52–4 (favouring a three year limitation period). 181. Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75; Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783; [2001] EWCA Civ 1805 at [51]–[76] per Lord Phillips MR, delivering the reasons of the court. 182. The High Court of Australia, when relatively recently presented with an opportunity to digress from the ‘multiple publication rule’, albeit not for limitations purposes, opted against doing so in view of its historical pedigree: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56; BC200207411 at [28]–[44] per Gleeson CJ, McHugh, Gummow and Hayne JJ; cf at [92] per Kirby J. See further D Rolph, Defamation Law, Lawbook Co, Australia, 2016, pp 151–3. 183. Beyond its application in the limitations context, the ‘multiple publication rule’ impacts on multi-state defamation; for this purpose, the national uniform defamation laws contain a form of ‘single publication rule’ so as to avoid the prospect that liability for defamation could arise in each Australian State or Territory from a communication of defamatory matter: see D Rolph, Defamation Law, Lawbook Co, Australia, 2016, p 153. No parallel provision has been enacted to deal with the limitations law consequences of the multiple publication rule. 184. Defamation Act 2013 (UK) s 8 (in force from 1 January 2014). See further B Neill, R Rampton, H Rogers, T Atkinson and A Eardley, Duncan and Neill on Defamation, 4th ed, LexisNexis, London, 2015, pp 250–2. 185. See D R Cohen, ‘The Single Publication Rule: One Action, Not One Law’ (1996) 62 Brooklyn L Rev 921; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56; BC200207411 at [29]–[37] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 186. D Rolph, Defamation Law, Lawbook Co, Australia, 2016, p 152. 187. See 1.25–1.27.

[page 136]

CHAPTER 7

Personal Injury Causes of Action Backdrop to Limitations Regime for Personal Injury Actions Reduction to three year limitation period Adverse consequences of reduction in time Statutory response to adverse consequences Limitation Act 1963 (UK) Response to infelicitious wording — Limitation Act 1975 (UK) Australian statutory responses Three year limitation period Focus on knowledge or discoverability of the relevant injury Not confined to tortious breach (but query if extend to ‘fiduciary’ breach) Application to actions that ‘consist of, or include, damages in respect of personal injuries’ ‘Remedial’ nature? Ouster of limitation period for certain personal injuries Limitation and (child) sexual abuse Discoverability in the context of child (sexual) abuse Ouster of limitation period for child abuse – New South Wales and Victoria Alternative approach within existing law

7.2 7.2 7.4 7.7 7.7 7.8 7.12 7.12 7.13 7.14 7.17 7.21 7.22 7.23 7.23 7.26 7.27

Australian Capital Territory Regime New South Wales Pre-Ipp Regime Application of the regime Meaning of ‘personal injury’ Meaning of ‘breach of duty’ New South Wales and Victorian Post-Ipp Regimes Backdrop to reforms Translation to New South Wales and Victorian law Temporal application Parameters of application Prescription of limitation period Date cause of action is ‘discoverable’ Meaning of ‘knows’ Meaning of ‘ought to know’ Meaning of ‘fault’ Special limitation period for minors injured by close relatives Effect of disability on limitation period Northern Territory Regime

7.28 7.31 7.32 7.33 7.34 7.36 7.36 7.38 7.39 7.40 7.43 7.45 7.46 7.48 7.51 7.53 7.54 7.58 [page 137]

Queensland Regime South Australian Regime Tasmanian Regime Victorian Pre-Ipp Regime Application of relevant provisions ‘Breach of duty’ can encompass intentional torts

7.61 7.63 7.66 7.70 7.70 7.72

Not confined to ‘insidious’ diseases Relevant ‘knowledge’ ‘Knowledge’ as to mental ‘disease or disorder’ ‘Knowledge’ as to nature of acts or omissions of defendant Western Australian Regime Limitation period and accrual Survival of certain actions Specific provision for personal injury attributable to the inhalation of asbestos Dedicated childbirth provision

7.77 7.79 7.80 7.81 7.83 7.83 7.86 7.87 7.90

7.1 Personal injury causes of action merit their own chapter because they are discretely addressed in limitations legislation in each Australian jurisdiction. Although most commonly grounded in tort, the relevant statutory schemas are not confined to tortious causes of action, making it inapt to address the topic under any broader tortious umbrella. As appears from what ensues, the discrete treatment of personal injury claims commenced with an abbreviation of the otherwise applicable limitation period, which the passage of time revealed as a potential trigger for injustice to plaintiffs whose injury was latent. This prompted statutory responses aimed primarily at deferring the running of time for limitations purposes by reference to discoverability of a cause of action. The schemas vary between jurisdictions, including in some contexts as between different time frames, and therefore receive separate treatment in this chapter.

Backdrop to Limitations Regime for Personal Injury Actions Reduction to three year limitation period

7.2 The seminal Limitation Act 1623 (UK), together with its principal successor, namely the Limitation Act 1939 (UK), prescribed a general six year limitation period for various personal causes of action.1 The relevant provision, which has seen its substance translate to each Australian jurisdiction2 (except the Northern Territory, which applies a three year time bar), was in its terms capable of encompassing causes of action for damages arising out of personal injury. 7.3 However, a report by successive law reform committees saw the general six year limitation period reduced, by the Law Reform (Limitation of Actions) Act 1954 (UK), to three years for claims for personal injuries.3 This was informed by ‘the desirability of such actions being [page 138] brought to trial quickly, whilst evidence is fresh in the minds of the parties and witnesses’.4 The drive to encourage prompt pursuit of personal injury claims was, it seems, driven largely by their typically heavy reliance on the proof of factual matters, the integrity of which are likely to be compromised by the elapsing of time.5

Adverse consequences of reduction in time 7.4 As the relevant cause of action for unintentional torts, which form the bulk of claims for personal injuries, ordinarily accrues at the time damage is suffered upon — indeed, damage completes the cause of action6 — in the case of insidious diseases, the adverse consequences of which may take many years to eventuate, time could begin to run even if the plaintiff did not know of the damage. The issue achieved prominence when the House of Lords, in its 1963 decision in Cartledge v E Jopling & Sons Ltd,7 was compelled to shut out, as time-barred, an action by workers who contracted the insidious lung disease pneumoconiosis, even though the disease could not be diagnosed until years after the exposure that triggered it. None of their Lordships was comfortable with the outcome, but could find no way, under the terms of the limitation statute, to circumvent it,8 even in the face of avenues adopted in

the United States.9 Lord Reid, to this end, made the following remarks:10 [page 139] It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury and, therefore, before it is possible to raise any action. If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. The common law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally as to produce such a result in circumstances never contemplated when they were decided.

His Lordship, together with Lords Evershed MR, Morris and Pearce, called for legislative amendment to deal with this problem.11 The Master of the Rolls, in particular, opined that if ‘it is right and proper that causes of action should not be allowed to become stale, it must be no less right and proper that persons employed in factories should not have the ordinary enjoyment of their working lives destroyed by the need of constant and elaborate medical examination and be driven, often prematurely, to litigate with their employers lest they lose the benefit of just compensation for injury received’.12 7.5 Similar injustices surfaced in Australian courts13 prior to statutory changes designed to address the situation, which are the subject of this chapter. There were instances, however, of judicial attempts to avoid the injustice by locating the actual injury (and thus damage) at a date subsequent to the original exposure to the dangerous substance; the reasoning was that while that exposure may explain the subsequent injury, there was no injury at the time of the exposure itself.14 The attendant need to make a difficult, and likely controversial, medical assessment as to precisely when the exposure matured into the injury opened such an approach to criticism.15 In the context of mesothelioma, the challenges in drawing a temporal line appear from the following statements of principle by the High Court of Australia:16 The risk of contracting mesothelioma to which a claimant is exposed upon the inhalation of asbestos fibres does not become compensable damage by reason only that, with the benefit of hindsight, it is possible to say that the risk has eventuated and therefore that the inhalation of

asbestos fibres caused the claimant’s mesothelioma … Nevertheless, the kind of mesothelial cell changes which sometimes occur shortly after the inhalation of asbestos fibres may be regarded as compensable damage if, in the case of a claimant who is suffering from mesothelioma, and so with the benefit of hindsight, it can be seen that those mesothelial cell changes were the beginning of a continuum that led inexorably to the onset of mesothelioma.

[page 140] 7.6 Rather than pursue a difficult, and potentially artificial, assessment as to when the injury was suffered (and thus when it is compensable and time commenced to run), the issue has been addressed by resorting to statutory formulae grounded in discoverability, with or without avenues to extend time.17

Statutory response to adverse consequences Limitation Act 1963 (UK) 7.7 How to address the injustices to prospective plaintiffs inherent in insidious personal injury scenarios, while maintaining the requisite certainty underscoring limitations provisions, challenged the Edmund Davies Committee in 1962.18 The need for certainty, and to maintain the core tenets of the existing law, led the Committee to reject any general curial discretion to extend the limitation period. It also resisted, on the grounds of impracticability, an extension of time governed by a schedule of particular diseases. The solution it favoured, necessarily by way of compromise, was via a statutory formula under which the limitation period could be extended according to certain relatively objective criteria. If the plaintiff could satisfy the court that he or she did not, and could not reasonably have been expected to, discover the existence of the injury, or the cause to which it was attributable, the claim was not to be defeated by the elapsing of time. This recommendation translated to the Limitation Act 1963 (UK), which retained a three year time bar but at the same time afforded a defence to a plaintiff who could show that ‘material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff’.19 Definitions of the

key concepts — ‘material facts’, ‘decisive character’ and ‘knowledge’ — were set out in the detailed provisions of the Act.20 This initiative, known as the ‘discovery rule’,21 accordingly made extension of time possible in cases of latent injury and disease. Similarly worded avenues for extending time were enacted in New South Wales22 and remain to this day in Queensland.23

Response to infelicitious wording — Limitation Act 1975 (UK) 7.8 Yet the wording of the 1963 Act proved obscure and difficult to construe, prompting Lord Reid’s remark that it had ‘a strong claim to the distinction of being the worst drafted Act on the statute book’.24 There was also judicial criticism of equivalent provisions in [page 141] New South Wales25 and Queensland.26 In England this came to a head before the House of Lords in Smith v Central Asbestos Co Ltd,27 which evinced a division in views. One view was that time did not run against a prospective plaintiff until he or she knew of ‘a worthwhile cause of action’. On the competing view, time commenced to run against a prospective plaintiff as soon as he or she knew all the material facts, even without knowledge of a cause of action. 7.9 These divergent judicial views were examined by the Orr Committee in an interim report,28 which prompted the introduction, in 1915,29 of a discretion to extend time via s 2D into the Limitation Act 1939, since replicated as s 33 in the current Limitation Act 1980. The Orr Committee, in making this recommendation, was able to mount a persuasive argument for a discretion, which had in earlier English reports been resisted largely on the grounds of the lack of certainty it was perceived to engender.30 That the previous attempts at formulating objective criteria for extending time had not led to certainty strengthened the Orr Committee’s position, and the attendant fear that a discretion would cause divergences of judicial opinion was met by recommending a legislative prescription of criteria to inform the exercise of that discretion.31

7.10 The operative provision, s 2D(1), stated that if it appears to the court that it would be equitable to allow a personal injury action to proceed, having regard to the degree to which the three year limitation period ‘prejudice[s] the plaintiff or any person whom he represents’ and any decision of the court to extend time ‘would prejudice the defendant or any person whom he represents’, the court may direct that the three year limitation period not apply to the relevant cause of action.32 In making its determination, s 2D(3) directed the court to have regard to all the circumstances of the case, and in particular to six circumstances.33 The statutory wording proceeded, it is said, on the assumption that an extension of time is always prejudicial to the defendant; even in the face of a good defence on the merits, he or she is ‘put to the expenditure of time and energy and money in establishing it’.34 But it also proceeded on the assumption that expiry of a limitation period before the action has been commenced must likewise prejudice the plaintiff in some degree. To this end, it has been judicially observed that for the purposes of s 2D(1):35 … the court has to balance the prejudice to the plaintiff involved in being shut out from prosecuting his claim against the prejudice to the defendant in being called upon to resist the

[page 142] claim after the primary time limit has expired. It is only if, balancing those competing prejudices, the court concludes that it would be equitable, ie ‘fair’, to allow the action to proceed that it will extend the primary time limit by disapplying it.

7.11 Even though the Orr Committee envisaged that the discretion was a ‘residual’ one,36 triggered only when the strict application of the discovery rule would cause injustice, English judges have branded its statutory upshot as a ‘wide discretion’, not to be confined to the exceptional or unusual case, or otherwise to be interpreted restrictively.37 The breadth and clarity of the statutory language, it is reasoned, gives no justification to construe the statutory language strictly, even if it means a loss of certainty in applying limitation periods, and less of a deterrence for delayed claims.38 So while applications to extend time necessarily seek a curial indulgence — the applicant, after all, wishes to secure an exemption from the normal

consequences of failing to commence proceedings within time — there is no value in seeking to cast the burden as a heavy one; the ease or difficulty in discharging the burden rests on the facts of each case.39

Australian statutory responses Three year limitation period 7.12 As noted at the outset, the abbreviated three year limitation period for personal injury actions that saw its genesis in England in the 1954 amending legislation translated to the Australian legal landscape. Otherwise the six year limitation period applicable to causes of action in tort would encompass the bulk of personal injury actions40 (except the Northern Territory, where the general limitation period is three years, thereby obviating the need for a separate limitations period for personal injury actions).41

Focus on knowledge or discoverability of the relevant injury 7.13 Further characteristic of the ‘personal injury’ provisions is that time runs by reference to the plaintiff’s knowledge or discoverability of the relevant injury (except in the Northern Territory, where the mischief is addressed solely by curial discretion to extend time),42 not according to the usual accrual rules. This ‘special treatment’ of personal injury claims can, it is claimed, ‘be justified on the grounds that the claimant who has suffered a personal injury has suffered a more extreme form of harm than the claimant with a claim relating to property damage or economic loss’, in that ‘[l]osing the opportunity to bring a claim because of the expiry of the limitation period is therefore more serious for the claimant with a personal injury claim than any other claim’.43 Supplementing the discoverability notion — which addresses, inter alia, latent injury scenarios — is an avenue for the court to extend time.44 The Northern Territory and South Australian statutory avenues to extend time, being of general application, [page 143]

are discussed separately.45 Invariably, though, the plaintiff carries the onus of satisfying the court of grounds to defer the running of time,46 or to extend time.47

Not confined to tortious breach (but query if extend to ‘fiduciary’ breach) 7.14 When speaking of an action for damages for personal injury, the action is ordinarily understood as being one in tort. Provisions in New South Wales, Queensland, Tasmania and Victoria, in being phrased to apply vis-àvis ‘negligence, nuisance or breach of duty’, evince a distinct tortious flavour.48 Yet the ‘breach of duty’ concept is not so confined, as each of the relevant provisions extends it to duties arising by statute, contract or otherwise.49 Prima facie, therefore, the ‘breach of duty’ in question need not manifest itself by a tort, if it nonetheless triggers a cause of action for damages for personal injury. For instance, if a contractual breach, including of a term implied by statute, causes a plaintiff personal injuries, it falls within a ‘breach of duty’ in this context.50 In the Australian Capital Territory, South Australia and Western Australia, the reference is simply to actions for damages for personal injury.51 Again, while the language of ‘personal injury’ is redolent with tort, there is nothing in the relevant sections that confines their application to personal injury caused by tort. 7.15 In view of the foregoing, there have been attempts to argue that these ‘personal injury’ provisions — whether to attract an abbreviated limitation period, or alternatively to access an extension of time via ‘discoverability’ avenues — can encompass personal injuries caused by a breach of fiduciary duty. It may be argued, under the New South Wales, Queensland, Tasmanian and Victorian provisions, that ‘breach of duty’ is amenable to being construed as including a breach of fiduciary duty. And elsewhere the argument has been made that the statutory language does not distinguish common law from equitable claims; the determining factor is, rather, the form of relief sought, namely damages for personal injury. In South Australia the latter argument was rejected in Trevorrow v State of South Australia (No 5),52 in the context of a damages claim for personal

injury brought by an Aboriginal man who the State had removed from his family without his parents’ consent. Gray J reasoned that as an action for breach of fiduciary duty is an action in equity, it fell outside the limitations legislation.53 Again in the South Australian context, it has been observed that the personal injuries provision appears in the Part of the Act that deals with ‘actions on simple contract and in tort’,54 which suggests that the action for damages in relation to personal injuries is one in tort.55 These arguments are less compelling in the Australian Capital Territory and Western [page 144] Australia, where the personal injuries section is not similarly located and, more importantly, the limitations statutes are clearly expressed to apply to claims in equity.56 7.16 A more fundamental difficulty to including breaches of fiduciary duty under the personal injuries umbrella is that Australian law is against the proposition that breaches of that kind give rise to an action ‘for damages for personal injury’. There are at least two aspects to this difficulty. The first is that breaches of fiduciary duty are not amenable to being remedied by awards of ‘damages’.57 Monetary relief for loss-causing fiduciary breaches takes the form of equitable compensation, which is subject to different parameters to damages at common law.58 It reflects not merely a different historical genesis, but a longstanding conceptual distinction between tortious and fiduciary breaches, entrenched at High Court level.59 The second aspect is that fiduciary obligations, at least in Australian law, are directed at providing relief for economic losses suffered as a result of a breach of the fiduciary standard of loyalty.60 While personal injuries litigation may target pure economic losses, it is neither so confined, nor does it ordinarily traverse the loyalty that inheres in fiduciary duties.61

Application to actions that ‘consist of, or include, damages in respect of personal injuries’

7.17 In Queensland, South Australia and Tasmania, and in Victoria except to the extent superseded by the Ipp reforms,62 the limitations provisions that prescribe time bars for personal injury actions are couched in terms of actions that ‘consist of, or include, damages in respect of personal injuries’.63 Meaning must accordingly be given to this statutory language, because it determines the circumstances in which the shorter (three year) limitation period should apply to the claim. As explained above,64 there is no requirement for an action that ‘consists of, or includes, damages in respect of personal injuries’ to be confined to one in tort. 7.18 Judges have, however, proven alert to attempts to couch an essentially personal injury claim as one, say, for economic loss in an attempt to circumvent the shorter limitation period applicable to the former. In Bennett v Greenland Houchen & Co (a firm),65 for example, the plaintiff’s action against his former lawyers for breach of contract and negligence included a claim for damages for clinical depression, as well as for financial loss stemming from his depression. The plaintiff argued that his claim was essentially one for economic loss, to which the claim for damages for clinical depression was peripheral, so as to overcome the fact that [page 145] the suit was commenced more than three years following its accrual. The English Court of Appeal ruled that the entire action was out of time, because the abbreviated limitation period applied not only when the damages claimed consisted of damages for personal injury, but also when they included such damages.66 In Walkin v South Manchester Health Authority67 the plaintiff conceived after a sterilisation procedure she had undergone was performed negligently. Her writ for damages for the costs of raising the child was out of time. Having characterised the unwanted pregnancy as a ‘personal injury’ suffered by the plaintiff, the English Court of Appeal held that her claim was time-barred. 7.19 While it cannot be assumed that, in Australian law, a claim such as that in Walkin would be characterised as one of personal injury68 — there

are, after all, judicial statements aligning it with economic loss69 — there is sense in approaching the issue as one of substance over form. But this does not preclude a court, where the plaintiff’s suit comprises in substance discrete causes of action, to which different limitation periods apply, from addressing those that are within time. English authority, moreover, envisages that, if the damages claimed by a plaintiff include damages in respect of personal injury, the court may give the plaintiff leave to amend the statement of claim to sever the personal injury claim(s) (although this course is not an automatic one).70 This path, which assumes that what remains is in substance a discrete cause of action, has been applied in the Singapore Court of Appeal71 and seen endorsement by commentators.72 7.20 The above approach arguably applies in New South Wales, Victoria (in its post-Ipp reforms) and Western Australia, where the statutory language refers to causes of action that ‘relate to’ personal injury,73 and in the Australian Capital Territory and New South Wales (in its pre-Ipp form), which simply speak of a cause of action ‘for’ personal injury.74

‘Remedial’ nature? 7.21 In no Australian jurisdiction is the statutory schema identical to that in the United Kingdom, historically or otherwise, though similarities exist. Nor is any State or [page 146] Territory regime identical to another, thus mandating discrete treatment to avoid misleading generalisations, which ensues below, and with this a need to exercise caution in applying authorities from one jurisdiction to another.75 This has not dissuaded some judges, by reference to the broader mischief underscoring the extension provisions, from branding them collectively as ‘remedial’ in nature.76 As they were designed to remedy an injustice to plaintiffs in the event of latent injuries, this is no doubt true. Whether it is accurate to state, as those same judges have then done, that these provisions therefore justify a ‘liberal’ or ‘beneficial’ construction,77 favouring the

plaintiff, may be queried, especially where the statutory regimes rely more on prescription than discretion.

Ouster of limitation period for certain personal injuries 7.22 The foregoing statutory initiatives must, in any case, yield to a more extreme incursion into limitations law for personal injury claims in some jurisdictions. The New South Wales, Northern Territory and Queensland Parliaments have ultimately responded to the issues aired in Cartledge by removing the limitation period altogether for personal injury causes of action resulting from a dust-related condition.78 And more recently, as discussed below, the New South Wales and Victorian Parliaments have removed any limitation period for causes of action stemming from the physical or sexual abuse of a minor.79

Limitation and (child) sexual abuse Discoverability in the context of child (sexual) abuse 7.23 The temporal misalignment, for limitations purposes, of the suffering of damage from personal injury (and therefore accrual of the relevant cause of action) and the discovery of the damage was first ventilated vis-à-vis insidious diseases. As discussed above, it ultimately prompted changes to limitations law, premising the running of time from the moment of discoverability of the damage.80 The Supreme Court of Canada did not await statutory change, propounding a ‘discoverability rule’ — namely ‘that a cause of action arises … when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence’81 — for damages actions in cases of child sexual abuse. It reasoned that much damage flowing from abuse of this kind remains latent until the victim is well into adulthood and that, when the damages begin to appear, the causal connection between the wrongful acts and present psychological injuries is often unknown to the victim.82 In the leading Canadian case, M(K) v M(H), La Forest J espoused this judge-made [page 147]

‘discoverability rule’ where the plaintiff brought an action for damages against her father for incest occurring many years earlier, reasoning as follows:83 … the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisite that the plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll. It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes … I am satisfied that the weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connection between fault and damage when she realizes who is truly responsible for her childhood abuse. Presumptively, that awareness will materialize when she receives some form of therapeutic assistance, either professionally or in the general community … The presumption will, of course, be displaced when the evidence establishes that the victim discovered the harm and its likely cause at some other time.

On the facts, the evidence revealed that the plaintiff did not make the causative link between her injuries and the childhood abuse until she received therapeutic assistance. It was accordingly at that time that her cause of action accrued. The same conclusion was reached, in a similar factual scenario, some three years later in the New Zealand Court of Appeal in S v G.84 The year after, in G D Searle & Co v Gunn,85 that court took the further, and indeed logical, step of applying these principles of discoverability to all forms of bodily injury. But little over a decade later the highest New Zealand court stemmed the flow by disclaiming any general principle that the accrual of all causes of action invariably rests on reasonable discoverability.86 It accepted the outcome in S v G by reason of the fiduciary overlay (in New Zealand law) in abuse cases,87 but was not entirely convinced by the reasoning in Searle, albeit not sufficiently to overrule it.88 7.24 Australian (and English) courts’ refusal to accept a judge-made discoverability rule89 has been ameliorated by statutory prescription of a rule to this effect in personal injury cases.90 That in some jurisdictions the rule is (or was) confined to personal injuries suffered by reason of ‘negligence, nuisance or breach of duty’91 did not preclude the High Court of Australia from construing the phrase ‘breach of duty’ broadly enough to cover intentional torts, which include those involving (alleged) sexual abuse (whether or not of children).92

[page 148] 7.25 Other jurisdictions have made explicit that the discoverability rule applies to intentional torts, thus obviating any debate in this regard.93 The most comprehensive legislative foray in this regard, found in Pt 2 Div 6 of the Limitation Act 1969 (NSW) and Pt IIA of the Limitation of Actions Act 1958 (Vic), is phrased in terms of the discoverability of personal injury, ‘regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise’.94 It is therefore amenable to application in the event of child sexual abuse.95 In GGG v YYY,96 for example, the plaintiff suffered sexual abuse by an uncle over a three year period commencing at 11 years of age, thereafter suffering serious psychiatric problems. In an approach similar to that espoused by La Forest J in M(K) v M(H), Osborn J accepted that not until two years before commencing the proceedings (being over 40 years after the abuse) did the plaintiff come to understand the nature of the injury he had suffered. A perceived threat of abuse by the defendant to the plaintiff’s nephew prompted the plaintiff to disclose and face the abuse and its consequences, his Honour observing that ‘[t]he state of mind which required a trigger of this type was the product of a personality significantly damaged by the sexual abuse suffered by the plaintiff’.97 Although GGG v YYY addressed the question of discoverability as a factor going to the extension of time98 as opposed to the accrual of the action in the first instance, which meant that questions surrounding prejudice to the defendant necessarily surfaced,99 Osborn J’s willingness to extend time while also conceding that the lengthy delay would ‘necessarily impact’ upon the defendant’s capacity ‘to address the circumstantial matrix in which the offending is said to have occurred’100 suggests a judicial tenderness to claims of this kind.

Ouster of limitation period for child abuse – New South Wales and Victoria 7.26 The need for any such tenderness, whether in downplaying issues of prejudice or otherwise, is now reduced in both Victoria and New South

Wales, in the wake of, respectively, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) and the Limitation Amendment (Child Abuse) Act 2016 (NSW), ensuing upon a legislative trend evident in several Canadian provinces.101 The Victorian amending Act inserted into Pt IIA of the 1958 Act a new Div 5, which applies to an action founded on the death or personal injury of a person resulting from ‘an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse’ and ‘psychological abuse (if any) that arises out of that act or omission’.102 Actions of this kind (other than compensation to relatives actions)103 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury occurred,104 thus removing any limitation period entirely. Compensation to relatives actions relating to the abuse of minors are subject to a three year [page 149] limitation period, running from the date on which the cause of action is discoverable105 by the plaintiff,106 although that period may be extended.107 Importantly, each of these changes operates retrospectively.108 Similarly, the New South Wales amending Act inserts into the 1969 Act a new s 6A, whereby an action for damages relating to the death of or personal injury to a person resulting from child abuse is not subject to any limitation period.109 For this purpose, ‘child abuse’ means sexual abuse, serious physical abuse and any other abuse perpetrated in connection with the foregoing (‘connected abuse’).110 Unlike its Victorian counterpart, the ouster of the limitation period extends to a cause of action arising under the Compensation to Relatives Act 1897 (NSW).111 It is also ousted for causes of action that survive on the death of a person for the benefit of the person’s estate.112 These changes, as in Victoria, apply retrospectively.113 In neither jurisdiction does the foregoing limit a court’s inherent, implied or statutory jurisdiction, or any other curial powers arising or derived from the common law or under another Act, rule of court, practice note or practice direction.114 It does not, for instance, limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a

burdensome effect on the defendant that is so serious that a fair trial is not possible.

Alternative approach within existing law 7.27 The foregoing is not to suggest that dedicated statutory intervention is, in every case, the only avenue that the courts have within their limitations arsenal to deal with injury suffered from child (sexual) abuse. At least on those occasions where memories of the abuse, which have been suppressed for many years, are revived as a result of an event (including by way of psychiatric or psychological treatment) at a later date, the victim may not suffer damage resulting from the tort, and the cause of action accordingly may not accrue, until this time. Facts of this kind arose in Wilson v Horne,115 where the plaintiff’s cause of action was held not to have accrued until the onset of post-traumatic stress disorder some 15 or 20 years after the abuse in question. Any such determination presupposes, however, the absence of any recognised injury suffered from the abuse at an earlier stage.116

Australian Capital Territory Regime 7.28 Section 16B of the Limitation Act 1985 states that a cause of action for damages for personal injury117 that is or includes a ‘disease or disorder’,118 subject to two listed exceptions, cannot be maintained if brought three years or more after the day the person injured first [page 150] knows that both he or she has suffered an injury that is or includes a disease or disorder and that the injury is related to someone else’s act or omission. In any other case of personal injury, the limitation period is three years or more after the day the injury happened. The two listed exceptions concern actions for compensations to relatives arising out of death119 and claims for common law compensation for workers compensation,120 to which separate limitations regimes apply. Also, as noted below,121 personal injury claims by

minors relating to health services attract their own regime. Though a response to the Ipp Report,122 s 16B only partly implemented its recommendations in this context,123 in particular by confining the ‘date of discoverability’ as the trigger for time to run only vis-à-vis diseases or disorders, and by ignoring its proposal for a ‘long stop’ provision. The phrase ‘diseases or disorders’, shared by the parallel Victorian provision and directed at addressing the insidious disease scenario raised in Cartledge, has nonetheless been construed according to its ordinary meaning and so by no means confined to insidious diseases, but applicable to latent diseases or disorders generally.124 7.29 Whereas some other jurisdictions address the latent injury scenario by coupling a curial discretion to extend time to the discoverability notion,125 there is no extension avenue in the Australian Capital Territory.126 7.30 Section 30B of the Limitation Act 1985 makes discrete provision for occasions where ‘a child (the plaintiff)’127 suffers personal injury that gives rise to a claim for damages relating to128 the provision of a health service.129 The section, inserted at the request of the Australian Medical Association, aims to confine the potential for a very long period during which the running of the limitation period is suspended by reason of a child’s disability,130 and hence the corresponding period of exposure of doctors (and their insurers) to claims relating to children.131 Under s 30B the usual three year limitation period yields to six years, running from the day the accident giving rise to the injury happened,132 without prospect for extension.133 [page 151] But if the said injury is or includes a ‘disease or disorder’,134 an action cannot be brought after the expiry of the earliest of:135 •

six years after the day the plaintiff (or his or her parent or guardian) first knows or ought reasonably to have first known that the plaintiff has suffered an injury that is or includes a disease or disorder, or that the injury is related to someone else’s act or omission; and

•

12 years after the day the accident giving rise to the injury happened.

The above periods can be extended,136 for which purpose the court must pay regard to medical expert opinion on the question of when the plaintiff (or the plaintiff’s parent or guardian) first knew, or ought reasonably to have first known, that the plaintiff had suffered the injury, or that the injury was related to someone else’s act or omission.137

New South Wales Pre-Ipp Regime 7.31 Both New South Wales and Victoria introduced limitation regimes dedicated to causes of action for personal injury that nowadays retain only a residuary operation in the face of new regimes, commencing in 2002 and 2003 respectively, pursuant to recommendations in the Ipp Report. Whereas the latter regimes follow in effect the same schema, and so are addressed compendiously below, the pre-Ipp regimes in these States are sufficiently different to justify discrete treatment. Whereas the pre-Ipp New South Wales regime is discussed immediately below, its Victorian counterpart is elaborated under its own jurisdictional heading.138

Application of the regime 7.32 Under s 18A of the Limitation Act 1969 (NSW), an action on a cause of action for damages for personal injury founded on negligence, nuisance or breach of duty is not maintainable if brought after the expiry of three years from the date it first accrues to the plaintiff, or to a person through whom the plaintiff claims.139 As noted earlier, this does not apply to personal injury causes of action resulting from a dust-related condition, which are explicitly exempted from any limitation period.140 Nor does it apply to a cause of action that accrued before 1 September 1990 (being the date on which the operation of s 18A commenced),141 a cause of action arising under the Compensation to Relatives Act 1897 (NSW) (which is subject to a dedicated limitation regime under s 19),142 or a cause of action to which Div 6 of Pt 2 of the 1969 Act applies. As the latter, as discussed below,143 contains a detailed limitation scheme for non-motor accident

actions for personal injury (or death) resulting from an incident that [page 152] occurs on or after 6 December 2002144 — grounded in discoverability and a long-stop limitation period145 (which can, however, be extended, by reference to set factors)146 — s 18A (and also s 19) retains only residuary operation vis-à-vis personal injury actions. Section 18A had its genesis in a 1986 New South Wales Law Reform Commission report, which branded a shorter limitation period ‘desirable’, ‘primarily to encourage the early determination of contested claims’.147 Concerns as to the abbreviation of the limitation period, the Commission believed,148 could be addressed via a regime for discretionary extensions of time, which likewise formed part of the amending legislation.149

Meaning of ‘personal injury’ 7.33 For the purposes of the Limitation Act 1969, and thus for the purposes of s 18A, ‘personal injury’ is defined to include ‘any disease and any impairment of the physical or mental condition of a person’.150 Other than in the Northern Territory, essentially the same meaning is adopted by statute elsewhere,151 though the Australian Capital Territory and Victorian provisions, which confine personal injuries for this purpose to those that are or include a ‘disease or disorder’,152 are ultimately more constrained in their application. Being phrased in inclusive terms, there is little justification to narrowly construe ‘personal injury’.153 Claims for damages for mental distress and anxiety, as in the nature of claims of damages for impairment of mental condition, can therefore fall within this definition.154 There are, nonetheless, limits to what constitute personal injuries in this context. For instance, actions for damages for injury to reputation, or relating to deprivation of liberty and loss of dignity, do not involve a claim of impairment of a person’s physical or mental condition, and thus fall outside

the definition of ‘personal injury’ here.155

Meaning of ‘breach of duty’ 7.34 The Limitation Act 1969 states that ‘breach of duty’, when used in relation to a cause of action for damages for personal injury, ‘extends to the breach of any duty (whether arising by [page 153] statute, contract or otherwise) and includes trespass to the person’.156 This definition, in being transferred to the general definition section by the 1990 amendments to the Act,157 clearly has application to s 18A.158 Inclusion of ‘trespass to the person’ within the meaning of ‘breach of duty’ made clear that the English decision in Stubbings v Webb159 — which held that an ‘action for damages for negligence, nuisance or breach of duty’ in s 11(1) of the Limitation Act 1980 (UK) could not be construed to cover an action for trespass to the person160 — had no application in New South Wales for the purposes of s 18A.161 In any event, there were earlier Australian decisions that construed the phrase ‘breach of duty’ in this context as capable of encompassing intentional torts,162 which through the phrase ‘includes trespass to the person’ the New South Wales Parliament sought to formalise. 7.35 Notwithstanding the breadth of the ‘breach of duty’ concept, the application of s 18A is ostensibly limited to those cases where the personal injury is caused by the relevant breach of duty. The explanation for this, as a matter of statutory construction, appears in the following judicial remarks:163 One argument for such a limitation would be that it is suggested by the inclusion of the words ‘founded on breach of duty’. It can be said that any cause of action for damages for personal injury must be based on an obligation to pay those damages, and thus on a breach of that obligation; so that the words ‘founded on breach of duty’ would be surplusage, unless they required that the personal injury for which damages are claimed was caused by the breach of duty. That argument has some support from the association of those words with ‘negligence’ and ‘nuisance’, because these would found the cause of action by being causative of the injury.

It follows that if the only relevant breach of duty is a breach of duty to compensate or to indemnify — say, a breach by an insurer of an obligation

under the insurance contract to pay moneys to the insured — there is no scope for s 18A to apply, notwithstanding that the triggering event under the policy was personal injury.

New South Wales and Victorian PostIpp Regimes Backdrop to reforms 7.36 The current New South Wales and Victorian limitations regime for (most) actions for damages arising out of personal injury (or death) received its impetus from the Ipp Report recommendations for a three year limitation period commencing on a statutorily-defined ‘date of discoverability’.164 Couching this by reference to the time when the plaintiff could reasonably be expected to have discovered the damage aimed to provide a ‘fair way’ of dealing with cases where damage ‘manifests itself long after the event, or in a form difficult to detect’, or ‘it takes many years for a plaintiff to discover that his or her condition was caused by the negligence of another’.165 [page 154] The Committee reasoned that, by dealing fairly with a range of cases, adopting the date of discoverability avoids the need for separate legislation to cover specific cases, thereby promoting the cause of consistency and uniformity.166 It also saw evident confluence between aligning accrual of a cause of action with the date of discoverability and the stipulation of a generally applicable three year limitation period. By commencing time at the date of discoverability, as opposed to the date when the damage is suffered,167 the Committee saw no need to prescribe a limitation period exceeding three years or, indeed, any avenue for its extension.168 7.37 The second main plank of the Ipp Report recommendations in this context is that the cause of action in question become statute-barred on the

expiry of the earlier of the three year limitation period and a long-stop period of 12 years after the events on which the claim is based (‘the long-stop period’).169 The latter fixes a date, running from when the wrongful conduct occurred, on which an action will become statute-barred, irrespective of whether the date of discoverability has transpired.170 That the long-stop period caters for cases where damage is latent or difficult to detect led the Committee to favour a ‘relatively lengthy period’. In its opinion, the balance between the interests of plaintiff and defendant justified a 12 year long-stop period but, in order to avoid potential injustice to a plaintiff, with an avenue for the court to extend time.171

Translation to New South Wales and Victorian law 7.38 In New South Wales, via the Civil Liability Amendment (Personal Responsibility) Act 2002, and in Victoria, as a result of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, the substance (but not every detail) of the Ipp Report’s recommendations catalogued above translated to law. In New South Wales the 2002 amending Act introduced into the Limitation Act 1969 (NSW) a new Div 6 to Pt 2 (for the limitation periods) and Div 4 to Pt 3 (for extending the long-stop period). In Victoria the 2003 amending Act introduced into the Limitation of Actions Act 1958 (Vic) a new Pt IIA, dealing with both the limitation periods and their extensions (the latter not being confined to the long-stop period). The extension regimes are discussed in Part IV of the book, dedicated to extending time.172 In the New South Wales context, it has been judicially observed that the overall effect of the new provisions with respect to personal injury actions may be described as ‘restrictive of the interests of plaintiffs’, because a court cannot extend the relevant limitation period, as it could under Subdiv 2 of Div 3 of Pt 3173 (namely the former five year secondary limitation period).174 This served, the same judge added, ‘to render flexible the commencement of the limitation period for personal injury claims, but to withdraw the court’s power to extend time,175 which might otherwise have arisen pursuant to the latent injury provisions found in Subdiv 3 of Div 3 of Pt 3.176 As there remains scope for the court to extend time, more extensively in Victoria

than in New South Wales, these remarks need some qualification. But they do caution against [page 155] unthinking application of case law under former personal injury limitations regimes to the current ones.177

Temporal application 7.39 The above New South Wales provisions, introduced by the 2002 amending legislation, apply only to causes of action where the act or omission alleged to have resulted in the relevant injury or death occurs on or after 6 December 2002.178 Before this date, the regime(s) established under Div 3 of Pt 3 of the 1969 Act governed the relevant law.179 While the Victorian provisions are expressed to apply to causes of action where the said act or omission occurs on or after 21 May 2003,180 for proceedings commenced from 1 October 2003 they also apply to causes of action where that act or omission occurred before 21 May 2003.181 In the latter event, however, nothing in Pt IIA operates to extend the applicable limitation period beyond the period that would have applied to the cause of action had Pt IIA not been enacted,182 but without prejudice to the jurisdiction of the court to extend time, upon application, under Pt IIA.183

Parameters of application 7.40 Aside from the above temporal restrictions on the application of the personal injury limitations regimes, they are expressed, in both jurisdictions, not to apply vis-à-vis causes of action relating to motor accidents,184 to which dedicated statutory regimes operate.185 In addition, the Victorian Pt IIA has no application to actions for damages for a range of workplace injuries,186 or in respect of an injury that is a dust-related condition187 or results from the use of tobacco products or exposure to tobacco smoke.188 That New South Wales applies no limitation period to personal injury causes

of action resulting from a dust-related condition189 indicates that the Div 6 limitations regime has application to conditions of that kind. The same may be said of abuse of minors in New South Wales and Victoria,190 to which likewise the limitation period has been removed.191 7.41 Subject to the foregoing qualifications, the relevant provisions are expressed to apply to causes of action for damages that relate to personal injury to (or the death of) a person, [page 156] whether brought in tort, in contract, under statute or otherwise.192 And they extend to survivor actions193 and compensation to relatives actions.194 The reference to ‘a’ person indicates that, provided the claim for damages relates to personal injury to someone, it matters not that the person claiming the damages has not suffered the personal injury.195 For this purpose, there is no reason for the term ‘relate’ to take other than its ordinary meaning, namely ‘to bring into or establish association, connection, or relation … to have reference to’,196 which attracts no restrictive interpretation.197 And although ‘personal injury’ is defined in broad terms, to include ‘any disease and any impairment of a person’s physical or mental condition’,198 the words ‘relate to’ and ‘personal injury’ do perform a confining role. For example, damages sought for deprivation of liberty and any accompanying loss of dignity or harm to reputation in a false imprisonment action are not damages that ‘relate to personal injuries’. At the same time, damages claimed for impairment of a plaintiff’s physical or mental condition consequent upon the false imprisonment199 do relate to personal injury to a person. By extension, claims for damages for personal injury consequent upon, say, assault, trespass to land or trespass to goods are also claims for damages that ‘relate to’ personal injury.200 7.42 That damages for personal injury consequent upon a tort are, as indicated above, ‘related to personal injury’, does not mean that such a claim, for the purposes of the limitations regime, functions to set the time bar for any non-personal injury claim relating to the events in question. The

statutory language does not bring within the personal injuries limitations regime any other claims for damages not relating to personal injuries that may be properly founded upon the same cause of action.201

Prescription of limitation period 7.43 In accordance with the Ipp Report recommendations,202 an action on a cause of action to which Div 6 (in New South Wales) or Pt IIA (in Victoria) applies cannot be maintained if brought after the expiry of earliest of the ‘3 year post discoverability limitation period’ (being ‘the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff’) and the ‘12 year long-stop limitation period’ (being ‘the period of 12 years running from the time of the act or omission alleged to have resulted in the injury [page 157] or death with which the claim is concerned’).203 For a compensation to relatives action,204 the 12 year long-stop limitation period runs from the death of the deceased.205 7.44 In applying the ‘3 year post discoverability limitation’ period to a survivor action,206 the cause of action is taken to be ‘discoverable’ by the plaintiff at the earliest of:207 •

the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than three years before the death of the deceased;

•

the appointment of the plaintiff as the deceased’s personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment; and

•

the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased’s personal representative.

For the purposes of the ‘3 year post discoverability limitation period’, meaning must therefore be given to the term ‘discoverable’, which is elaborated immediately below. There is scope for the court to extend the 12 year long-stop limitation period and, in Victoria, also the three year post discoverability limitation period.208

Date cause of action is ‘discoverable’ 7.45 A cause of action is ‘discoverable’ by a person on the first date that the person ‘knows or ought to know’ of each of the following facts: (a) ‘the fact that the injury or death concerned has occurred’; (b) ‘the fact that the injury or death was caused by the fault of the defendant’; (c) ‘in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action’.209 To remove any doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.210

Meaning of ‘knows’ 7.46 By referring to a person who ‘knows’ the facts in question, the foregoing is not intended to require that facts be known ‘in any absolute sense’, which would in any case be a rare occurrence, but that the person has ‘a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings’.211 While it therefore leaves room for uncertainty as to the strength of the case in issue, that is not what the legislation is directed at; it refers to knowledge of identified facts, not to an assessment of prospects of success in the prospective proceedings.212 It follows that the knowledge threshold [page 158] is capable of being met even if the evidence to prove the claim remains deficient at the time;213 nor is there any requirement that all the available heads of damages then be known.214

7.47 When referring to the facts of which the person ‘knows or ought to know’, it is evident that these build one upon the other. The knowledge that the injury or death was caused by the defendant’s fault, mentioned in paragraph (b), presupposes that the person knows that the injury or death has occurred, as countenanced by paragraph (a). And knowledge of sufficient seriousness to justify suing, found in paragraph (c), necessarily proceeds upon the paragraph (b) knowledge of who was at fault. It has been judicially remarked that both the paragraph (b) and (c) thresholds require knowledge of ‘actionability’, in the former due to the word ‘fault’215 and in the latter stemming from notions of an injury being ‘sufficiently serious’ to bring an action.216 But the term ‘actionability’ here should not, to align with what was noted in the preceding paragraph, be construed as an assessment of the prospects of success; nor should it be construed as requiring the plaintiff to possess all information enabling a full evaluation of the likely outcome of the proceedings.217 It must be recalled that it is directed at matters that trigger the running of time, that is, to prompt a putative plaintiff to investigate a potential cause of action or otherwise risk any action being barred for the elapsing of time. At the same time, ‘actionability’ does rest upon knowledge of ‘the key factors necessary to establish legal liability’,218 which in many instances (but not all) may require some legal (or medical) evaluation.219 This is because paragraph (c) requires a link between knowledge of the seriousness of the injury and justification for a cause of action.

Meaning of ‘ought to know’ 7.48 Making a cause of action ‘discoverable’ on the first date a person ‘ought to know’ of the relevant facts brings an objective flavour to the inquiry. Its inclusion in determining the date of discoverability in targeting when a reasonable person in the claimant’s position should have made the discovery rather than being governed by what an individual plaintiff knew, the Ipp Committee observed, would make it easier to prove when the date for commencement of the limitation period occurs.220 [page 159]

7.49 Notions of objectivity, and the associated reasonable person, cannot be taken entirely at face value, however. Consistent with the interpretation of the phrase ‘ought to have become aware’ in the former equivalent New South Wales provision,221 what a putative plaintiff ‘ought to have known’ is not a purely objective exercise. As the legislation is concerned with issues of discoverability by a person who has suffered personal injury, it would be ‘entirely artificial’, it is reasoned, to assess what he or she ‘ought to know’ whilst ignoring such ‘subjective’ factors as the person’s age, education, and physical and psychological state.222 It follows that these ‘subjective’ factors may vary from case to case, denying a ‘one size fits all’ approach.223 But it is arguably going too far to take into account the person’s personality or character, to the extent that it is distinguishable from the foregoing, for this purpose. Otherwise there may be little ‘objective’ remaining in the relevant threshold. 7.50 The legislation states that a person ‘ought to know’ of a fact at a particular time if the fact would have been ascertained by the person had he or she taken all reasonable steps before that time to ascertain the fact.224 To this end, it has been observed that the phrase ‘ought to know’ is premised on an assumption that ‘the person had not taken all reasonable steps to ascertain the facts, or a particular fact’, and requires an assessment ‘of what would have been ascertained had such steps been taken’.225 In most circumstances, a person takes ‘all reasonable steps’ by, often after medical evaluation, consulting a lawyer and placing all relevant information in the lawyer’s possession (all the time assuming that the person ought to know of the relevant facts); at this stage the lawyer is burdened with the responsibility of progressing the matter in accordance with the law.226 This shifting of responsibility removes any basis to impute knowledge to the (then) plaintiff.227 Also, as the phrase ‘ought to know’ is identified by reference only to what the putative plaintiff ‘would’ have found out, had he or she taken all reasonable steps, there is no reason to read this as extending to a failure by another person (such as the plaintiff’s lawyer) to ‘all take reasonable steps’.228 Thus in determining what the plaintiff ‘ought to have known’, while it is appropriate to take into account the efforts that the plaintiff made to obtain advice, and the advice that he or she was given, there is no basis

for taking into account ‘advice that ought to [page 160] have been given but was not given’.229 What the plaintiff ought to have known is accordingly not to be equated to what his or her lawyer ought to have known.230

Meaning of ‘fault’ 7.51 The case law does not speak with one voice on the meaning of ‘fault’ in the phrase ‘the injury or death was caused by the fault of the defendant’. Victorian authority suggests that there is no reason to depart from the ordinary meaning of ‘fault’, which connotes blameworthiness or culpability. Aside from the absence of any ambiguity in the term, the word ‘fault’ must mean something different to the phrase ‘act or omission’ that is used in the long-stop provision.231 Judges in New South Wales, conversely, while accepting the distinction between ‘fault’ and ‘act or omission’, have refused to align ‘fault’ with notions of moral blameworthiness,232 viewing it as a (more) encompassing term in place of the former ‘negligence, nuisance or breach of duty’.233 Also, the current regime, they note, expresses the relationship between the injury (or death) as ‘causative’, as opposed to its predecessor, which spoke of a ‘connection’ between the injury and the ‘act or omission’,234 in turn making it more difficult for defendants to establish (under their evidentiary onus).235 7.52 Yet it may be queried whether, in effect, there is any substantive difference between the New South Wales and Victorian positions. In neither jurisdiction has ‘fault’ been construed as requiring that the plaintiff form a legal judgment as to the defendant’s ‘fault’ (typically, in the tortious sense of the word); the legislation does not, after all, proceed on the basis that (putative) plaintiffs have legal knowledge (or any other professional knowledge) but instead identifies knowledge of facts that should trigger resort to professional advice.236 That trigger, in speaking of ‘fault’, targets knowledge that, a Victorian judge explained, injury (or death) ‘resulted from

an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done’.237 [page 161] When it is understood, moreover, that the Victorian reference to blameworthiness appears intended to reflect not a moral judgment, but one, in line with the immediately preceding remarks, directed to key factors necessary to trigger liability, the alleged distinction noted above breaks down. It enables the Victorian law to acknowledge the instances, identified by New South Wales judges, where discoverability of a cause of action has little to do with moral blameworthiness, such as where a defendant is liable pursuant to a non-delegable duty of care or only liable pursuant to statute (such as the Nominal Defendant).238

Special limitation period for minors injured by close relatives 7.53 The main operative provision of Div 6 (in New South Wales) and Pt IIA (in Victoria) must be read subject to a special limitation period prescribed in relation to minors injured by close relatives, which a commentator has described as ‘a commendable and long-overdue recognition of the inadequacy of the previous limitation period applying to child abuse cases’.239 It applies in respect of a cause of action founded on the death of or injury to a minor (‘the victim’) if the cause of action is against a person who at that time was the victim’s parent or guardian (or a close associate240 thereof). In this event, the cause of action is treated as discoverable on the later of the victim turning 25 years of age or the cause of action being actually discoverable by the victim; and the 12 year long-stop limitation period for the cause of action is 12 years running from when the victim turns 25.241 This aims to give plaintiffs ‘a reasonable time to be free of the influence of the parent, guardian or potential defendant (as the case may be) before having to commence proceedings’,242 and acknowledges that abuse

can produce delayed psychological effects.243 If the victim dies before reaching age 25, the limitation period applicable to an action that survives the victim’s death applies as if references in the foregoing to when the victim turns 25 were references to the victim’s death.244 [page 162]

Effect of disability on limitation period 7.54 The main operative provision of Div 6 (in New South Wales) and Pt IIA (in Victoria) needs qualification in the event of the (putative) plaintiff’s disability. The relevant provision in this context, which operates to the exclusion of the general disability provisions,245 states that if a person who has a cause of action for which time has commenced to run is under a disability (in Victoria, under a legal incapacity), the running of time is suspended for the duration of the disability (incapacity).246 7.55 A person is ‘under a disability’ (‘under a legal incapacity’), for this purpose, while he or she is either a minor (but not while having a capable parent or guardian)247 or an incapacitated person248 for a continuous period of 28 days or more (but not while the person is a protected person (in Victoria, a represented person and his or her guardian is authorised by law to bring actions in the person’s name)).249 The focus of ‘disability’ (or ‘incapacity’) here is thus on a ‘particularly vulnerable’ group of people, who suffer disability (or incapacity), but have no parent or guardian (for minors) and or no legal representative (for those of unsound mind).250 It targets, to this end, two separate and distinct groups of persons, such that a minor of unsound mind does not fall within the latter group if he or she at all times had a capable parent or guardian.251 7.56 For persons who are under incapacity, but do not fall within the above (because, for a minor, he or she has a capable parent or guardian, and for an incapacitated person, he or she lacks any legal representative), at the date of the act or omission alleged to have resulted in the personal injury, Pt

IIA of the Victorian legislation contains a dedicated limitation provision. It prohibits the bringing of the relevant action after the expiry of six years from the date on which the cause of action is discoverable by the plaintiff or, if it occurs earlier, 12 years from the date of the act or omission alleged to have resulted in the injury.252 Persons who are incapable accordingly have double the time within which to commence proceedings, subject to the 12 year long-stop period. In New South Wales, the relevant period here remains three years, again resting upon discoverability and subject to the 12 year long-stop period, as prescribed in the main operative provision.253 [page 163] 7.57 For the purposes of the foregoing, in determining when a cause of action is ‘discoverable’ by a minor or an incapacitated person not under a disability, facts that are known or ought to be known by a capable parent or guardian are taken to be facts that are known or ought to be known by that person.254

Northern Territory Regime 7.58 As noted earlier, the Limitation Act 1981 (NT) makes no discrete time bar provision in relation to causes of action for personal injury. Instead, via its general limitation provision, it imposes a three year time bar on an action founded on tort, including an action founded on a breach of statutory duty,255 which encompasses the majority of personal injury actions. Because it imposes an abbreviated limitation period generally, there was no need, as in other jurisdictions, for a specific provision to reduce that period from six to three years vis-à-vis personal injury claims. The legislation also sets a three year limitation period for various actions under the Compensation (Fatal Injuries) Act 1974 (NT).256 7.59 There is scope, however, for the above three year periods to be extended in circumstances where, inter alia, facts material to the plaintiff’s case were not ascertained by him or her within a set time, if the court

considers it just, in all the circumstances, to grant the extension.257 While this opens the door to the extension of time for latent personal injuries, it is not confined in its terms to personal injury actions. 7.60 There is, as noted earlier, no limitation period applicable to personal injury causes of action resulting from a dust disease.258

Queensland Regime 7.61 Under s 11(1) of the Limitation of Actions Act 1974 (Qld), an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of contract, statute or otherwise), in which the plaintiff’s claim consists of or includes either damages in respect of personal injury to any person, or in respect of injury resulting from the death of any person, cannot be brought after the expiry of three years from the date on which the cause of action arose. This is expressed to apply notwithstanding any other Act or law or rule of law,259 but does not apply to a right of action relating to personal injury resulting from a dust-related condition;260 the latter is not subject to a limitation period under any Act or law or rule of law.261 Like its New South Wales counterpart, to which it bears resemblance, the Queensland legislation defines the phrase ‘personal injury’ to include a disease and an impairment of a [page 164] person’s physical or mental condition.262 It likewise makes explicit that ‘trespass’ falls within its parameters, thus avoiding the debate over whether a ‘breach of duty’ can encompass trespass.263 But unlike its counterparts in the Australian Capital Territory and New South Wales, it extends to ‘damages in respect of injury resulting from the death of any person’,264 and thus applies to ‘dependency claims’,265 equivalent to compensation for relatives schemes elsewhere.266

7.62 Discrete provisions supply scope for the court to extend the above limitation period.267 These are premised on a ‘material fact of a decisive character’ relating to the right of action not having being within the plaintiff’s means of knowledge until within 12 months of the expiry of the limitation period, assuming there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.

South Australian Regime 7.63 All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person must, according to s 36(1) of the Limitation of Actions Act 1936 (SA), be commenced within three years next after the cause of action accrued but not after. Like its counterparts elsewhere, ‘personal injuries’ is defined broadly to include any disease and any impairment of a person’s physical or mental condition.268 In eschewing the phrase ‘negligence, nuisance or breach of duty’ found in several jurisdictions, arguments over the scope of the South Australian provision may be correspondingly reduced. 7.64 As a result of 2005 amending legislation, albeit with retrospective effect, the accrual date for the three year limitation period is modified in the case of a personal injury that remains latent for some time after its cause, in which event time only begins to run when the injury first comes to the putative plaintiff’s knowledge.269 The term ‘latent’ here takes its ordinary meaning, referring to that ‘hidden’, ‘concealed’ and ‘present, but not visible or apparent’.270 It is ‘the injury’ that must remain ‘latent’ to trigger a postponement of accrual, which is postponed only to the extent that plaintiff’s knows of ‘the injury’. What ensues is that the plaintiff may know of ‘the injury’ even though he or she does not know the medical diagnosis or medical name of the condition to which the injury relates.271 [page 165] The accrual date is also modified if a prospective defendant is absent from

the State at the moment the cause of action accrued. The cause of action is taken to have accrued upon the date when the prospective defendant returns ‘from beyond the seas’,272 it thus being from that date that the three year period commences to run.273 7.65 Like its Northern Territory equivalent, there is, in any event, scope for the three year period to be extended in circumstances where, inter alia, facts material to the plaintiff’s case were not ascertained by him or her within a set time, if the court considers it just, in all the circumstances, to grant the extension.274 While this opens the door to the extension of time for latent personal injuries, it is not confined in its terms to personal injury actions.

Tasmanian Regime 7.66 The Limitation Act 1974 (Tas), like its counterparts in New South Wales, Queensland and Victoria, contains a dedicated limitation provision for actions for negligence, nuisance or breach of duty (whether that duty exists by virtue of contract, statute or otherwise) consisting of, or including, damages in respect of personal injuries to any person. It adopts the same (broad) meaning of ‘personal injury’275 and, akin to Victoria, its application to intentional torts relies upon judicial reasoning rather than explicit statutory provision.276 7.67 Pursuant to s 5A(3), such an action cannot be brought after the expiry of the earlier of three years from the date of discoverability, or 12 years from the date of the act or omission that is alleged to have resulted in the personal injury or death.277 The reference to ‘death’ derives from the inclusion within s 5A(3) of an action for damages under the Fatal Accidents Act 1934 (Tas).278 In so doing, s 5A(3) adopted recommendations in the Ipp Report, which also translated to New South Wales and Victoria279 and so, to the extent that there is alignment in the statutory language, the case law from those States280 assumes relevance in Tasmania.281 The ‘date of discoverability’ is the date when the plaintiff knew or ought to have known that personal injury or death had occurred, was attributable to the defendant’s conduct and, in the case of personal injury, was

sufficiently significant to warrant282 bringing proceedings.283 The 12 year ‘long-stop’ limitation period aims to stem the potential for the date of discoverability to ‘blow out’, and thereby afford prospective defendants a degree of certainty. However, there is scope, via s 5A(5), for a court to extend the 12 year limitation period, to the expiry of three years commencing on the date of discoverability, having regard to the justice of the case and, in particular, to listed factors.284 [page 166] 7.68 The foregoing limitation periods of limitation apply to the personal representative of a deceased person, with time running from the earliest of the date when:285 •

the deceased person knew that personal injury had occurred, was attributable to the conduct of the defendant, and was sufficiently significant to warrant bringing proceedings (paralleling the above ‘date of discoverability’);

•

the personal representative was appointed, if he or she knew or ought to have known the date of discoverability at that time; and

•

the personal representative first knew or ought to have known the date of discoverability, if he or she acquired that knowledge (or ought to have acquired it) after being appointed to that position.

7.69 Section 5A applies only to causes of action that accrue from 1 January 2005.286 For parallel actions accruing before that date, a three year limitation period applied, running from the date of that accrual;287 there was no postponing of the time bar grounded in discoverability, nor any long-stop provision, but under s 5(3) there was power in the court to extend time.288

Victorian Pre-Ipp Regime Application of relevant provisions

7.70 Section 5(1A) of the Limitation of Actions Act 1958 (Vic), paralleling counterparts in New South Wales, Queensland and Tasmania, prescribes a dedicated limitations regime for actions for negligence, nuisance or breach of duty (whether that duty exists by virtue of contract, statute or otherwise) where the plaintiff’s claim consists of or includes damages in respect of personal injuries. And it similarly defines ‘personal injuries’ to include any disease and any impairment of a person’s physical or mental condition.289 But like the equivalent provision in the Australian Capital Territory Act,290 s 5(1A) is confined to where personal injuries consist of a ‘disease or disorder’, which cause of action is ‘taken to have accrued on’291 the date when the plaintiff first ‘knows’ that he or she has suffered those injuries and that those [page 167] injuries were caused by the act or omission of some person. In this event, the said action cannot be brought more than three years from the date of its accrual. For personal injuries actions outside of the foregoing — namely those not consisting of a disease or disorder — s 5(1AA) prescribes a three year time bar running from the date when the cause of action accrued.292 The reason for making separate provision, via s 5(1A), for deferring the running of time for personal injuries that consist of a ‘disease or disorder’ was a concern that diseases or disorders may not manifest themselves as injuries for a considerable period of time after they were first contracted.293 This was addressed by s 5(1A) ‘providing for an automatic extension in cases of injuries of delayed onset’.294 7.71 While s 5(1A) is expressed to apply despite anything to the contrary in the Limitation of Actions Act 1958 or any other Act,295 s 5(9) creates an exception, namely to an action to which Pt IIA applies. The latter was the product of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (stemming out of Ipp Report recommendations), which commenced on 21 May 2003, in terms similar to Div 6 of Pt 2 of the

Limitation Act 1969 (NSW) (which took effect on 6 December 2002). With limited exceptions,296 as elaborated earlier in this chapter,297 it applies to a cause of action for damages relating to death or personal injury, whether founded in tort, contract, statute or otherwise.298 The Pt IIA regime, moreover, beyond being grounded in discoverability, nonetheless makes provision for a court to extend time if it is just and reasonable to do so, by reference to specified factors.299 It follows that s 5(1A) now retains only a residual operation, but for actions within its confines there is likewise provision for the court to extend time.300

‘Breach of duty’ can encompass intentional torts 7.72 Whether the phrase ‘negligence, nuisance or breach of duty’ in s 5(1A) of the Victorian Act (and also in the equivalent Tasmanian provision)301 encompasses intentional torts has generated litigation. Although the New South Wales and Queensland Acts adopt similar language, they avoid the issue by making explicit provision here to encompass trespass.302 The matter is now settled in Victorian (and Tasmanian) law as a result of the High Court’s [page 168] 2006 majority decision in Stingel v Clark.303 and also in English law304 by the House of Lords’ 2008 unanimous decision in A v Hoare,305 reversing its 1993 decision in Stubbings v Webb.306 The point was critical in Stingel because the plaintiff’s otherwise time-barred claim stemmed from sexual assaults allegedly committed in 1971. Yet, as explained below, this trajectory of the law does not necessarily deny the force of the contrary view, namely that a ‘breach of duty’ in this context does not encompass intentional torts. 7.73 In accepting that ‘breach of duty’ in s 5(1A) (and in s 23A, dealing with extension of time in this context),307 covered ‘intentional trespass to the person where the damages claimed consist of or include damages in respect of personal injuries’,308 the majority in Stingel proffered three reasons for this conclusion. First, the joint judgment delivered by Gleeson CJ,

Callinan, Heydon and Crennan JJ saw, ‘as a matter of principle’, the words ‘breach of duty’ as capable of covering intentional trespass.309 In so doing, their Honours endorsed the reasoning advanced by the English Court of Appeal in Letang v Cooper310 — later overruled by the House of Lords in Stubbings on this point before being ‘reinstated’ by their Lordships in A v Hoare311 — perhaps best expressed by Diplock LJ as follows:312 In their ordinary meaning, the words ‘breach of duty’ as so explained are wide enough to cover any cause of action which gives rise to a claim for damages for personal injuries … Why should one give them a narrower and strained construction? The Act is a limitation Act; it relates only to procedure. It does not divest any person of rights recognised by law; it limits the period within which a person can obtain a remedy from the courts for infringement of them. The mischief against which all limitation Acts are directed is delay in commencing legal proceedings; for delay may lead to injustice, particularly where the ascertainment of the relevant facts depends upon oral testimony. This mischief, the only mischief against which the section is directed, is the same in all actions in which damages are claimed in respect of personal injuries. It is independent of any category into which the cause of action which gives rise to such a claim falls. I see no reason for approaching the construction of an enactment of this character with any other presumption than that Parliament used the words it selected in their ordinary meaning and meant what it chose to say.

Adding ‘statutes of limitation are more concerned with practical justice than with jurisprudential analysis’,313 their Honours in Stingel could be interpreted as a concession that inclusion of trespass within ‘breach of duty’ could be perceived as jurisprudentially suspect. Their succeeding remark that ‘at the very least, the language is ambiguous’ was, in any case, inconsistent with a premise underscoring the judgments in Letang, namely that the words ‘breach of duty’ were ‘plain’ in meaning. [page 169] Secondly, the majority in Stingel branded the legislative history of the Victorian provision as ‘significant’,314 and in some respects different from that in England. In particular, s 5(1A) was the product of reviews of the existing law by expert committees, and adopted the ‘breach of duty’ phrase that Victorian courts at the time had construed to include trespass.315 (Yet, as noted by the House of Lords in A v Hoare,316 the same could be said of the path to the equivalent provision in the current English legislation). Hayne J, also in the majority, noted that those who drafted s 5(1A) used, ‘as the

hinge’ for the provision, ‘words which had been construed as imposing a shorter limitation period on all those who claimed damages for personal injuries, no matter how they framed their claim’.317 By the same token, however, it could have been equally argued that if the drafters wished to bring intentional torts within ‘breach of duty’, they would have made this explicit,318 as did those in New South Wales and Queensland. It is notable, to this end, that Hayne J conceded that trespass to the person is ‘not easily accommodated’ by the phrase ‘breach of duty’,319 in turn revealing the weight his Honour gave to the legislative history to trump the literal words of the statute. Thirdly, the joint judgment in Stingel cited anomalies resulting from the alternative construction preferred in Stubbings v Webb, as:320 … it attributes to Parliament an intention to draw a distinction which defeats, rather than advances, the purpose of the legislation. The evident purpose of both s 23A and s 5(1A) is to relieve the position of victims of tort: the former by giving a court a discretionary power to extend the time bar; the latter by providing for an automatic extension in cases of injuries of delayed onset. There is no discernible difference, in point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting the perpetrators of intentional torts in a better position than the perpetrators of unintentional torts. There being … two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation.

7.74 Although not referred to in Stingel, an instance of the anomaly their Honours may have had in mind raised its head a decade or so before in Seymour v Williams,321 involving different conduct by two defendants giving rise to the same personal injury. The plaintiff sued both her father and mother, alleging physical and sexual abuse against her father (in trespass) and want of parental care against her mother. The claim in trespass was out of time, whereas time for the claim against the mother, as one in negligence, was capable of extension.322 Two members of the court, Millett LJ and Sir Ralph Gibson, referred to the anomaly of there being [page 170] different periods of limitation as between a perpetrator of abuse and someone negligent in not preventing it, and of the potential extension of the

limitation period for the latter.323 7.75 Yet whether or not the same policy should underscore both intentional and unintentional torts, the question should be approached by reference to the words used. The tort of trespass, unlike that of negligence, is not premised on identifying an existing duty and its subsequent breach. To describe the tort of trespass as a ‘breach of duty’ is, as Kirby J opined in his dissenting judgment, to debase that notion, such as to reduce it to ‘a meaningless expression’.324 And no such encompassing meaning of ‘breach of duty’ is needed to accord the phrase ‘negligence, nuisance or breach of duty’ its substance. His Honour conceded that locating trespass outside a ‘breach of duty’ had the potential to work an injustice on persons who claim late onset conditions many years after the initial intentional infliction of injury. Any such injustice was, he maintained, the result of the words chosen by the drafters, and could not justify an alternative construction.325 7.76 In any event, it could not be said that differential treatment of intentional and unintentional torts in this arena necessarily lacked logic. Kirby J, and the other dissenter Gummow J,326 followed the approach of the House of Lords in Stubbings, which was applied in 2002 by the Supreme Court of Ireland in Devlin v Roche327 on equivalent legislation. In Stubbings Lord Griffiths, with whom the other Law Lords expressed agreement, noted that the Tucker Committee,328 to which the relevant section owed its genesis, envisaged that intentional torts would remain under the general (six year) limitations regime. As for unintentional torts, it recommended a shorter time bar, but whose accrual might nonetheless be deferred by reference to the date when the plaintiff became aware of the injury.329 (It should be noted that in A v Hoare,330 Lord Hoffmann cautioned against placing undue weight on the recommendations of the Tucker Committee in this context). Kirby J in Stingel explained the logic for this distinction:331 … damages for trespass to the person, false imprisonment, malicious prosecution or defamation were intended by the Tucker Committee to remain within the pre-existing limitations regime. They would enjoy a longer initial period for the commencement of proceedings. However, once that period had expired, there would be no opportunity for postponement of the bar. The thinking behind this was that, in the case of deliberate wrongs, the person injured would ordinarily be well aware that a wrong had occurred to them and that they had suffered some damage, thereby enlivening consideration of the commencement of proceedings, whereas, in cases of breach of duty, the breach and any damage it may have caused might not be immediately known or appreciated.

Hayne J, though in the majority, accepted that as the purpose of the relevant provision (being the predecessor to s 5(1A)) was to provide a shorter limitation period for some actions [page 171] than would otherwise have applied, ‘[a]s an exception to a general rule’, it may have been open to argue that it should be narrowly construed.332 It seems, therefore, that notwithstanding the majority’s decision in Stingel on this point, the phrase ‘breach of duty’ is better construed to exclude intentional torts.

Not confined to ‘insidious’ diseases 7.77 A second issue facing the court in Stingel was whether the reference to personal injuries ‘consisting of a disease or disorder’ in s 5(1A) should be read down as applying only to ‘insidious’ diseases not known to the victim at the time of injury. What drove this contention was reference in extrinsic materials underscoring the enactment of s 5(1A) to ‘[i]nsidious diseases such as asbestosis and pneumoconiosis’.333 As the victim in Stingel claimed damages for delayed onset post-traumatic stress disorder, whether or not the phrase ‘disease or disorder’ should attract its ordinary meaning, or instead be read down, was significant. It also plays out in the Australian Capital Territory, where the equivalent provision also refers to ‘disease or disorder’.334 In refusing to read down the words in question, the plurality emphasised the need to apply the text of s 5(1A) as opposed to ‘the prevailing opinion as to what was likely to be the most common kind of case in which it would be invoked’ or ‘the subjective contemplation of the drafters as to the kind of case in which that language would be most likely to be applied’.335 Their Honours explained the point by way of example:336 Let it be supposed, for example, that it was the problem of progressive lung disease that prompted the enactment of s 5(1A). It does not follow that the language of s 5(1A) should be confined to cases of progressive lung disease. That problem may explain why Parliament chose

the words it used, but if the meaning of those words has wider application, then a court is bound to give effect to that meaning. To hold that ‘personal injuries’ as used in the section is confined to insidious or indeed any particular form of injury is to foreclose the factual inquiries which the section demands, these being whether the person has suffered ‘personal injuries’ and when she first knows that she has suffered them.

There was good reason, the plurality surmised, why the Parliament most likely opted for the broad language of ‘disease or disorder’ rather than being more specific or prescriptive. Otherwise s 5(1A) could be confined in its operation to medical knowledge of diseases and disorders at the time of its enactment in 1983. Also, the open-ended phrase ‘disease or disorder’ makes it more difficult to maintain that medical knowledge, in 1983, of the circumstances in which diseases or disorders may be contracted, or become known, many years after their original causes, can reasonably be used years later to limit the meaning of those words.337 7.78 On the facts in Stingel, what the foregoing meant was that delayed onset post-traumatic stress disorder could fall within the words of s 5(1A), even though it was not a ‘disease or disorder’ to which Parliament adverted in 1983 and could not be described as ‘insidious’. In so ruling, the High Court rejected what had previously been understood as the law in Victoria, as a result of the Court of Appeal’s decision in Mazzeo v Caleandro Guastalegname & Co,338 which [page 172] had itself upset the trajectory of Victorian law339 by ruling that s 5(1A) was concerned only with actions arising out of ‘insidious’ injuries, as opposed to those caused by trauma.

Relevant ‘knowledge’ 7.79 The accrual date under s 5(1A) (and its Australian Capital Territory equivalent)340 is stipulated as the date when the plaintiff first ‘knows’ that he or she has suffered the relevant injuries and that those injuries were caused by the act or omission of some person. In the usual case of physical injury, a plaintiff will know that he or she has suffered that injury (almost)

immediately. In the event of latent physical injury, that knowledge may rest upon medical diagnosis, which may serve to link the injury to the acts or omissions of another.

‘Knowledge’ as to mental ‘disease or disorder’ 7.80 Suffering of mental injury, which may in any case have a longer gestation, may prove more challenging for a plaintiff to appreciate, and therefore ‘know’. What has accordingly exercised the minds of judges concerns what a plaintiff must ‘know’ of his or her mental condition to trigger knowledge for the purposes of s 5(1A). While various judges have opined that a plaintiff who suffers from a mental disorder only knows that it is an ‘injury’ for the purposes of s 5(1A) if he or she is aware of its ‘nature’,341 by itself this arguably does little to genuinely assist in drawing the relevant line. A more nuanced approach, which has a spread of judicial support,342 is to say that time begins to run when the plaintiff knows that his or her mental condition is a mental illness that would be recognised by the medical profession as such. There is no need that there be an appreciation, in addition, of the medical or scientific name of the condition.343 But the reality is that most people are able to distinguish mental conditions falling short of mental illness from those constituting mental illness only by resort to what the medical profession recognises as mental illness,344 which in most instances requires a medical diagnosis.

‘Knowledge’ as to nature of acts or omissions of defendant 7.81 As recalled above, s 5(1A) (and its Australian Capital Territory equivalent)345 dictates that the relevant cause of action accrues once the plaintiff ‘knows’ that he or she has suffered the relevant injuries and that those injuries were caused by the act(s) or omission(s) of some [page 173] person. ‘Some person’ here does not target the specific person to be sued; it suffices that the plaintiff has knowledge that some identified person’s act or

omission has caused injuries, but not necessarily the prospective defendant.346 7.82 The cause of action is premised upon those acts or omissions being wrongful or negligent; otherwise there would be no foundation for the claim. But this does not dictate that, to trigger s 5(1A), the plaintiff must, in addition to knowing that those acts or omissions caused the injuries, know that those acts or omissions were wrongful or negligent. The wording of s 5(1A) mandates only knowledge of a causative relationship, not knowledge of any legal consequence. The point is of potential significance, as there may be a hiatus between a plaintiff’s knowledge of causation, and his or her subsequent knowledge that the acts or omissions are legally actionable. Were the latter the relevant threshold, the plaintiff’s blithe inactivity could ‘blow out’ the limitation period and argument may ensue over precisely when the plaintiff discovered that the acts or omissions were wrongful or negligent. Moreover, it may be reasoned that, had the legislature wished to defer the running of time until the plaintiff knew of the wrongful or negligent (and therefore legally relevant) nature of the relevant acts or omissions, it would have used clear and appropriate words to secure this outcome. Absent ambiguity in the language used, even a liberal construction favouring the plaintiff would not support the insertion of the words ‘wrongful’ or ‘negligent’ into s 5(1A).347 In any case, a liberal construction favouring the plaintiff may be inapt in view of the fact that s 5(1A) already benefits plaintiffs and obviates inquiry into prejudice to defendants.348

Western Australian Regime Limitation period and accrual 7.83 The Limitation Act 2005, like its counterparts elsewhere, imposes a three year limitation period on actions for damages relating to personal injury, running from when the cause of action accrued.349 ‘Personal injury’ is defined to include a disease, impairment of a person’s physical condition, and mental disability.350 By defining ‘mental disability’ as a disability ‘an effect of which is that the person is unable to make reasonable judgments in respect

of matters relating to the person or the person’s property’,351 the Western Australian Act ostensibly sets the threshold at a level higher than ‘any impairment of a person’s … mental condition’, which is the corresponding wording adopted in other jurisdictions. Section 55 states that a cause of action for damages relating to personal injury ‘accrues’ upon the occurrence of the earlier of: (a) the person becoming aware that he or she has sustained a not insignificant personal injury; or (b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury. The phrase ‘not insignificant’ is not defined but, in being expressed in the double negative, cannot be construed to mean ‘significant’. The latter could, in any case, open the [page 174] door to a ‘blow out’ of the time bar, to the detriment of (potential) defendants. The Parliament likely intended a more conservative threshold in balancing the competing interests of plaintiffs and defendants. ‘Not insignificant’, according to its dictionary meaning, targets injury that is not trifling, not inconsiderable or not negligible, to choose a few synonyms. 7.84 There is nonetheless scope for the court to extend time, upon an application by the plaintiff, to commence an action for damages relating to personal injury even though the limitation period has expired.352 7.85 If the above cause of action accrued before 15 November 2005,353 the applicable limitation period is deemed to be that which would have applied before that date.354 There was, in any case, scope for extension of time for actions accruing before that date, albeit confined to latent injuries attributable to the inhalation of asbestos.355

Survival of certain actions 7.86 If a person dies as a result of a personal injury, other than an injury that is attributable to the inhalation of asbestos,356 but immediately before

the death, a cause of action relating to the injury had not ‘accrued’ (as the term is defined in s 55),357 the cause of action relating to the personal injury is to be taken as having accrued when the person died.358 The same applies as regards a person who has died as a result of a personal injury attributable to the inhalation of asbestos if, immediately before his or her death, a cause of action relating to the injury had not accrued359 (as defined in s 56).360

Specific provision for personal injury attributable to the inhalation of asbestos 7.87 The Western Australian Act makes specific provision for the accrual of causes of action for personal injury attributable to the inhalation of asbestos. While the three year limitation period remains, the date of accrual is, under s 56(1), when the person has knowledge of the relevant facts.361 Section 56(2) states that a person, has ‘knowledge of the relevant facts’ in relation to a cause of action when he or she has knowledge:362 [page 175] •

that the injury was ‘significant’,363 which s 56(3)364 declares is so if the person whose knowledge is in issue would reasonably have considered it ‘sufficiently serious’365 to justify ‘commencing an action for damages against a defendant who did not dispute liability and was able to satisfy a judgment’ (the object of which, it is said, is ‘to extend the limitation period for victims of personal injury who were effectively unaware that they had been injured at all or who were aware that they had suffered an injury, which they reasonably to be very mild indeed, but which subsequently turned out to be very serious’);366

•

that the injury was attributable367 in whole or in part to the act or omission alleged to constitute the cause of action;

•

of the identity of the defendant;368 and

•

if it is alleged that the act or omission was that of a person other than the defendant — of the identity of that person and the additional facts

supporting the bringing of an action against the defendant. For this purpose, s 56(2) states that knowledge that any acts or omissions did or did not, as a matter of law, give rise to a cause of action is irrelevant. Also, under s 56(5) of the Act, modelled on English provisions,369 ‘knowledge’ includes knowledge that the person might reasonably have been expected to acquire from facts observable or ascertainable by the person, or from facts so ascertainable with the aid of medical or other appropriate expert advice370 [page 176] that it is reasonable for the person to seek (though a person is not to be fixed with knowledge of a fact ascertainable only with the aid of expert advice if he or she has taken all reasonable steps to obtain (and, where appropriate, act on) that advice). The s 56(5) test, via the terms ‘reasonable’ and ‘reasonably’, is clearly objective, and should the trajectory of English case law on parallel provisions be an accurate guide, overlooks the claimant’s personal circumstances, character or intelligence.371 The same is so vis-à-vis the concept of reasonableness found in s 56(3) that informs the significance of an injury.372 7.88 It is not necessary, for this purpose, for the plaintiff to have knowledge sufficient to enable his or her lawyers to draft a fully and comprehensively particularised statement of claim.373 What he or she must know is the ‘essence of the act or omission to which the injury is attributable’374 or ‘the essential thrust of the case’.375 The starting date may thus occur at a time when a plaintiff’s knowledge about his or her claim is ‘far from complete’.376 It is not triggered by a belief that is no more than mere suspicion;377 instead the belief must be held ‘with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence’.378 So it does not automatically follow that, by the date when legal advice is first

[page 177] taken, the plaintiff has acquired the requisite knowledge,379 although there are circumstances where such an inference could be justified. 7.89 If the above cause of action accrued before 15 November 2005,380 the applicable limitation period is deemed to be that which would have applied before that date.381

Dedicated childbirth provision 7.90 The Limitation Act 2005 also makes discrete provision for a ‘cause of action (childbirth)’, defined as a cause of action for damages relating to a personal injury to a person incurred either in the course of the person’s mother giving birth to the person, or immediately after, and arising from, the birth.382 It prohibits, in s 7(2), the commencement of proceedings on a ‘cause of action (childbirth)’ accruing before 15 November 2005383 if: (a) six years have elapsed since that day; or (b) the limitation period that would otherwise have applied has expired. Like most limitations provisions, while s 7(2) provides a defence to late proceedings, it does not extinguish the cause of action.384 7.91 What drove s 7(2) is that provisions in the superseded Limitation Act 1935 relating to causes of action of this kind were anomalous, and operated unfairly. Under the 1935 Act, a person who was under 18 years old at the time a cause of action accrued could commence an action as if the cause of action accrued when he or she turned 18.385 Because the limitation period for commencing tort actions was six years,386 claims for damages arising from childbirth could be brought at any time up until the child turned 24. At the same time, the Act required claims for damages arising from childbirth injuries brought against public authorities or government agencies to be commenced within one year (or, with leave, six years) of the accrual of the cause of action.387 Claims could therefore be brought against private hospitals or doctors providing services to private patients up to 24 years from the date of birth, whereas those against public hospitals and doctors providing services to the public within those hospitals had an outer

six year time bar. This anomaly witnessed criticism by both the judiciary388 and the Law Reform Commission of Western Australia.389 Aside from this anomaly, the Western Australian Parliament saw 24 years as an excessive limitation period, too closely aligned with the interests of plaintiffs than defendants. That time frame also prejudiced a doctordefendant who lacked any personal memory of the event when defending the claim, and made it difficult to ensure that the case was judged by contemporaneous standards. The attendant long ‘tail’ for liability had also served to increase indemnity insurance costs and to cause a shortage of obstetricians.390 Section 7(2) of the [page 178] 2005 Act — applicable if a person who suffers a personal injury in the course of being born or immediately after and arising from the birth has not begun an action before 15 November 2005 — addresses these issues by requiring that the action be commenced within the earlier of six years of that date or when the person turns 24, assuming that the relevant limitation period has not already expired.391 To ensure legitimate claims are not disadvantaged, s 7(2) is expressed to be subject to (most of) Pt 3 of the 2005 Act,392 which empowers the court to extend the time bar in certain circumstances.393 For the purposes of the applicable provisions of Pt 3, a cause of action (childbirth) is to be taken as having accrued on 15 November 2005.394 ______________________________ 1. 2. 3.

4.

5.

UK 1623 s 3; UK 1939 s 2. See further 1.8. See 1.9–1.14. See Final Report of the Departmental Committee on Alternative Remedies, Cmd 6860, 1944, paras 107–8 (chaired by Sir Walter Monckton) (recommending a three year limitation period for personal injury actions); Tucker Committee, para 22 (favouring a two year limitation period). Tucker Committee, para 22. See also NSWLRC 50, paras 6.11 (‘A shorter period is desirable, primarily to encourage the early determination of contested claims’), 6.12 (‘the public interest is better served by requiring early prosecution of personal injury claims’). Second Reading Speech, Limitation (Amendment) Bill 1990, NSW Legislative Council, Hansard, 4 June 1990, p 4994; WALRC 36(II), p 298 (although at the same time seeing it as undesirable for personal injury cases to be treated differently to other causes of action, in part because it creates ‘boundary disputes’ as to what is, and is not, a personal injury action: p 302; this

6. 7. 8.

9.

10. 11. 12. 13.

14.

sentiment did not translate to schema of the Limitation Act 2005 (WA)). See 6.5–6.7. [1963] AC 758. The court was unable to accept that the latent building defects cases — where the accrual of the relevant cause of action was postponed until the discovery of the defect: see 6.35 — could be analogised to cover personal injury actions: see Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 779–80 per Lord Pearce. Their Lordships were pressed to adopt the American approach (sometimes termed the ‘delayed discovery doctrine’) espoused in Urie v Thompson (1949) 337 US 163. In that case, the plaintiff contracted silicosis from the inhalation of silica dust over a period of 30 years, and may have had silicosis without knowing it for more than three years before he sued for compensation under a federal employers’ liability statute. The Supreme Court of the United States held that this did not bar the plaintiff’s claim when the time that elapsed between discovery of his condition and filing suit did not exceed the relevant limitation period. Rutledge J, delivering the opinion of the court, did not think ‘the humane legislative plan intended such consequences to attach to blameless ignorance’ or that ‘those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights’: at 170. Urie was distinguished in Cartledge on the ground that in Urie the limitation period was contained in the Act that conferred the right of action, justifying the inference that Congress could not have intended by the limitation in one section to thwart the rights conferred by another. Lord Pearce remarked (at 782) that ‘[s]uch an inference is not available to your Lordships in the present case’, as ‘the English Act is of general application to all classes of action and it is impossible to argue that it had any particular concern or intention with regard to employees recovering compensation’. Whether, by itself, this should be compelling grounds to distinguish Urie may, in any case, be queried. Certainly, the Supreme Court of Canada found no basis to distinguish the substance of Urie from a scenario, which surfaced in M(K) v M(H) [1992] 3 SCR 6, involving the delayed effect of childhood incest upon a victim: see at 31–49 per La Forest J. His Honour nonetheless called for reform in this area of limitations law. This has ensued via amendments to legislation in several Canadian provinces and New Zealand (see 24.13, 24.14), and more recently in Victoria: see 7.26. Yet Canadian courts have nonetheless confined the so-called ‘discoverability rule’ to use as an interpretive tool for the construing of limitations statutes — only when time is stipulated as running from an event that can be construed as occurring only when the injured party has knowledge of the injury sustained — rather than any principle dictating that knowledge of injury, as a matter of course, triggers the running of time in all personal injury actions: Peixeiro v Haberman [1997] 3 SCR 549 at 564 per Major J, delivering the reasons of the court; Manitoba Metis Federation Inc v Canada [2013] 1 SCR 623; [2013] SCC 14 at [238]–[242] per Rothstein J (dissenting). Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772. Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772 per Lord Reid, at 774 per Lord Evershed MR, at 776 per Lord Morris, at 777 per Lord Pearce. Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 774. See, for example, Olejniczak v Wallaby Grip Australia Pty Ltd (1993) 117 FLR 155 at 160–1 per Gallop J (where the plaintiff’s claim for damages arising out of an asbestos-related lung lesion allegedly caused during his employment with the defendant some 15 years earlier was held to be time-barred even though the condition had only surfaced more recently). See, for example, Battaglia v James Hardie & Co Pty Ltd (SC(Vic), Vincent J, 12 March 1987,

15. 16.

17.

18. 19. 20. 21.

22. 23. 24.

25.

26.

unreported) BC8700633; Papadopoulos v James Hardie & Co Pty Ltd (SC(Vic), Kaye J, 12 February 1988, unreported) BC8800807 (both cases involving facts pre-dating Vic s 5(1A), which commenced operation on 11 May 1983: see 7.70). See, for example, Martindale v Burrows [1997] 1 Qd R 243 at 246–8; BC9602927 per Derrington J. Alcan Gove Pty Ltd v Zabic (2015) 325 ALR 1; [2015] HCA 33; BC201509674 at [17] (FC). Unlike the typical limitation case in this context — where it is in the plaintiff’s interests to defer the accrual of the damage that substantiates the cause of action — the cause of action in Zabic had been statutorily abolished from 1 January 1987. Hence the plaintiff argued that he had suffered compensable damage, and thus his cause of action had accrued, before that date. In accepting this argument, the High Court concluded (at [48]) that as ‘with the benefit of hindsight it can be seen that initial mesothelial cell changes occurred shortly after the [plaintiff’s] inhalation of asbestos fibres, and that they were bound to and did lead inevitably and inexorably to the malignant mesothelioma from which he now suffers, the [plaintiff’s] cause of action in negligence accrued when those initial mesothelial cell changes occurred and … damages for the mesothelial tumour from which he now suffers are recoverable in that cause of action’. In Alcan Gove Pty Ltd v Zabic (2015) 325 ALR 1; [2015] HCA 33; BC201509674, discussed in the preceding footnote, the Full Court held (at [49]) that it did not detract from its conclusion (at [48]) that ‘time may run under limitations statutes against persons who have been exposed to asbestos fibres but who have not yet contracted mesothelioma or another disease as a result’, as their position ‘will be protected by statutes of limitation which … either set the limitation periods for personal injury by reference to the time at which a cause of action becomes discoverable or provide for postponement of limitation periods until after the time when the material facts can reasonably be ascertained by the plaintiff’. See further the catalogue in P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1652–82. UK 1963 s 1(3). UK 1963 s 7(3) (‘material facts’), 7(4) (‘decisive character’), 7(5) (‘outside the knowledge (actual or constructive) of a person’). Priestley JA in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 206; BC9800341 opined that to call the extension ‘the discovery rule’ was not particularly apt, as ‘what is meant is late realisation by a plaintiff of the existence of a cause of action’. NSW ss 58–60 (applicable to causes of action accruing before 6 December 2002), as to which see 20.45, 20.46. Qld s 31(2)(a), as to which see generally 20.78–20.117. Smith v Central Asbestos Co Ltd [1973] AC 518 at 529. See also Miller v London Electrical Manufacturing Co Ltd [1976] 2 Lloyd’s Rep 284 at 288 per Bridge LJ (describing the 1963 Act as ‘a notoriously obscure statute’). See, for example, Bailey v Oswald (CA(NSW), Kirby P, Clarke and Meagher JJA, 25 May 1990, unreported) BC9002414 per Meagher JA (‘The Court is constrained to construe the barely comprehensible words of those sections. It is not so much an occasion for explaining the elliptical and expounding the unexpressed as propounding the obscure and reconciling the contradictory’); Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 698 per Kirby P, with whom Hope AJA concurred; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 253; BC8400527 per Dawson J. See, for example, Carlowe v Frigmobile Pty Ltd [1999] QCA 527; BC9908475 at [9] per Thomas JA

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

38. 39. 40.

41. 42. 43. 44. 45. 46. 47.

and Atkinson J (noting that the relevant provisions are ‘complex and extremely technical and have been a fertile source of litigation’, having been adversely commented upon in QLRC 53, pp 37–9); Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton [2001] QCA 335; BC200104983 at [62] per Atkinson J (‘The need for law reform is manifest’); State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [1] per Gummow, Hayne and Crennan JJ, at [44] per Kirby J; Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [54] per Sackville AJA (noting that legislation in the form of Qld s 31 ‘is notoriously difficult to construe’); Shaw v Broadbent [2010] QSC 433; BC201008640 at [5] per Atkinson J (describing the relevant provision as ‘less than clear in its expression’). [1973] AC 518. Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, paras 56–8. Pursuant to the Limitation Act 1975 (UK) s 1(1). See Wright Committee, para 7; Edmund Davies Committee, 1962, paras 31–2. Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, para 57. Equivalent provision now appears in UK 1980 s 33(1). Equivalent provision now appears in UK 1980 s 33(3). See further 20.9–20.12. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 301 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred. Halford v Brookes [1991] 3 All ER 559 at 575 per Lord Donaldson MR. Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, para 38. Firman v Ellis [1978] QB 886 at 905 Lord Denning MR, at 910–11 per Ormrod LJ (‘the widest discretion’: at 910), at 915 per Geoffrey Lane LJ (‘as wide a discretion as could well be imagined’); Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968 at 976 per Lawton LJ, delivering the reasons of the court. Firman v Ellis [1978] QB 886 at 911 per Ormrod LJ. Sayers v Lord Chelwood [2013] 2 All ER 232; [2012] EWCA Civ 1715 at [52]–[56] per Jackson LJ, with whom Kitchin and Arden LJJ concurred. The general (six year) limitation provisions are expressed to be subject to the dedicated limitations provisions directed to causes of action for damages for personal injury: ACT s 11(2); NSW s 13; NT s 11; Qld s 10(1)(a); SA s 35; Tas s 2(1); Vic s 5(1)(a) (and see Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [28] per Gleeson CJ, Callinan, Heydon and Crennan JJ); WA s 13(2). NT s 12(1)(b), as to which see 6.2. See generally Ch 19. Law Com 270, para 4.21. See generally Ch 20. See Ch 19. Cavenett v Commonwealth of Australia [2007] VSCA 88; BC200703437 at [2] per Maxwell ACJ, at [41] per Chernov JA (in the context of Vic s 5(1A), as to which see 7.70, 7.71). Williams v Smith [1984] Tas R 176 at 185 per Underwood J; Sayers v Lord Chelwood [2013] 2 All ER 232; [2012] EWCA Civ 1715 at [52]–[56] per Jackson LJ, with whom Kitchin and Arden LJJ

48. 49.

50.

51. 52. 53. 54. 55. 56. 57.

58. 59. 60. 61. 62. 63.

64.

concurred. See 7.32 (NSW), 7.61 (Qld), 7.66 (Tas), 7.70 (Vic). NSW s 11(1); Qld s 11(1); Tas s 5A(3); Vic s 5(1A). The latter is likewise made explicit in the post-Ipp regime applicable in New South Wales and Victoria (as to which see generally 7.38–7.57): NSW s 50A(1); Vic s 27B(1). See, for example, Howe v David Brown Tractors (Retail) Ltd [1991] 4 All ER 30 (involving a breach of an implied contractual term that machinery would be fit for purpose and of merchantable quality, which had caused the plaintiff personal injury; this was held to constitute a ‘breach of duty’ in UK 1980 s 11(1)); Brittain v Telecom Corporation of New Zealand Ltd [2002] 2 NZLR 201; [2002] NZCA 58 at [26]–[28] per Tipping J, delivering the reasons of the court. ACT s 16B; SA s 36(1); WA s 14(1). (2007) 98 SASR 136; [2007] SASC 285; BC200706102. Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136; [2007] SASC 285; BC200706102 at [948]. On this point see further 3.29. Namely SA Pt 6. Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [71] per McColl JA. See 3.27. Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [73]–[75] per McColl JA. Contra at [129] per Basten JA, who reasoned that the limitation period is imposed ‘not by reference to a cause of action, but by reference to the kind of relief sought and the harm from which the loss is claimed to flow’. This led his Honour to conclude that, assuming that the plaintiff is entitled to compensation for personal injuries suffered as a result of breach of fiduciary duty in the circumstances, there was no reason to deny such relief the label of ‘damages’ for the purposes of the limitations legislation. Yet aside from the fact that the said assumption could rarely ensue in view of the focus of fiduciary law on economic losses stemming from a breach of loyalty (as noted in the text), the ‘kind of relief sought’ and ‘the harm from which the loss is claimed to flow’ ostensibly differs depending on whether the claim is in tort or in equity. The third judge in the case, Bell JA, saw the question as ‘finely balanced’ (at [155]), but preferred to express no concluded opinion (at [157]), as it did not go to the core of the claim. The classic Australian judicial exposition in this context is that of Street J in Re Dawson (decd) [1966] 2 NSWR 211 at 214–16. See, for example, Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31; BC200102754 at [70]–[74] per McHugh, Gummow, Hayne and Callinan JJ. See generally Breen v Williams (1996) 186 CLR 71; BC9604086. See, for example, Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497; BC9403464. As to the Ipp reforms in this context see 7.36–7.57. Qld s 11(1) (see 7.61); SA s 36(1) (see 7.63); Tas s 5A(3) (see 7.66); Vic s 5(1A) (see 7.70). In passing, it should also be noted that in the Territories, Queensland and Victoria, the same is so vis-à-vis provisions dealing with a curial extension of time for personal injury actions: ACT s 36(1), 36(2) (see 20.2); NT s 44(7); Qld s 31(1), 31(2) (see 20.78); Vic s 23A(1), 23A(2) (see 20.2). See 7.14–7.16.

65. 66. 67. 68.

69.

70.

71.

72. 13. 74. 75. 76.

77.

78. 79. 80.

[1998] PNLR 458. Bennett v Greenland Houchen & Co (a firm) [1998] PNLR 458 at 465 per Otton LJ, at 466–7 per Peter Gibson LJ. [1995] 4 All ER 132. There are judicial statements supportive of the personal injury characterisation: see, for example, Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38; BC200303801 at [148]–[150] per Kirby J, at [192], [193] per Hayne J; Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [44]–[49] per Kaye J. See, for example, Murray v Whiting [2002] QSC 257; BC200204938; Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38; BC200303801 at [19], [30] per Gleeson CJ (dissenting), at [292]– [302] per Callinan J. Shade v Compton Partnership [2000] PNLR 218 at 223–5 per Robert Walker LJ, with whom Brooke LJ agreed (branding the ‘whole claim, both as to pain and as to economic loss’, in Walkin v South Manchester Health Authority [1995] 4 All ER 132 as ensuing ‘solely from the effect of the unsuccessful medical treatment on the plaintiff’s physical condition’: at 225); Pounds v Eckford Rands (a firm) [2003] Lloyd’s Rep PN 195. Note that the decision to allow severance in Shade, it has been suggested, could be explained on the basis that the court ‘took pity on the litigant in person and took for him the course which a properly advised litigant would have taken’: Azaz v Denton [2009] EWHC 1759 (QB) at [55] per Richard Seymour QC (adding that the decision in Shade ‘does not mean … that all litigants who seek to combine a claim for damages for personal injuries … with other claims get a free go, once a limitation defence is raised, in the sense of only thereafter being vulnerable to losing the claim for damages for personal injuries’; on the facts, that the claimant persisted with a personal injury claim in tandem with other causes of action otherwise subject to longer time bars prompted the entire action to be statute-barred). See Yan Jun v Attorney-General [2015] 1 SLR 752 at [82]–[87] per Andrew Phang Boon Leong JA (distinguishing claims for damages for personal injuries — including damages for assault, battery and intentional infliction of emotional distress — from claims that are not for damages for personal injuries — including damages for loss of liberty arising from false imprisonment, defamation and malicious prosecution: at [86]). See, for example, McGee, p 139. NSW s 50A(1); Vic s 27B(1); WA s 14(1). ACT s 16B(1); NSW s 18A(1). Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [42] per Refshauge J. See, for example, Hammet v Connor [1980] VR 538 at 542 per Crockett J; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 554 per Hope JA; State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [52]–[57] per Kirby J; Wrightson v Queensland [2005] QCA 367; BC200507343 at [10] per McMurdo P. See, for example, Martinus v Kidd (1982) 150 CLR 648 at 652–3; BC8200113 per Gibbs CJ, Murphy and Wilson JJ; Mercer v Allianz Australia Insurance Ltd (No 3) [2014] TASSC 69; BC201411006 at [34] per Blow CJ [point not addressed on appeal: Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2; BC201600757]. NSW s 8(2); Dust Diseases Tribunal Act 1989 (NSW) s 12A, Sch 3 cl 7; NT s 12(2)(a); Qld s 11(2). See 7.26. See 7.7–7.11, 7.13.

81.

M(K) v M(H) [1992] 3 SCR 6 at 34 per La Forest J. The development of the ‘discoverability rule’ in Canadian courts is catalogued in K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 27–35. 82. M(K) v M(H) [1992] 3 SCR 6 at 31 per La Forest J (referring to D M DeRose, ‘Adult Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and Long-Term Damages’ (1985) 25 Santa Clara L Rev 191 at 196). 83. M(K) v M(H) [1992] 3 SCR 6 at 35 (referring to the discussion in N Des Rosiers, ‘Limitation Periods and Civil Remedies for Childhood Sexual Abuse’ (1992) 9 CFLQ 43). 84. [1995] 3 NZLR 681 at 687 per Gault J, delivering the reasons of the court. Dicta can be found in Australia sympathetic to such an approach: Wilson v Horne (1999) 8 Tas R 363; [1999] TASSC 33; BC9901200 at [55]–[59] per Evans J. 85. [1996] 2 NZLR 129 at 131–3 per Henry J, delivering the reasons of the court. 86. Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 (refusing to apply the discoverability principle to a proceeding concerning a liability created by statute; Tipping J, who delivered the leading judgment, remarked that the Limitation Act 1950 (NZ) is structured around the fundamental starting point that ‘[a]ccrual is an occurrence-based, not a knowledge-based, concept’: at [69]; see also at [2]–[6] per Blanchard J, at [96]–[102] per McGrath J, at [141]–[148] per Henry J; contra at [109]–[117] per Gault J, dissenting). See H Brown, ‘“Reasonable Discoverability”: The Final Word?’ [2007] NZLJ 183. 87. In the leading judgment, Tipping J noted that the reasoning in S v G [1995] 3 NZLR 681 involves placing ‘something of a gloss’ on the concept of accrual of a cause of action, but rationalised this on the basis that ‘most cases of sexual abuse which cause limitation difficulties involve conduct which can also be regarded as a breach of fiduciary duty’, to which no statutory limitation period traditionally applied (except by analogy): Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 at [49] (see also at [77]–[80]). His Honour’s remarks have, however, no carriage in Australian law, which places personal injuries outside the fiduciary umbrella: see generally Breen v Williams (1996) 186 CLR 71; BC9604086. 88. Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 at [81]–[83] per Tipping J. 89. See 7.4–7.6. 90. See the regimes discussed in 7.28–7.91. 91. See 7.32 (NSW), 7.61 (Qld), 7.66 (Tas), 7.70 (Vic). 92. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513, discussed at 7.72–7.76. 93. See 7.34 (NSW), 7.61 (Qld). Cf 7.63 (SA). 94. NSW s 50A(1); Vic s 27B(1). See generally 7.36–7.57. 95. See generally the discussion in B Matthews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 Torts LJ 239 (who ultimately recommends the enactment of equivalent legislation in the remaining Australian jurisdictions so as to avoid injustices and forum shopping: at 253–6). 96. [2011] VSC 429; BC201106667. 97. GGG v YYY [2011] VSC 429; BC201106667 at [216]. 98. See Vic s 27L(1)(e). 99. These are encompassed within Vic s 27L(1)(b) in the context of extending time, but do not figure in the discoverability inquiry in Vic s 27F: see 20.25–20.33. 100. GGG v YYY [2011] VSC 429; BC201106667 at [208].

101. See 24.13, 24.14. 102. Vic s 27O(1). The Bill that generated the amending Act originally overlooked emotional and psychological abuse (being confined to ‘physical or sexual abuse’), and required some degree of proof that the abuse in question constituted a criminal offence at the time (using the phrase ‘criminal child abuse’), but these defects were rectified in the final version. 103. Namely actions arising under Pt III of the Wrongs Act 1958 (Vic). 104. Vic s 27P(1). 105. ‘Discoverability’ is determined under Vic s 27F: see 7.45. 106. Vic s 27Q(1). 107. Vic s 27O(4). The extension is effected by application to the court under Vic Pt IIA Div 3: see 20.71–20.77. 108. Vic ss 27P(2), 27Q(2). 109. NSW s 6A(1). 110. NSW s 6A(2). To remove doubt, s 6A(3) states that connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated when the person is under 18 years of age. 111. NSW s 6A(5)(a). 112. NSW s 6A(5)(b) (pursuant to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2). 113. NSW Sch 5 Pt 3 (including vis-à-vis pre-existing judgments: cl 10). 114. NSW s 6A(6); Vic s 27R. 115. (1999) 8 Tas R 363; [1999] TASSC 33; BC9901200. 116. Indeed, one of the issues in Wilson v Horne (1999) 8 Tas R 363; [1999] TASSC 33; BC9901200 was whether the plaintiff’s ‘sexual development disorder’, allegedly suffered for years earlier, should constitute compensable injury. The court ruled that, as such a ‘disorder’ did not constitute a recognised psychiatric illness or disorder, it did not trigger the running of time for limitations purposes. 117. ‘Personal injury’ is defined to include any disease and any impairment of the physical or mental condition of a person: ACT Dictionary. As to the parameters of ‘personal injury’ so defined, shared with most jurisdictions, see 7.33. 118. As to the meaning of ‘disease or disorder’ see 7.77, 7.78. 119. Namely a cause of action arising under the Civil Law (Wrongs) Act 2002 (ACT) Pt 3.1. Under ACT s 16, such a claim is not maintainable after the end of the later of: (a) the period of six years immediately following the relevant wrongful act, neglect or default; or (b) the period of three years immediately following the day of death of the person injured by that act, neglect or default. 120. ACT s 16A. 121. See 7.30. 122. The relevant provision was inserted by the Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT). 123. Ipp Report, paras 6.18–6.40 (recommendation 24). 124. See 7.77, 7.78. 125. See generally Ch 20. 126. Although ACT s 36 provides for extension of time for personal injury actions, it is expressed not to apply to actions under s 16B: ACT s 36(5)(a). It therefore applies only to causes of action for

127.

128.

129. 130. 131.

132. 133. 134. 135. 136. 137. 138. 139. 140.

141.

142.

143. 144.

damages for personal injury under ACT s 16 (compensation to relatives) or ACT s 16A (claims for common law compensation for workers compensation). As to extension of time under ACT s 36 see 20.2–20.43. The phrase ‘a child (the plaintiff)’ has been construed as capable of including an unborn child who, following birth, has a claim for damages arising from an injury suffered before birth: Opbroek v Australian Capital Territory [2016] ACTSC 64; BC201602373 at [50] per Mossop AsJ. This may include the provision of a health service to the plaintiff’s mother (including while the mother is pregnant with the plaintiff) because the breadth of the phrase ‘relates to’ is sufficient to connect the provision of a health service to the plaintiff’s mother with the injury to the plaintiff (when the plaintiff is born): Opbroek v Australian Capital Territory [2016] ACTSC 64; BC201602373 at [33] per Mossop AsJ (such that ‘[a]ny pre-birth injury is only part of the evidentiary chain leading to an individual’s injury post birth and hence to an entitlement to sue’: at [34]). For the meaning of ‘health service’ see Human Rights Commission Act 2005 (ACT) s 7(1), 7(3) (a). Pursuant to ACT s 30, as to which see 14.9–14.17. Opbroek v Australian Capital Territory [2016] ACTSC 64; BC201602373 at [46], [47] per Mossop AsJ (citing from the debates in the Legislative Assembly over the relevant amending statute, namely the Civil Law (Wrongs) Amendment Act 2003 (ACT)). ACT s 30B(1), 30B(2). ACT s 36(6). As to the meaning of ‘disease or disorder’ see 7.77, 7.78. ACT s 30B(3). Under ACT s 36, as to which see 20.2–20.43. ACT s 30B(4). See 7.70–7.82. The backdrop to the shortening of the limitation period from six years to three years for personal injury actions is catalogued in NSWLRC 21, paras 134–147. NSW s 8(2); Dust Diseases Tribunal Act 1989 (NSW) s 12A, Sch 3 cl 7. ‘Dust-related condition’ refers to a disease specified in Sch 1 to the Dust Diseases Tribunal Act 1989 (NSW), or any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust: Dust Diseases Tribunal Act 1989 (NSW) s 3(1). Pursuant to the Limitation (Amendment) Act 1990 (NSW). In relation to causes of action accruing before 1 September 1990, there was power in the court, in personal injury cases, to extend time by reference to the discovery of a material fact of a decisive character: NSW s 58(2). See 20.45. Under NSW s 19(1), an action on a cause of action arising under the Compensation to Relatives Act 1897 (NSW), by virtue of a death, cannot be maintained if brought after the expiry of three years (for a cause of action accruing before 1 September 1990, six years) running from the date of the death. In any event, s 19 does not apply in respect of a cause of action to which Pt 2 Div 6 (as to which see 7.36–7.57) applies: NSW s 19(2). See 7.36–7.57. Being the commencement date of the relevant amending legislation, the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), which gave a judicial discretion to

145. 146. 147. 148. 149. 150. 151. 152. 153.

154.

155.

156. 157. 158.

159. 160.

161. 162. 163.

extend time (up to five years), to be exercised by reference to set factors, for personal injury causes of action accruing between 1 September 1990 and 6 December 2002: NSW s 60C(2). See generally 20.49–20.55. There was also provision for the court to (further) extend time beyond the five years in question: NSW s 60G(2). See further 20.56–20.60. NSW ss 50C, 50D, as to which see 7.43–7.57. NSW ss 62A, 62B, as to which see 20.73, 20.74. NSWLRC 50, para 6.11. NSWLRC 50, paras 6.24–6.31. NSW ss 60A-60M, as to which see 20.47–20.70. NSW s 11(1). As to the parameters of ‘personal injury’ see further Handford, pp 134–6. ACT Dictionary; Qld s 5(1); SA s 36(2); Tas s 5A(2); Vic s 3(1); WA s 3(1). As to the meaning of ‘disease or disorder’ see 7.77, 7.78. See, for example, Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [38] per Kaye J (who remarked that as the definition of ‘personal injuries’ in Vic s 3(1) is inclusionary, given the type of damages that are ordinarily awarded for a pregnancy, or a continued pregnancy, and the processes of childbirth, which are consequent upon the negligent act or omission of a medical practitioner, those processes might be properly described as ‘a personal injury’). See, for example, New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276; BC201007998 at [116] per Sackville AJA (who construed the respondent’s allegation that he suffered emotional upset, anxiety, distress and humiliation by virtue of an alleged assault (and unlawful imprisonment) as for impairment of his mental condition, and therefore his claim as one for damages for personal injury). Zhang v State of New South Wales [2012] NSWSC 606; BC20120492 at [30] per Schmidt J (on the facts concluding that the plaintiff’s claims for damages for false imprisonment, malicious prosecution and interference with contractual relations were not claims for personal injury, and so the six year limitation period found in NSW s 14(1) (see 6.2) applied: at [56]). NSW s 11(1). Prior to the Limitation (Amendment) Act 1990 (NSW), the definition of ‘breach of duty’ (and also ‘personal injury’) appeared in NSW s 57. O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906; BC200406789 at [43] per Campbell J (concluding that a cause of action for assault accordingly has a limitation period of three years pursuant to s 18A: at [44]). [1993] AC 498. On the facts in Stubbings v Webb [1993] AC 498, this meant that the plaintiff’s claim for damages for alleged sexual and physical abuse by family members during her childhood did not amount to an action for damages for ‘breach of duty’: see at 507–8 per Lord Griffiths, with whom the other Law Lords concurred. O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906; BC200406789 at [38] per Campbell J. See, for example, Kruber v Grzesiak [1963] VR 621; Hayward v Georges Ltd [1966] VR 202. Smith v Rynne [2005] NSWCA 77; BC200501466 at [26] per Hodgson JA, with whom Santow JA and Brownie AJA concurred (although his Honour accepted this construction with ‘some hesitation’: at [27]).

164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186.

187. 188. 189.

190. 191.

Ipp Report, recommendation 24. Ipp Report, paras 6.23, 6.24. Ipp Report, para 6.25. Which is the usual rule at general law vis-à-vis personal injury claims: see 6.5–6.7, 7.4–7.6. Ipp Report, paras 6.26, 6.27. Ipp Report, recommendation 24. Ipp Report, paras 6.33, 6.34. Ipp Report, paras 6.36–6.39. See 20.71–20.77. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [9] per Basten JA, with whom Ipp and Macfarlan JJA concurred. See 20.47–20.55. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [11] per Basten JA, with whom Ipp and Macfarlan JJA concurred. See 20.56–20.70. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [13] per Basten JA, with whom Ipp and Macfarlan JJA concurred. NSW s 50A(2) (namely the commencement date of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)). See 20.44–20.70. Vic s 27N(1) (namely the commencement date of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic)). Vic s 27N(2), 27N(3). Vic s 27N(4). Vic s 27N(5). As to the extension of time under Vic Pt IIA see 20.71–20.77. NSW s 50A(3); Vic s 27B(2)(c). See Motor Accidents Compensation Act 1999 (NSW) Ch 4; Transport Accident Act 1986 (Vic) Pts 6, 10. Namely to: (a) actions for damages to which Accident Compensation Act 1985 (Vic) Pt IV (compensation in the workplace) or of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) Pt 7 (actions and proceedings for damages); and (b) actions for damages in respect of an injury that entitles, or may entitle, a worker within the meaning of the Workers Compensation Act 1958 (Vic) to compensation under that Act: Vic s 27B(2)(a), 27B(2)(b). Vic s 27B(2)(d) (‘dust-related condition’ takes its meaning from the Administration and Probate Act 1958 (Vic) s 3(1)). Vic s 27B(2)(e). NSW s 8(2); Dust Diseases Tribunal Act 1989 (NSW) s 12A, Sch 3 cl 7. ‘Dust-related condition’ refers to a disease specified in Sch 1 to the Dust Diseases Tribunal Act 1989 (NSW), or any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust: Dust Diseases Tribunal Act 1989 (NSW) s 3(1). NSW s 6A(1); Vic s 27N(5). See 7.26.

192. 193. 194. 195.

196. 197.

198. 199. 200. 201. 202. 203. 204.

205. 206.

207. 208. 209. 210. 211. 212.

NSW s 50A(1); Vic s 27B(1). As to survivor actions see 7.44. NSW s 50A(4); Vic s 27B(3). Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [53], [54] per Kaye J. See, for example, Petricola v Metropolitan Transit Authority (1989) Aust Torts Rep ¶80-247; BC8800480 (in the context of a claim by a husband for loss of consortium arising out of an injury to his wife, decided under Vic s 23A (see 20.2–20.43), which referred to ‘any person’ in this context). Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [50] per Kaye J. See, for example, Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 (where, involving a negligence claim against a hospital — for pain and suffering, lost opportunity to abort and economic loss — for failing to detect a foetal abnormality, Kaye J found that the relationship between the mother’s pregnancy and the obligation of the mother and father to care for the child was ‘direct, proximate and substantial’, making it ‘wholly artificial to characterise such a claim for damages as one which is “unrelated” to the “personal injury” of [the mother] constituted by her continued pregnancy and childbirth’: at [50]). NSW s 11(1); Vic s 3(1). See further 7.33. New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57; BC201209681 at [34], [35] per French CJ and Hayne J. Slaveska v State of Victoria [2015] VSCA 140; BC201504887 at [76], [85] per the court. Slaveska v State of Victoria [2015] VSCA 140; BC201504887 at [109]–[113] per the court. See 7.36, 7.37. NSW s 50C(1); Vic s 27D(1). In New South Wales, a cause of action that arises under the Compensation to Relatives Act 1897 (NSW); in Victoria, a cause of action that arises under the Wrongs Act 1958 (Vic) Pt III (‘wrongful act or neglect causing death’). NSW s 50C(3); Vic s 27H. In New South Wales, ‘survivor action’ means a cause of action that survives on the death of a person for the benefit of the person’s estate under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2: NSW s 50B. In Victoria, ‘survivor action’ means a cause of action that survives for the benefit of the estate of a deceased person under the Administration and Probate Act 1958 (Vic) s 29(1) but does not include a cause of action to which s 29(2A) of that Act applies: Vic s 27A(1). NSW s 50C(2); Vic s 27G(1). NSW Pt 3 Div 4; Vic Pt IIA Div 3. See 20.71–20.77. NSW s 50D(1); Vic s 27F(1). NSW s 50D(4); Vic s 27F(4). Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [45] per Basten JA, with whom Ipp and Macfarlan JJA concurred. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [45] per Basten JA, with whom Ipp and Macfarlan JJA concurred (opining that such a belief ‘may be held on firm grounds or on shaky grounds’, and ‘is likely to involve an assessment of various matters, none of which can be readily quantified’).

213. Frizelle v Bauer [2009] NSWCA 239; BC200907139 at [28] per Basten JA, with whom McColl JA concurred. 214. Harris v Woolworths Ltd [2010] NSWSC 25; BC201000376 at [181], [182] per R A Hulme J. 215. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [39] per Basten JA, with whom Ipp and Macfarlan JJA concurred (remarking that the reference to ‘fault’ does not invite some general inquiry into ‘moral blameworthiness’; on the facts, involving a young child (plaintiff) injured when her fingers became caught in automatic sliding doors, the court held that the plaintiff (and her ‘capable parent’: see s 50F(4), discussed at 7.55) could not have ‘known’ that the injury was caused by the ‘fault’ of the defendant until they became aware of the availability and reasonable practicability of a precaution that, had it been taken by the defendant, would have prevented the injury: at [40]). As to the meaning of the term ‘fault’ in this context see further 7.51, 7.52. 216. New South Wales v Gillett [2012] NSWCA 83; BC201202349 at [131] per Campbell JA. See also Guest v West Tamar Council [2013] TASSC 1; BC201300175 at [34] per Holt AsJ (applying Campbell JA’s remarks to the parallel definition of ‘date of discoverability’ in Tas s 2(1) (as to which see 7.67), and so rejecting the submission that knowledge of the facts that constitute the cause of action is sufficient, even where there is no knowledge of the legal implications). 217. Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2; BC201600757 at [86] per Porter J. 218. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [39] per Basten JA, with whom Ipp and Macfarlan JJA concurred. See also Rawle v Southstate Industrial Supplies Pty Ltd (2008) 7 DCLR (NSW) 134; [2008] NSWDC 70 at [25] per Goldring DCJ (countenancing that it may involve looking at that injury in light of any (statutory) requirements for claiming compensation). 219. Rawle v Southstate Industrial Supplies Pty Ltd (2008) 7 DCLR (NSW) 134; [2008] NSWDC 70 at [25], [26] per Goldring DCJ, endorsed in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [46] per Basten JA, with whom Ipp and Macfarlan JJA concurred. 220. Ipp Report, para 6.28. See, for example, Guest v West Tamar Council [2013] TASSC 1; BC201300175 (where Holt AsJ found that while the plaintiff, independently of professional advice, lacked actual knowledge of the relevant facts, a person with the plaintiff’s qualities and characteristics ought to have ascertained those facts: at [54]–[65]). 221. NSW s 60I(1)(b), as to which see 20.61–20.63, 20.68–20.70. 222. Spandideas v Vellar [2008] VSC 198; BC200804191 at [65] per Kaye J [affd Vellar v Spandideas [2008] VSCA 139; BC200807027]; Guest v West Tamar Council [2013] TASSC 1; BC201300175 at [50] per Holt AsJ. 223. Kaye v Hoffman (No 2) (2008) 17 Tas R 176; [2008] TASSC 2; BC200800636 at [25], [33] per Tennent J [point not contested on appeal: Kaye v Hoffman (2009) 19 Tas R 357; [2009] TASSC 5; BC200900190]; O’Neill v Rhodes [2016] TASSC 17; BC201602101 at [20] per Porter J. 224. NSW s 50D(2); Vic s 27F(2). In determining what a person ‘knows or ought to have known’, the legislation adds that a court may have regard to his or her conduct and statements, oral or in writing (NSW s 50D(3); Vic s 27F(3)), although this adds little to how questions of knowledge would have been approached by a court independently of such a provision. 225. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [57] per Basten JA, with whom Ipp and Macfarlan JJA concurred. 226. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35;

227.

228. 229.

230.

231. 232. 233.

234. 235.

236.

237.

BC200901307 at [58] per Basten JA, with whom Ipp and Macfarlan JJA concurred. See, for example, Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182; BC200740263 at [26]–[29] per Gibson DCJ. Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182; BC200740263 at [26] per Gibson DCJ (‘it is not sufficient for the defendants to point to a party’s solicitor as someone who ought to have known as sufficient for the information to be discoverable’). The same has been held in relation to NSW s 60I(1)(b): see 20.70. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [59] per Basten JA, with whom Ipp and Macfarlan JJA concurred. Mercer v Allianz Australia Insurance Ltd (No 3) [2014] TASSC 69; BC201411006 at [34] per Blow J (in the context of the same phrase in equivalent legislation, namely Tas s 5A(3)(a), as to which see 7.67) (reasoning that the relevant provisions ‘amount to beneficial legislation, enacted for the benefit of injured plaintiffs’, so that ‘any ambiguity ought to be resolved in favour of the class of persons intended to be benefited by the provisions’) [point not specifically addressed on appeal: Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2; BC201600757]. See Frizelle v Bauer [2009] NSWCA 239; BC200907139 at [30] per Basten JA, with whom McColl JA concurred (envisaging a case where the applicant has taken all reasonable steps to ascertain facts, depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind). Spandideas v Vellar [2008] VSC 198; BC200804191 at [32], [33] per Kaye J [affd but not specifically on this point: Vellar v Spandideas [2008] VSCA 139; BC200807027]. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [39] per Basten JA, with whom Ipp and Macfarlan JJA concurred. Being the phrase used in NSW s 60C(1), as to which see 20.49. In New South Wales v Gillett [2012] NSWCA 83; BC201202349 at [122] Campbell JA saw it as a reasonable inference that the terms of NSW s 50D(1)(b) differ from the recommendations of the Ipp Report (see 7.36, 7.37), by having as one of the elements of discoverability that ‘the injury or death was caused by the fault of the defendant’, to enable the provision to cover a wider range of circumstances in which a cause of action to recover damages for death or personal injury might arise. Namely NSW s 60I(1)(a)(iii), as to which see 20.66, 20.67. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; BC200901307 at [28], [39] per Basten JA, with whom Ipp and Macfarlan JJA concurred; New South Wales v Gillett [2012] NSWCA 83; BC201202349 at [94] per Beazley JA, with whom McColl, Campbell, Young and Whealy JJA concurred. See Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [56] per Kaye J (remarking that ‘it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights’). Spandideas v Vellar [2008] VSC 198; BC200804191 at [35] per Kaye J [affd but not specifically on this point: Vellar v Spandideas [2008] VSCA 139; BC200807027] (emphasis supplied). This approach to the meaning of ‘fault’ was followed in Tucker v Barwon Health and Geelong Hospital [2008] VSC 229; BC200804938 at [73] per Kyrou J (albeit without argument) and Delai v Western District Health Service [2009] VSC 151; BC200902980 at [15] per Beach J. It had also been followed in New South Wales: Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004; BC200808448 at [21] per Fullerton J. See also New South Wales v Gillett [2012] NSWCA 83;

238. 239. 240.

241. 242. 243. 244. 245. 246. 247.

248.

BC201202349 at [124] per Campbell JA (opining that ‘knowledge that injury or death was caused by the fault of the defendant might well require more than that it was caused by conduct that (whether the plaintiff knew or ought to know it or not) was in fact conduct that breached a legal standard for which breach the defendant was answerable’). New South Wales v Gillett [2012] NSWCA 83; BC201202349 at [95] per Beazley JA, with whom McColl, Campbell, Young and Whealy JJA concurred. B Matthews, ‘Assessing the Scope of the Post-Ipp “Close Associate” Special Limitation Period for Child Abuse Cases’ (2004) 11 JCULR 63 at 83. A person is a ‘close associate’ in this context if he or she is a person whose relationship with the parent or guardian is such that: (a) the parent or guardian might be influenced by the person not to bring a claim on behalf of the victim against the person; or (b) the victim might be unwilling to disclose to the parent or guardian the conduct or events in respect of which the cause of action is founded (in Victoria, unwilling to disclose the act or omission alleged to have resulted in the death or personal injury): NSW s 50E(2); Vic s 27I(2). If, as it appears from the wording of the definition, paragraph (b) is predicated on the non-disclosure only because of the child’s perception of the tortfeasor’s relationship with the child’s parent, it has been suggested that the wording of paragraph (b) is too narrow. This is because a major cause of a child not disclosing abuse, or of delaying its disclosure, ‘is not simply (or even necessarily) the abuser’s relationship with the child’s parent, and the child’s perception of this relationship and its effect’; the reasons for non-disclosure and delayed disclosure may be more nuanced, so as to ‘hinge on the nature of the acts constituting the abuse and, more importantly, the nature of any feelings about those acts that the child may have by himself or herself, or which have been imposed on the child’: B Matthews, ‘Assessing the Scope of the Post-Ipp “Close Associate” Special Limitation Period for Child Abuse Cases’ (2004) 11 JCULR 63 at 75. NSW s 50E(1); Vic s 27I(1). Ipp Report, para 6.54. See B Matthews, ‘Assessing the Scope of the Post-Ipp “Close Associate” Special Limitation Period for Child Abuse Cases’ (2004) 11 JCULR 63 at 69–70. NSW s 50E(3); Vic s 27I(3). See NSW s 50F(5); Vic s 23(1A). As to the general disability provisions see 14.9–14.17 (NSW), 14.18–14.27 (Vic). NSW s 50F(1); Vic s 27J(2). ‘Capable parent or guardian’ of a minor means a person who is a parent or guardian of the minor, and is not under a disability (legal incapacity): NSW s 50F(4); Vic s 27J(4). In New South Wales ‘guardian’ of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 (NSW) for the minor: NSW s 50F(4). In Victoria ‘guardian’, in relation to a represented person, means: (a) the guardian or administrator of that person under the Guardianship and Administration Act 1986 (Vic); or (b) in the case of a protected person, State Trustees Ltd: Vic s 27J(4). ‘Incapacitated person’ means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (a) any disease or any impairment of his or her physical or mental condition; (b) in New South Wales, restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990 (NSW); or (c) in New South Wales, war or warlike operations or circumstances arising out of war or warlike

249.

250. 251. 252. 253. 254. 255. 256.

257. 258. 259. 260.

261.

262. 263. 264.

265.

operations: NSW s 50F(4); Vic s 27J(4). NSW s 50F(2); Vic s 27J(1). ‘Protected person’ means: (a) a person in respect of whose person another person is guardian under any Act or law; or (b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 (NSW) or the Guardianship Act 1987 (NSW) that his or her estate (or any part thereof) be subject to management under the NSW Trustee and Guardian Act 2009 (NSW): NSW s 50F(4). ‘Represented person’ means: (a) represented person within the meaning of the Guardianship and Administration Act 1986 (Vic); or (b) protected person within the meaning of s 85 of that Act: Vic s 27J(5). Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [39], [40] per Hoeben J. Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [55], [56] per Hoeben J. Vic s 27E(2) (and see also Vic s 27D(2)). See further Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [40], [41] per Hoeben J. Namely NSW s 50C, as to which see 7.43, 7.44. NSW s 50F(3); Vic s 27J(3). NT s 12(1)(b), as to which see 6.2. NT s 17 (referring to actions under the Compensation (Fatal Injuries) Act 1974 (NT) ss 7 (death caused by a wrongful act, neglect or default), 13 (alternative action where personal representative is not appointed or does not bring action)). NT s 44(3)(b), as to which see 19.8. NT s 12(2)(a). ‘Dust disease’ means a pathological condition of the lungs, pleura or peritoneum that is attributable to dust: NT s 12(3). Qld s 11(1). For this purpose, ‘dust-related condition’ is defined in Civil Liability Act 2003 (Qld) Sch 2: Qld s 11(4). To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke: Qld s 11(3). Qld s 11(2) (inserted by Civil Liability and Other Legislation Amendment Act 2010 (Qld) s 25); Hall v WorkCover Queensland [2015] 2 Qd R 88; [2014] QCA 135; BC201404391 at [47]–[50] per Muir JA, with whom Margaret McMurdo P and Atkinson J agreed (concluding that Qld s 11(2) prescribes for a ‘blanket exemption’ from all limitation provisions for any right of action ‘relating to’ personal injury resulting from a dust-related condition, and so exempts any limitation provision applicable to dependency claims). Qld s 5(1). See further 7.33. As to this debate see 7.72–7.76. The phrase ‘damages in respect of injury resulting from the death of any person’ was inserted by the Common Law Practice and Limitation of Actions Acts Amendment Act 1981 (Qld) s 9 (which also amended ss 29 and 31 to include a three year limitation period for a dependency claim (see 7.61) and to make the facility to extend the limitation period in prescribed circumstances afforded by s 31 (see generally 20.78–20.117) applicable to dependency claims): Hall v WorkCover Queensland [2015] 2 Qd R 88; [2014] QCA 135; BC201404391 at [13] per Muir JA. Hall v WorkCover Queensland [2015] 2 Qd R 88; [2014] QCA 135; BC201404391 at [20]–[24] per

266. 267. 268. 269.

270. 271.

272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282.

283. 284. 285. 286. 287.

Muir JA, with whom Margaret McMurdo P and Atkinson J agreed (a conclusion assisted by ‘loss of life’ being included in the meaning of ‘damage’ by Qld s 5). See Civil Proceedings Act 2011 (Qld) s 64 (formerly Supreme Court Act 1995 (Qld) s 17). Qld ss 30–32, as to which see 20.78–20.117. SA s 36(2). See further 7.33. SA s 36(1a), inserted by the Dust Diseases Act 2005 (SA). Although this Act took effect on 8 February 2006, both the Act and the amendments made by it apply to causes of action arising and actions commenced before or after its commencement of this Act: Dust Diseases Act 2005 (SA) Sch 1 cl 4(1). But it does not apply to an action commenced before 8 February 2006 if the trial has already commenced before that date: Dust Diseases Act 2005 (SA) Sch 1 cl 4(2). The relevant amendment was the belated product of the Law Reform Committee of South Australia, Report Relating to Claims for Injuries from Toxic Substances and Radiation Effect, No 87, 1985, pp 19– 21. Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [234] per White J. Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [235] per White J (where the plaintiff’s knowledge of his gambling, depression, paranoia and cannabis use was held to amount to knowledge of his ‘injury’, independent of being apprised of a formal diagnosis). As to the meaning of ‘beyond the seas’ see 14.30. SA s 39. SA s 48(3)(b)(i), 48(3b), as to which see 19.9, 19.13. ‘Personal injury’ includes any disease and any impairment of a person’s physical or mental condition: Tas s 5A(2). See further 7.33. See 7.72–7.76. Tas s 5A(3). Tas s 5A(4). See 7.36, 7.37. See 7.40–7.57. See the discussion in Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2; BC201600757 at [54]–[90] per Porter J. Although the equivalent provision in New South Wales and Victoria uses the term ‘justify’ in place of ‘warrant’ (see 7.45), the terms in question should be viewed as synonymous: Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2; BC201600757 at [54] per Porter J. Tas s 2(1). See 20.118. Tas s 5A(6). Tas s 5A(1) (being the ‘commencement day’ of the Limitation Amendment Act 2004 (Tas): Tas 2(1)). Tas s 5(1), 5(1A). Equivalent provision had earlier existed via the Limitation of Actions Act 1965 (Tas) s 2 (albeit imposing a 30 month limitation period vis-à-vis ‘an action for damages for negligence, nuisance, or breach of duty … where the damages claimed by the plaintiff … consist of or include damages in respect of personal injuries’ (s 2(1)), but providing for an avenue to

288. 289. 290. 291.

292.

293.

294.

295. 296. 297. 298.

extend time if the court ‘thinks that in all the circumstances of the case it is just and reasonable to do so’ (s 2(2)). The 30 month year period found in the 1965 Act represented a compromise between each House of the Tasmanian Parliament (the Lower House favouring two years while the Upper House favouring three years): TLRC A10, p 24 (recommending that the 30 month limitation period be extended to three years). Cf TLRC 69, p 44 (recommending that the limitation period be extended to six years, a recommendation that was not implemented). See 20.119. Vic s 3(1). See further 7.33. ACT s 16B, as to which see 7.28. The words ‘the cause of action shall be taken to have accrued on’ were inserted into Vic s 5(1A) by the Limitation of Actions (Amendment) Act 1989 (Vic). Those additional words, it has been said, do not create the cause of action but have ‘the limited purpose of giving a new date for calculation purposes, that is a termination date in the cases where knowledge is acquired’: Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) BC9802336 at 31 (emphasis in original) (adding that the history of the amendment ‘would suggest that it was not directed to the suppression of a right to sue for injury that consisted of disease or disorder but, by creating a fictional date to provide an end time to the exercise of the right to sue, but was dealing with the case where knowledge was acquired’). See also Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [28] per Gleeson CJ, Callinan, Heydon and Crennan JJ (noting that as the phrase ‘taken to have accrued’ means ‘taken to have accrued for the purposes of determining the limitation period’, there is nothing in its language that denies its application to a case where knowledge of a disorder and its cause occurs at or about the same time as the occurrence of the disorder, as opposed to (as is more usual) antedating it). The limitation period here was formerly six years, but was reduced to three years by the Limitation of Actions (Amendment) Act 2002 (Vic), with effect on causes of action that accrued after 4 November 2002. This appears from the Report of the Sub-Committee of the Chief Justice’s Law Reform Committee, Limitation of Actions in Personal Injury Claims, 6 May 1981 (chaired by Mr Justice Marks) (further commenting (at p 5) that ‘[i]nsidious diseases such as asbestosis and pneumoconiosis have given rise to extension of time applications because the limitation period commonly expires before the victim knows that he has the disease and that it was caused by some act or omission of his employer’), which was a key driver for the introduction of Vic s 5(1A) from 11 May 1983 (via the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic)). Section 5(1A) repealed the former Vic s 5(6), which set a three year limitation period for all personal injury claims, without any avenue for postponing the running of time. However, s 23A, introduced by the Limitation of Actions (Personal Injuries) Act 1972 (Vic) with effect from 1 January 1973, did confer on the court a discretion to extend time in this context: see generally 20.2–20.43. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [17] per Gleeson CJ, Callinan, Heydon and Crennan JJ. See also Cavenett v Commonwealth of Australia [2007] VSCA 88; BC200703437 at [46] per Chernov JA. Vic s 5(1C). The exceptions are listed in Vic s 27B(2). See 7.36–7.57. Vic s 27B(1).

299. 300. 301. 302. 303. 304. 305.

306. 307. 308.

309. 310. 311. 312.

313. 314. 315.

316.

317. 318.

319. 320.

Vic ss 27K, 27L, as to which see 20.71–20.77. Vic s 23A, as to which see generally 20.2–20.43. Tas s 5A(3), as to which see 7.67. NSW s 18A(1) (by reference to the definition of ‘breach of duty’ in NSW s 11(1): see 7.34, 7.35); Qld s 11(1) (by including ‘trespass’ in the principal operative provision: see 7.61). (2006) 226 CLR 442; [2006] HCA 37; BC200605513. For the purposes of the equivalently phrased UK 1980 s 11(1). [2008] 1 AC 844; [2008] UKHL 6. It is also settled in Singaporean law, which has applied A v Hoare to the same end in the context of an equivalent statutory provision: Yan Jun v AttorneyGeneral [2015] 1 SLR 752; [2014] SGCA 60 (ruling that the phrase ‘breach of duty’ in the Limitation Act (Cap 163, 1996 Rev Ed) s 24A(1)) encompassed the tort of false imprisonment). [1993] AC 498. As to Vic s 23A see generally 20.2–20.43. As had been held in Mason v Mason [1997] 1 VR 325 at 330; BC9603830 per Callaway JA (a case not materially different from Stingel, where the Victorian Court of Appeal declined to follow the decision of the House of Lords in Stubbings v Webb [1993] AC 498). Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [17]. [1965] 1 QB 232. See [2008] 1 AC 844; [2008] UKHL 6 at [11]–[25] per Lord Hoffmann, at [63] per Lord Carswell, at [77]–[81] per Lord Brown. Letang v Cooper [1965] 1 QB 232 at 245–6. See also at 241–2 per Lord Denning MR, at 242 per Danckwerts LJ; Long v Hepworth [1968] 3 All ER 248 at 255–6 per Cooke J. There had, in any event, been case law preceding Letang v Cooper to this effect: see Billings v Reed [1945] 1 KB 11 at 19 per Lord Greene MR. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [17]. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [17] per Gleeson CJ, Callinan, Heydon and Crennan JJ. See Kruber v Grzesiak [1963] VR 621 (dealing with Vic s 5(6), the forerunner to the current Vic s 5(1A)) (which the English Court of Appeal, incidentally, applied in Letang v Cooper [1965] 1 QB 232); Hayward v Georges Ltd [1966] VR 202. Their Lordships reasoned that, as the phrase ‘negligence, nuisance or breach of duty’, when used in earlier limitations statutes (namely the Law Reform (Limitation of Actions) Act 1954 (UK) s 2(1) and then Limitation Act 1975 (UK) s 1), had at that time been judicially construed as wide enough to encompass intentional torts, Parliament must have intended the words to bear that same meaning in the current legislation: see A v Hoare [2008] 1 AC 844; [2008] UKHL 6 at [9]– [24] per Lord Hoffmann, at [63] per Lord Carswell, at [75]–[80] per Lord Brown. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [131]. A point noted by Kirby J in his dissenting judgment in Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [103] (suggesting that it would have been possible for the drafter to provide that Vic s 5(1A) applies to ‘actions founded on … contract or on tort and on statute’). Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [130]. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [17] per Gleeson CJ, Callinan, Heydon and Crennan JJ. See also A v Hoare [2008] 1 AC 844; [2008] UKHL 6 at [22],

321. 322. 323.

324. 325. 326. 327. 328. 329. 330.

331. 332. 333. 334. 335. 336. 337. 338. 339.

[23] per Lord Hoffmann, at [81] per Lord Brown (each illustrating an anomaly created by the contrary view by reference to Seymour v Williams [1995] PIQR P470, discussed in the text). [1995] PIQR P470. Under UK 1980 s 33. Their Lordships’ invitation to the Law Commission to consider the anomaly resulted in a recommendation that claims for personal injuries, including those of child abuse, whether in trespass to the person or in negligence, should be subject to the same core regime of an extendable three year limitation period with discretion to disapply: see Law Com No 270, paras 1.5, 3.156, 3.162, 3.169. That the English Court of Appeal ‘warmly commend[ed] such a proposal’ and called for its ‘[e]arly statutory implementation’ (KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] QB 1441; [2003] EWCA Civ 85 at [100] per the court) has not served to prompt statutory change to this effect. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [101]. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [114], [115]. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [69]–[75]. [2002] 2 IR 360. Tucker Committee, para [23]. Stubbings v Webb [1993] AC 498 at 507–8. [2008] 1 AC 844; [2008] UKHL 6 at [4]–[6] (noting that while the Tucker Committee ‘certainly seems to have intended to exclude actions for trespass to the person from their proposal’, ‘[t]hey did not explain why’ and the reason they gave for adopting a short period for personal injury claims — namely ‘the desirability of such actions being brought to trial quickly, whilst evidence is fresh in the minds of the parties and witnesses’ (at [22]) — ‘would seem equally applicable to cases in which the cause of action is trespass’: at [4]). Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [112] (footnotes omitted). Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [129]. Report of the Sub-Committee of the Chief Justice’s Law Reform Committee, Limitation of Actions in Personal Injury Claims, 6 May 1981 (chaired by Mr Justice Marks), p 5. ACT s 16B, as to which see 7.28. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [26] per Gleeson CJ, Callinan, Heydon and Crennan JJ. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [26] per Gleeson CJ, Callinan, Heydon and Crennan JJ. Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 at [27] per Gleeson CJ, Callinan, Heydon and Crennan JJ. (2001) 3 VR 172; [2000] VSCA 230; BC200007587 (see at [9] per Winneke P, at [42]–[45] per Chernov JA). Deriving from Perry v Royal Women’s Hospital (SC(Vic), Beach J, 14 May 1991, unreported) BC9102932 (‘retrolental fibroplasia’ found to be a disease or disorder within the meaning of Vic s 5(1A)) and Herschberg v Mula (1993) Aust Torts Rep ¶81-256; BC9300900 (chronic pelvic infection held to come within Vic s 5(1A)) (cf Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) BC9802336 at 21), which support the proposition, subsequently endorsed in Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513, that Vic s 5(1A) is not confined to ‘insidious’ industrial diseases.

340. ACT s 16B, as to which see 7.28. 341. See, for example, Falcon v McCann [1998] VSC 83; BC9805002 at [13] per Byrne J; Cavenett v Commonwealth of Australia [2007] VSCA 88; BC200703437 at [97] per Nettle JA. 342. See, for example, Calder v Uzelac [2003] VSCA 175; BC200307104 at [10] per Buchanan JA, with whom Chernov JA concurred; Cavenett v Commonwealth of Australia [2007] VSCA 88; BC200703437 at [2] per Maxwell ACJ, at [29] per Chernov JA (adopting the same approach espoused in Commonwealth v Smith [2005] NSWCA 478; BC200511378, for the purposes of NSW ss 60G, 60I (as to which see 20.57–20.70)) (cf at [97] per Nettle JA, who envisaged that a plaintiff need not even know that the condition has been recognised by the medical profession as a mental illness, but must believe, in order to trigger Vic s 5(1A), ‘that his or her mental condition is of such a nature that the medical profession would recognise it as a mental illness’; yet s 5(1A) targets knowledge as opposed to belief, and the distinction his Honour suggests appears, with respect, to verge on sophistry). 343. Hammet v Connor [1980] VR 538 at 543 per Crockett J; Cavenett v Commonwealth of Australia [2007] VSCA 88; BC200703437 at [97] per Nettle JA; Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [235] per White J (in the context of SA s 36, as to which see 7.63, 7.64). 344. Commonwealth v Smith [2005] NSWCA 478; BC200511378 at [16] per Handley JA. 345. ACT s 16B, as to which see 7.28. 346. Van Gerven v Amaca Pty Ltd [2010] VSC 236; BC201003614 at [12] per Williams J; Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [367], [368] per Macaulay J. 347. Mazzeo v Caleandro Guastalegname & Co (2001) 3 VR 172; [2000] VSCA 230; BC200007587 at [4]–[7] per Winneke P, at [46]–[48] per Chernov JA (overruled in Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; BC200605513 but not on this point). To the extent that Perry v Royal Women’s Hospital (SC(Vic), Beach J, 14 May 1991, unreported) BC9102932 and Donnelly v State of Victoria (SC(Vic), O’Bryan J, 30 June 1994, unreported) BC9401143 held otherwise, they were overruled by Mazzeo. 348. See Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) BC9802336 at 23. 349. WA s 14(1). There is also a three year limitation period for actions under the Fatal Accidents Act 1959 (WA) for damages relating to the death of a person, commencing from the date of death: WA s 14(2) (see WALRC 36(II), pp 508–9, as to the backdrop to this provision). 350. WA s 3(1). 351. WA s 3(1). 352. WA s 39 (which also applies to actions under the Fatal Accidents Act 1959 (WA)). 353. Being the commencement date of the Limitation Act 2005 (WA). 354. WA s 6(2). 355. WA 1935 s 38A. This provision was introduced in 1983, via the Acts Amendment (AsbestosRelated Diseases) Act 1983 (WA), to ameliorate the harshness of the Cartledge rule in the limited case where a plaintiff’s cause of action arose from a latent injury attributable to the inhalation of asbestos. In introducing this amendment, against the backdrop of disease arising out of mining Australian blue asbestos at Wittenoom between 1943 and 1966, the government of the day refused to adopt the recommendation of the Western Australian Law Reform Commission (see WALRC 36(I), pp 75–80) that all personal injury actions be governed by a six year limitation period, but which would not apply where the court determined that it was just that it not apply,

356. 357. 358. 359. 360. 361. 362.

363.

364.

365.

366. 367.

368.

by reference to the circumstances of the case and according to certain statutory criteria. The ad hoc 1983 amending legislation was described as ‘far from satisfactory’, not only in discriminating against claimants suffering from a latent disease or injury other than asbestosis, but in establishing a complex and obscure system depending upon the date (actual or imputed) of the plaintiff’s knowledge of ‘relevant facts’: TLRC 69, p 29. See further WALRC 36(II), pp 114–15; P Handford, ‘Damages and Limitation Issues in Asbestos Cases’ (1991) 21 UWALR 63 at 75–83. As to the regime that applies in the event that an injury is attributable to the inhalation of asbestos see 7.87–7.89. As to WA s 55 see 7.83. WA s 57(1). WA s 57(2). As to WA s 56 see 7.87. This is so unless the person had knowledge of the relevant facts before 1 January 1984. The language parallels that in UK 1975 s 2A(6) (now found in UK 1980 s 14(1)), which was designed to provide a statutory answer to the question that divided the House of Lords in Smith v Central Asbestos Co Ltd [1973] AC 518 under UK 1963: Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 301 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred. It has been noted that the word ‘significant’ is simply the verbal peg upon which this provision is hung; what is ‘significant’ is to be determined by what would reasonably have been regarded as ‘serious’: McCoubrey v Ministry of Defence [2007] 1 WLR 1544; [2007] EWCA Civ 17 at [41] per Neuberger LJ, with whom Tugendhat J and Ward LJ concurred. WA s 56(3) reads in identical terms to UK 1980 s 14(2) (and its forerunner, UK 1975 s 2A(7)). The Western Australian legislation adds that an ‘injury’ as defined in the Workers’ Compensation and Injury Management Act 1981 (WA) (before 14 November 2005, a ‘disability’ as defined in that Act) is not to be treated as being ‘significant’ except in the circumstances listed in WA s 56(4). It has been held that the phrase ‘sufficiently serious’ means that ‘the action considered must not be frivolous or wholly without merit, taking into account the effort required in instituting a court action’, on the basis that otherwise there would be no effective control mechanism to limit the knowledge required: Lian Kok Hong v Ow Wah Foong [2008] 4 SLR 165; [2008] SGCA 30 at [39] per V K Rajah JA (dealing with an equivalent provision in Singapore, namely the Limitation Act (Cap 163, Rev Ed) s 24(4)(d)). McCoubrey v Ministry of Defence [2007] 1 WLR 1544; [2007] EWCA Civ 17 at [44] per Neuberger LJ, with whom Tugendhat J and Ward LJ concurred. The term ‘attributable’ has, for the purposes of parallel English legislation (UK 1980 ss 14(1)(b), 14A(8)(a)), been interpreted to mean a real possibility, and not a fanciful one, but nonetheless a possible cause of the injury as opposed to a probable one: Nash v Eli Lilly & Co [1993] 4 All ER 383 at 397 per Purchas LJ, endorsed in AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [34], [35] per Lord Walker. See, for example, Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968 (where the plaintiff did not know the identity of his employers, against whom he wished to claim, until the expiry of the limitation period; he therefore lacked ‘knowledge of the relevant facts’); Cressey v E Timm & Son Ltd [2005] 1 WLR 3926; [2005] EWCA Civ 763 (running of time postponed in favour of an employee who had been misinformed about the identity of his employer, against whom the claim

369. 370.

371.

372.

373.

374.

was to be made; Rix LJ, with whom Jonathan Parker and May LJJ concurred, added the broader observation that ‘[t]he identity of the defendant is obviously one of a number of critical facts for the purpose of the running of time against a would-be claimant’, and that in these circumstances ‘the identity of a defendant appears to look to something specific enough to enable a person to be identified for the purpose of a claim form, and that is ultimately looking for a name’, not simply ‘the driver of the other car’, or even ‘my employer’: at [35]). UK 1980 ss 14(3), 14A(10). English case law confirms that legal advice, in relation to matters of law, is capable of coming within the phrase ‘appropriate expert advice’: Henderson v Temple Pier Co Ltd [1998] 3 All ER 324 at 327–8 per Bracewell J, with whom Beldam LJ concurred (although on the facts ruling that a solicitor was not an expert for the purpose of discovering who owned a particular ship, as this was a matter ascertainable by the plaintiff without the use of legal expertise). AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [47]–[50] per Lord Walker. Cf Gravgaard v Aldridge & Brownlee (a firm) [2005] PNLR 19; [2004] EWCA Civ 1529 at [20]–[22] per Arden LJ, with whom Black J and May LJ agreed. Young v South Tyneside Metropolitan Borough Council [2007] QB 932; [2006] EWCA Civ 1534 at [45] per Dyson LJ, with whom Sir Peter Gibson concurred, at [80]–[84] per Buxton LJ; McCoubrey v Ministry of Defence [2007] 1 WLR 1544; [2007] EWCA Civ 17 at [37]–[40], [50]–[52] per Neuberger LJ, with whom Tugendhat J and Ward LJ concurred (remarking that the question of whether an injury is ‘significant’ must be decided ‘by reference to the seriousness of the injury, and not by reference to its effect, let alone its subjectively perceived effect, on the claimant’s private life or career’: at [39]); Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182 at [26] per Smith LJ, with whom Laws and Buxton LJJ concurred; A v Hoare [2008] 1 AC 844; [2008] UKHL 6 at [34]–[38] per Lord Hoffmann (noting that ‘the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonably” have done so’ (at [34]), and that ‘[o]nce you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture’ (at [35])), at [68] per Lord Carswell (‘What is material in determining if the injury is significant … is whether a reasonable person, possessed of the facts known or available to the claimant, would consider the injury sufficiently serious to justify instituting proceedings for damages, assuming that the defendant will not dispute liability and is able to satisfy a judgment’). Cf McGee, p 146 (who sees ‘apparently some element of subjectivity built into the test’); McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 at 1081 per Geoffrey Lane LJ (who favoured a partly subjective and partly objective interpretation under the former equivalent provision UK 1975 s 2A(7)). Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427 at 438 per Slade LJ (in the context of parallel English legislation: UK 1980 ss 14(1)(b), 14A(8)(a); the same applies vis-à-vis the cases cited in the five ensuing footnotes). See also NZLC MP16, para 130 (remarking that ‘if a knowledge based period depends on the plaintiff knowing everything there is to be known about the facts entitling a plaintiff to bring a claim, then for practical purposes there might as well be no start date based simply on the occurrence of an event (whether known or unknown) from which time begins to run’). Nash v Eli Lilly & Co [1993] 4 All ER 383 at 398 per Purchas LJ. See also Whitfield v North Durham Health Authority (1995) 6 Med LR 32 at 37 per Waite LJ (‘the court should look at the essence of the matter and enquire how far the plaintiff had knowledge in broad terms of the facts on which it is based’).

375. Dobbie v Medway Health Authority [1994] 4 All ER 450 at 453 per Sir Thomas Bingham MR. See also London Strategic Health Authority v Whiston [2010] 3 All ER 452; [2010] EWCA Civ 195 at [29], [30] per Dyson LJ, with whom Longmore and Smith LJJ concurred. 376. Haward v Fawcetts (a firm) [2006] 3 All ER 497; [2006] UKHL 9 at [57] per Lord Walker. 377. A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) at [47] per Globe J. 378. Halford v Brookes [1991] 3 All ER 559 at 574 per Lord Donaldson MR, endorsed in Haward v Fawcetts (a firm) [2006] 3 All ER 497; [2006] UKHL 9 at [9] per Lord Nicholls; AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [12] per Lord Wilson JSC, at [83] per Lord Mance JSC. 379. Sniezek v Bundy (Letchworth) Ltd [2000] PIQR P213 at P229, P232 per Judge LJ, endorsed in AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [12] per Lord Wilson JSC, at [54], [55] per Lord Walker (noting that, in the typical scenario for a claim for personal injury sustained from a bad working environment, a plaintiff’s first visit to a lawyer may do no more than initiate the process of obtaining expert medical advice, which process may take years, with the lawyer’s function limited to the collation of medical and other technical evidence: at [56]). 380. Being the commencement date of the Limitation Act 2005 (WA). 381. WA s 6(2). 382. WA s 7(1) (which is expressed to include both natural childbirths and births by way of a medical procedure). 383. Accordingly, WA s 7(2) has retrospective operation in this context, a point confirmed by WA s 4, which exempts WA s 7 from the Act’s otherwise prospective application. 384. Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [9] per Martin CJ, at [65] per Pullin JA. 385. WA 1935 s 40. 386. WA 1935 s 38(1)(c). 387. WA 1935 s 47A, as to which see 12.32–12.35. 388. See Scott v Western Australia (1994) 11 WAR 382 at 383; BC9406802 per Rowland J; Northey v Minister for Education (1995) 13 SR (WA) 124 at 125 per Kennedy DCJ. 389. WALRC 36(II), pp 274–5. 390. Second reading speech for the Limitation Bill 2005 (WA), Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2005, p 564 (Mr J A McGinty, Attorney General). 391. Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [33] per Martin CJ. 392. WA Pt 3 provides for the extension and shortening of limitation periods. 393. WA s 7(3) (except that ss 30 (‘Limitation periods applicable to persons under 15 when cause of action accrues’: see 14.33) and 31 (‘Limitation periods applicable to persons between 15 and 18 when cause of action accrues’: see 14.33) do not apply, and ss 32 (‘Suspension of time while person under 18 is without guardian’: see 14.34) and 41 (‘Court may extend time to commence action by person under 18 when cause of action accrues, with guardian’: see 14.39) do not apply if the person has reached 15 years of age at 15 November 2005). See also Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267; BC201210273 at [68] per Pullin JA (explaining the relationship between WA s 7 and WA Pt 3). 394. WA s 7(4).

[page 179]

CHAPTER 8

Causes of Action in Relation to Land Scope of Application Differential application as between States and Territories Application to equitable interests in land Time Bar for Recovery of Land General time bar Meaning of relevant terms Specific regime for recovery of land vis-à-vis the Crown New South Wales and Tasmania Queensland, South Australia, Victoria and Western Australia Effect of Expiry of Time Bar Extinction of title Effect of extinction Extinction of title in its application to Torrens system land Qualification for beneficiary’s claim otherwise timebarred against trustee Accrual of Cause of Action Relating to the Recovery of Land Present interests in land

8.2 8.2 8.3 8.5 8.5 8.7 8.9 8.9 8.11 8.13 8.13 8.15 8.19 8.22 8.23 8.23

Concepts of ‘dispossession’ and ‘discontinuance’ Threshold for ‘adverse’ possession Adverse possession to be ‘actual, open, manifest and exclusive’ Accrual rests on commencement of adverse possession Adverse possession as between joint owners Where deceased in possession Where grantor in possession Where trust beneficiary in possession Accrual as regards an administrator of a deceased estate Future interests in land Recovery of land by virtue of forfeiture and breach of condition Causes of Action Under Leases Time bar for action to recover rent Accrual of cause of action to recover land from tenant Accrual of cause of action where rent wrongly paid

8.24 8.25 8.26 8.30 8.34 8.35 8.36 8.37 8.38 8.39 8.43 8.46 8.46 8.49 8.53

[page 180] 8.1 Causes of action for the recovery of land are subject to time bars in each Australian State, but have no direct equivalent in the Territories in view of the latters’ different backdrop to land tenure. There is, accordingly, in each State a need to identify the relevant time bar, and its effect — chiefly substantive in this context — as well as when the cause of action accrues, which are the subject of this chapter, and in so doing probes the direct correlation between limitations law and the law of adverse possession. The chapter concludes with the limitations law applicable to causes of action

under leases of land.

Scope of Application Differential application as between States and Territories 8.2 Each Australian State, via its limitations legislation, sets time bars for actions to recover land, although there are some constraints here vis-à-vis land registered under the Torrens system.1 But no equivalent provision is made in the Territories. The Australian Capital Territory statute blanket states that nothing in it applies ‘to a cause of action to recover land or an estate or interest in land or to enforce an equitable estate or interest in land’,2 essentially because land in the Territory developed under a policy of leasehold tenure. There was, at least historically, also a policy of leases as the form of holding urban land in the Northern Territory, but statute has converted these leases to freehold tenure under the Torrens system.3 That the title of a registered proprietor of Torrens system land cannot, in the Northern Territory, be extinguished by adverse possession4 explains why the Limitation Act 1981 (NT) makes no provision dealing with actions in relation to land. As a consequence, there is no doctrine of adverse possession — wherein a squatter’s possession ‘adverse’ to the owner of land for a set time can translate to title in the squatter5 — in the Territories.

Application to equitable interests in land 8.3 The limitations statutes in New South Wales, Queensland, Tasmania and Victoria make explicit that their provisions, with limited qualifications,6 apply to causes of action to enforce (or recover) equitable estates or interests in land in like manner as they apply to the same in relation to legal estates.7 What this dictates, for instance, is that an action for a declaration of an equitable interest in land is subject to the limitation period applicable to actions to recover land.8 The same is necessarily so in Western Australia, where the limitations legislation applies vis-à-vis ‘any cause of action’,9 which by definition includes a civil proceeding in equity.10 In each of these

jurisdictions, the term ‘land’ is, in any case, defined to include any estate or interest therein, whether at law or in equity.11 The same is arguably the case in South Australia, where ‘land’ is also defined to include any estate or interest.12 8.4 Other than in South Australia, the legislation in the above jurisdictions adds that a cause of action to enforce (or recover) an equitable estate or interest in land accrues in the like [page 181] manner and circumstances and on the same date as it would accrue were the estate or interest one at law.13 As a matter of logic and principle, it appears, in any event, that the position in South Australia is likewise.

Time Bar for Recovery of Land General time bar 8.5 In each Australian State the limitations legislation sets a time bar for causes of action to recover land. The limitation period is 12 years (15 years in South Australia and Victoria) running from the date when the cause of action first accrued14 to the plaintiff.15 These provisions owe their genesis to s 2 of the Real Property Limitation Act 1833 (UK), which set a 20 year time bar in this context.16 The relevant legislative policy, it has been said, is ‘to require a person having a right to land to exercise it as against a person illegally occupying at the peril of losing the land if the illegal occupation continued undisturbed for [the limitation period]’.17 These provisions serve to animate the doctrine of adverse possession, discussed later.18 8.6 The Tasmanian legislation is unique in providing that where an option to purchase land, or a right of pre-emption in respect of land, has been granted by an instrument that does not provide a time within which the option or right is to be exercised, an action arising from that option or right cannot be brought after one year from the date on which the option or

right was granted.19

Meaning of relevant terms 8.7 For limitations purposes, the term ‘land’ is defined broadly, encompassing both corporeal hereditaments20 and rentcharges,21 and any legal or equitable estate or interest therein, including an interest in the proceeds of the sale of land held upon trust for sale, but otherwise excluding incorporeal hereditaments.22 A ‘cause of action to recover land’ is expressed to include a right to enter into possession of the land,23 and references to the bringing of such an action accordingly include the making of such an entry.24 The inclusive [page 182] nature of this definition means that it is not confined to an action where possession is claimed, but encompasses any action to ‘obtain any land by judgment of the Court’.25 So, for instance, a mortgagee’s action for foreclosure comes within the definition,26 but not a mortgagee’s exercise of a power of sale under the terms of the mortgage if this does not require curial proceedings.27 8.8 At the same time, it should not be assumed that all actions for the recovery of money charged on land come under the banner of an ‘action to recover land’. A difference exists between an action to recover land and an action brought against the land to recover the money, being a difference of significance for limitations law, as different provisions apply to each, with potentially different consequences.28 An action directly against the mortgagor on the personal covenant in the mortgage to recover the sum due is not an action to recover land, and falls outside the above provision,29 as opposed to one for the appointment of a receiver or a suit for a judicial sale, which is against the land.30

Specific regime for recovery of land vis-à-vis the

Crown New South Wales and Tasmania 8.9 In New South Wales and Tasmania the above provisions relating to recovery of land do not apply to causes of action to recover land pursued by the Crown.31 Instead a 30 year limitation period is set, running from the date on which the relevant cause of action first accrued to the Crown.32 8.10 Notwithstanding the foregoing, Tasmania makes unique provision by exempting from any limitation period an action brought by the Crown to recover any land, or brought by any other person to recover any land held by him or her for a public purpose, that has at any time been reserved or set out as a road under any Act or in connection with the alienation of Crown land, reserved from sale under any Act relating to Crown lands or dedicated under any Act for any public purpose, or reserved in any Crown grant, or that forms any part of the bed or foreshore33 of any water.34 Nor does any limitation period apply to an action for the recovery of part of a block35 the division of which into that part and the remainder thereof cannot lawfully be made by a conveyance because either the part or the remainder, or both, lack the qualities of a minimum lot, except in limited circumstances.36 [page 183]

Queensland, South Australia, Victoria and Western Australia 8.11 In Queensland, Victoria and Western Australia, conversely, statute dictates that the right, title or interest of the Crown to or in any land cannot be affected by reason of its possession adverse to the Crown.37 This is so, the Victorian provision adds, whether or not such possession has exceeded 60 years. The 60 years reference is directed to ousting any continuing effect of the Crown Suits Act 1769,38 which remains operative in South Australia,39 that set a period of 60 years in which actions for the recovery of Crown lands could be brought. The above provisions, excepting South Australia, dictate that there can be

no adverse possession against the Crown, even if a person has possession of Crown land adverse to the Crown. Should the Crown transfer the land to a private person, logically time begins to run, for adverse possession, from the moment of transfer. Conversely, a person who enjoyed adverse possession for 12 years or more over privately owned land, which is then transferred to the Crown, may retain standing to sue third parties for trespass to the land by reason of possessory title by adverse possession. This arguably remains so even if the above provisions are construed as terminating this possessory title by transfer to the Crown, as the claim here is not against the Crown.40 8.12 In Victoria, without limiting the above and despite any other law, the legislation makes dedicated provision that ousts the prospect of adverse possession against land held by various Crown authorities, namely vis-à-vis Victorian Rail Track,41 water authorities42 and local councils.43 There is equivalent provision in relation to adverse possession of common property under the auspices of an owners corporation.44

Effect of Expiry of Time Bar Extinction of title 8.13 The limitations statutes in New South Wales, Queensland, Tasmania, Victoria and Western Australia State that, upon the expiry of a limitation period within which a person may bring an action to recover land, that person’s title to the land is extinguished.45 In Queensland, if the action is brought before the expiration of the said limitation period, its expiry does not affect the plaintiff’s right or title to the land for the purposes of the action, and so far as the right or title is established in the action.46 An equivalent provision exists in the South [page 184] Australian legislation, albeit by reference to the expiry of the time bar for making an entry or distress or bringing an action, wherein that person’s right

and title to the land or rent, for which that entry distress or action might have been made or brought, is extinguished.47 While the foregoing provisions extinguish title, they do not operate to oust any right to pursue a personal (usually contractual) claim for moneys owing vis-à-vis the land,48 although different limitation provisions may apply in this context. 8.14 The New South Wales Act makes provision as to the timing of extinguishment of future interests in land. It operates where a person’s title to an estate or interest in possession is extinguished by the Act, and the person was concurrently entitled49 therein to an estate or interest ‘in remainder or reversion or any other future estate or interest’. Unless the land is recovered by virtue of an intermediate estate or interest before the future estate or interest becomes a present one, the Act declares the future estate or interest extinguished on the date when it becomes a present estate or interest.50 Equivalent provision is found in the Western Australian Act, whereby the ‘future interest’51 is similarly extinguished, in these circumstances, once the relevant person becomes entitled to immediate possession of the land.52

Effect of extinction 8.15 Once a person’s title is extinguished under these provisions, any interest in the land capable of supporting a caveat53 and any claim to unpaid rent pertaining to the land54 likewise expires. The same has been held vis-àvis a claim for damages for trespass,55 although this has been queried.56 At the same time, the right or title extinguished is, as Lord Radcliffe noted in Fairweather v St Marylebone Property Co Ltd,57 ‘coterminous with the right of action the barring of which is the occasion of the extinguishment’. It was a ‘false approach’, he said, to regard the ‘extinguishment of title’ as extinguishing more than the title of the dispossessed against the dispossessor.58 For instance, should a lessee be dispossessed by a squatter for the statutory period, the lessee’s right and title as against the squatter is extinguished but not any right or title as against persons, such as the lessor, who are not, or do not take through, the squatter. As the ‘extinguishment’ provision does not serve to destroy the lessee’s estate vis-à-vis the lessor — ‘dispossession of a lessee by a squatter does not set time running against the

lessee’s landlord’59 — the court in Fairweather did not accept that, should the lessee offer a surrender [page 185] to the lessor, the lessee lacked anything to surrender as to the land in the squatter’s possession60 (though it may be pondered how a tenant whose title is extinguished has anything to transfer).61 8.16 To this end, Lords Radcliffe and Denning noted the ‘negative’ operation of the legislation, in destroying (that is, extinguishing) the lessee’s title to the land but not thereby vesting it in the squatter.62 ‘The most that can be said is’, the English Court of Appeal remarked some 70 years earlier, that the lessee ‘acquired an absolute title against everybody but the [lessor]’.63 Once the lease comes to an end, therefore, the lessor can oust the squatter, however long the squatter’s possession.64 And in line with the above remarks of the English Court of Appeal,65 their Lordships debunked a metaphor66 that the statute has an effect analogous to a conveyance; the latter essentially rests on the rights of all other persons in the land being extinguished. More recently the Privy Council in Chung Ping Kwan v Lam Island Co Ltd explained the rationale for the above approach as follows:67 [S]o long as the legal estate created by the lease remains in existence, the landlord has no right to obtain possession of the land from a squatter. The squatter dispossessed the lessee, not his landlord. If the lessee seeks to recover possession it will be sufficient for him to prove he was in possession and that the squatter dispossessed him. But if the landlord, not having been dispossessed by the squatter, comes along and seeks to eject the squatter he must set up and rely upon his title. He has to show a better title to possession than the squatter. Herein will be his difficulty. So long as the lease is extant, his title to present possession of the land is deficient. This is so even if the title of the lessee, as between himself and the squatter, has been extinguished by [the effluxion of time].

8.17 Accordingly, noted their Lordships, a squatter on leased land is more vulnerable than one on land occupied by the freeholder. In the latter case the title that the squatter bars is the freehold title. In the former case, as is stated above, only the leasehold title is barred, ‘because that is the extent of the title of the person who has been dispossessed’.68 The issue before the Privy Council in Chung Ping Kwan v Lam Island Co Ltd focused on how this

principle should apply to a lease giving the lessee an option to renew. The Board advised that, in this event, adverse possession bars the lessee from asserting against the squatter the option to renew, and the [page 186] legal estate that flows from this right, just as it bars the lessee from asserting against the squatter other rights granted by the lease. In reaching this conclusion, it referred to the principle underscoring the limitation law dealing with the accrual of future interests in land,69 which it applied to a prior legal estate such as a lease. In this regard, Lord Nicholls, who delivered the Board’s advice, reasoned as follows:70 This principle seems apt to be applied also to a specifically enforceable prior right to call for a legal estate, such as a lessee’s renewal option, when the person having the right is already lawfully in possession. In the latter case, as much as the former, the reversioner [here the lessor] has no right to enter and eject the [squatter]. If the lessee validly exercises the option the [lessor] is bound to renew the lease. He can be compelled to do so. He is not entitled to eject the lessee at the expiration of the lease. This is the crucial feature. The [lessor] is not entitled to possession. This pre-existing interest of the lessee, precluding the [lessor] from ejecting the lessee, would be a fatal flaw in a claim by the [lessor] to oust a [squatter]. The [squatter] is as much entitled to set up and rely upon this interest as a deficiency in the [lessor’s] right to possession as he is entitled to set up and rely upon a lease for this purpose.

In this instance the lessee, unlike the lessor, slept on its rights. Lord Nicholls thus saw no compelling reason why, as between lessee and squatter, the lessee’s rights under the renewal option should not be defeated just as much as its other rights under the lease. While the lessee would, upon exercising the option, obtain a new legal estate, this derived entirely from a right in the lease whose title has been extinguished as against the squatter. To ignore the legal source of the lessee’s entitlement to a new legal estate, his Lordship reasoned, would be to illegitimately exalt form (a new legal estate) over substance (a pre-existing right to the estate).71 8.18 In so concluding, the Board endorsed the reasoning in Bree v Scott,72 an old Victorian case where under the terms a licence, the licensee (M) could convert the licence into a fee simple in the land. M did so, before mortgaging that interest. Preceding the conversion, though, a squatter (S)

dispossessed M of the land. When M defaulted under the mortgage, the mortgagee sought to evict S. But as time started to run from the moment of the original dispossession, not from the moment of conversion — at which time M acquired the fee simple ‘not by virtue of any new right unconnected with [a] prior interest, but by the maturing of a right which had its inception in the licence’73 — the application was found to be out of time.

Extinction of title in its application to Torrens system land 8.19 The Torrens system of land registration is premised upon indefeasibility of title upon registration, and so as a matter of pure theory, there should be little scope for adverse possession to upset the Register.74 Indeed, this is the position in the Territories,75 and has endeared itself to more than one law reform body.76 8.20 Yet the extinguishment provisions discussed above could, if applicable once the requisite duration of adverse possession has passed, function as an exception to indefeasibility unless [page 187] statute provides otherwise.77 This is made explicit in Victoria and Western Australia, where statute declares Torrens system land (often termed ‘registered land’) as subject to ‘any rights subsisting under any adverse possession of such land’.78 The same outcome ensues in Tasmania, where the Limitation Act is expressed to apply to the title of a registered proprietor of an estate in registered land ‘in the same manner and to the same extent as that Act applies to the title of a proprietor of land which is not registered land’.79 Each of these jurisdictions statutorily prescribes a process to effect the registration of title in the adverse possessor of registered land.80 In Queensland statute likewise makes provision for a process whereby an adverse possessor may apply to the Registrar of Titles to become registered as owner of Torrens land.81 Provision is made for a person who claims an

interest in the land, including the registered owner, to lodge a caveat over it. If the Registrar is not satisfied that the caveator has an interest in the lot, or is satisfied that any such interest has been extinguished under the limitations legislation, the Registrar must require the caveator to start a court proceeding to recover the lot within six months. The Registrar may register an applicant as owner of all or part of the lot if satisfied that he or she is an adverse possessor of the lot and either no caveat has been lodged thereon or a caveat has lapsed or been withdrawn, cancelled or removed. The South Australian Torrens legislation also prescribes a process whereby an adverse possessor can secure registration as owner of land by application to the Registrar-General,82 who must refer each such application to a legal practitioner for examination and report. Thereupon the Registrar-General has a discretion to reject the application, or otherwise proceed with a notification process to the effect that, unless a caveat is lodged, the Registrar-General may grant the application. If satisfied that the caveator is the registered proprietor of the land in question, or has an estate or interest therein, the Registrar-General must refuse the application. If not so satisfied the Registrar-General must follow an equivalent process to that in Queensland. 8.21 Prior to the commencement of the Real Property (Possessory Titles) Amendment Act 1979 (NSW) on 1 June 1979, registered land was excluded from adverse possession in New South Wales. The amending legislation introduced, inter alia, s 45D(1) into the Real Property Act 1900.83 It entitles a person in possession of Torrens land, where the land is a whole parcel of land and title to which would have been extinguished as against the possessor had the statute of limitation applied, to make application to the Registrar-General to be recorded as the proprietor. Such an application may not be made in respect of an estate or interest in land if: •

the registered proprietor became so registered without fraud and for valuable consideration; and

•

the entire period of alleged adverse possession would not have occurred after that proprietor became so registered,

unless the application is made on the basis that the estate or interest applied

for will be subject to the estate or interest of that registered proprietor should the application be granted.84 [page 188]

Qualification for beneficiary’s claim otherwise timebarred against trustee 8.22 In New South Wales, Queensland, Tasmania, Victoria and Western Australia statute addresses the scenario where the limitation period for an action by a trustee to recover trust land has expired85 — and, in line with the foregoing, title is extinguished — but the cause of action to recover the land vested in any person entitled to a beneficial interest in the land, or in its proceeds of sale, either has not accrued or has not been time-barred. In this event, the trustee retains standing to sue86 so as to support or give effect to the beneficiary’s interest, despite the lapse of time.87 A beneficiary’s ability to enforce an interest in trust land could otherwise be frustrated by a limitation period confining the trustee. But the trustee’s standing here ends once there is no longer a beneficiary whose claim remains within time. Tasmania and Victoria make equivalent provision regarding the recovery of settled land by its legal owner.88

Accrual of Cause of Action Relating to the Recovery of Land Present interests in land 8.23 In New South Wales, Queensland, Tasmania, Victoria and Western Australia the limitations statutes deem a cause of action to recover land that had been in the possession of the plaintiff, but who had thereafter been dispossessed or the possession discontinued, to accrue on the date of dispossession or discontinuance.89 The South Australian Act makes

equivalent provision, but expressed also to encompass a person who has been in receipt of the profits90 or rent from the land, in which case the right to bring an action to recover the rent is deemed to have first accrued at the last time at which any such profits or rent were or was so received.91 The position is nonetheless similar in the preceding jurisdictions where, unlike South Australia, ‘land’ is defined to include rentcharges,92 a reference to the ‘possession of land’ that is a rentcharge is a reference to receipt of the rent, and a reference to the date of its dispossession or discontinuance of possession is a reference to the date the rent was last received (in New South Wales and Western Australia, when rent first becomes overdue).93 The above provisions must, in New South Wales, Queensland, Tasmania, Victoria and Western Australia, be read in conjunction with those that prescribe the postponement of the [page 189] accrual of a cause of action to recover land pending the land being in what is termed ‘adverse possession’.94

Concepts of ‘dispossession’ and ‘discontinuance’ 8.24 As the accrual of the relevant cause of action in this context rests on the concepts of ‘dispossession’ and ‘discontinuance’ of possession, these terms need definition. ‘Dispossession’ occurs where ‘a person comes in and drives out the others from possession’, whereas there is a ‘discontinuance’ where the person in possession voluntarily relinquishes possession before being followed into possession by others.95 The former focuses primarily on the behaviour of the person taking possession (the squatter); it requires acts that are inconsistent with the owner’s enjoyment of the land for the purposes for which he or she intended to use it.96 Questions over discontinuance, at least in the first instance, focus on the conduct of the owner; it ‘implies that all indications of occupation have been withdrawn’, amounting to ‘an abandonment of possession by one party for the statutory period’.97 But it also requires proof of acts of ownership upon the subject land by the squatter,

who must do something for which, if the owner knew of it, he or she could reasonably bring an action for trespass or ejectment.98 That ‘something’ ordinarily requires an appropriate degree of exclusive physical control of the land — and this may include a discrete part of the land99 — coupled with an intention to possess it (animus possidendi) to the exclusion of others, including the true owner.100 Reference to ‘intention’ here does not require a conscious intention to exclude the true owner — it is, after all, possible for adverse possession to occur where the squatter (mistakenly) believes that he or she is the true owner101 — its focus is on an intention to exercise exclusive control over the land.102 (In passing, it is important to appreciate that the ‘true owner’ for this purpose may comprise a person who is legally entitled to possession of the land, which includes a mortgagee who becomes entitled to recover possession once the mortgagor fails to make repayments under the mortgage).103 The foregoing, it is said, is based on the policy, which has hardly stood unchallenged,104 that ‘[i]t is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable [page 190] litigation’.105 ‘The public has an interest’, it has been said, ‘in ensuring that a person in long term and undisputed possession is able to deal with land as owner’.106

Threshold for ‘adverse’ possession 8.25 No doubt reflecting the primacy given to legal ownership of land, however, the threshold for what is termed ‘adverse’ possession in this context — the law here requires not only a squatter’s possession, but possession ‘adverse’ to the true owner107 — is not low. ‘Possession’ has, for this purpose, acquired what has been described as ‘a special and restricted meaning’.108 There are nonetheless instances where the act(s) alleged to constitute adverse possession carry the logical inference of an intention to exercise

exclusion control over the land. But in other instances the act(s) may be equivocal, in which event the intention underscoring them must be probed more closely. Depending on the facts, erections of fences or gates may evince an intention to secure exclusion possession,109 or instead some other intention. In Riley v Pentilla110 Gillard J found that the enclosure of the disputed land by a wire-netting fence was explainable as a convenience for those playing tennis thereon, and did not, on the facts, evince an intention to exclude the true owner from the area. This is a heavily fact-dependent inquiry, which his Honour explained in the following terms:111 The possession of land in every case must be considered with reference to the peculiar circumstances of the case being considered. The acts implying dispossession in one case afford no assistance in another since the question of possession might be quite different in one case as compared with another. The character and value of the property, the suitable and natural mode of using it, having regard to all the circumstances, and the course of conduct which a proprietor might reasonably be expected to follow with due regard to his own interests, varying as they will from case to case, must be taken into account.

For instance, ‘the course of conduct which a proprietor might reasonably be expected to follow with due regard to his own interests’ may differ according to whether the land in issue is being held primarily for its development potential, as opposed to being used for residential purposes. The same act(s) of trespass may, it has been observed, ‘be highly significant to the owner of a house and garden, yet utterly trivial to a property developer or an industrialist who has no immediate use for the land affected’.112 [page 191]

Adverse possession to be ‘actual, open, manifest and exclusive’ 8.26 In each case, though, the squatter’s adverse possession must be ‘actual, open, manifest and exclusive’.113 In this context the reference to ‘open’ and ‘manifest’ invites inquiry into whether ‘someone reasonably careful of his or her own interests, if living in the locality and passing the allotment from time to time, would by his or her observation reasonably have discovered that some person had taken possession of the land’.114 Speaking of a possession being ‘exclusive’, it is essential that the squatter

evince an intention to exclude others, except to the extent that others’ use is pursuant to a licence or other permission the squatter granted as if he or she were the true owner.115 The same may be said, against a finding of adverse possession, of use of land by persons under a lease,116 licence or some other permission granted by the owner;117 indeed, ‘adverse’ possession is premised on possession without the ‘licence’, here a term used in an encompassing sense, of the owner.118 In other words, possession pursuant to a lawful title cannot be adverse.119 8.27 A leading case illustration is found in Williams Brothers Direct Supply Ltd v Raftery,120 where a strip of land owned by the plaintiffs was used by the defendant as an allotment for five years, without the plaintiffs’ permission, and thereafter for breeding of greyhounds in a shed the defendant had erected on the land. Years later the defendant raised a plea [page 192] of limitation, arising out of his lengthy uninterrupted possession of the land, against the plaintiffs’ claim for possession. The plea failed, as the English Court of Appeal found no discontinuance of possession by the plaintiffs, nor their dispossession by the defendant. What spoke against the former was evidence that, while the plaintiffs had made an unsuccessful application for planning permission, they never abandoned their intention to develop the land if permission could be obtained.121 Nor could their Lordships find any act of the defendant sufficient to dispossess the plaintiffs, Hodson LJ noting that ‘[t]he defendant never even thought he was dispossessing the plaintiffs’.122 The facts were distinguishable from those found in Marshall v Taylor,123 where the defendant had completely enclosed the land by a hedge, making it entirely part of his garden, and precluding the plaintiff from accessing it. The defendant in Williams took no parallel steps directed to the plaintiff’s exclusion from the land. 8.28 The decision in Williams, which evinces an understandable reticence to deprive a person of his or her land by reason of limitation, confirms Cockburn CJ’s remark in Leigh v Jack,124 80 or so years earlier, that ‘[i]f a man

does not use his land, either by himself or by some person claiming through him, he does not necessarily discontinue possession of it’.125 Bramwell LJ added ‘the smallest act would be sufficient to shew that there was no discontinuance’.126 The High Court of Australia has cited each of these remarks with apparent approval.127 In Leigh the owner’s repair of a separating fence before the expiry of time, being inconsistent with a relevant discontinuance of possession, was found to be a user of the land sufficient to defeat adverse possession. 8.29 As ordinary agency law principles dictate that possession by an agent is seen as possession by the principal, it stands to reason that adverse possession by an agent, on behalf of a principal and within the scope of his or her actual authority,128 is likewise treated as adverse possession by the principal.129

Accrual rests on commencement of adverse possession 8.30 In New South Wales, Queensland, Tasmania, Victoria and Western Australia the limitations statutes make provision for the postponement of the accrual of a cause of action to recover land pending the land being in what is termed ‘adverse possession’. The terminology ‘adverse possession’, based on an equivalent provision found in the Limitation Act 1939 [page 193] (UK),130 refers to possession by a person in whose favour the limitation period can run.131 It accordingly targets not the nature of the possession, but the capacity of the squatter. As Lord Hope explained in J A Pye (Oxford) Ltd v Graham, vis-à-vis the parallel English provision:132 At first sight, it might be thought that the word ‘adverse’ describes the nature of the possession that the squatter needs to demonstrate. It suggests that an element of aggression, hostility or subterfuge is required. But an examination of the context makes it clear that this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner or, in the case of registered land, of the registered proprietor.

To this end, Lord Browne-Wilkinson in the same case opined that ‘much confusion and complication would be avoided if reference to adverse

possession were to be avoided so far as possible and effect given to the clear [statutory] words’.133 8.31 Those words prescribe that no cause of action to recover land accrues unless the land is in adverse possession and that if, under the legislation,134 such a cause of action would have accrued at a certain time but the land is not then in adverse possession, the cause of action does not accrue unless and until adverse possession of the land is taken.135 The legislation adds that if a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the cause of action is no longer deemed to accrue (and, other than in Queensland, no fresh right of action accrues) unless and until the land is again taken into adverse possession.136 [page 194] The relevant context, Lord Hope in Pye explained, is ‘that of a person bringing an action to recover land who has been in possession of land but has been dispossessed or has discontinued his possession’,137 in which event his or her cause of action is ‘treated as accruing as soon as the land is in the possession of some other person in whose favour the limitation period can run’.138 This in turn explains why Lord Browne-Wilkinson phrased the relevant inquiry as simply ‘whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner’.139 8.32 The upshot is that the ‘adverse’ possession must be continuous for the entire limitation period to bar the true owner’s claim,140 including by a succession of persons claiming under one another or a succession of such persons not so claiming.141 But if within the limitation period there exist gaps in ‘adverse’ possession — in the sense that it can genuinely be said that the squatter has abandoned his or her possession142 — the separate periods of adverse possession do not cumulate for limitations purposes; time begins to run again from each instance of adverse possession.143 Adverse possession ends when, typically, the true owner, or someone through whom he or she

claims, resumes possession of the land, even briefly144 or possibly only as to part of the land,145 with the requisite intention to possess (animus possidendi) (though [page 195] this does not require that the true owner necessarily know that he or she is bringing adverse possession to an end thereby).146 Reflecting the law’s disinclination, without compelling cause, to interfere with ownership of land, the acts of the true owner that halt adverse possession need not be as extensive or explicit as those of a squatter in sustaining it. As explained by an Irish judge:147 It is … important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make.

8.33 The limitations statutes do state that formal entry on land is not of itself possession or evidence of possession of the land.148 ‘Formal entry’ here, though, targets entry without an animus possidendi, for another purpose, such as to avoid a fine, ‘by stepping on any corner of the land in the night time and pronouncing a few words’.149 Yet even an owner’s expression of an intention to resume possession,150 erection of some notice proscribing trespassers151 or direction to the squatter to vacate the land152 (or the issue of a writ to this effect),153 will not interrupt adverse possession if unaccompanied by acts to dispossess the squatter. The aforesaid are here viewed as no more than symbolic. Nor is an owner’s payment of rates on the land itself conclusive of any animus possidendi.154 The flipside is that neither is payment of rates by a squatter conclusive of adverse possession (though it may be a weightier indication to this end),155 unless the owner is shown to have acquiesced therein156 other than pursuant to some contract with the squatter. Certainly a squatter’s request for contribution to rates (or other expenses) relating to the property from the owner(s) speaks against adverse

possession.157 [page 196]

Adverse possession as between joint owners 8.34 For land held by joint tenants or tenants-in-common, the Limitations Acts in each State deem possession by a tenant (A) of greater than his or her share, if not for the benefit of the other tenant (B), not to have been possession by B.158 The New South Wales, Tasmanian, Victorian and Western Australian provisions add that this form of possession is, however, deemed to be adverse possession as against B. The foregoing was designed to alter the common law, pursuant to which possession by one joint tenant or tenant-in-common was presumed to be the possession of the other.159 By displacing that presumption, the relevant provision ostensibly opened up the way for one joint owner of land at least more readily to establish that he or she had secured sole title to the land by possession from the other joint owner, it being no longer necessary to overcome a presumption to the contrary.160 The statute was held to apply not only as between joint tenants or tenants-in-common and a stranger, but as between joint owners inter se. It meant that, for instance, when one joint owner is receiving all the profits, the other may make an entry or bring an action without any ouster of possession to recover his or her portion of the profits.161

Where deceased in possession 8.35 Specific provision is made for the time of accrual of an action to recover land of a deceased person (whether under a will or on intestacy) in circumstances where the deceased was on the date of death in possession of the land,162 and the last person entitled to the land to be in its possession.163 In this event, the cause of action is deemed to have accrued on the date of death,164 not from the date of the grant of probate or letters of administration.

Where grantor in possession 8.36 The limitations legislation prescribes the date of accrual of a cause of action to recover an estate or interest assured as one in possession (other than by will) in land. The cause of action accrues upon the ‘assurance’ — namely the instrument by which an estate or interest in land is disposed of — taking effect if, at that time, the person making the assurance is in possession by virtue of the estate or interest claimed (or of an estate or interest out of which the assurance is made) and, after the assurance takes effect but before the action is commenced, no person is in possession by virtue of the estate or interest claimed and the assurance.165 [page 197]

Where trust beneficiary in possession 8.37 In New South Wales and Western Australia, where a person (A) has possession of a present estate or interest in trust land, no cause of action to recover the land (or enforce an equitable estate or interest therein) accrues to the trustee (or to any person entitled to an estate or interest in that land) against A while A, being entitled to the aforesaid estate or interest, remains in possession.166 The foregoing does not, however, apply to a cause of action against a person in possession who is, under the trust, solely and absolutely entitled to the land, or against two or more persons in possession who are absolutely entitled thereto as joint tenants or as tenants-in-common.167 Equivalent, but more concise, provision is made in the Queensland, Tasmanian and Victorian statutes (albeit confined to trusts for sale in Queensland). These state that where any land held upon trust for sale168 (or, in Tasmania and Victoria, any settled land)169 is in the possession of a person entitled to a beneficial interest therein (or in the proceeds of sale), not being solely and absolutely entitled thereto, no cause of action to recover the land accrues during such possession to any person who holds the land as trustee or to any (other) person entitled to a beneficial interest in the land or in the proceeds of sale.170

Accrual as regards an administrator of a deceased estate 8.38 The Queensland, South Australian, Tasmanian and Victorian legislation states that, regarding its provisions with respect to actions for the recovery of land, an administrator of the estate of a deceased person is deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.171 This aims to address what would otherwise occur in the event of administration where, during the time interval between the deceased’s death and the grant of letters of administration, the deceased’s estate vests in the Public Trustee (or equivalent).172 The absence of equivalent provision in limitations statutes elsewhere stems from a belief that the issue is covered by the relevant probate legislation directed to the vesting of property ‘relating back’ to death.173

Future interests in land 8.39 A cause of action to recover land in which a person (A) has a future interest174 is deemed to accrue when A becomes entitled to immediate possession of the land — that is, [page 198] when the future interest becomes a ‘present interest’ or ‘interest in possession’175 — if, after A becomes so entitled and, before the action is commenced, no person has taken possession under the interest claimed.176 Underlying this provision is the notion that time should not run against A so long as a prior estate or interest stands between A and the right to retake the property; until the preceding estate or interest determines, and the future interest falls into possession, A is not sleeping on his or her rights.177 8.40 The Queensland, Tasmanian and Victorian statutes, applying the (then) English model,178 add that a person entitled to the preceding estate or interest179 who was not in possession of the land when the estate or interest determined cannot bring action to the succeeding estate or interest after the

later of 12 (in Victoria, 15) years from when the right of action accrued to the preceding estate or interest, or six years from when the right of action accrued to the succeeding estate or interest.180 Those time bars are lengthened in Tasmania where the Crown is entitled to that succeeding estate or interest.181 8.41 Also in Queensland, Tasmania and Victoria, again following the English model,182 the legislation prohibits an action to recover an estate or interest in land under an assurance that took effect after the accrual of the cause of action to recover the land to the person by whom the assurance was made (or some person entitled to a preceding estate or interest) unless the action is brought within the period during which the latter could have brought an action.183 In a provision with a parallel in South Australia, the statutes add that a person, who is entitled to an estate or interest in land in possession (say, an interest as lessee) as well as a future estate or interest therein (say, in remainder), and whose right to recover the possessory (lease) estate or interest is time-barred, cannot sue vis-à-vis the future estate or interest (in remainder) unless someone entitled to an intermediate estate or interest in the land has recovered its possession in the meantime.184 8.42 In a unique provision, the South Australian Act states that, in respect of a future estate or interest that is one in reversion, the right to bring an action to recover the land or rent is deemed to have first accrued when that estate or interest became one in possession by the determination of any estate(s) in respect of which the land was held (or the profits thereof [page 199] or the rents were received). This is so even if the person claiming the land has, at any time preceding the creation of the estate(s) that have determined, been in possession or in receipt of the profits of the land, or in receipt of the rent.185

Recovery of land by virtue of forfeiture and breach of condition

8.43 In New South Wales and Tasmania a cause of action to recover land by virtue of a forfeiture or breach of condition accrues once the plaintiff first discovers, or with reasonable diligence may discover, the facts giving the right of forfeiture or showing that the condition is breached.186 This ‘discoverability rule’ was, it seems, designed to more closely align limitations law with ordinary landlord and tenant law, under which a landlord is held to have waived a forfeiture only upon knowledge of the facts giving rise to that right at the time of the alleged waiver.187 Yet parallel provisions in Queensland, South Australia and Victoria eschew a ‘discoverability rule’, simply pegging accrual to the date when the forfeiture was incurred or the condition breached.188 Each separate breach of condition in this context gives rise to a new cause of action.189 8.44 The foregoing needs qualification, however, in relation to future interests. In New South Wales and Western Australia, subject to provisions dealing with the owner’s recovery of land upon rent being wrongly paid,190 if the above cause of action accrues to someone entitled to a future estate or interest and who recovers the land, a fresh cause of action to recover the land accrues. It accrues upon the estate or interest becoming a present one (in Western Australia, upon entitlement to immediate possession), to the person then entitled thereto.191 In Queensland, South Australia, Tasmania and Victoria, the parallel provision refers to land not recovered by virtue of the cause of action having accrued to a person entitled to a future estate or interest, in which case the cause of action to recover the land is deemed not to have accrued until that estate or interest fell into possession as if no forfeiture or breach of condition had occurred.192 8.45 The New South Wales and Northern Territory legislation states that in an action for relief against forfeiture of a lease, the applicant is not to be required, as a term of relief against forfeiture, to pay rent for the recovery of which, by reason of the expiry of a limitation period under the legislation, an action would not have been maintainable had it been brought on the date when the first-mentioned action was brought.193 This qualifies the general law principle that relief against forfeiture of a lease is granted only upon payment of all arrears of rent, including it seems rent that would otherwise be statute-barred.194

[page 200]

Causes of Action Under Leases Time bar for action to recover rent 8.46 Statute in Queensland, South Australia, Tasmania and Victoria, following the English lead,195 sets a six year limitation period for actions to recover arrears of rent, or damages in respect thereof, running from when the arrears became due.196 The same is likewise in New South Wales and the Northern Territory, where the same provisions sets a six year time bar for both actions to recover arrears of interest and those to recover arrears of rent.197 The general six year limitation period prescribed in the Australian Capital Territory and Western Australia198 is, moreover, evidently capable of applying to actions to recover rent. 8.47 Though the above provisions make no reference to claims against a guarantor of the tenant’s obligation to pay rent, English authority maintains that the six year limitation period equally applies.199 This outcome is sensible; in each case the claim is brought ‘to recover arrears of rent’ (or damages in respect thereof), being terminology not confined to recovery against a tenant. Also, to subject a guarantor to a longer (12 year) time bar200 but the tenant to only six years, as to the same ultimate obligation, seems incoherent in principle. 8.48 The foregoing requires qualification in South Australia so far as actions for rent reserved under any lease by deed, which must be commenced and sued within 15 years of the cause of action accruing or the recovery of the judgment.201

Accrual of cause of action to recover land from tenant 8.49 The limitations statutes of each State make provision for the date of accrual of a cause of action of the owner of rented land to recover the land

from the tenant. Once the cause of action accrues, the relevant limitation period is that applicable to actions for the recovery of land (12 years, except in South Australia and Victoria, where it is 15 years).202 In New South Wales and Western Australia the action is stated to accrue on the only or later or latest of such of the following dates as are applicable:203 •

in the case of a tenancy from year to year or other periodical tenancy204 — the date of the expiry of the first year or other period of the tenancy;

•

in the case of a tenancy at will205 — the date of the expiry of one year after the commencement of the tenancy; and

•

in any case where the tenancy is at a rent — the date on which rent payable to the person having the cause of action first becomes overdue. [page 201]

The foregoing applies unless the cause of action accrues on an earlier date (in New South Wales, by virtue of a demand of possession, forfeiture or breach of condition, or otherwise; in Western Australia, because the tenancy is determined).206 The latter is designed to provide for the occasional cases where a tenancy at will determines during its first year, or a periodical tenancy determines during its first period by forfeiture, breach of condition or the exercise of an option to break the tenancy.207 8.50 Equivalent provision as regards tenancies at will and periodical tenancies (without a lease in writing)208 appears in the Queensland, South Australian, Tasmanian and Victorian Acts,209 provided that if rent is later received in respect of the tenancy,210 the cause of action accrues upon its last receipt.211 From that moment, the tenant’s possession is considered to be ‘adverse’.212 In the context of the seminal English statutory provision to the same effect,213 it has been observed that:214 When the Statute has once begun to run it would seem on principle that it could not cease to run unless the real owner, whom the Statute assumes to be dispossessed of the property, shall have been restored to the possession. He may be so restored either by entering on the actual possession of the property, or by receiving rent from the person in the occupation, or by making a new lease to such person, which is accepted by him; and it is not material whether it is a lease for a term of years, from year to year, or at Will.

8.51 South Australia, in retaining (now obsolete) provisions based on 1833 English legislation, is alone in stating that when a right of a tenant in tail to recover the relevant land or rent has been barred by the expiration of an applicable limitation period, no such action can be brought by any person claiming any estate, interest or right that the tenant in tail might lawfully have barred.215 In the event that such a tenant in tail dies before the expiry of an applicable limitation period, no person claiming an estate, interest or right that the tenant in tail might lawfully have barred can sue to recover the land or rent except within the period [page 202] during which, had the tenant in tail continued to live, he or she might have brought that action.216 8.52 It should be noted that the provisions discussed above apply only visà-vis arrangements that meet the legal concept of a tenancy. They have no application where possession is via a mere licence. For this purpose, amongst others,217 the case law must distinguish a tenancy (typically a tenancy at will) from what is no more than a licence. Central to a finding of a tenancy, and ordinarily fatal to a mere licence, is proof of an agreement between the parties whereby exclusive possession in the occupier is granted.218 It has been said, also, that ‘[i]n all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy’.219 In Heslop v Burns,220 for instance, where the deceased allowed the plaintiffs to reside in a house he owned for 16 years, free of rent and other expenses, the English Court of Appeal saw this as only a mere licence. The evidence revealed that, aside from the absence of any (even loose) lease-type agreement, the deceased accommodated the plaintiffs, with whom he developed a close friendship, by way of bounty, treating the house as his ‘second home’. This spoke against exclusive possession, and with this any tenancy.221 Accordingly, the plaintiffs’ claim to title by way of adverse possession lacked foundation.

Accrual of cause of action where rent wrongly paid 8.53 Other than in the Territories, the limitations legislation makes provision for the date of accrual of a cause of action by a landlord to recover land from a tenant who has paid rent to someone wrongfully claiming to be entitled to the land. The New South Wales and Western Australia schema follows the same form. It targets a tenant in possession of land under a lease for a term reserving an annual rent of $2 or more, where no rent is thereafter received by the landlord, and in consequence of which the lease is liable to be determined. In this event, the cause of action to recover the land accrues when the lease first becomes liable to determination.222 8.54 A parallel scenario is addressed elsewhere, albeit confined to apply to the case of a lease in writing and rent being paid to someone wrongfully223 claiming to be entitled to the land in reversion immediately expectant on the determination of the lease. In this event the cause of action to recover the land accrues when the rent was first received by the person wrongfully claiming, not on the date of the determination of the lease.224 ______________________________ 1. 2. 3. 4. 5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15.

As to the position relating to Torrens system land see 8.19–8.21. ACT s 5(a). See also, to the same effect, Land Titles Act 1925 (ACT) s 69. Pursuant to the Crown Lands Amendment Act (No 3) 1980 (NT) s 8(1). Land Title Act 2000 (NT) s 198 (formerly Real Property Act 1886 (NT) s 251). See 8.25–8.34. In New South Wales, subject to NSW s 23 (equitable relief), as to which see 3.26 in Queensland, Tasmania and Victoria, subject to Qld s 27(1); Tas s 24(1); Vic s 21(1) (actions as to trust property), as to which see 10.20. NSW s 36(1); Qld s 16(1); Tas s 13(1); Vic s 11(1). See, for example, Verebes v Verebes (1995) 7 BPR 14,408 at 14,411; BC9505238 per Young J. WA s 13(1). See the definition of ‘action’ in WA s 3(1). NSW s 11(1); Qld s 5(1); Tas s 2(1); Vic s 3(1); WA s 3(1). SA s 3(1). NSW s 36(2); Qld s 16(1); Tas s 13(1); Vic s 11(1); WA s 61. As to accrual in this context see generally 8.23–8.45. NSW s 27(2); Qld s 13 (where a ten year limitation period has been recommended, but not implemented: see QLRC 53, pp 191–2); SA s 4 (note that its specific reference to the recovery of rent does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see

16. 17. 18. 19. 20.

21. 22.

23.

24.

25. 26. 27.

28.

29. 30. 31.

32. 33. 34. 35.

8.7); Tas s 10(2); Vic s 8; WA s 19(1). This time frame was reduced to 12 years under UK 1874 s 1, then replicated in UK 1939 s 4(3), and remaining so under the current UK 1980 s 15(1). Bree v Scott (1904) 29 VLR 692 at 713 per A’Beckett J. See 8.25–8.34. Tas s 23A. A ‘corporeal hereditament’ is a permanent tangible object that can be seen and handled and is confined to the land; examples include lands, buildings, minerals, trees and all other things that are part of or affixed to land. Namely a periodic sum paid by the owner of freehold land to a person with no other interest in the land (the owner of the rentcharge). NSW s 11(1); Qld s 5(1); Tas s 2(1); Vic s 3(1); WA s 3(1). See also SA s 3(1) (where ‘land’ is expressed to include messuages and all other corporeal hereditaments, and any estate or interest in any land). An ‘incorporeal hereditament’ is an intangible right, derived from real or personal property, that is inheritable; examples include easements and profits à prendre. The mere lodgement of a caveat over the land does not, however, constitute entry into possession or an action to recover the land, as it is merely a process by which the right to claim some interest in an ordinary action may be preserved: Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [116]–[120] per Barker J. NSW s 11(2)(b); Qld s 5(5); Tas s 3(6); Vic s 3(5); WA s 3(4). In Queensland and Tasmania, the legislation adds that references to a right of action to recover land include, in the case of rentcharges, to distrain for arrears of rent: Qld s 5(5); Tas s 3(6). ‘Rentcharge’ means any annuity or periodical sum of money charged upon or payable out of land, except for rent payable under a lease or interest on a mortgage on land: Qld s 5(1); Tas s 2(1). Williams v Thomas [1909] 1 Ch 713 at 730 per Buckley LJ. See, for example, Pugh v Heath (1882) 7 App Cas 235. Re Australian Deposit and Mortgage Bank Ltd [1907] VLR 348 (dealing with an equivalent provision in the (then) Real Property Act 1890 (Vic) (s 47), where the Full Court ruled that the words ‘no action suit or other proceeding’ were not intended to cover the case of a power of sale that a mortgagee possesses independently of a court of law: at 356 per Madden J, delivering the reasons of the court); Re Otway Coal Co Ltd [1953] VLR 557 at 568 per O’Bryan J. Kibble v Fairthorne [1895] 1 Ch 219 at 224 per Romer J (noting that the elapsing of time vis-à-vis actions against the land operates to extinguish the creditor’s interest (see 8.13, 8.14), whereas personal remedies are barred but the debt not extinguished). As to the limitation provisions that may apply in this context see 9.7–9.14. Levy v Williams [1925] VLR 615 at 625 per Cussen J; Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [128] per Barker J. The New South Wales Act provides that ‘Crown includes not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities: NSW s 11(1). A parallel provision appears in the Queensland Act: Qld s 5(1). NSW s 27(1), 27(3); Tas s 10(1) (see TLRC A10, pp 4–5, 27). ‘Foreshore’ is defined in Tas s 10(5). Tas s 10(4). ‘Block’ is defined in Tas s 10(7).

36.

37. 38.

39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49.

50. 51. 52. 53. 54. 55. 56.

Tas s 10(6) (the limited circumstances being where: (a) the block itself lacks the qualities of a minimum lot; or (b) of that part and the remainder each is either an area of land that has the qualities of a minimum lot, or occupied as part of land adjoining the block). Qld s 6(4); Vic s 7; WA s 76 (formerly WA 1935 s 36). Equivalent provision appears in NT s 6(4). 9 Geo 3 c 16 (known as the ‘Nullum Tempus Act’). The Act had been held to translate to the law of the colonies (Attorney-General of New South Wales v Love [1898] AC 679), subject to alternative local regimes. See South Australian Co v City of Port Adelaide [1914] SALR 15. See generally Goodwin v Western Australian Sports Centre Trust [2014] WASC 138; BC201402933 at [69]–[83] per E M Heenan J. Vic s 7A. Vic s 7AB. Vic s 7B(1) (subject to the exceptions listed in Vic s 7B(2)). Vic s 7C (as defined in the Owners Corporations Act 2006 (Vic)). NSW s 65(1), Sch 4 (see 2.29); Qld s 24(1) (subject to both s 17, dealing with accrual of a right of action in cases of forfeiture or breach of condition (see 8.43–8.45) and the Real Property Act 1861 (Qld)); Tas s 21 (subject to s 13, dealing with accrual regarding settled land and land on trust: see 8.22); Vic s 18 (subject to s 11, dealing with accrual regarding settled land and land on trust: see 8.22); WA s 75(a) (see WALRC 36(II), p 209). These provisions follow the seminal UK 1833 s 34 (which effected what has been described as ‘a radical change in the law’, which had previously allowed time to bar the owner’s remedies, but did not function to transfer title: Beaulane Properties Ltd v Palmer [2006] Ch 79; [2005] EWHC 817 (Ch) at [69] per Nicholas Strauss QC), which translated to UK 1939 s 16 and now UK 1980 s 17. See also Nicholson v England [1926] 2 KB 93 at 108 per Sankey J (remarking that the effect of UK 1833 s 34 ‘would seem to be that as soon as the statutory period has determined without any payment of rent or acknowledgment an end is put to the tenancy’, such that there could be no ‘continuance or reviver of the tenancy after that period by a subsequent payment of rent’). Qld s 24(2). SA s 28 (following the language of UK 1833 s 34). Equivalent provision formerly appeared in WA 1935 s 30. National Bank of Tasmania Ltd (in liq) v McKenzie [1920] VLR 411 at 420 per Cussen J. For this purpose, a person contingently entitled to an estate or interest in reversion or remainder or any other future estate or interest, or having such an estate or interest vested in him or her subject to divesting in any event, is treated as being entitled to the estate or interest: NSW s 67(2). NSW s 67(1). A person has a ‘future interest’ if: (a) the person is contingently entitled to a future interest; or (b) a future interest is vested in the person subject to divesting in any event: WA s 77(2). WA s 77(1). Verebes v Verebes (1995) 7 BPR 14,408 at 14,411; BC9505238 per Young J. Re Jolly [1900] 2 Ch 616. Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 3 All ER 129 at 137 per Nicholls LJ. Beaulane Properties Ltd v Palmer [2006] Ch 79; [2005] EWHC 817 (Ch) at [218] per Nicholas

57. 58.

59.

60. 61.

62.

63. 64.

65.

66. 67. 68.

Strauss QC; McGee, p 252 (opining that ‘there is surely no satisfactory reason why the expiry of time should operate in this retrospective fashion’). [1963] AC 510 at 538. Fairweather v St Marylebone Property Co Ltd [1963] AC 510 at 539. See also Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 47 per Lord Nicholls (PC) (‘Adverse possession defeats the rights, whatever they may be, of the person against whom the possession is adverse. It does not defeat the rights of others’). Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 46 per Lord Nicholls (PC) (adding that ‘[t]he landlord’s right to recover possession from the squatter on the determination of the lease is not barred by a squatter’s adverse possession against the lessee, however long this continues’, but ordinarily ‘accrues when, but only when, the lease ends and the landlord’s reversionary interest falls into possession’). Fairweather v St Marylebone Property Co Ltd [1963] AC 510 at 540 per Lord Radcliffe (with whom Lord Guest concurred), at 545–6 per Lord Denning. H W R Wade, ‘Landlord, Tenant and Squatter’ (1962) 78 LQR 541 at 559 (who branded the upshot of the Fairweather decision, in essentially allowing a person to cure his or her own bad title by transferring it to another, as an infringement of ‘fundamental principles of property law’); D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt I) (1970) 7 MULR 407 at 414. For this reason the decision in Fairweather was not followed by the Supreme Court of Ireland in Perry v Woodfarm Homes Ltd [1975] 1 IR 104 (Walsh J remarking that Fairweather essentially proceeds on the basis that the relevant section ‘does not mean what it says’, whereas it states ‘quite clearly that after the expiration of the period fixed “the title of that person to the land shall be extinguished”’: at 119). Fairweather v St Marylebone Property Co Ltd [1963] AC 510 at 535 per Lord Radcliffe, at 544, 548 per Lord Denning (in each event endorsing the decision in Taylor v Twinberrow [1930] 2 KB 16 (see at 22–3 per Scrutton LJ, at 27–8 per Lawrence LJ; each endorsing the earlier decision of the English Court of Appeal in Tichborne v Weir (1892) 67 LT 735) ahead of the inconsistent decision in Walter v Yalden [1902] 2 KB 304; the latter, a decision of the Divisional Court, had been distinguished in Taylor v Twinberrow, and was made without reference to Tichborne v Weir). In Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 47 Lord Nicholls, speaking for the Privy Council, agreed that Taylor v Twinberrow was correctly decided. Tichborne v Weir (1892) 67 LT 735 at 737 per Bowen LJ. Cf Tickner v Buzzacott [1965] Ch 426 (where, applying the principles deriving from Fairweather v St Marylebone Property Co Ltd [1963] AC 510, Plowman J held that a squatter who, without the lessor’s knowledge, assumed possession of the leased premises upon the lessee’s death for some 19 years (and accordingly would have dispossessed the lessee of any right or title as against the lessee), was not an assignee of the lease and had no standing to apply for relief against forfeiture, as against the lessor, in relation to any leasehold interest: at 434–5). Tichborne v Weir (1892) 67 LT 735 at 736–7 per Lord Esher MR, at 737 per Bowen LJ (remarking that ‘[o]nly in one metaphorical sense can the section be said to give a title to land’), at 737–8 per Kay LJ; Re Atkinson and Horsell’s Contract [1912] 2 Ch 1 at 9 per Cozens-Hardy MR, at 17 per Fletcher Moulton LJ. As originally espoused by Lord St Leonards in Incorporated Society v Richards (1841) 1 Dr & War 258 at 289. [1997] AC 38 at 46 per Lord Nicholls, delivering the advice of the Board. Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 47 per Lord Nicholls.

69. 70. 71. 72. 73. 74.

75. 76.

77. 78. 79. 80.

81. 82. 83. 84. 85.

86. 87. 88. 89. 90.

91.

See 8.39–8.42. Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 48. Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 48. (1904) 29 VLR 692. Bree v Scott (1904) 29 VLR 692 at 713 per A’Beckett J. See L Griggs, ‘Possessory Titles in a System of Title by Registration’ (1999) 21 Adel L Rev 157 (who concludes to allow possessory titles via adverse possession to remain ‘retains the conceptual confusion between a land system based on possession and one based on registration’, and is ‘inappropriate in its potential to undermine the workings of the Torrens system’: at 174). See 8.2. NZLC 6, paras 359–62 (querying the foundation for adverse possession generally); BCLRC 6, p 50 (expressing the concern that if the registered owner lacked the right to recover possession indefinitely, the policy behind the relevant Torrens statute would be defeated; this spawned the Limitation Act 2012 (BC) s 3(1)(b), which states that the Act does not apply to ‘a claim for possession of land if the person entitled to possession has been dispossessed in circumstances amounting to trespass’). McWhirter v Emerson-Elliott [1960] WAR 208 at 214 per Wolff CJ; Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 166 per Murray J. Transfer of Land Act 1958 (Vic) s 42(2)(b); Transfer of Land Act 1893 (WA) s 68(1A). Land Titles Act 1980 (Tas) s 138W(1). See also s 40(3)(h) (exception to indefeasibility). Land Titles Act 1980 (Tas) s 138W(2)–(12) (initially through the vehicle of trusteeship); Transfer of Land Act 1958 (Vic) ss 60–62; Transfer of Land Act 1893 (WA) ss 222–223A (application to become registered as its proprietor). See further Bradbrook, pp 179–81. Land Title Act 1994 (Qld) Pt 6 Div 5. Real Property Act 1886 (SA) Pt 7A. The relevant amendments are catalogued and analysed in R A Woodman and P Butt, ‘Possessory Title and the Torrens System in New South Wales’ (1980) 54 ALJ 79. Real Property Act 1900 (NSW) s 45D(4). See McGuinness v Registrar-General (1998) 44 NSWLR 61 at 69–70; BC9802118 per Hodgson CJ in Eq. See further Bradbrook, pp 183–5. Or, in Western Australia, a court extends the time in which the trustee can commence an action to recover the land and the trustee does not commence an action to recover the land before the expiry of the extended period. In Queensland, Tasmania, Victoria and Western Australia, expressed in terms that the estate of the trustee is not extinguished. NSW s 37(1); Qld s 16(2), 16(3); Tas s 13(3), 13(4); Vic s 11(3), 11(4); WA s 78(1), 78(2) (see WALRC 36(II), pp 377–8). Tas s 13(2); Vic s 11(2). NSW s 28; Qld s 14(1); Tas s 11(1); Vic s 9(1); WA s 66. These provisions follow the terms of UK 1939 s 5(1), now UK 1980 Sch 1 cl 1. The receipt of the rent payable by any tenant from year to year or other lessee is, as against such lessee or any person claiming under him (but subject to the lease), deemed to be the receipt of the profits of the land for this purpose: SA s 29. SA s 6. This adopts the language found in UK 1833 s 3. In dealing with the latter provision, Parke B in Owen v De Beauvior (1847) 16 M & W 547 at 564; 153 ER 1307 at 1314 remarked

92.

93. 94. 95.

96. 97. 98. 99.

100.

101.

102. 103.

104. 105. 106.

107.

that whereas the last payment, in the case of rent, ‘is a point of time which could admit of no doubt’, the time at which a party has discontinued the receipt of rent ‘is obviously a point of time very difficult to ascertain’. This prompted his Lordship to favour an interpretation that targeted, in this context, the payment of rent rather than a discontinuance of its receipt. NSW s 11(1); Qld s 5(1); Tas s 2(1); Vic s 3(1); WA s 3(1). The South Australian legislation defines land more restrictively, to include messuages (namely, a dwelling house, outbuildings and land assigned to its use) and all other corporeal hereditaments, and any estate or interest in any land: SA s 3(1). NSW s 11(4); Qld s 5(6); Tas s 3(7); Vic s 3(6); WA s 3(5). See 8.25–8.34. Rains v Buxton (1880) 14 Ch D 537 at 539–40 per Fry J (cited with apparent approval in Allen v Roughley (1955) 94 CLR 98 at 116; BC5500330 per Williams J); Harris v Wogama Pty Ltd [1969] 1 NSWR 245 at 248 per Asprey JA. Leigh v Jack (1879) 5 Ex D 264 at 273 per Bramwell LJ. Harris v Wogama Pty Ltd [1969] 1 NSWR 245 at 248 per Asprey JA. Harris v Wogama Pty Ltd [1969] 1 NSWR 245 at 248 per Asprey JA. See, for example, Rains v Buxton (1880) 14 Ch D 537 (adverse possession of a cellar under the ground); Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 (adverse possession of strip of land marked as a ‘drainage easement’: at 67–9 per Young J). Littledale v Liverpool College [1900] 1 Ch 19 at 22 per Lindley MR; Powell v McFarlane (1979) 38 P & CR 452 at 470–1 per Slade J; Buckinghamshire County Council v Moran [1990] Ch 623 at 635–6 per Slade LJ, at 645 per Nourse LJ; Woodward v Wesley Hazell Pty Ltd [1994] ANZ ConvR 623 at 626–7; BC9400377 per Underwood J. The origins of the animus possidendi requirement are catalogued in O Radley-Gardner, ‘Civilized Squatting’ (2005) 25 OJLS 727. See, for example, Roberts v Swangrove Estates Ltd [2008] Ch 439; [2008] EWCA Civ 98 at [87]– [89] per Mummery LJ, with whom Jacob LJ and Mann J concurred (remarking that ‘[t]here is no sensible reason why a person who mistakenly believes that he is the true owner of land and behaves accordingly should be denied the benefit of a limitation defence, which is available to a person who commits the wrong of taking and retaining possession of land which he knows belongs to another person’: at [87]). Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 168, 170 per Murray J. See, for example, Ashe v National Westminster Bank plc [2008] 1 WLR 710; [2008] EWCA Civ 55. The same cannot be said, as a consequence, of security interests that confer no entitlement to possession in the event of default: see, for example, Yorkshire Bank Finance Ltd v Mulhall [2009] 2 All ER (Comm) 164; [2008] EWCA Civ 1156. See, for example, the discussion in B Edgeworth, ‘Adverse Possession, Prescription and Their Reform in Australian Law (2007) 15 APLJ 1 at 11–17. Marquis Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 140; 37 ER 527 at 577 per Sir Thomas Plumer MR. Abbatangelo v Whittlesea City Council (2008) V ConvR ¶54–750; [2007] VSC 529; BC200710876 at [3] per Pagone J [affd Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188; BC200907848]. Moses v Lovegrove [1952] 2 QB 533 at 538 per Lord Evershed MR (namely ‘possession … inconsistent with and in denial of the right of the [owner] to the premises’); McWhirter v EmersonElliott [1960] WAR 208 at 213 per Wolff CJ.

108. Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 at 114 per Ormrod LJ. 109. See, for example, Pilford v Greenmanor Ltd [2012] EWCA Civ 756 (involving the construction of a fence around the relevant compound and its subsequent repair and partial replacement, coupled with (inter alia) the nailing up of an access route, maintaining the compound itself, storing items on the compound land, and altering the compound land by removing the grass and creating a proper driveway leading up to gates). 110. [1974] VR 547 at 565–6. See also Littledale v Liverpool College [1900] 1 Ch 19 (where there was no evidence that a gate had been erected with the intention of dispossessing the true owner); George Wimpey & Co Ltd v Sohn [1967] 1 Ch 487 (where fences had been erected to protect the gardens in question from the public, and not to dispossess the freeholder). 111. Riley v Pentilla [1974] VR 547 at 561. These remarks reflect the words of Lord O’Hagan in Lord Advocate v Lord Lovat (1880) 5 App Cas 278 at 288, in a passage cited with approval by Lord Macnaghten in Johnson v O’Neill [1911] AC 552 at 583 and Lord Shaw in Kirby v Cowderoy [1912] AC 599 at 603. 112. Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 at 115 per Ormrod LJ. In Wallis the disputed land was being held awaiting development, and its use for farming and holiday camp purposes was held not to amount to adverse possession. See also Williams Brothers Direct Supply Ltd v Raftery [1958] 1 QB 159, discussed below at 8.27. 113. Riley and the Real Property Act [1965] NSWR 994 at 1000 per McLelland CJ in Eq. See also Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 at 13,283; BC9301756 per Bryson J (referring to possession that is ‘actual, open, visible, notorious, continuous and hostile to the title of the true owner’). In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 Bowen CJ in Eq spoke in terms of possession that is ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’. The reference to ‘peaceful’ should not, however, be construed to deny effect to acts of possession that are potentially threatening, such as warning others off the land, even by brandishing a firearm: Harnett v Green (No 2) (1883) 4 LR (NSW) (L) 292 (warning others off the land); Beever v Spaceline at 13,281 (including via brandishing a shotgun). 114. Abbatangelo v Whittlesea City Council (2008) V ConvR ¶54–750; [2007] VSC 529; BC200710876 at [6] per Pagone J [affd Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188; BC200907848]. 115. Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 167 per Murray J. 116. This includes an agreement for lease, which is enforceable by specific performance in equity: Warren v Murray [1894] 2 QB 648 at 651–3 per Lord Esher MR, at 658–9 per A L Smith LJ. It is also presumed to extend vis-à-vis a lessee’s encroachment on adjoining land, not the subject of the lease, belonging to the lessor (or even a third party), which presumption can be rebutted by some explicit act of the lessee disclaiming the lessor’s title, express or implied agreement to the contrary, or by way of estoppel: Kingsmill v Millard (1855) 11 Exch 313 at 318–19; 156 ER 849 at 851–2 per Parke B; Tabor v Godfrey (1895) 64 LJQB 245 at 247 per Charles J; Smirk v Lyndale Developments Ltd [1975] Ch 317 at 323–33 per Pennycuick VC [varied on appeal but not on this point: see at 339–40 per Lawton LJ, at 340–1 per Walton J]. This does not mean that adverse possession has no operation in the context of leasehold estates, but that there is only scope for time to begin to run against the lessor only upon the tenant remaining in possession once the lease ends: see 8.49–8.52. 117. Moses v Lovegrove [1952] 2 QB 533 at 544 per Romer LJ; Hughes v Griffin [1969] 1 All ER 460 at 463 per Harman LJ, at 466 per Cairns LJ; Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 at 103 per Lord Denning MR; Radonich v Radonich [1999] WASC 165;

118. 119.

120. 121.

122. 123.

124. 125.

126. 127. 128.

129. 130.

BC9905945 at [145], [174], [190], [191] per Parker J; Ashe v National Westminster Bank plc [2008] 1 WLR 710; [2008] EWCA Civ 55 at [78] per Mummery LJ, with whom Hughes LJ and David Richards J concurred. See also Colchester Borough Council v Smith [1992] Ch 421 (where the terms of a tenancy agreement, entered into between a squatter and the owner of the land by way of compromise after the squatter had enjoyed adverse possession of the land for more than 12 years, wherein the squatter acknowledged the owner’s tile, were held to estop the squatter from asserting that he had a freehold title by virtue of adverse possession; although this decision has been criticised for facilitating an ‘undesirable method’ of circumventing the limitations legislation (McGee, p 346), it nonetheless has utility by providing what has been described as ‘a useful and effective means of defeating the argument of an unscrupulous party where it would be unconscionable for him to argue that an admitted or proven acknowledgement was of no effect’: Canny, p 66). McGee, p 229 (noting that time can never run in favour of a licensee). Ramnarace v Lutchman [2001] 1 WLR 1651; [2001] UKPC 25 at [10] per Lord Millett. See, for example, Hyde v Pearce [1982] 1 WLR 560 (where, by reason of the plaintiff’s equitable interest in the land that he occupied as a would-be purchaser pending completion of the contract, and not as a trespasser, his possession was not adverse: see at 569–71 per Templeman LJ, at 572–3 per Ackner LJ, at 574 per Cumming-Bruce LJ). [1958] 1 QB 159. Williams Brothers Direct Supply Ltd v Raftery [1958] 1 QB 159 at 167 per Hodson LJ, at 171 per Morris LJ, at 173 per Sellers LJ (remarking that the land was idle, as its owners were waiting for an opportunity to build on it, and so could not accept that ‘they would lose their rights as owners merely by reason of trivial acts of trespass or user which in no way would interfere with a contemplated subsequent user’). Williams Brothers Direct Supply Ltd v Raftery [1958] 1 QB 159 at 169. See also at 171–3 per Morris LJ. [1895] 1 Ch 641. See also Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 175–6 per Murray J (where the true owners of land were physically excluded therefrom by way of an enclosure erected by the squatters, who regarded themselves as the owners of the land). (1879) 5 Ex D 264 at 271. See, for example, Smith v Lloyd (1854) 9 Exch 562; 156 ER 240 (where what Parke B described as ‘simple nonuser for more than forty years’, during which time ‘no other person having worked or been in possession of the [land]’, was held to be no foundation for an adverse possession claim under UK 1833 ss 2, 3: at 572; 245). Leigh v Jack (1879) 5 Ex D 264 at 272. Allen v Roughley (1955) 94 CLR 98 at 116; BC5500330 per Williams J. It does not apply where the authority is merely ostensible, in view of the fact that ostensible authority operates to preclude a principal from denying responsibility to a third party with whom the agent dealt, but not to create rights in the principal: see G E Dal Pont, Law of Agency, 3rd ed, LexisNexis Butterworths, Australia, 2014, p 458. Williams v Pott (1871) LR 12 Eq 149 at 151–2 per Lord Romilly MR. Namely UK 1939 s 10(1) (now UK 1980 Sch 1 cl 8(1)). It should be noted, however, that from 1833 English legislation placed a time bar on actions to recover land, but without utilising the descriptor ‘adverse possession’: see UK 1833 s 2, then replaced by UK 1874 s 1. Notwithstanding, it has been observed, ‘the words “adverse possession” have crept back into the Act of 1939’:

131.

132. 133. 134.

135.

136.

137. 138. 139. 140. 141.

Hughes v Griffin [1969] 1 All ER 460 at 463 per Harman LJ. But the concept of ‘adverse possession’ antedated the 1833 statute; onto UK 1623 the common law engrafted the doctrine of ‘non-adverse’ possession, namely that the title of the true owner was not endangered until there was a possession clearly inconsistent with its due recognition (‘adverse possession’) so that there had to be something in the nature of ouster. In practice, though, it proved very difficult to discover what was sufficient to constitute adverse possession. This was, in the words of Lord Upjohn in Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072 at 1083, ‘swept away’ by UK 1833 s 2, the effect of which was ‘to put an end to all questions and discussions, whether the possession of the lands, be adverse or not’: Culley v Doe d Taylerson (1840) 11 Ad & El 1008 at 1015; 113 ER 697 at 700 per Lord Denman CJ. NSW s 38(4)(a); Qld s 19(1); Tas s 16(1); Vic s 14(1); WA s 3(6)(a). The same is the case in the current English legislation: see UK 1980 Sch 1 cl 8(1). The legislation adds that possession of land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rent is deemed to be adverse possession of the rentcharge: NSW s 38(4)(b); Qld s 19(3)(a); Tas s 16(3)(a); Vic s 14(3)(a); WA s 3(6)(b). Receipt of rent, under a lease by a person wrongfully claiming (in accordance with NSW s 33; Qld s 18(3); Tas s 15(3); Vic s 14(3); WA s 71: as to which see 8.53, 8.54) the land in reversion, is likewise deemed to be adverse possession of the land: NSW s 38(4)(c); Qld s 19(3)(b); Tas s 16(3)(b); Vic s 14(3); WA s 3(6) (c). ‘Rentcharge’ means any annuity or periodical sum of money charged upon or payable out of land, except for rent payable under a lease or interest on a mortgage on land: NSW s 11(1); Qld s 5(1); Tas s 2(1); Vic s 3(1); WA s 4(1). [2003] 1 AC 419; [2002] UKHL 30 at [69]. See also at [76] per Lord Hutton. J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 at [36]. It stands to reason, accordingly, that where the date of accrual is not prescribed under the legislation itself, but is instead determined outside the legislation, say, by other legislation, the relevant section does not apply: Bonifacio v NSW Trustee and Guardian [2015] NSWSC 124; BC201500970 at [53], [54] per Darke J. NSW s 38(1); Qld s 19(1); Tas s 16(1); Vic s 14(1); WA s 65(1). The text follows the wording of the Queensland, Tasmanian, Victorian and Western Australian provisions, which in turn follow the English precedent (UK 1939 s 10(1); now see UK 1980 Sch 1 cl 8(1)). The New South Wales provision is expressed in terms that where, on the date when a cause of action would otherwise accrue for the purposes of the legislation, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession. NSW s 38(3); Qld s 19(2); Tas s 16(2); Vic s 14(2); WA s 65(2), 65(3). The text follows the wording of the Queensland, Tasmanian and Victorian provisions, which in turn follow the English precedent (UK 1939 s 10(2); now see UK 1980 Sch 1 cl 8(2)). As to the concepts of ‘dispossession’ and ‘discontinuance’ see 8.24. J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 at [69]. J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 at [36]. Re Riley and the Real Property Act [1965] NSWR 994 at 1000 per McLelland CJ in Eq. May v Martin (1885) 11 VLR 562; Willis v Earl Howe [1893] 2 Ch 545 at 553 per Kay LJ; Salter v Clarke (1904) 4 SR (NSW) 280 at 287 (FC); Allen v Roughley (1955) 94 CLR 98 at 131–2; BC5500330 per Fullagar J; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 476 per Bowen CJ in Eq; Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 166 per Murray J; Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 at 341–2 per Brooking J, with whom Marks and Hedigan JJ

142.

143.

144.

145.

146. 147. 148. 149. 150.

concurred; Shaw v Garbutt (1996) 7 BPR 14,816 at 14,824; BC9603589 per Young J; Site Developments (Ferndown) Ltd v Cuthbury Ltd [2011] Ch 226; [2010] EWHC 10 (Ch) at [162]– [178] per Vos J. In New South Wales the substance of this principle is replicated by NSW s 38(2) (which states that where a cause of action accrues to recover land from a person (A) in adverse possession of the land, and the land is thereafter in the adverse possession of a second person (B), whether B claims through A or not, the cause of action to recover the land from B accrues on the date on which the cause of action to recover the land from A first accrues to the plaintiff); see further NSWLRC 3, para 189 (which makes clear that NSW s 38(2) was designed to quell any doubt regarding the relevant principle). Cf where the squatter may, for a short period of time, have ceased to be in actual physical occupation of the land; in this event, it has been said that mere non-user of the land for a time — assuming, of course, that the true owner does not resume possession during that time — is not conclusive evidence of abandonment of possession: Nicholas v Andrew (1920) 20 SR (NSW) 178 at 184 per Gordon J (using the example of a hiatus in a squatter’s use of farming land by reason of drought). See, for example, Grave v Wharton (1879) 5 VLR (L) 97; Trustees, Executors, and Agency Co Ltd v Short (1888) 13 App Cas 793 at 798–9 per Lord Macnaghten (PC) (where an intruder relinquished possession prior to the expiry of the limitation period); Solling v Broughton [1893] AC 556 (PC) (involving entries on the land by the true owner once time had begun to run). An ostensibly extreme example is found in Randall v Stevens (1853) 2 El & Bl 641; 118 ER 907, where the owner’s entry, which equated to only 45 minutes, was held to be a resumption of possession for this purpose. This case was cited without disapproval in Zarb v Parry [2012] 2 All ER 320; [2011] EWCA Civ 1306 at [39] per Arden LJ, at [69] per Lord Neuberger MR (who, however, noted that in Randall v Stevens the owner had physically evicted the occupier, his family and all his furniture, albeit for less than an hour, from the house in question). See, for example, Dunne v larnród Éireann [2007] IEHC 314 (where the true owner, in carrying out extensive repairs to a railway station located on the land, and repairing some fencing, was held to have halted the squatter’s adverse possession even though the station occupied only a portion of the land; this conclusion was, however, influenced by a finding that ‘the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them’: at [5.5] per Clarke J). Cf Zarb v Parry [2012] 2 All ER 320; [2011] EWCA Civ 1306 (where although the owners had banged fence posts into the ground, so that it might be said that the squatters lost exclusive control of the limited area affected by those posts, the area occupied by each post was small and did not justify a conclusion that adverse possession of the entirety of the land had been interrupted: at [38] per Arden LJ; ultimately, however, what influenced the court to rule against any interruption of adverse possession was that the owners’ acts in dispossessing the squatters had only reached a preliminary stage, and had been abandoned: see at [73]–[75] per Lord Neuberger MR). Zarb v Parry [2012] 2 All ER 320; [2011] EWCA Civ 1306 at [43] per Arden LJ (‘it is the quality of the acts which matters’). Dunne v larnród Éireann [2007] IEHC 314 at [4.9] per Clarke J. NSW s 39(a); Qld s 21; Tas s 19; Vic s 16; WA s 84(a). The language here follows UK 1939 s 13. Randall v Stevens (1853) 2 El & Bl 641 at 652; 118 ER 907 at 911–12 per Lord Campbell CJ. See, for example, Doe d Baker v Coombes (1850) 9 CB 714; 137 ER 1073 (where the owner simply removed a stone from the squatter’s cottage and a portion of the fence, without taking any steps to dispossess the squatter).

151. Zarb v Parry [2012] 2 All ER 320; [2011] EWCA Civ 1306 at [40], [43] per Arden LJ. 152. See, for example, Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 3 All ER 129 (where the owner’s sending of a letter requiring the squatter to vacate was held not to interrupt ongoing adverse possession, Nicholls LJ noting that ‘[b]efore receipt of the letter the property was in the possession of the defendant in whose favour the period of limitation was running’ and that ‘[i]t was still in her possession after the receipt of the letter’, making his Lordship ‘unable to see how the sending and receipt of that letter can have had the effect of making the property cease to be in adverse possession’: at 133). 153. See, for example, Markfield lnvestments Ltd v Evans [2001] 2 All ER 238 at 242–3 per Simon Brown LJ, with whom Mummery and Latham LJJ concurred. Cf Shaw v Garbutt (1996) 7 BPR 14,816 at 14,825; BC9603589 per Young J (who envisaged that, aside from taking physical possession with the requisite intention, the actual institution of proceedings for an order for possession could cause adverse possession to end). 154. See, for example, Bree v Scott (1904) 29 VLR 692 at 701–2 per Madden CJ; Shaw v Garbutt (1996) 7 BPR 14,816 at 14,833–4; BC9603589 per Young J. 155. See, for example, O’Neil v Hart [1905] VLR 107 at 120 per Madden CJ. Cf Re Johnson [2000] 2 Qd R 502; [1999] QSC 197 at [23] per Wilson J (where payment of rates was not accompanied by evidence of a sufficient degree of exclusive physical control over the disputed land). 156. See, for example, Kirby v Cowderoy [1912] AC 599 at 603 per Lord Shaw (PC). 157. See, for example, Webeck v Foley (1992) 5 BPR 11,694 at 11,700–1; BC9201589 per Hodgson J (ruling that evidence of behaviour of this kind on the part of the squatter revealed an intention to possess the property for the benefit of each owner, even in the face of the squatter’s long and exclusive possession of the property). 158. NSW s 38(5); Qld s 22; SA s 20; Tas s 16(4); Vic s 14(4); WA s 3(6)(d). These provisions, excepting the reference to adverse possession, largely follow the language of UK 1833 s 12. 159. Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072 at 1082–3 per Lord Upjohn (PC). 160. Radonich v Radonich [1999] WASC 165; BC9905945 at [172] per Parker J (having noted that the relevant provisions leave the question whether possession by one joint owner is on behalf of another joint owner, or to the exclusion of the other joint owner, to be determined as an issue of fact in each case). 161. Culley v Doe d Taylerson (1840) 11 Ad & E 1008 at 1016–18; 113 ER 697 at 700–1 per Lord Denman CJ; Beaumont v Hochkins (1889) 15 VLR 442 at 449 per Hodges J. 162. Or, in the case of a rentcharge created by will or taking effect upon the person’s death, in possession of the land charged. 163. The New South Wales provision, as to the latter requirement, is phrased in terms that ‘no person is, after the date of the death of the deceased and before the date on which the action is brought, in possession: (i) by virtue of the estate or interest claimed and under the assurance or intestacy; or (ii) as personal representative of the deceased’: NSW s 29(c). 164. NSW s 29; Qld s 14(2); SA s 7 (note that its specific reference to rent and receipt of profits does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s 11(2); Vic s 9(2); WA s 67. These provisions owe their genesis to UK 1833 s 3, the substance of which was subsequently replicated in UK 1939 s 5(2). 165. NSW s 30; Qld s 14(3); SA s 8 (note that its specific reference to rent and receipt of profits does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s

166. 167. 168.

169.

170. 171. 172. 173.

174.

175.

176.

177. 178. 179.

11(3); Vic s 9(3); WA s 68. These provisions owe their genesis to UK 1833 s 3, the substance of which was subsequently replicated in UK 1939 s 5(3). Now see UK 1980 s 15(4). NSW s 37(2); WA s 73(2). NSW s 37(3); WA s 73(3). ‘Trust for sale’ is defined in the Queensland and Victorian legislation to mean, in relation to land, an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale: Qld s 5(1); Vic s 3(1) (referring to the meaning of the phrase in Trustee Act 1958 (Vic) s 3(1)). Although no equivalent appears in the Tasmanian legislation, as the aforesaid definition aligns with the understanding of a ‘trust for sale’ at general law, an equivalent meaning applies in Tasmania. ‘Settled land’ is defined by reference to a ‘settlement’, which includes any instrument, under or by virtue of which any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession: Settled Land Act 1884 (Tas) s 2(1), 2(3); Settled Land Act 1958 (Vic) ss 3(1), 8(1). Qld s 16(4); Tas s 13(5); Vic s 11(5). Qld s 23; SA s 14; Tas s 20; Vic s 17. These provisions owe their genesis to UK 1833 s 6; UK 1874 s 15, and were then replicated in UK 1939 s 15. Now see UK 1980 s 26. See G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, pp 348–53. Administration and Probate Act 1929 (ACT) s 39; Probate and Administration Act 1898 (NSW) s 44; Administration and Probate Act 1969 (NT) s 52; Administration Act 1903 (WA) s 8. See further NSWLRC 3, para 357; G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, pp 353–5. Cf WALRC 36(II), p 378 (nonetheless recommending the inclusion of a provision equivalent to that in Queensland, South Australia, Tasmania and Victoria, which had an equivalent in WA 1935 s 8; no such provision was included in the Limitation Act 2005 (WA)). The New South Wales, Queensland, South Australian, Tasmanian and Victorian provisions, in this regard, refer to ‘an estate or interest in reversion or remainder or any other future estate or interest’. The position is equivalent, in any case, in Western Australia, where ‘future interest’ is defined as an estate in reversion or remainder or other vested or contingent interest in property that is yet to entitle immediate possession of the property: WA s 3(1). The New South Wales provision, in this context, refers to the cause of action accruing on the date on which the relevant estate or interest becomes a present estate or interest. The Queensland, Tasmanian and Victorian provision targets when ‘the estate or interest fell into possession by the determination of the preceding estate or interest’. The South Australian provision aligns accrual with the time when that estate or interest becomes an estate or interest in possession. NSW s 31; Qld s 15(1); SA s 9 (note that its specific reference to rent and receipt of profits does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s 12(1); Vic s 10(1); WA s 69(1) (the wording in the text follows this provision). These provisions owe their genesis to UK 1833 s 3, replicated in UK 1939 s 6(1). Now see UK 1980 s 15(2), Sch 1 cl 4. Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38 at 48 per Lord Nicholls (PC). UK 1939 s 6(2). In Victoria, not being a term of years absolute.

180. Qld s 15(2); Tas s 12(2); Vic s 10(2). The Tasmanian legislation, following UK 1939 s 6(3) (and now UK 1980 s 15(3)), adds that this does not apply to an estate or interest that falls into possession on the determination of an entailed interest that might have been barred by the person entitled to the entailed interest: Tas s 12(4). 181. Tas s 12(3) (namely by substituting 30 years for the reference to 12 years, and 12 years for the reference to six years), following UK 1939 s 6(2). 182. UK 1939 s 6(4). Cf NSWLRC 3, para 353. 183. Qld s 15(3); Tas s 12(5); Vic s 10(3). As to the limitation period applicable in the context of assurances see 8.36. 184. Qld s 15(4); SA s 22 (note that its specific reference to rent does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s 12(6); Vic s 10(4). This provision had an antecedent in UK 1833 s 20, and then UK 1939 s 6(5). Now see UK 1980 s 15(5). 185. SA s 13, adopting the language found in UK 1833 s 3. 186. NSW s 32(1); Tas s 14(1). 187. NSWLRC 3, para 173. 188. Qld s 17; SA s 10 (note that its specific reference to rent does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Vic s 12. These follow the schema first adopted by UK 1833 s 3, subsequently reiterated in UK 1939 s 8. Now see UK 1980 Sch 1 cl 7(1). 189. Barratt v Richardson [1930] 1 KB 686 at 692–3 per Wright J. 190. Namely NSW s 33; WA s 71, as to which see 8.53. 191. NSW s 32(2); WA s 70. 192. Qld s 17; SA s 11 (note that its specific reference to rent does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s 14(2); Vic s 12. The wording parallels that in UK 1833 s 4, subsequently reiterated in UK 1939 s 8. Now see UK 1980 Sch 1 cl 7(2). 193. NSW s 25; NT s 23. 194. NSWLRC 3, para 152. See generally Bradbrook, pp 726–8. 195. The seminal English provision was UK 1833 s 42, which was replicated in UK 1939 s 17. Now see UK 1980 s 19. 196. Qld s 25; SA s 35(d), 35(f); Tas s 22; Vic s 19. 197. NSW s 24; NT s 22. See 5.7. 198. ACT s 11(1); WA s 13(1). See 4.2. 199. Romain v Scuba TV Ltd [1997] QB 887 at 893–4 per Evans LJ, with whom Waite LJ and Sir John May concurred. 200. Via an action on a specialty, originally under Civil Procedure Act 1833 (UK) s 3, then UK 1939 s 2(3), and now UK 1980 s 8. 201. SA s 34. 202. See 8.5. 203. NSW s 34; WA s 72(1), 72(2). 204. The reference to a ‘periodical tenancy’ other than a tenancy from year to year presumably refers to a tenancy from a period to another other than a year, say, a tenancy from week to week, or from month to month.

205. In New South Wales, it is likewise expressed to apply to a tenancy to which the Conveyancing Act 1919 (NSW) s 127 applies (under which ‘[n]o tenancy from year to year shall … be implied by payment of rent; if there is a tenancy, and no agreement as to its duration, then such tenancy shall be deemed to be a tenancy determinable at the will of either of the parties by one month’s notice in writing expiring at any time’: Conveyancing Act 1919 (NSW) s 127(1)). 206. NSW s 34; WA s 72(3). 207. NSWLRC 3, para 181. 208. For this purpose, it has been held that a document is not a ‘lease in writing’ unless it is dispositive, that is, a document that at law creates, of and by itself, a leasehold estate in land: Long v Tower Hamlets London Borough Council [1998] Ch 197 at 208–10 per James Munby QC (so that a document that is merely an agreement for a lease, or merely evidential of the terms of a lease, is not a ‘lease in writing’). Confining the relevant provision to a periodical tenancy without a ‘lease in writing’ reflects the UK 1833 s 8 approach, for which the NSWLRC 3, para 179 saw no justifiable reason. Hence its removal from NSW s 34 (and later WA s 72). 209. Qld s 18(1), 18(2); SA ss 15, 16; Tas s 15(1), 15(2) (but does not apply to a tenancy at will granted by the Crown: Tas s 15(4)); Vic s 13(1), 13(2). 210. The onus to prove the payment of rent appears to lie on the landlord: Mohima v Mosesh (1888) LR 16 Ind App 23 at 26 per Mr Stephen Woulfe Flanagan; Cardiff-Borehole Collieries Ltd v Robertson (1925) 25 SR (NSW) 348 at 358 per Ferguson J (FC). This arguably encompasses proof that the payment in question is indeed to be characterised as rent. It has been said, to this end, that ‘if the person paying made the payment expressly or impliedly on account of something else than rent of land of which he was the tenant, this would not be a payment of rent within the meaning of the [statute]’: Attorney-General v Stephens (1855) 6 De GM & G 111 at 146; 43 ER 1172 at 1187 per Lord Cranworth LC. The question is ultimately one of substance over form, governed by findings as to the parties’ intentions, and so merely because the payments are not explicitly described as ‘rent’ may not preclude them being so treated: see, for example, Neall v Deadle (1912) 107 LT 646 (payment of tithes construed as payment of (additional) rent, informed by evidence of the parties’ practice through the term of the lease: at 650–1 per Eve J). 211. Qld s 18(2A); SA s 16; Tas s 15(2); Vic s 13(2). 212. See, for example, Hayward v Chaloner [1968] 1 QB 107; Jessamine Investment Co v Schwartz [1978] QB 264. Cf See further Bradbrook, pp 156–7. 213. UK 1833 ss 7, 8 (thereafter UK 1939 s 9, and now UK 1980 Sch 1 cll 5, 6). 214. Day v Day (1871) LR 3 PC 751 at 761 per Sir Joseph Napier (on appeal from the Supreme Court of New South Wales) (where the owner’s cause of action against a tenant at will was barred due to the effluxion of time: at 763). 215. SA s 23, replicating the content of UK 1833 s 21. 216. SA s 24, replicating the content of UK 1833 s 22. 217. See Bradbrook, pp 28–9. 218. Heslop v Burns [1974] 3 All ER 406 at 415 per Scarman LJ (‘once an exclusive occupation had been established, a tenancy at will is presumed unless there are circumstances which negative it’). See, for example, Lynes v Snaith [1899] 1 QB 486 (where the occupier’s exclusive possession was not compromised by entry of the owner, with the occupier’s (implied) consent, to effect repairs); Wilson v Equity Trustees, Executors and Agency Co Ltd [1911] VLR 481 at 483–4 per A’Beckett J. 219. Facchini v Bryson [1952] 1 TLR 1386 at 1389 per Denning LJ. 220. [1974] 3 All ER 406.

221. Heslop v Burns [1974] 3 All ER 406 at 410–11 per Stamp LJ, at 412 per Roskill LJ, at 415–16 per Scarman LJ. 222. NSW s 33; WA s 71. 223. The term ‘wrongfully’ in this context is not confined to ‘an intentional and improper claiming of the rent’ but extends to any scenario where a person claims land without title, including by way of mistake: Williams v Pott (1871) LR 12 Eq 149 at 152 per Lord Romilly MR. The mere receipt of rent without making a claim to the reversion is insufficient, however, to establish wrongfulness: Lyell v Kennedy (1889) 14 App Cas 437. 224. Qld s 18(3); SA s 17 (note that its specific reference to rent and receipt of profits does not expand its application, in view of the meaning of ‘land’ in other jurisdictions: see 8.7); Tas s 15(3) (which sets a $100 threshold; the provision does not apply to a lease granted by the Crown: Tas s 15(4)); Vic s 13(3). These provisions owe their genesis to UK 1833 s 9 (subsequently UK 1939 s 9(3), and now UK 1980 Sch 1 cl 6(1)), which the NSWLRC 3, para 176 refused to follow, branding it as ‘wrong’, instead favouring the view, implemented in NSW s 33 (and later WA s 71), that time should not begin to run until the landlord becomes entitled to recover the land from the tenant by forfeiture or breach of condition.

[page 203]

CHAPTER 9

Causes of Action in Relation to Mortgages Actions for Redemption by Mortgagor Limitation period and accrual Adjustment of interest Actions for Principal, Possession or Foreclosure by Mortgagee The Territories, New South Wales and Western Australia Time bar Accrual of cause of action Queensland, Tasmania and Victoria Time bar Accrual of cause of action Overlap with limitation provision applicable to ‘actions founded on simple contract’? South Australia Other mortgagee remedies barred Actions to Recover Interest Under Mortgage Statutory schemas The Territories, New South Wales and Western Australia Queensland, Tasmania and Victoria

9.3 9.3 9.6 9.7 9.7 9.7 9.8 9.9 9.9 9.10 9.11 9.12 9.14 9.15 9.15 9.15 9.16

South Australia Application to both real and personal property Focus on secured debt

9.18 9.20 9.21

9.1 Each Australian jurisdiction makes provision in its limitation statute for time bars for causes of action, and their accrual, for redemption of mortgaged property by a mortgagor, and for the recovery by a mortgagee of principal, interest or possession or to secure foreclosure. The relevant law is the subject of this chapter. 9.2 At the outset, it must be noted that the Limitation Acts in the Territories and New South Wales are expressed to apply to causes of action founded on a mortgage1 registered under Torrens legislation2 to recover money payable thereunder, but (with one qualification [page 204] in New South Wales)3 do not otherwise affect the right, title or remedies, under the Torrens legislation, of a registered proprietor of the mortgage or the mortgaged land.4 As a result of the latter, the limitations legislation does not affect statutory remedies under the mortgage, and this is so, in New South Wales, even in the face of extinction of elapsed causes of action by the limitations statute.5 Lack of equivalent provision elsewhere suggests that limitations legislation may impact on those remedies.

Actions for Redemption by Mortgagor Limitation period and accrual 9.3

The limitations legislation in the Territories, New South Wales and

Western Australia imposes upon a cause of action to redeem mortgaged property in the possession of a mortgagee6 a 12 year limitation period.7 An action to redeem (as opposed to foreclose) is not treated by the law as an action to recover land,8 and so there is no overlap between this provision and that stipulating time bars on actions to recover land.9 For this purpose, time runs from the later of any date when that mortgagee last goes into possession of the relevant property,10 and when that mortgagee last receives from the plaintiff a payment of principal money11 or interest secured by the mortgage. Although only the Western Australian provision specifically applies the foregoing to property ‘whether real or personal’,12 that the respective legislatures chose the language of ‘property’, not seeking to qualify its meaning, indicates that the same ensues in the other jurisdictions.13 9.4 The phrase ‘in the possession of a mortgagee’, which provides the fulcrum for the limitation period, is not statutorily defined. In the context of real property, the general law adopted a technical meaning of the term ‘possession’, aligning it with ‘control’ and ‘management’.14 That mortgagees of personal property may commonly enjoy possession of mortgaged securities from the outset justifies, it is said, a similarly technical meaning of possession as regards personal property.15 The point is illustrated in Park v Brady,16 where on a mortgage of shares in a home unit company, the mortgagee, in lieu of interest, was given a [page 205] right to occupy a home unit as lessee from the company. The mortgagor retained the right to vote at company meetings. The issue was whether the mortgagor’s attempt, 13 years later, to redeem the mortgage was time-barred. Samuels JA, with whom Moffitt P concurred, ruled that the action was not time-barred because the mortgagee was not relevantly in ‘possession’ of the shares, reasoning as follows:17 Control and management of shares involves the enjoyment of the rights which the shares bestow. The [mortgagee] took the lease and the right to any dividends. But, in a most important respect, the mortgage deed deprived her of control or management. She could not

exercise the voting rights which the shares conferred. Upon any question of the management of the company, and hence of the building, she was bound to accept the [mortgagor’s] directions. This disability is fatal to any claim to control or manage. I conclude, therefore, that the [mortgagee] was never a mortgagee in possession … and that time has never commenced to run against the [mortgagor].

Provision directed to the same end is found in the remaining jurisdictions, but confined to land (although its extension to personalty has been recommended in Queensland).18 It declares that if a mortgagee of land has been in possession of any of the mortgaged land for at least 12 years (15 years in Victoria), no action to redeem the land can be brought by the mortgagor.19 While the relevant provisions do not expressly stipulate from when time begins to run, the case law makes clear that it aligns with the moment when the mortgagee enters into possession in that capacity.20 9.5 Although only the South Australian provision explicitly makes the foregoing subject to an acknowledgment of the title of the mortgagor,21 the same is the position elsewhere in view of the breadth of application of the provisions governing acknowledgment.22

Adjustment of interest 9.6 The limitations statutes in the Territories and New South Wales states that, in an action for redemption, or otherwise in relation to a mortgage of property, a mortgagor is not, as against a mortgagee, to be required to pay or bear interest that could not, because of a period of limitation fixed under those statutes, be recovered in an action by that mortgagee against that mortgagor brought on the date when the firstmentioned action is brought. And in adjusting the rights of mortgagor and mortgagee, the mortgagee is not entitled to the interest [page 206] mentioned in the preceding sentence.23 This, it has been said, ousts the rules ‘whereby a mortgagee may obtain satisfaction of statute-barred interest as the price of redemption of the mortgage, in distribution of the proceeds of sale, and in other cases’, and is a step in ‘preventing the substantive rights of

parties depending on the tactical situation in which they find themselves’.24 The legislation adds that, if interest becomes due under a mortgage and a mortgagee holds money on the date it becomes due25 and, before or after an action to which the preceding paragraph applies is brought, the mortgagee properly applies that money in satisfaction of that interest, the preceding paragraph does not, as against the mortgagee, apply to that interest to the extent to which it is so satisfied.26 This serves to ensure that the provision in the preceding paragraph does not interfere with a mortgagee’s power to appropriate, in or towards satisfaction of interest, money that is in his or her hands while an action to recover the interest would not be statute-barred.27

Actions for Principal, Possession or Foreclosure by Mortgagee The Territories, New South Wales and Western Australia Time bar 9.7 In the Territories, New South Wales and Western Australia, a 12 year limitation period applies to causes of action by mortgagees to recover principal money secured by mortgage,28 recover possession of mortgaged property from a mortgagor29 or foreclose the equity of redemption of mortgaged property.30 While only the Western Australian provision makes explicit that the foregoing applies as regards mortgages of both real property and personal property, the lack of qualification in the remaining jurisdictions indicates that the same is the case in those jurisdictions. In New South Wales, however, it does not apply to mortgages of ships.31 While expiry of the above limitation period dictates that a mortgagee cannot obtain a judgment or other judicial remedies for principal and interest, in New South Wales it does not impede rights that are conferred on a mortgagee by the Real Property Act 1900 (NSW), without limitation as to time.32

[page 207]

Accrual of cause of action 9.8 Time begins to run from the date when the cause of action first accrues to the mortgagee, which in the Northern Territory is identified as ‘the date on which the mortgagee first became entitled to recover the money, to take possession of the property or to foreclose the equity of redemption’. The latter, in any case, reflects the interpretation espoused by the case law on an earlier parallel English provision,33 and remains extant even if the mortgagee exercised its power of sale prior to issuing proceedings to recover a shortfall.34

Queensland, Tasmania and Victoria Time bar 9.9 Queensland and Tasmania set a 12 year, and Victoria a 15 year, time bar on the recovery of a principal sum of money secured by a mortgage or other charge on (real or personal) property,35 which also applies (other than in Victoria) to the recovery of the proceeds of the sale of land.36 (The absence of dedicated provision dealing with the recovery of possession by a mortgagee is remedied, in the case of mortgages of land, by the general limitation provision on the recovery of land).37 Once the time bar elapses, the mortgagee loses its interest in the land and, if the mortgage entitled the mortgagee to take possession of the title deeds as the relevant security,38 it is apt for the court to order the mortgagee to relinquish their possession.39 The above time bar does not, however, apply to a foreclosure action in respect of mortgaged land (to which the provisions dealing with an action to recover land apply,40 given that foreclosure can be classified as an action to recover land)41 or, in Tasmania and Victoria, to a statutory authority’s recovery of moneys that by any Act are, and until paid remain, a charge on land.42 Nor does it apply, in Queensland, to a mortgage or charge on a ship.43

Accrual of cause of action

9.10 The limitation period runs from the date when the (present)44 right to receive the money accrued (notwithstanding, in Tasmania and Victoria, that the money is by any Act [page 208] or instrument expressed to be a charge until paid). The same time bar applies to a foreclosure action45 vis-à-vis mortgaged personal property, again running from the date when the right to foreclose accrued; but if after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property is, for this purpose, deemed not to have accrued until the date when the mortgagee’s possession discontinued.46 Also, the right to receive a principal sum of money secured by the mortgage or other charge, or to foreclose on the property subject to the mortgage or charge, is deemed not to accrue so long as that property comprises a future interest or a life assurance policy that has not matured or been determined.47 It has been observed, in relation to life assurance policies, that:48 [i]t would be a hardship to the mortgagee, and outside the contemplation of the parties, that the mortgagee (if not in possession) should have to realise the security within the period of limitation or else lose his rights by default. In many cases he would prefer to keep the policy alive until it matures for payment.

Overlap with limitation provision applicable to ‘actions founded on simple contract’? 9.11 There can arise the question of whether, and if so the extent to which, the above limitation provision overlaps with the general limitation provision applicable to ‘actions founded on simple contract’.49 The issue arises because a mortgage is, after all, a contract, and a shorter (six year) limitation period applies in contract. The two provisions can, it has been held, operate in combination. A leading case is Barnes v Glenton,50 where a creditor (the plaintiff) brought an action to recover money lent to the defendants, who were trustees under a will and who transferred certain mortgages to the plaintiff. In proceedings to recover the moneys claimed by way of a simple contract debt, a defendant contended that the general six

year limitation period under the Limitation Act 1623 (UK) applied. In response, the plaintiff relied on the longer (12 year) limitation period set by the English Real Property Limitation Acts of 1833 and 1874, on which the Australian provisions are based, to support a repeal of the relevant provision of the 1623 Act. The English Court of Appeal ruled that no such repeal had occurred, and simple contract debts were unaffected by the 1833 and 1874 Acts. The earlier and later enactments could, the court reasoned, stand together, as Romer LJ explained:51 [I]t is to be observed that the Acts of [1833] and of 1874 were not intended to take away from debtors any rights, or to give any additional rights to creditors. On the contrary, the intention was to give further rights to debtors to oppose the claims of creditors after the lapse of a certain time. The statutes do not say that debts may be recovered under certain conditions, but they negative the rights of creditors to bring actions after a certain time has elapsed. They were not intended to repeal the [Limitation Act 1623], and do not repeal it, so far as relates to simple contract debts charged on land, either expressly or impliedly. These two statutes and the [Limitation Act 1623] are general, and have a wide operation, and they can well stand together. There would be no difficulty in framing a provision which would comprise the material provisions of the statutes

[page 209] so far as concerns the question before us. The effect of such combination may be stated briefly thus: ‘No action to enforce a simple contract debt, whether charged on land or not so charged, shall be brought after six years, unless interest has been paid or an acknowledgement given, and as to any debt charged on land, even if the debt be a speciality debt, no action shall be brought for a remedy against the land after twelve years unless interest has been paid or an acknowledgement given’. This substantially represents the joint operation of the Acts, and shews that they in no way conflict.

What this meant, his Lordship surmised, was that in a proper case a defendant could resort to either of the relevant provisions. There is accordingly no assumption that, where both provisions could operate, one should knock out the other. In other cases, conversely, there may be no such overlap. In Equuscorp Pty Ltd v Lloyd,52 under a loan contract it was agreed that the moneys lent were to be secured by a mortgage over property, but the mortgage was never effected. When the lender defaulted, the borrower sued to recover the debt. As the mortgage never transpired, Warren J found that the claim was statute-barred as one for a simple contract debt rather than one for a sum of money secured by a mortgage on property.53

South Australia 9.12 In South Australia, when a person is entitled to or claims under any mortgage of land, then the right to make an entry or distress, or bring an action to recover the land, is deemed to have first accrued at the time of the last payment of any part of the principal money or interest secured by that mortgage, even if more than 15 years (being the time bar for actions to recover land)54 have elapsed from when the right to make the entry or distress or bring the action first accrued.55 This provision aims to ‘ameliorate the potential loss by a mortgagee of the right to commence a foreclosure action … more than [15] years after the date of entry into the mortgage’.56 The mortgagor has, it seems, the onus of showing not only that the requisite period has elapsed since the mortgagee’s right to make an entry or bring an action first accrued, but that such period has elapsed since the last payment of principal or interest.57 9.13 In South Australia, as in Queensland, Tasmania and Victoria and for the same reason, a foreclosure action by a mortgagee is subject to the limitation period applicable broadly to actions to recover land.58

Other mortgagee remedies barred 9.14 The New South Wales, Northern Territory and Tasmanian legislation makes explicit provision prohibiting a mortgagee, once his or her action to recover principal money secured by a mortgage becomes timebarred against any person, from exercising, as against that person, any power to dispose or realise the mortgaged property, to appoint a receiver or otherwise affecting the mortgaged property.59 As this reflects the logical upshot of the limitations legislation barring the action, the position is necessarily the same in the remaining jurisdictions independent of specific provision to this effect. [page 210]

Actions to Recover Interest Under Mortgage Statutory schemas The Territories, New South Wales and Western Australia 9.15 In the Territories, New South Wales and Western Australia, a mortgagee’s cause of action to recover interest secured by a mortgage60 must be brought within six years (three years in the Northern Territory) from when the cause of action first accrues to the plaintiff. If, however, a mortgagee under a prior mortgage is, on this date, in possession of any of the property comprised in the mortgage securing the interest, and discontinues possession thereafter, time runs from the date of discontinuance (in Western Australia, ‘one year since the discontinuance’)61 if this is later than the date the cause of action accrued above. But each of these time frames must yield to any later limitation period fixed by or under the limitations legislation for any action between the same parties on an action to recover the principal money bearing the interest.62

Queensland, Tasmania and Victoria 9.16 The Tasmanian and Victorian limitation statutes require that an action to recover arrears of interest payable in respect of any sum of money, ‘whether payable in respect of a specialty, judgment, legacy, or otherwise’, or any damages in respect of any such arrears, be brought within six years after they became due.63 Whereas, like its counterparts in Tasmania and Victoria, the statutory language is not confined to causes of action by mortgagees, the parallel provision in Queensland applies to actions to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land, or to recover damages in respect thereof.64 But in the event of an action for redemption, equity has long held that the mortgagor, as a condition of obtaining redemption, must discharge all the principal and all the interest, whether statute-barred or not, payable under the mortgage.65 Accordingly, in this

context, there is no constraint on recovering more than six years’ worth of interest under the secured loan.66 9.17 In each of the above jurisdictions, should a prior mortgagee or encumbrancee have been in possession of the property charged and an action is brought within one year of the discontinuance of that possession by the subsequent encumbrancer, the subsequent encumbrancee may thereby recover the arrears of interest that fell due during the period of possession or damages in respect thereof, although the period exceeded six years.67 The rationale for this provision is that insofar as a prior encumbrancer’s possession prevents a subsequent [page 211] mortgagee from entering into possession of the mortgaged property, and then obtaining the rents and profits from the property, it is unjust to confine the subsequent mortgagee to six years arrears of interest.68 Further provision is made, if the mortgaged or charged property comprises a future interest or life assurance policy and it is a term of the mortgage or charge that arrears of interest be treated as part of the principal sum of money secured by the mortgage or charge, whereby interest is deemed not to become due before the right to receive69 the principal sum of money has accrued (or is deemed to have accrued).70

South Australia 9.18 In South Australia, all actions to recover arrears of interest in respect of any sum of money charged upon any land, or rent or arrears of interest in respect of any legacy, and actions to recover damages in respect of any such arrears of rent or interest, are subject to a six year limitation period, except as otherwise provided in the limitations legislation.71 This provision bars only the recovery of overdue interest; it does not extinguish the debt to which the interest attaches. 9.19 At the same time, no action can be brought to recover any money secured by any mortgage, judgment or lien, or otherwise charged upon any

land or rent at law or in equity, or any legacy, except within 15 years of when a present right to receive that money has accrued to some person capable of giving a discharge for or release of the money.72 The term ‘receive’ here has been interpreted as indicating an ability to obtain the relevant thing in circumstances when the person having the thing does not voluntarily proffer it. This is supported by the verb ‘accrue’, itself indicative of a right that vests in a person, ‘especially when it does so gradually or without his intervention or by lapse of time, or by the determination of a preceding right’.73 In determining when a present right to receive money accrues, the case law dealing with when an entitlement to enforce a debt accrues to a creditor has parallel application. Accordingly, if the loan agreement is silent on repayment, the lender’s right to repayment arises once the money is advanced, at which time therefore the cause of action accrues for limitation purposes.74 The bulk of authority maintains this position even in the face of an obligation repayable ‘on demand’,75 although the terms of the advance can alter this result if they are amenable to imposing on the lender a condition precedent to recovery.76 In the present context, for example, Ipp J in Ingram v Mohren77 held that mortgages that required one month’s notice to be given before demand could be made created no ‘present enforceable debt’ until such notice and demand. Hence the mortgagees’ cause of action to sue the mortgagors for moneys owing under the mortgages had not accrued until the required notices and demands had been given. This outcome is consistent, his Honour said, with an understanding that ‘a present right to receive’ means an existing right to sue, an understanding supported by a tide of case authority.78 Each word — ‘present’ and ‘right’ — spoke to this. Also, to confine the ‘right to receive’ to [page 212] the ability to give a discharge or release for moneys paid under a mortgage could produce odd consequences, which Ipp J illustrated as follows:79 Take for example the case of a mortgage payable, say, five years after the date of execution thereof, but containing a provision entitling the mortgagor to make payments earlier. If the mortgagee were to be regarded as having a present right to receive moneys owing under the

mortgage prior to the agreed date for payment, merely because moneys were owing (albeit that they were not due) and a discharge or release could be given for moneys so paid, time would run … from the date of the execution of the mortgage even though the mortgagee would not be entitled to claim any moneys owing under the mortgage until five years hence. That would be an absurd result.

Application to both real and personal property 9.20 While the above provisions do not explicitly encompass a charge on personal property, the generality of their terms encompasses charges over both real and personal property.80 The exception may be South Australia, as the provision mentioned in the second paragraph of the preceding heading is clearly confined to land, and in the face of English case authority, on a parallel section in English legislation, that also confines to land the provisions noted in the first paragraph under the preceding heading.81 As to the latter, however, it does seem an overly narrow reading of the relevant statutory language, at least vis-à-vis legacies. That, preceding the above provisions, no specifically prescribed limitation period applied to the recovery of interest under a mortgage of personalty (including by way of analogy)82 is not a compelling argument to the contrary given the statutory language. In any case, its mention of a charge comprising a life assurance policy, being a form of personal property, puts any contrary argument to rest. The point is explicitly addressed, and placed beyond doubt, by the terms of the Western Australian statute, which makes discrete provision for interest secured by a mortgage of real property, or real and personal property,83 and for interest secured by a mortgage of personal property.84

Focus on secured debt 9.21 It appears that, excepting Tasmania and Victoria, the foregoing provisions were driven by a concern to limit the duration of obligations in the nature of debts secured by mortgage or charge — namely to apply a shorter period of limitation than might otherwise have applied where there was a security backing the obligations of the debtor.85 The giving of a personal covenant by the mortgagor does not preclude reliance on the

shorter limitation period, at least to the extent that the covenant is indivisible, and applies to the same moneys due, making it logically untenable to bar the remedy against the land but not that on the personal covenant.86 The position differs when it comes to a covenant by someone other than the mortgagor; a person who is liable for the mortgagor’s debt — whether as principal debtor, guarantor or indemnifier — lacks the protection of the above (shorter) limitation period, absent giving his or her own security.87 ______________________________ 1.

2. 3.

4. 5. 6. 7. 8. 9. 10.

11.

12. 13.

14.

To avoid argument (see NSWLRC 3, para 69), the term ‘mortgage’ is defined broadly for this purpose, to include a charge or lien on any property for securing money or money’s worth: ACT Dictionary; NSW s 11(1); NT s 4(1). Namely Land Titles Act 1925 (ACT); Real Property Act 1900 (NSW); Land Title Act 2000 (NT). Namely except to the extent that the Limitation Act 1969 (NSW) is taken into consideration for the purposes of a possessory application under the Real Property Act 1900 (NSW) Pt 6A (ss 45B —45G). ACT s 22; NSW s 40; NT s 25. Gleeson v Gleeson [2002] NSWSC 418; BC200203016 at [39] per Bryson J (referring to NSW ss 63, 66, as to which see 2.29). ‘Mortgagee’ includes a person claiming a mortgage through an original mortgagee: ACT Dictionary; NSW s 11(1); NT s 4(1); WA s 3(1). ACT s 23; NSW s 41; NT s 26; WA s 25. Kinsman v Rouse (1881) 17 Ch D 104 at 107 per Jessel MR. As to which see 8.5–8.8. A mortgagee’s lodgement of a caveat over the property does not constitute entry into possession, as it is merely a process by which the right to claim some interest in an ordinary action may be preserved: Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [116]–[120] per Barker J. ‘Principal money’, for a mortgage, means all money secured by the mortgage, including arrears of interest lawfully treated as principal, but does not include other interest: ACT Dictionary; NSW s 11(1); NT s 4(1); WA s 3(1). This definition draws the line between principal and interest, and ensures that all money secured by mortgage is either ‘principal money’ or ‘income’ for the purposes of the legislation: NSWLRC 3, para 75. As to the backdrop to this provision see WALRC 36(II), pp 367–8. Park v Brady [1976] 2 NSWLR 329 at 341 per Samuels JA, with whom Moffitt P concurred. See also NSWLRC 3, para 212 (in recommending NSW s 41, remarking that ‘there is no reason why a mortgagor of personalty should not have his right of redemption barred when the mortgagee has been in possession of the mortgaged property for twelve years and, during that period, the mortgagor has paid nothing, either of principal or of interest’). Noyes v Pollock (1886) 32 Ch D 53 at 61 per Cotton LJ.

15. 16. 17. 18.

19.

20.

21. 22. 23. 24. 25. 26. 27.

28.

Park v Brady [1976] 2 NSWLR 329 at 342 per Samuels JA, with whom Moffitt P concurred. [1976] 2 NSWLR 329. Park v Brady [1976] 2 NSWLR 329 at 342. Cf at 335–7 per Hutley JA. See QLRC 53, p 199. The exemption of personal property from the relevant limitation bar in this context was driven by what the Wright Committee described as ‘serious practical difficulties’: para 10. By way of example, the Committee cited a case where a customer of a bank charges, say, bonds in favour of the bank as security for an advance. The bonds would be deposited with the bank and an equitable mortgage created. It noted that they would, in many cases, remain so charged for an indefinite period, to cover a more or less permanent overdraft, and unless the bank acknowledged the title of the mortgagor, the legislation would function to extinguish the equity of redemption and give the bank an absolute title. Qld s 20; SA s 27(1); Tas s 18; Vic s 15. This provision owes its genesis to UK 1833 s 28, which has been then variously re-enacted in UK 1874 s 7, UK 1939 s 12 and now UK 1980 s 16. This statutory pedigree has not precluded a recommendation that the time bar be excised in this context: Law Com 270, paras 4.186–4.189 (reasoning that during the above time trajectory, mortgages altered significantly in nature, in that they are no longer made by an outright transfer of the mortgagor’s legal estate to the mortgagee, with a proviso for reconveyance on redemption, but instead the mortgagor remains the owner of the legal estate; hence, the remedy of foreclosure is no longer the main remedy for the mortgagee, who ordinarily has a power of sale; the Law Commission did not, as a result, perceive any ongoing need to allow the mortgagee, in addition, the opportunity to extinguish the mortgagor’s rights by taking possession of the property for the limitation period: para 4.187). Re Metropolis and Counties Permanent Investment Building Society [1911] 1 Ch 698 at 706–7 per Neville J; Park v Brady [1976] 2 NSWLR 329 at 339 per Samuels JA, with whom Moffitt P concurred (citing Page v Linwood (1837) 4 Cl & Fin 399; 7 ER 154 and Parkinson v Hanbury (1867) LR 2 HL 1, although whether these cases clearly establish the relevant proposition may be queried). SA s 27(1). See generally Ch 17. ACT s 26(1); NSW s 44(1); NT s 29(1). NSWLRC 3, para 219. Or after that date but before the end of the relevant limitation period for an action to recover that interest by that mortgagee against a mortgagor, receives money. ACT s 26(2); NSW s 44(2); NT s 29(2). NSWLRC 3, para 220. The paragraph goes on to provide the example of a mortgagee-inpossession, where interest falls due in 1960 and in 1963 the mortgagee receives a sum of rent from a tenant of the mortgaged property. In 1970 the mortgagor brings a suit for redemption. In settling the accounts between mortgagee and mortgagor, NSW s 44(1), were it to stand alone, would dictate that the mortgagor would not be chargeable with the interest that fell due in 1960. But NSW s 44(2) allows the mortgagee to appropriate the 1963 rent in or towards satisfaction of the 1960 interest. This applies to proceedings in a court on a cause of action: (a) to recover principal money from any person; or (b) to recover principal money by way of: (i) the appointment of a receiver of mortgaged property or of the income or profits of mortgaged property; (ii) the sale, lease or other disposition of realisation of mortgaged property; or (iii) other remedy affecting mortgaged

29. 30. 31. 32. 33.

34.

35. 36.

37. 38. 39.

40.

41. 42. 43. 44.

45.

property: ACT s 24(2); NT s 27(2); NSW s 42(2); WA s 20. ‘Income’ includes interest on a judgment and other interest, rent, annuities and dividends, but does not include arrears of interest secured by a mortgage and lawfully treated as principal: ACT Dictionary; NSW s 11(1); NT s 4(1); WA s 3(1). ‘Mortgagor’ includes a person claiming property subject to a mortgage through an original mortgagor: ACT Dictionary; NSW s 11(1); NT s 4(1); WA s 3(1). ACT s 24(1); NSW s 42(1); NT s 27(1); WA ss 20, 23, 24. NSW s 46. NSW s 20 (as to which see 12.15); Gleeson v Gleeson [2002] NSWSC 418; BC200203016 at [39] per Bryson J. Heath v Pugh (1881) 6 QBD 345 [affd Pugh v Heath (1882) LR 7 App Cas 235] (under UK 1833 ss 2, 3, 24). See also Ashe v National Westminster Bank plc [2007] 2 EGLR 137; [2007] EWHC 494 (Ch) at [69] per Richard Arnold QC (adding that it is not necessary, for time to commence running, that the mortgagor be in possession without the mortgagee’s consent) [affd on different grounds: Ashe v National Westminster Bank plc [2008] 1 WLR 710; [2008] EWCA Civ 55]. Bristol & West plc v Bartlett [2002] 4 All ER 544; [2002] EWCA Civ 1181 at [30] per Lomgmore LJ, delivering the reasons of the court; West Bromwich Building Society v Wilkinson [2005] 4 All ER 97; [2005] UKHL 44 at [8]—[10] per Lord Hoffmann, with whom Lords Scott, Walker and Carswell, and Baroness Hale, agreed. Redemption by the chargor is not an ‘action brought to recover any principal sum of money secured by a … charge on property’ for this purpose: Ezekiel v Orakpo [1997] 1 WLR 340. Qld s 26(1); Tas s 23(1); Vic s 20(1). These provisions follow the English precedent of UK 1939 s 18(1) (see Wright Committee, para 10) and, before this, UK 1874 s 8 and UK 1833 s 40; the current provision is UK 1980 s 20(1). As to this general provision see 8.5, 8.6. See Bradbrook, pp 403–4. Lewis v Plunket [1937] 1 Ch 306 at 310–11 per Farwell J (where the mortgagor had failed to pay interest on the mortgage, or to give any acknowledgement of the mortgage debt, for a time exceeding the limitation period). Qld s 26(4); Tas s 23(5); Vic s 20(4)(a). As to the provisions dealing with an action to recover land see 8.5, 8.6. In Tasmania and Victoria the limitations legislation is expressed to apply to applications for foreclosure under the Land Titles Act 1980 (Tas) and Transfer of Land Act 1958 (Vic) in like manner as it applies to foreclosure actions: Tas s 34; Vic s 29. Heath v Pugh (1881) 6 QBD 345 at 364 per Lord Selborne LC; Harlock v Ashberry (1882) 19 Ch D 539 at 543–4 per Jessel MR. Tas s 23(6); Vic s 20(4)(b). Qld s 26(6). The English forerunners of the relevant provisions (namely UK 1833 s 40 and UK 1874 s 8) adopted the phrase ‘present right’. The omission of the term ‘present’ in the relevant Australian provisions (as well as the current UK 1980 s 20(1)) has not altered the law, however, because ‘[i]n the context of a Limitation Act and the accrual of rights to receive or of causes of action it must be implicit that the right to receive is a present right’: Gotham v Doodes [2007] 1 All ER 527; [2006] EWCA Civ 1080 at [33] per Sir Andrew Morritt C, with whom Carnwath and Moses LJJ concurred. A ‘foreclosure action’, in this context, is one that ‘sets out to extinguish the mortgagor’s title to

46. 47. 48. 49. 50. 51. 52. 53. 54. 55.

56. 57.

58. 59. 60.

61.

62.

63. 64.

the mortgaged property’ by an order nisi calling upon the mortgagor to redeem the mortgage within a specified time ‘or stand absolutely debarred and foreclosed of and from all right, title interest and equity of redemption of in and to’ the mortgaged property: Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 495 per McPherson J, with whom Connolly and Williams JJ concurred. Qld s 26(2); Tas s 23(2), 23(3); Vic s 20(2). These provisions follow the English precedent of UK 1939 s 18(2) and, before this, UK 1874 s 8. Now see UK 1980 s 20(2). Qld s 26(3); Tas s 23(4); Vic s 20(3). These provisions follow the English precedent of UK 1939 s 18(3). Now see UK 1980 s 20(3). Wright Committee Report, para 10, endorsed in Law Com 270, para 4.180. Namely Qld s 10(1)(a); Tas s 4(1)(a); Vic s 5(1)(a): see 5.2. [1899] 1 QB 885. Barnes v Glenton [1899] 1 QB 885 at 891. [1999] 1 VR 854; [1998] VSC 171; BC9807169. Equuscorp Pty Ltd v Lloyd [1999] 1 VR 854 at 860; [1998] VSC 171; BC9807169. SA s 4, as to which see 8.5. SA s 12. Equivalent provision had formerly appeared in WA 1935 s 35 (albeit adopting a 12 year time frame), which had its genesis in the Real Property Limitation Act 1837 (UK) s 1 (7 Wm IV and 1 Vict c 28). Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [80] per Barker J. Cameron v Blau [1963] Qd R 421 at 425 per Gibbs J, with whom Mansfield CJ and Jeffriess J concurred; Sardon Pty Ltd v Registrar of Titles [2004] WASC 56; BC200401544 at [84] per Barker J. Namely SA s 4, as to which see 8.5. NSW s 45; NT s 30; Tas s 23(8). This includes a cause of action to recover the interest: (a) from any person, whether as principal, surety or otherwise; and (b) by way of: (i) the appointment of a receiver of mortgaged property or of income or profits of mortgaged property; (ii) sale, lease or other disposition or realisation of the mortgaged property; or (iii) other remedy affecting mortgaged property: ACT s 25(2); NSW s 43(2); NT s 28(2); WA s 21(1) (interest secured on real property, or on real and personal property), 22(1) (interest secured on personal property). The ‘one year after discontinuance’ restriction reflects the approach in UK 1833 s 42 (proviso) and UK 1939 s 18(5) (proviso (a)), which the New South Wales Law Reform Commission, in recommending what became NSW s 43(1), branded ‘an unnecessary complication’ and ‘inconsistent with the principles which ought to govern a statute of limitations’: NSWLRC 3, para 217 (reasoning that ‘[t]he creditor ought to have the full period of limitation after the time when he has an effective remedy’). ACT s 25(1); NSW s 43(1); NT s 28(1); WA ss 21(2) (interest secured by a mortgage of real property or real and personal property), 22(2) (interest secured by a mortgage of personal property). Tas s 4(5); Vic s 5(7). Qld s 26(5). The language follows the schema of UK 1939 s 18(5), and now UK 1980 s 20(5). Redemption by the chargor is not an ‘action brought to recover any principal sum of money secured by a … charge on property’ for this purpose: Ezekiel v Orakpo [1997] 1 WLR 340. See

65. 66.

67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78.

79. 80. 81. 82.

83. 84. 85. 86. 87.

further McGee, pp 218–20. Edmunds v Waugh (1866) LR 1 Eq 418 at 421 per Kindersley VC. See, for example, Holmes v Cowcher [1970] 1 All ER 1224. Note that this outcome has been ousted by the limitations legislation in the Territories, New South Wales and Western Australia: see 9.15. Qld s 26(5A)(a); Tas s 23(7)(a); Vic s 20(5)(a). The language follows the schema of UK 1833 s 42, replicated in UK 1939 s 18(5)(a), and now in UK 1980 s 20(6). Chinnery v Evans (1864) 11 HLC 115 at 136; 11 ER 1274 at 1283 per Lord Westbury LC. As to the meaning of ‘receive’ see 9.19. Qld s 26(5A)(b); Tas s 23(7)(b); Vic s 20(5)(b). The language follows the schema of UK 1833 (UK) s 42, replicated in UK 1939 s 18(5)(b), and now UK 1980 s 20(7). SA s 35(e), 35(f). The language owes its genesis to UK 1833 s 42. SA s 33(1). This is, however, subject to any valid acknowledgement, as to which see generally Ch 17. A similar provision formerly appeared in Western Australia: WA 1935 s 32. Ingram v Mohren (1993) 10 WAR 497 at 499 per Pidgeon J. See 5.16–5.18. See 5.19–5.24. See 5.25–5.29. (1993) 10 WAR 497 at 501. See, for example, Re Johnson (1885) 29 Ch D 964 at 971 per Chitty J; Re Pardoe [1906] 1 Ch 265 at 269 per Kekewich J [revd but on a different point: Re Pardoe [1906] 2 Ch 340] (each dealing with a limitation provision in a different context); Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 494 per McPherson J, with whom Connolly and Williams JJ agreed (in the context of Qld s 26, as to which see 9.9). Ingram v Mohren (1993) 10 WAR 497 at 502. Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478 at 492 per McPherson J, with whom Connolly and Williams JJ concurred. See Re Stucley [1906] 1 Ch 67 at 76–7 per Vaughan Williams LJ. Mellersh v Brown (1890) 45 Ch D 225; London and Midland Bank v Mitchell [1899] 2 Ch 161; Re Stucley [1906] 1 Ch 67; Re Jauncey [1926] 1 Ch 471 (differential application of the relevant principles where the mortgage was over both land and personalty); Weld v Petre [1929] 1 Ch 33. As to the analogy doctrine see 13.32–13.41. WA s 21(2). WA s 22(2). See generally DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 585–90 per Tipping J. Sutton v Sutton (1882) 22 Ch D 511. DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 at 589 per Tipping J.

[page 213]

CHAPTER 10

Causes of Action in Relation to Trusts Backdrop Onus of Proof Western Australian Position ‘Innocent’ Breach Of Trust The Territories, New South Wales, Queensland, Tasmania and Victoria Time bar Longer time bar for actions against personal representatives in some jurisdictions Meaning of ‘breach of trust’ Confined to actions by beneficiaries? Accrual of action South Australia ‘Fraudulent’ Breach of Trust The Territories and New South Wales — 12 year time bar Time bar Accrual of action Queensland, South Australia, Tasmania and Victoria — no time bar

10.2 10.4 10.5 10.6 10.6 10.6 10.7 10.8 10.9 10.12 10.14 10.16 10.17 10.17 10.19 10.20

Meaning of ‘fraud’ Relationship with ‘general’ fraud provisions Later Accrual for Future Interests Cause of Action Specific to Each Beneficiary ‘Trusts’ to Which Limitation Provisions Apply Statutory ‘trust’ definitions Express trusts and resulting trusts Constructive trusts Position in Queensland, South Australia, Tasmania and Victoria Position in the Territories and New South Wales Application to the remedial constructive trust

10.22 10.24 10.26 10.29 10.30 10.30 10.32 10.33 10.34 10.36 10.37

10.1 Causes of action against trustees for breach of trust are subject to time bars under limitations legislation in each jurisdiction. Other than in Western Australia, to which a unique schema applies, the legislation in the main distinguishes the limitations treatment according to whether the breach in question is innocent or can instead be characterised as fraudulent. [page 214] Questions of accrual, potentially relevant to each, are impacted upon by whether or not the beneficiaries’ interests are present or future in nature. Each of these points, and with it an analysis of the statutory terminology and the ‘trusts’ to which they apply, is the subject of this chapter.

Backdrop

10.2 The limitations legislation originally had no application to causes of action enforceable only in equity,1 and so did not apply vis-à-vis the enforcement of trustees’ obligations under a trust. The law proceeded on the basis that a trustee secured property or title on behalf of another (the beneficiary) and so remained accountable for any breach of duty affecting the property so held, at least until the trusteeship duties were discharged. At the same time, equity developed its doctrines (or defences) of laches and acquiescence, which could be pleaded by trustees faced with beneficiaries’ claim against them.2 As the essence of laches is (undue) delay, a trustee could plead it whether or not the beneficiary had knowledge of the relevant breach of trust; acquiescence, on the other hand, involves inaction with knowledge of the breach. Chancery judges, when seeking to enforce common law rights (via equity’s concurrent jurisdiction), began to apply the statutory limitation periods by analogy,3 to ensure that a plaintiff could gain no advantage by suing in equity and thus avoiding the limitations legislation. The relationship between trustee and beneficiary, though, knew no apt analogy. And driven by the vulnerability of beneficiaries to abuse of the trustee’s position as the titleholder to trust property, courts of equity (barring laches) recognised no time bar favouring trustees. Yet the late nineteenth and early twentieth century witnessed manifold statutory amendments in England that set time limits on suits in equity. These included time bars directed to breaches of trust, introducing a distinction between ‘innocent’ and ‘fraudulent’ trustees,4 on the basis that ‘the honest trustee should enjoy with others an ultimate freedom from the risk of litigation’.5 10.3 Core aspects of the English model governing limitation periods for trusts, including the above differential treatment of innocent and fraudulent breaches, remain extant in Australian limitation statutes, excepting Western Australia. They accordingly inform the structure of this chapter, as well as the discrete treatment it gives at its outset to the Western Australian position.6

Onus of Proof

10.4 So far as the onus of proof is concerned, the general (though not invariable) rule in limitations cases is that it lies on the defendant to establish that the cause of action is statute-barred.7 There are High Court dicta to the effect that, for the purposes of the forerunner [page 215] to the current New South Wales provision relating to trusts,8 the onus of proof lies on the party seeking to defeat the defence, namely the plaintiff.9 Yet this statement was seemingly influenced by that section being expressed by way of proviso, and thus amenable to being construed as obliging the plaintiff to satisfy its terms. The same cannot be said of the current section. At the same time, as fraud must be specifically pleaded,10 in the trusts context (as in others) the plaintiff would ordinarily be required to discharge the burden of proving a longer (or no) limitation period applies by reason of the defendant’s fraud.

Western Australian Position 10.5 The Limitation Act 2005 (WA) makes dedicated provision for an ‘equitable action’, for which it prescribes a six year limitation period from the accrual of the cause of action or, if later, a three year time bar since time began running on equitable principles.11 Though the latter applies an ostensibly shorter limitation period than the former, its start date, which is premised on discoverability, might be some time after what may otherwise have been its date of accrual. An ‘equitable action’ means an action in which the relief sought is in equity and for which (aside from the above time bar) the limitation period would not be determined in equity by analogy to the limitation period for any other kind of action.12 It is thus capable of encompassing an action against a trustee for breach of trust, including moreover the breadth of constructive trusts.13 The distinction, broadly speaking, between ‘innocent’ and ‘fraudulent’ breaches of trust that appears in the limitations legislation elsewhere, has no

direct parallel in Western Australia. But there is general provision in the 2005 Act for the court to extend time if satisfied that the delay was attributable to fraudulent or other improper conduct of the defendant,14 which can therefore apply vis-à-vis trusts.15

‘Innocent’ Breach of Trust The Territories, New South Wales, Queensland, Tasmania and Victoria Time bar 10.6 The limitations legislation in New South Wales, the Northern Territory, Queensland, Tasmania and Victoria provides that a cause of action in respect of a breach of trust (and, in the latter three jurisdictions, to recover trust property) is time-barred if brought after six years (three years in the Northern Territory) as from the date on which the cause of action first accrues [page 216] to the plaintiff,16 unless another limitation period for the cause of action is fixed by or under the legislation.17 In substance, the same ensues in the Australian Capital Territory; via a general time bar provision, a six year limitation period is set for a ‘cause of action’, running from when it first accrues to the plaintiff, except where another limitation period is prescribed.18 As ‘cause of action’ is defined as the fact, or combination of facts, that gives rise to a right to bring a civil proceeding,19 it clearly includes a suit for breach of trust. By making the main time bar subject to an alternative limitation period, the legislation in each of these jurisdictions leaves intact the longer limitation period applicable to fraud and conversion by trustees.20

Longer time bar for actions against personal representatives in some jurisdictions 10.7 In Queensland, Tasmania and Victoria the limitations legislation applies a longer time bar as regards certain claims against personal representatives. It states that, except where in these jurisdictions no limitation period applies to an action for breach of trust,21 an action in respect of a claim to a deceased’s personal estate or to a share or interest therein,22 whether under a will or on intestacy, cannot be brought after the expiration of 12 (in Victoria, 15) years from the date on which the right to receive the share or interest accrued.23 The latter temporally aligns, it is said, with when the personal representative is first in a position to distribute the residuary (personal) estate, namely upon having paid the costs, funeral and testamentary and administration expenses, debts and other liabilities properly payable out of the estate assets, and provided for the payment of any pecuniary legacies.24 South Australia sets a 15 year time bar on claims for personalty under a legacy in a will, again running from the date on which a present right to receive the legacy accrued.25 Given the lack of a dedicated equivalent provision elsewhere, that the limitations legislation defines ‘trustee’ to include personal representative26 dictates that the standard trust limitations time bars apply.

Meaning of ‘breach of trust’ 10.8 In Tito v Waddell (No 2)27 Megarry VC opined that, in referring to a ‘breach of trust’, limitations statutes do not apply to all breaches of duty or excesses of power, but only to violations of duty owed by a trustee ‘as trustee to the beneficiaries’. If this is correct, breaches of trust that also constitute breaches of fiduciary duty could fall outside the scope of limitations legislation, as breaches of this kind by non-trustee fiduciaries attract no limitation period (except by analogy).28 It may seem anomalous for trustees to be entitled to a limitation defence [page 217]

for breaches of fiduciary duty whereas other fiduciaries may not.29 Yet it remains that the limitations legislation applies, in its terms, to ‘breaches of trust’, which at general law clearly encompass fiduciary breaches. It proves unsurprising, therefore, that Megarry VC’s approach has since been disclaimed in England,30 for it adopts an artificial means of statutory construction.

Confined to actions by beneficiaries? 10.9 Ordinarily it is the beneficiaries of the trust who pursue a cause of action against a trustee for breach of trust or for the recovery of trust property. This does not mean, however, that beneficiaries have a monopoly as to standing to sue for breach(es) of trust. The general law recognises that trustees have standing to sue vis-à-vis breaches of trust by other trustees, including former trustees, and indeed compels this in many circumstances as part of the duty to get in the trust property.31 And, in the case of a charitable trust, traditionally only the relevant Attorney-General has standing to enforce the trust.32 10.10 The New South Wales and Northern Territory legislation, by being phrased to apply to ‘an action on a cause of action in respect of a breach of trust’,33 clearly encompasses an action for breach of trust commenced other than by a beneficiary. The same appears to be the case in the Australian Capital Territory (and Western Australia), where the relevant provision does not mention to whom standing is given.34 But the legislation in Queensland, Tasmania and Victoria, which follows the English model35 in being phrased by reference to ‘an action by a beneficiary to recover trust property or in respect of any breach of trust’,36 can be construed as confining the statutory limitation period to actions by beneficiaries. Such an outcome presupposes reading the phrase ‘by a beneficiary’ as prefacing the words ‘in respect of any breach of trust’ rather than only the words ‘to recover trust property’. As actions to recover trust property can, and often do, stem from a breach of trust,37 there seems no reason in principle to adopt a differential approach to limitation for this purpose. 10.11 To confine the relevant limitation period to actions by beneficiaries, as appears to be the law in Queensland, Tasmania and

Victoria, has a further repercussion. English case authority, construing an equivalent provision in the English Act,38 holds that the limitation period so prescribed has no application to charitable trusts. It is reasoned that, as charitable trusts are purpose trusts — that is, no individual who can say ‘I have a claim, which I can enforce by suit, to any specific benefit whatever’39 — there is, in this context, no action ‘by a beneficiary’. On this reasoning, the Attorney-General, who is conferred standing to enforce charitable trusts (or a relator, when allowed), is not subject to a limitation period under the Act. His or her claim may, however, be barred by laches or acquiescence. The position arguably differs in those other jurisdictions, mentioned above, where the relevant provision is not constrained to actions ‘by a beneficiary’. [page 218]

Accrual of action 10.12 Absent concealed fraud,40 or another reason to postpone the running of time (including, as discussed below, in the case of beneficiaries’ future interests),41 the cause of action for breach of trust accrues when the breach was committed, not on later ascertainment of the loss or damage, or on its discovery or discoverability.42 So if, for example, the breach consists of trustees lending on an unauthorised security, the beneficiaries’ right of action accrues when the lending took place, not when the insufficiency of the security is discovered.43 10.13 Where a breach of trust has occurred, and the cause of action accordingly accrued, there is no basis to argue that a failure to remedy the breach represents an accrual of a new cause of action on each day that this failure persists. Otherwise, it has been said, ‘a trustee could never avail himself of the Statute [of Limitations]’.44 In the case of what has been described as ‘misinvestment’,45 for instance:46 The trustee making it is liable as from the date of misinvestment. It is his duty to have the trust moneys properly invested — a continuing duty from which he is not relieved as to the money improperly invested; but the Court would not allow a plaintiff to deprive him of the benefit of the Statute by charging not only that he misinvested, but in breach of his trust afterwards permitted the trust moneys to remain outstanding on unauthorized security, thus creating a

new breach of trust which would continue until the misinvested money had been replaced.

Of course, were a new and independent breach of trust charged with respect, say, to a misinvestment — for instance, an improper act that wasted or lost the unauthorised security — it would be no defence for the trustee to say that the misinvestment was a breach of trust committed more than six years before action.47

South Australia 10.14 The Limitation of Actions Act 1936 (SA) adopts a different limitations schema, which follows the terms of s 8 of the (long repealed) Trustee Act 1888 (UK).48 The same schema had been operative in Western Australia under its 1935 limitations legislation.49 It provides that, in actions against a trustee, all rights and privileges conferred by the Act are to be enjoyed ‘in the like manner and to the like extent’ as if the trustee had not been a trustee. And for an action to recover money or other property to which no other provision of the Act applies, the trustee can plead lapse of time as a bar to the action, ‘in the like manner and to the like extent as if the action or other proceeding had been an action for money had and received’.50 The foregoing, it seems, dictates that the six year limitation period that applies to ‘actions founded upon any [page 219] simple contract express or implied51 — under which actions for money had and received would fall52 — applies in this context. 10.15 Yet it appears that the above is not directed to actions by beneficiaries against trustees, but to actions by third parties against trustees who act in the course of trust business. Otherwise it would not sit well with the immediately preceding provision, which states that no claim of a beneficiary against the trustee, in respect of property held on an express trust, or any breach thereof, can be barred by limitation, except as it prescribes.53 What it prescribes, to this end, is a time bar for actions to:54

… recover any sum of money or legacy charged upon or payable out of any land or rent and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears …

The time bar, in these instances, is that within which the money, legacy or arrears would be recoverable were there no such trust. So far as accrual of the relevant cause of action is concerned, the legislation states that where land or rent is vested in a trustee of an express trust, a beneficiary’s right to sue the trustee to recover the land or rent is deemed to have first accrued when the land or rent has been conveyed to a purchaser for a valuable consideration, and is then deemed to have accrued only as against that purchaser.55 This must, as is discussed below, be qualified when speaking of beneficiaries’ future interests.56

‘Fraudulent’ Breach of Trust 10.16 In cases of what can broadly be described in terms of fraudulent breaches of trust and conversions of trust property, the limitations legislation in each jurisdiction except Western Australia57 ousts the usual six year (in the Northern Territory, three year) limitation period.

The Territories and New South Wales — 12 year time bar Time bar 10.17 The legislation in the Territories and New South Wales, with one exception,58 imposes a 12 year limitation period on an action — by either the trustee or a beneficiary — on a cause of action:59 (a) in relation to fraud or a fraudulent breach of trust, against a person who is, while a trustee, a party or privy to the fraud or the breach of trust or against his or her successor;60 or (b) for a remedy for the conversion to a person’s own use of trust property received by him or her while a trustee, against that person or against his or her successor; or (c) to recover trust property, or property into which trust property can be traced, against a trustee or against any other person; or (d) to recover money on account of a wrongful distribution of trust property, against the person to whom the property is distributed or against his or her successor …

[page 220] 10.18 This reflects a policy decision, not reflected in Queensland, South Australia, Tasmania and Victoria61 (which follow the English model),62 that even fraudulent trustees should not ultimately be denied the repose inherent in limitations time bars.63 Of course, the longer period of limitation reflects a legislative judgment as to the culpable nature of the trustee’s behaviour. How the recovery of trust property ((c) above) fits into this theme has been explained as follows:64 The justification for the exclusion under the present law of any limitation period in respect of claims to recover trust property from the trustee is that the trustee bears a special responsibility to the beneficiaries of his or her trust, and that it would be wrong to allow the trustee to benefit from the property which he or she holds for others. This is a variation of the argument that fraud and related civil claims should be given special treatment by the limitation regime to mark society’s disapproval of the defendant’s conduct.

Accrual of action 10.19 The relevant cause of action accrues, in this regard, when the plaintiff first discovers, or may with reasonable diligence discover, the facts giving rise to the cause of action and that the cause of action has accrued. As the legislation applies to suits, by the trustee or a beneficiary, to recover trust property (or its traceable product) against a trustee or against any other person — for instance, a third party who receives trust property with actual knowledge of a breach of trust — it is conceivable that a trustee’s action against the third party could be statute-barred, but the beneficiary’s parallel claim remains within time. This is because of different dates of discoverability of the cause of action, and thus different accrual dates, between trustee and beneficiary;65 the latter is, after all, less likely to have timely knowledge of the breach than the former.66

Queensland, South Australia, Tasmania and Victoria — no time bar 10.20 Following the English lead,67 in Queensland, South Australia, Tasmania and Victoria no period of limitation is prescribed for an action in

respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy, or to recover from the trustee trust property (or its proceeds)68 in the possession of the trustee,69 or received by the trustee and then converted to the trustee’s use.70 In Queensland, Tasmania and Victoria the foregoing is confined to an action by a beneficiary, whereas in South Australia it applies to any proceeding against a trustee. Albeit more concisely, these provisions cover equivalent ground to their counterparts in the Territories and New South Wales, except omitting the recovery of money on account of a wrongful distribution (paragraph (d) in the Territories and New South Wales). [page 221] 10.21 The above reference to trust property ‘in the possession of the trustee’ does not require actual physical possession or occupation by the trustee of the trust property. It suffices if the trustee would have control over the property or could readily obtain physical possession.71 Kay LJ explained the point in Thorne v Heard,72 dealing with an earlier provision that targeted the recovery of trust property ‘still retained by the trustee’,73 as follows: [T]he intention … was to prevent a trustee using the bar by lapse of time to enable himself to appropriate a trust fund which he had not appropriated but had the power of appropriating. Money in the hands of an agent, from whom it could be recovered by the trustees, would be in this position; and it could not be the intention of the statute that the trustee might bar the cestui que trust and then recover the money from his own agent and keep it. For example, if the trustee had paid the money to his own separate account at a bank, not mixing it with his own money, so long as he could recover it from the banker I should think he retained it within the meaning … in the Act.

Meaning of ‘fraud’ 10.22 ‘Fraud’, in the context of the above provisions, has not been defined restrictively, and therefore opens the door to a longer, or no, limitation period vis-à-vis trustees in a broader range of circumstances than would have been the case had it been defined solely by reference to dishonesty. The cases makes clear that it is not confined to conduct that amounts to dishonesty,74 which is usually the badge of fraud at common law.

It is sufficient that there be some knowledge of impropriety,75 some evidence of advertence or complicity by the defendant76 or some consciousness that what is being done is wrong.77 It has been held, accordingly, that trustees who deal with trust property so as to prefer their own (financial) interests to the broader interests of the beneficiaries behave fraudulently for this purpose.78 10.23 This is not to say that all unauthorised dealings with trust property equate to fraud for this purpose; otherwise the distinction between ‘innocent’ and ‘fraudulent’ breaches of trust would be negated. So if the trustees can prove that they did their utmost to ensure that the beneficiaries’ interests had been adequately preserved and protected, their conduct lacks the fraudulent element.79 Nor is it fraud merely because taking advantage of a time bar would be unconscionable or inequitable in the wide sense of those terms.80 [page 222]

Relationship with ‘general’ fraud provisions 10.24 That the limitations legislation generally provides for the suspension or postponement of the running of time for limitations purposes in the event of a cause of action based on fraud81 — until the fraud has, or could with reasonable diligence have, been discovered — how these ‘general’ provisions interact with those involving fraud on the part of a trustee must be addressed. In the Territories and New South Wales, as the 12 year limitation period applicable ‘in relation to fraud or a fraudulent breach of trust’ is expressed to accrue when the plaintiff first discovers, or may with reasonable diligence discover, the facts giving rise to the cause of action and that the cause of action has accrued, there is arguably little role left for the above ‘general’ fraud provisions to perform. After all, the limitation provision here largely duplicates the deferred accrual in the above provisions on causes of action based on fraud.

10.25 By prescribing no period of limitation for an action in respect of ‘a fraud or fraudulent breach of trust’, the Queensland, South Australian, Tasmanian and Victorian provisions obviate the need to identify the moment from when time is to run for this purpose. There is accordingly no need to investigate postponement of the running of time, for fraud or any other reason, because the action is always within time, irrespective of when the fraud was perpetrated. Dictum to the contrary is difficult to understand.82 Also, the relevant provision, in the language ‘in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy’, is not confined to actions against trustees (though this will prove its most common application). It can apply, it seems, to a person who is not the original trustee but has received trust property or trust funds as a result of the trustee’s fraud,83 assuming that the property or funds are legally recoverable from that person.84

Later Accrual for Future Interests 10.26 A later accrual is prescribed, in each jurisdiction, for causes of action relating to future estates or interests of beneficiaries. In the Territories and New South Wales, any such cause of action is declared to accrue on the later of when the estate or interest becomes a present estate or interest, or when the cause of action would otherwise have accrued.85 In the remaining jurisdictions, in a provision aimed at the same end, such a cause of action is expressed not to accrue until the future interest falls into possession.86 [page 223] 10.27 The concept of a future ‘interest’ in this context has been interpreted as an interest of which the beneficiary may enjoy possession as of right at a future time.87 It encompasses, say, a beneficiary’s entitlements under a trust for maintenance and advancement that, at a stipulated future time (usually attaining a set age), will vest absolutely in the beneficiary.88 Should the beneficiary die before that time, the ‘interest’ is forfeited; after all, it is contingent on reaching that age. To this end, the legislation defers

the obligation to sue for (any) breach of trust until the beneficiary’s interest falls into possession; only at that time is it of ‘tangible benefit’.89 No beneficiary should, it is reasoned, ‘be compelled to litigate (at considerable personal expense) in respect of an injury to an interest which he may never live to enjoy’.90 It follows that a beneficiary with a future interest ‘would not be acting unreasonably if he or she did not scrutinise the affairs of the trust until the interest fell into possession’.91 Merely because he or she has, in the interim, standing to ensure the proper administration of the trust, and for this purpose may access trust documents, is no ground to substantiate any ‘interest in possession’ during that time. In securing the proper administration of the trust, there is, in any case, nothing to preclude a beneficiary from commencing proceedings against a trustee in advance of his or her interest vesting in possession. And this is so even if there may be no actual trust property to be enjoyed as of right as an interest in possession. The beneficiary may, in this regard, seek to argue that, had there been no breaches of trust, there would have been additional property in which he or she, at least contingently, was entitled to share.92 In these circumstances, as time would not have begun to run, the beneficiary could pursue alleged breaches not only within the last six years, but also breaches outside the six year period.93 10.28 A beneficiary of a discretionary trust who will only receive a distribution from the trust on the exercise of the trustee’s discretion has no ‘interest’, future or otherwise, in the trust for this purpose. He or she has a mere expectancy, as there is no assurance that the trustee will exercise the discretion in his or her favour, and thus nothing as of right to which he or she may in future claim.94

Cause of Action Specific to Each Beneficiary 10.29 Trusts usually have multiple beneficiaries and, to the extent, say, that accrual of a cause of action for breach of trust is based on its discovery or discoverability, there is scope for accrual to occur at different dates for

different beneficiaries. The Limitations Acts prevent a statute-barred beneficiary from securing an incidental advantage via an action by another beneficiary whose action is within time. In the Territories, New South Wales and Western Australia, the legislation states that if a beneficiary sues in relation to the trust, another beneficiary under the trust cannot derive from the action any benefit for which, because of the legislation, an action by him or her is not maintainable if brought on the date when the first-mentioned action is brought.95 In the remaining jurisdictions, there is equivalent, but differently worded provision, such that a beneficiary (B) as against whom there would be a limitation defence cannot derive any greater or other benefit from a judgment or order obtained by another beneficiary than B could [page 224] have obtained had B brought the action and the limitation defence been pleaded.96 By way of example, this provision, it has been said, ‘prevents the life tenant from benefitting from a claim brought by the remainderman once his interest falls into possession, such as by claiming income which would otherwise have been payable to him by the life tenant but for his claim being statute-barred’.97

‘Trusts’ to Which Limitation Provisions Apply Statutory ‘trust’ definitions 10.30 The application of the limitation provisions to trusts rests, at the outset, on the meaning of the term ‘trust’ for their purposes. In the Territories and New South Wales ‘trust’ is defined to include ‘an express, implied and constructive trust, whether or not the trustee has a beneficial interest in the trust property, and whether or not the trust arises only because

of a transaction impeached’.98 In Queensland, Tasmania and Victoria, the term ‘trust’ takes its meaning from the trustee legislation, which is expressed to extend to ‘implied, resulting, bare and constructive trusts’ (in Tasmania, ‘implied and constructive trusts’), and to cases where the trustee has a beneficial interest in the trust property.99 The same ensues in Western Australia,100 though as noted earlier the legislation there makes (with limited exceptions)101 no discrete provision for trusts, but instead sets time bars for ‘equitable actions’.102 In each of the aforesaid jurisdictions, for limitations purposes a ‘trust’ encompasses the duties incident to the office of personal representative, but not those incident to the estate or interests of a mortgagee in mortgaged property.103 Also, the term ‘implied’ is understood as targeting a resulting trust,104 even though in Queensland and Victoria this renders that term otiose. 10.31 The South Australian limitations statute contains no definition of ‘trust’, and its principal provisions dealing with time bars vis-à-vis trusts refer, respectively, to ‘express trusts’105 and ‘trustees’.106 As explained below, however, this has not precluded its potential application in some constructive trust scenarios, following the course of English case authority on the provision upon which the South Australian sections are based.107

Express trusts and resulting trusts 10.32 It follows that, with the exception of South Australia, the limitations legislation is expressed to apply not just to express trusts (and trustees thereunder) but also to non-express [page 225] trusts, namely the resulting trust (to which the descriptor ‘implied trust’ refers) and the constructive trust. The ‘express trust’ and the ‘resulting trust’, for this purpose, take their meaning as understood at general law. An express trust reflects a vesting of property in a trustee pursuant to the expressed or inferred intention of a settlor.108 A resulting trust is a vehicle adopted by the law to fill a gap in beneficial ownership, and arises (independent of court

order, subject to contrary intention) to give effect to the presumed intention of a transferor of property.109 Each is premised on a vesting of property in a ‘trustee’, and so cannot extend to non-trustee fiduciaries.110

Constructive trusts 10.33 When it comes to the ‘constructive trust’, however, it cannot be assumed that everything the law brands as a ‘constructive trust’ falls within the concept of a ‘trust’ for every aspect of limitations law. This is because the concept of a ‘constructive trust’ is utilised in the law in various ways, which may or may not align with the statutory language in which each time bar is expressed. It can refer to a person who intermeddles with trust property without being appointed trustee, or necessarily taking title, sufficiently to assume the role of trustee (a ‘trustee de son tort’); the law treats that person as a constructive trustee. But it is also a vehicle to render a non-trustee accountable as if he or she were a trustee, via a curial declaration to this effect. This includes ‘recipient liability’ (where persons receive property knowing that its receipt is in breach of trust or fiduciary duty) and ‘accessory liability’ (where persons dishonestly assist a trust or fiduciary breach).111 And it also encompasses a ‘constructive trust’ declared by a court to render a non-trustee accountable for a fiduciary breach112 or as an avenue to recover stolen property.113

Position in Queensland, South Australia, Tasmania and Victoria 10.34 When, in Queensland, South Australia, Tasmania and Victoria, it comes to determining whether the action is to recover trust property (or its proceeds) in the trustee’s possession — in which case no limitation period applies, as opposed to a six year limitation period for innocent breaches of trust114 — the law has long distinguished the constructive trust in the trustee de son tort scenario from that used by equity to secure accountability from a non-trustee. The former — which the law views as a ‘true trustee’ — falls within the mantle of constructive trusteeship to which no limitation period applies; the latter instead remains subject to the six year time bar, to run from the moment when the relevant breach occurs.

10.35 The logic for this distinction derives from the statutory language that triggers no limitation period. Viscount Cave in Taylor v Davies115 saw the phrase ‘trust property … retained by the trustee’ (and its successor ‘trust property … in the possession of the trustee’)116 as [page 226] applying to where a person ‘originally took possession for or on behalf of others’ (trustee de son tort), not where he or she, ‘having taken possession of property on his own behalf, is liable to be declared a trustee by the Court’ (non-trustee accountability). The statutory words, his Lordship added, target ‘cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction’.117 Others, to this end, have described this as a distinction between a ‘true trust’ and use of the term ‘trust’ as simply a formula for relief in equity.118 The ‘constructive trust’ here applies only vis-à-vis persons who, at the time of misapplying the assets, assumed the responsibilities of a trustee, whether expressly or de facto. Reasoning of this kind was endorsed in 2014 by the English Supreme Court in Williams v Central Bank of Nigeria, where Lord Sumption said:119 It is important to understand why equity adopted this rule, for its rationale will not necessarily apply to every kind of constructive trust. The reason was that the trust assets were lawfully vested in the trustee. Because of his fiduciary position, his possession of them was the beneficiary’s possession and was entirely consistent with the beneficiary’s interest. If the trustee misapplied the assets, equity would ignore the misapplication and simply hold him to account for the assets as if he had acted in accordance with his trust. There was nothing to make time start running against the beneficiary. It will be apparent that this reasoning can apply only to those who, at the time of the misapplication of the assets have assumed the responsibilities of a trustee, whether expressly or de facto. Persons who are under a purely ancillary liability are in a different position. They are liable only by virtue of their participation in the misapplication of the trust assets itself. Their dealings with the assets were at all times adverse to the beneficiaries, and indeed to the true trustees holding the legal interest.

Applying the ‘ordinary’ (six year) limitation period to instances where the court imposes a constructive trust to secure accountability — given that the primary (six year) limitation provision is phrased in a manner that does not confine the concept of a ‘trust’, inclusive as it is of a constructive trust, to

constructive trusts of a particular kind — treats the conduct of the constructive trustee, for limitation purposes, as equivalent to that of a tortfeasor, who usually enjoys a six year time bar.120 Also, it may be reasoned, placing third parties in a better position limitation-wise (via protection from a six year limitation period) than defaulting trustees (to whom no time may apply) reflects the fact that defaulting trustees owe existing fiduciary duties to claimants that third parties do not.121

Position in the Territories and New South Wales 10.36 The position has been modified in the Territories and New South Wales by adding to the ‘trust’ definition the words ‘and whether or not the trust arises only by reason of the transaction impeached’. These words, which do not appear in the other Australian jurisdictions or parallel English precursors, are designed to comprehend ‘constructive trusts’ arising out of [page 227] fiduciary breaches,122 stolen property, and recipient and accessory liability. The modification was driven by a belief that persons declared constructive trustees in these scenarios should not be better positioned as regards limitation than other trustees, to whom a 12 year time bar may apply in the face of fraud or conversion of trust property.123 Again, it is logical that time should begins to run from the moment of the relevant breach of duty that triggered constructive trusteeship.

Application to the remedial constructive trust 10.37 Australian law (but not English law) recognises what is termed a ‘remedial constructive trust’, which a court imposes to prevent an unconscionable denial of a beneficial interest in property.124 Unlike instances where the constructive trust is used to make a person accountable — whether as a principal or as a third party — for the consequences of a trust or fiduciary breach (where, as noted earlier, the constructive trust similarly provides an avenue for relief in equity), it is not premised upon a

breach of some pre-existing duty. The constructive trust, in its genuine remedial application, is an entirely curial creation, and so the question arises as to whether time should begin to run, for the purposes of the law of limitation, only when the court makes the finding of unconscionability upon which the trust hinges. If this represents an apt analysis, there is practically no role for any limitation period in this context, because adjudication itself is premised upon the commencement of proceedings. Yet it may make greater sense to speak of the cause of action here accruing upon the defendant’s first unconscionable denial of a beneficial interest.125 Otherwise plaintiffs could delay commencing proceedings in this context with abandon, except to the extent that laches may otherwise bar the claim. To the extent that unconscionability per se cannot be equated to ‘fraud’, the basic six year (three years in the Northern Territory) limitation period would presumably apply. ______________________________ 1. 2. 3. 4.

5. 6. 7. 8.

9. 10. 11. 12. 13. 14.

See 3.26. As to laches and acquiescence see 13.2–13.31. See 13.32–13.41. Re Timmis [1902] 1 Ch 176 at 186 per Kekewich J (remarking that the intention ‘was to give a trustee the benefit of the lapse of time when, although he had done something legally or technically wrong, he had done nothing morally wrong or dishonest’, but not ‘to protect him where, if he pleaded the statute, he would come off with something he ought not to have’). Clay v Clay (2001) 202 CLR 410; [2001] HCA 9; BC200100262 at [24] (FC). As to the Western Australian position see 10.5. See 2.19–2.22. Namely Trustee Act 1925 (NSW) s 69(1) (which read: ‘In any action suit or other proceeding against a trustee or any person claiming through him, the provisions of this section shall have effect: Provided that this section shall not affect any action suit or other proceeding where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use’). Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285; BC9002932 per Mason CJ and Gaudron J. See 15.22. WA s 27(1). WA s 27(2). As to the application of limitations legislation to constructive trusts elsewhere see 10.33–10.37. See 15.13.

15.

16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28.

29. 30. 31. 32. 33. 34.

35. 36. 37.

The backdrop to the Western Australian approach is catalogued in WALRC 36(II), p 354 (although it must be borne in mind that not every aspect of the regime recommended therein translated to the Limitation Act 2005 (WA)). A similar schema has been recommended, but not enacted, in England: see Law Com 270, para 4.98 (reasoning that ‘[i]f the claimant is aware (or ought to have been aware) of the facts necessary to bring proceedings in respect of his or her cause of action, such proceedings should be commenced promptly, even against a fraudulent trustee’). In the Northern Territory, running from ‘when the person entitled to bring the action first became so entitled’. NSW s 48; NT s 33; Qld s 27(2); Tas s 24(2); Vic s 21(2). ACT s 11. ACT Dictionary. ACT s 27; NSW s 47; NT s 32; Qld s 27(1); Tas s 24(1); Vic s 21(1), as to which see 10.17, 10.18, 10.20. Qld s 27(1); Tas s 24(1); Vic s 21(1), as to which see 10.20. The statutory wording does not confine such an action to claims by beneficiaries against personal representatives, and can apply vis-à-vis claims against persons who wrongfully receive a distribution from the estate: Re Diplock [1948] Ch 453 at 507–16 per the court [affd Ministry of Health v Simpson [1951] AC 251]. Qld s 28; Tas s 25; Vic s 22. These provisions stem from UK 1833 s 40 (which imposed a 20 year limitation period), then UK 1939 s 20, its equivalent now being UK 1980 s 22(a). Re Loftus (decd) [2006] 4 All ER 1110; [2006] EWCA Civ 1124 at [28]–[30] per Chadwick LJ, with whom Thomas and Lloyd LJJ concurred. SA s 33(1). ACT Dictionary; NSW s 11(1); NT s 4(1); WA s 3(1). [1977] Ch 106 at 247. Tito v Waddell (No 2) [1977] Ch 106 at 249 per Megarry VC. Although his Lordship recognised that a way around this is to treat fiduciaries as constructive trustees if they breach fiduciary duty, he was reluctant to ‘resort to such an artificiality’: at 249. As to the doctrine of analogy vis-à-vis fiduciary breaches see 13.35. See 3.29. Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131; [2003] EWCA Civ 1048 at [104]–[109] per Mummery LJ, delivering the reasons of the court. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 723–6. See G E Dal Pont, Law of Charity, LexisNexis Butterworths, Australia, 2010, pp 360–2. NSW s 48; NT s 33. ACT s 11(1) (which simply speaks a ‘cause of action’ that accrues to the plaintiff); WA s 27(2) (where the phrase ‘equitable action’ is defined as an action ‘in which the relief sought is in equity’). Formerly UK 1939 s 19(1), and now UK 1980 s 21(1). Qld s 27(2); Tas s 24(2); Vic s 21(2). It has been observed, in this context, that the reference to a claim ‘to recover trust property or the proceeds thereof still retained by the trustee’ is intended to relate to the trust property or proceeds on its collection or realisation in cases where it is necessary to sue for such actual property or

38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

48.

49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60.

61. 62.

proceeds because the same is retained by the trustee or another whether by reason of adverse claims or neglect to transfer or otherwise: Re J Flavelle (deceased) [1969] 1 NSWR 361 at 366 per Helsham J (adding that, accordingly, neither a suit for accounts nor for general administration falls within this type of claim). UK 1980 s 21(3) (a provision that first appeared in these terms in UK 1939 s 19(2)). Attorney-General v Cocke [1988] Ch 414 at 420 per Harman J. As to the impact of concealed fraud see generally Ch 15. See 10.26–10.28. Re Swain [1891] 3 Ch 233 at 241 per Romer J; Thorne v Heard [1894] 1 Ch 599 at 605 per Lindley LJ; Short v Short [1961] NZLR 516 at 537–8 per North and Cleary JJ. Howell v Young (1826) 5 B & C 259 at 266; 108 ER 97 at 100 per Bayley J, at 268; 100 per Holroyd J; Buckland v Ibbotson (1902) 28 VLR 688 at 700–1 per A’Beckett J. Buckland v Ibbotson (1902) 28 VLR 688 at 701 per A’Beckett J. Namely an improper or unauthorised investment. Buckland v Ibbotson (1902) 28 VLR 688 at 702 per A’Beckett J. See, for example, Ward v Lewis (1896) 22 VLR 410 at 417 per Hood J. Buckland v Ibbotson (1902) 28 VLR 688 at 702 per A’Beckett J. See, for example, Matthews v Trustees Executors and Agency Co Ltd (1898) 24 VLR 643. Cf the parallel approach to distinguishing discrete from continuing breaches in the context of contract and tort: see 5.14 (contract), 6.18–6.24 (tort). The Trustee Act 1888 (UK) s 8 was replaced by a differently worded provision in UK 1939 (s 19; now see UK 1980 s 21), on which the current Australian provisions in New South Wales, the Northern Territory, Queensland, Tasmania and Victoria is based. WA 1935 s 47. SA s 32(1) (formerly Trustee Act 1893 (SA) s 46(1)). To the same effect see WA 1935 s 47(1). SA s 35(a) (emphasis supplied), as to which see 5.2. See 5.35, 5.39. SA s 31(b) (formerly Trustee Act 1893 (SA) s 45(ii)). SA s 31(c) (formerly Trustee Act 1893 (SA) s 45(iii)). SA s 31(a) (formerly Trustee Act 1893 (SA) s 45(i)). See 10.26–10.28. As to the Western Australian position see 10.5. Namely as to causes of action to recover arrears of income, unless these involve fraud or a fraudulent breach of trust, or so far as they concern income converted by a trustee to personal use or income retained and still held by the trustee at the time the action is brought: ACT s 27(2); NSW s 47(2); NT s 32(2). ACT s 27(1); NSW s 47(1); NT s 32(1) (footnote supplied). A ‘successor’, for a person liable on a cause of action, means someone on whom the person’s liability devolves, whether or not as personal representative or otherwise on death, or bankruptcy, disposition of property, or ending of a limited interest in property: ACT Dictionary; NSW s 11(1); NT s 4(1). See 10.20, 10.21. See UK 1980 s 21(1) (formerly UK 1939 s 19(1)).

63. 64. 65. 66. 67. 68.

69.

70. 71. 72.

73.

74.

75. 76. 77. 78. 79. 80.

81. 82.

NSWLRC 3, para 230. Law Com 270, para 4.102 (albeit opining against this special limitation treatment). Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) (1999) 96 FCR 217; [1999] FCA 1820; BC9908650 at [51]–[59] (FC). NSWLRC 3, para 232. Formerly UK 1939 s 19(1), and now UK 1980 s 21(1). See, for example, Re Howlett (decd) [1949] Ch 767 (where the trustee, who had remained in occupation of the trust property for his own purposes, was chargeable with occupation rent, which notionally accrued to the trustee in the capacity as trustee, such that the trustee could not then maintain that he had not received the rent: see at 778–9 per Danckwerts J). See, for example, Re Pollock (decd) [1964] VR 554 (no limitation period application to an action, by a beneficiary of a deceased estate, to recover a legacy from a trustee of that estate: at 561 per Gillard J). As to the meaning of the phrase ‘trust property … in the possession of the trustee’ see 10.21. Qld s 27(1); SA s 32(1); Tas s 24(1); Vic s 21(1). Liu Wai Keung v Liu Wai Man [2015] 1 HKLRD 490; [2014] HKCA 614 at [17]–[21] per Kwan JA, delivering the reasons of the court. [1894] 1 Ch 599 at 609 [affd Thorne v Heard & Marsh [1895] AC 495]. See also at 606–7 per Lindley LJ, at 613 per A L Smith LJ (‘a man cannot be said to retain that which in fact he has not got, and which he has no power of getting’). Namely the Trustee Act 1888 (UK) s 8(1). The later change in wording (in UK 1939 s 19(1)(b)) was considered to be a difference without substance by Danckwerts J in Re Howlett [1949] Ch 767 at 777. Applegate v Moss [1971] 1 QB 406 at 413 per Lord Denning MR; Tito v Waddell (No 2) [1977] Ch 106 at 245 per Megarry VC; Rasmussen v Rasmussen [1995] 1 VR 613 at 635 per Coldrey J; Seymour v Seymour (1996) 40 NSWLR 358 at 372; BC9605024 per Mahoney ACJ; Honey v McLennan (1997) 18 WAR 384 at 389–92; BC9705863 per Scott J; Reader v Fried [2001] VSC 495; BC200108064 at [25] per Pagone J; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2007] WASC 118; BC200704260 at [42]–[56] per Murray J. Contra Armitage v Nurse [1998] Ch 241 at 260–1 per Millett LJ. Joliffe v Baker (1883) 11 QBD 255 at 270 per Watkin Williams J; Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; BC9002932 per Mason CJ and Gaudron J. Thorne v Heard [1894] 1 Ch 599 at 609 per Kay LJ [affd Thorne v Heard & Marsh [1895] AC 495]. Seymour v Seymour (1996) 40 NSWLR 358 at 372; BC9605024 per Mahoney ACJ. Reader v Fried [2001] VSC 495; BC200108064 at [25] per Pagone J. Reader v Fried [2001] VSC 495; BC200108064 at [25] per Pagone J. Seymour v Seymour (1996) 40 NSWLR 358 at 372; BC9605024 per Mahoney ACJ; WoodlandFerrari v UCL Group Retirement Benefits Scheme [2003] Ch 115; [2002] EWHC 1354 (Ch) at [49] per Ferris J (rejecting the contention that ‘fraudulent’ in this context should mean ‘unconscionable’, reasoning that ‘all, or virtually all, breaches of trust involve an element of unconscionable conduct’). ACT s 33(1); NSW s 55(1); NT s 42(1); Qld s 38(1); SA s 25(1); Tas s 32(1); Vic s 27. Cf WA s 38(2). See generally Ch 15. Mantonella Pty Ltd v Grancroft Pty Ltd [2015] QSC 191; BC201505872 at [36], [37] per Henry J

83. 84.

85. 86.

87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103.

(who, without reaching a final view on the issue, was uncomfortable with the conclusion that under Qld s 27(1)(a) no limitation period applies at all in respect of a fraud or fraudulent breach of trust, making Qld s 38(1) irrelevant, as ‘[t]his would have the odd consequence that even after the fraud is discovered no limitation period would commence’: at [37]; yet this appears the ordinary meaning of the words in Qld s 27(1)(a), and fits with the prefacing words of Qld s 38(1), which confines the operation of that section to ‘an action for which a period of limitation is prescribed by this Act’; emphasis supplied). Cf QLRC 53, pp 106–110 (recommending that claims for fraudulent breach of trust should not be specifically excluded from the limitations legislation in that, provided that the statutory limitation period does not commence until the plaintiff has discovered the relevant facts, plaintiff beneficiaries should be expected to commence proceedings within a reasonable time of discovering the relevant facts). G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1221–2 per Danckwerts J; Statek Corporation v Alford [2008] EWHC 32 (Ch) at [125], [126] per Evans-Lombe J. As to the recovery of trust funds against third parties see G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 739–41 (personal actions), 1173–88 (accessory and recipient liability). ACT s 28; NSW s 49; NT s 34. Qld s 27(2A); SA s 32(1) (phrased in identical terms to the former WA 1935 s 47(1)); Tas s 24(3); Vic s 21(2); WA s 62 (referring to when the beneficiary ‘becomes entitled to immediate possession of the property’). Other than in Western Australia, this follows the language of UK 1980 s 21(3) (formerly UK 1939 s 19(2)), as to which see McGee, p 269. Johns v Johns [2004] 3 NZLR 202 at [49] per Tipping J. See, for example, Armitage v Nurse [1998] Ch 241 at 261 per Millett LJ. Johns v Johns [2004] 3 NZLR 202 at [48] per Tipping J. Armitage v Nurse [1998] Ch 241 at 261 per Millett LJ. Law Com 270, para 4.117. Johns v Johns [2004] 3 NZLR 202 at [61]–[63] per Tipping J. See, for example, Masters v Stewart [2014] NZHC 2419; BC201463532 at [26], [27] per Mander J. Armitage v Nurse [1998] Ch 241 at 261 per Millett LJ; Johns v Johns [2004] 3 NZLR 202 at [48] per Tipping J. ACT s 29; NT s 35; NSW s 50; WA s 85 (which is differently worded but in substance equivalent). Qld s 27(3); SA s 32(2); Tas s 24(4); Vic s 21(3). This provision aligns with UK 1939 s 19(3), and now UK 1980 s 21(4). Canny, p 248 (citing Re Fountaine [1909] 2 Ch 382 by way of illustration). ACT Dictionary; NSW s 11(1); NT s 4(1). Qld s 5(1) (referring to Trusts Act 1973 (Qld) s 5(1)); Tas s 2(1) (referring to Trustee Act 1898 (Tas) s 4); Vic s 3(1) (referring to Trustee Act 1958 (Vic) s 3(1)). WA s 3(1) (referring to Trustees Act 1962 (WA) s 6(1)). Namely WA ss 62 (accrual of future interests of beneficiaries: see 10.26), 78 (land held on trust for sale: see 8.22). WA s 27(1), as to which see 3.27. This exclusion recognises the existence of many mortgages that do not take effect by way of conveyance and that comprise property that is not an ‘estate’: NSWLRC 3, para 81. As to the

104. 105. 106. 107.

108.

109. 110.

111. 112. 113. 114. 115. 116. 117. 118. 119.

limitations rules for mortgages see Ch 9. Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273 at 281–2; BC9702451 per Windeyer J. SA s 31, as to which see 10.14, 10.15. SA s 32, as to which see 10.14. Namely the Trustee Act 1888 (UK), which defined ‘trustee’ to include an executor or administrator and a trustee whose trust arose by construction and implication of law as well as an express trustee: s 1(3); note that this was altered upon the recommendation of the Wright Committee, para 11, that the exception in the Trustee Act 1888 (UK) s 8 (wherein trustees could not rely on the Statute of Limitation for a claim founded on fraud or to recover trust property converted to the trustee’s own use) should be made to extend to trustees whether holding on express trust or constructive trust. The statement by Fry J in Sands v Thompson (1883) 22 Ch D 614 at 617 that the phrase ‘express trust’ in the phrase ‘vested in a trustee upon any express trust’ (in UK 1833 s 25) ‘is that it is a trust which has been expressed, either in writing or by word of mouth, and that it does not include a trust which arises from the acts of the parties’ should not be construed as denying scope for inferring the existence of an express trust. Courts have subsequently been more yielding in their acceptance of express trusts created by inference; in any case, the definition of ‘trust’ for the purposes of limitations legislation has thereafter addressed the issue in Sands v Thompson, namely to exclude from the ‘trust’ the relation between a mortgagee (whose mortgage has been satisfied) and a mortgagor: see 10.30. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 779– 81. Clay v Clay (2001) 202 CLR 410; [2001] HCA 9; BC200100262 at [28]–[45] (FC) (trust limitation period not applicable to an action against a guardian for breach of fiduciary duty, as the guardian did not hold title to property on behalf of the ward, and so was not a trustee). See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 1173– 88. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 1164– 71. See Black v S Freedman & Co (1910) 12 CLR 105; BC1000004. See 10.6. [1920] AC 636 at 653 (PC). As to these phrases see 10.20, 10.21. Taylor v Davies [1920] AC 636 at 653 (PC) (emphasis supplied). Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 at 408–10 per Millett LJ. [2014] AC 1189; [2014] UKSC 10 at [13] (emphasis supplied). See also Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; [2002] UKHL 48 at [132]–[143] per Lord Millett; Nolan v Nolan [2004] VSCA 109; BC200403476 at [63] per Ormiston JA (reasoning that, by looking to a claim by a ‘beneficiary under a trust’, the legislation has in mind a pre-existing trust, and via the reference to the recovery of ‘trust property’, it refers to property that is already subjected to a trust, from a person who is already a trustee); Cattley v Pollard [2007] Ch 353; [2006] EWHC 3130 (Ch) at [59]–[93] per Richard Sheldon QC; Peconic Industrial Development Ltd v Law Kwok Fai (2009) 12 HKCFAR 139; [2009] HKCFA 16 at [19]–[24] per Lord Hoffmann; Novoship (UK) Ltd v Nikitin [2015] QB 499; [2014] EWCA Civ 908 at [68] per Longmore LJ; Feiglin v Ainsworth [2015] VSCA

120. 121. 122. 123. 124. 125.

326; BC201511972 at [38], [39] per McLeish JA, with whom Tate and Osborn JJA concurred. See further M Hemsworth, ‘“Constructive Trusts” and “Constructive Trustees” — What’s in a Name? Section 21 of the Limitation Act 1980’ (2000) 19 CJQ 154; J Mather, ‘Fiduciaries and the Law of Limitation’ [2008] JBL 344. See 6.2. Williams v Central Bank of Nigeria [2014] AC 1189; [2014] UKSC 10 at [118] per Lord Neuberger. This point was made explicit in NSWLRC 3, para 80, albeit without reference to accessory or recipient liability. NSWLRC 3, para 80; Sze Tu v Lowe [2014] NSWCA 462; BC201411179 at [335]–[338] per Gleeson JA, with whom Meagher and Barrett JJA concurred. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 1194– 1203. Payne v Rowe (2012) 16 BPR 30,869; [2012] NSWSC 685; BC201207361 at [99] per Ball J.

[page 228]

CHAPTER 11

Causes of Action for Money Under Statute Action to Recover Money Recoverable by Virtue of an Enactment Time bar Accrual of cause of action Action to Recover Penalty or Forfeiture Meaning of ‘penalty’ Meaning of ‘recoverable by virtue of an enactment’ Action to Recover Amount Paid Under a Revenue Statute Amount paid by reason of mistake or invalidity Backdrop Commonalities in statutory schemas Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia

11.2 11.2 11.6 11.11 11.12 11.14 11.16 11.16 11.16 11.17 11.18 11.19 11.20 11.21 11.22 11.23 11.24 11.27

Constraint on amount recoverable

11.28

11.1 The limitations legislation imposes a time bar on actions to recovery money that is recoverable by virtue of an enactment, although the Australian Capital Territory and Western Australia do so via a generic provision. It also makes provision for an abbreviated time bar, other than in South Australia and Western Australia, for actions to recover a penalty or forfeiture, again recoverable by virtue of an enactment. More recent statutory initiatives have yielded a limitations regime for actions to recovery amounts paid, under revenue statutes, by reason of mistake and/or invalidity of the relevant law. Each is addressed in turn in this chapter. [page 229]

Action to Recover Money Recoverable by Virtue of an Enactment Time bar 11.2 An action to recover money1 recoverable by virtue of an enactment is subject to a time bar — three years in the Northern Territory, six years elsewhere — triggered on the date on which the cause of action accrued.2 Exempted from this provision are actions to recover a (sum by way of) penalty or forfeiture, to which a dedicated (two year) limitation period applies.3 For this purpose, the New South Wales and Northern Territory legislation states that an ‘enactment’ is not confined to that of the State and Territory in question, but encompasses any enactment, whether from another State or Territory, the Commonwealth or of another country.4 In the absence of

equivalent provision, the same cannot necessarily be assumed in Queensland, Tasmania and Victoria.5 11.3 The phrase ‘money recoverable by virtue of an enactment’, not being a term of art, attracts its ordinary meaning.6 There is no reason here, accordingly, to draw a distinction, which had sometimes been made,7 between bringing an action on a statute and suing in respect of a cause of action given by a statute.8 11.4 If a cause of action relates to ‘money recoverable by virtue of an enactment’, that the statutory entitlement was in the first instance triggered by an event wherein a person has, say, suffered personal injury does not convert it to a cause of action relating to the latter. For example, in Ex parte Workers’ Compensation Board of Queensland,9 in the event that a worker injured in the course of employment was compensated therefor under workers compensation legislation and not by an award of damages from the employer, statute entitled the Board to be indemnified by the employer for that compensation.10 The Board’s action seeking to enforce this indemnity, explained G N Williams J, was independent of and distinct from the cause [page 230] of action vested in the injured worker, and so could not be described as a claim for damages consisting of or including damages in respect of personal injury.11 It was, instead, an ‘action to recover a sum recoverable by virtue of any enactment’.12 11.5 Although the limitations statutes in the Australian Capital Territory and Western Australia make no discrete provision for actions of this kind, they fall within the six year limitation period, expressed to apply to all causes of action (unless alternative provision is made), prescribed by the general limitation provision.13 As is the case elsewhere, a dedicated provision sets a different limitation period vis-à-vis an action to recover a penalty or forfeiture in the Australian Capital Territory.14 But in Western Australia the absence of specific provision for an action to recover a penalty or forfeiture dictates that the general six year limitation period applies.15

Accrual of cause of action 11.6 A cause of action to recover moneys recoverable by virtue of an enactment accrues at the moment when, for the purposes of the enactment, the moneys in question become recoverable. This, of course, rests ultimately on the true construction of the relevant statutory provision. For example, if a charge created under a statutory provision is expressed to be enforceable ‘by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured’,16 there is sense in construing the provision as giving rise to a cause of action, and thus an accrual, at the time the charge was created.17 Another illustration concerns a statutory provision for compulsory purchase of land in issue in Hillingdon London Borough Council v ARC Ltd,18 which read as follows:19 If the acquiring authority have served notice to treat in respect of any of the land and have served on the owner, lessee and occupier of the land not less than fourteen days notice, the acquiring authoerity may enter on and take possession of that land, or of such part of that land as is specified in the notice; and then any compensation agreed or awarded for the land of which possession is taken shall carry interest … from the time of entry until the compensation is paid, or is paid into court in accordance with this Act.

11.7 That nothing in the above provision suggested that ‘the right to compensation is inchoate or incomplete’, in tandem with express provision that ‘such compensation is to carry interest from the time of entry until the compensation is paid’, prompted Stanley Burnton QC, whose decision affirmed on appeal,20 to rule that the right to compensation accrued once the acquiring authority entered the land.21 And, as a matter of statutory construction, this remained so even if the amount of compensation payable had either yet to be agreed or yet to be determined by the relevant tribunal.22 Indeed, there is case authority supportive of an ostensibly broader proposition, namely that ‘a cause of action for a sum recoverable by virtue of an enactment accrues notwithstanding [page 231]

that it remains to be quantified’.23 The outcome, of course, ultimately rests on the wording of the relevant statutory provision. If it can legitimately be construed as making quantification a condition precedent to recovery, accrual will defer to the fulfilment of the condition. If the claim to recover moneys is subject to one or more contingencies, it may prove inaccurate, to this end, to speak of the moneys being recoverable (and the relevant cause of action therefore accruing) at the time. 11.8 An illustration is found in cases on s 129(1) of the Real Property Act 1900 (NSW), which entitles anyone who suffers loss or damage by reason, inter alia, an act or omission of the Registrar-General, or a misdescription error, or omission in the Register, to seek compensation from a statutory fund. In Registrar-General v Cleaver24 the respondents’ certificate of title referred to a covenant that prohibited the construction of multi-storey buildings on a neighbouring lot (lot 1). The Registrar-General failed to register the covenant on lot 1’s certificate of title, allowing its purchaser to escape this burden. The issue, for the purposes of limitation, was whether the respondents’ cause of action arose at the moment of the Registrar-General’s error, or instead when the owners of lot 1 insisted on their rights of indefeasibility to escape the burden of the covenant. Clarke JA, with whom Abadee AJA agreed, held that the respondents suffered loss, and therefore secured an entitlement to recover moneys under the statute, when the owners of lot 1 ‘insisted on their rights to enjoy that lot without the burden of the covenant and were entitled to maintain that insistence’ under the doctrine of indefeasibility.25 Prior to this event, the respondents had no reason to suspect the defect, and could, with complete honesty, have sold their property with the benefit of the height restriction and never have suffered any loss. As the respondents were, as a consequence, exposed to no more than a contingent loss at the time they purchased the property, the right to compensation accrued only once they became subject to that loss.26 11.9 Cleaver can be contrasted with Sinclair v Registrar-General,27 where the plaintiff landowners contracted with the owners (B) of an adjacent lot (lot 28) for an easement over part of lot 28, pursuant to which B agreed to transfer the land relating to the easement for $28,000, contingent on the

council approving subdivision. The plaintiffs lodged a caveat over lot 28, but the Registrar-General endorsed a policy treating any caveat lodged in respect of an interest subsequently created as lapsed. This allowed B, without the plaintiffs’ knowledge, to sell lot 28 to H, who then on-sold it. Arguing that the caveat remained enforceable, the plaintiffs sought to enforce the original agreement via an application made later than 12 months from the RegistrarGeneral’s determination, being the limitation period set by the Act.28 Unlike the respondents in Cleaver, the plaintiffs did not enter into a contract for the purchase of land based on any misconception, and the contract did not give rise to a contingent loss or liability.29 Upon registration of H as owner, the plaintiffs had no right to seek a transfer from H. What was lost by the Registrar-General’s expunging of the caveat was the plaintiffs’ right [page 232] to receive notice and take action upon receipt of that notice. Rein J determined that ‘if loss or damage arose as a result of the operation of the indefeasibility provisions’, that loss arose at the moment H was registered as owner.30 The application was therefore time-barred. 11.10 One can appreciate the distinction between Cleaver and Sinclair, at least from the aspect that, in the former case but not the latter, the loss could be described as ‘contingent’. As a matter of substance, however, each of the cases involved an act (in Sinclair) or omission (in Cleaver) by the RegistrarGeneral of which those who were ultimately disadvantaged were, at the relevant time, unaware. As a matter of policy, which has been addressed in other areas of limitation law,31 lack of knowledge of the accrual of a cause of action, at least in circumstances where it was not reasonably discoverable, should postpone the running of time.

Action to Recover Penalty or Forfeiture 11.11

Excepting South Australia (where no limitation is specified)32 and

Western Australia (where the general six year limitation period applies),33 the limitations statutes state that an action on a cause of action to recover a penalty or forfeiture,34 recoverable by virtue of an enactment, cannot be maintained if brought more than two years from the date when the cause of action accrued.35 The reference to ‘accrual’ in this context is to the moment when the penalty or forfeiture first became recoverable.36

Meaning of ‘penalty’ 11.12 As a time bar applies to actions to recover a ‘penalty’ (or ‘forfeiture’) recoverable by virtue of an enactment, there is a need to give meaning to what is meant by these terms in this context. The phrase ‘penalties and forfeitures’, it has been said, has ‘traditionally been used to describe the imposts exacted for transgressing the provisions of statutes, and recoverable at the suit of the Crown’.37 But the statutes make clear that the term does not encompass a fine imposed on a conviction for a criminal offence,38 which aligns with their focus on civil rather than criminal proceedings.39 There is, accordingly, a need to distinguish a pecuniary penalty in a criminal environment from one divorced from it, a distinction that is not always patent. It has been judicially observed, albeit outside the limitations context, that a failure to do something prescribed by a statute may be described as an offence even though no criminal sanction is imposed, but instead ‘a mere pecuniary sanction … to be recovered as a civil debt’.40 In this event, whether or not described as an offence, it may be subject to a time bar. An action for an order that a [page 233] person who has contravened what is (or can be) described as a ‘civil penalty provision’41 is, to this end, ordinarily an action to ‘recover a penalty’, within the natural and ordinary meaning of that phrase.42 11.13

Beyond the civil–criminal distinction, there is the sometimes

difficult question as to whether the statutorily imposed obligation to pay is truly penal, or is instead compensatory. If it is no more than compensatory — that is, to compensate a person who has suffered as a result of the statutory breach — it cannot arguably be construed as a ‘penalty’, whether for limitations or other purposes.43 The issue arose in DTR Securities Pty Ltd v Deputy Commissioner of Taxation (Cth),44 dealing with a statute that rendered ‘additional tax’ due and payable by a taxpayer where ‘tax remains unpaid after the time when it becomes due and payable’.45 As the ‘additional tax’ exceeded that originally owed by the taxpayer, an action for its recovery was viewed by the New South Wales Court of Appeal as one to recover a ‘penalty’, that is, a pecuniary sanction, in the form of a civil debt, for failure to do something prescribed by a statute.46 That the ‘additional tax’, calculated as a percentage of the amount due but on a ‘per annum’ basis, could have been treated as de facto interest (and thus compensatory rather than punitive), highlights a relative laxity in construing the term ‘penalty’. A difference of opinion, in this context, surfaced in the High Court in John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd,47 where the statute, inter alia, entitled a person injured by reason of any act or thing done by another person in contravention of the relevant part of the statute to ‘sue for and recover treble damages for the injury’.48 A question before the court was whether this amounted to a ‘penalty’ in the limitations environment.49 McTiernan ACJ, presumably because the ‘treble damages’ would accrue to the person injured, was unwilling to [page 234] view the statute as thereby imposing a pecuniary penalty, and thus ruled that the action for its recovery was not subject to the limitation period in issue.50 Mason J, with whom Gibbs J seemed to agree on this point,51 instead reasoned that, via the action for treble damages, the plaintiff was not limited to the recovery — in a truly compensatory sense — of damage actually sustained. This prompted his Honour to brand the statute ‘a device to ensure compliance with the law and to discourage disobedience to that law’, which in turn characterised the action as one to recover something in the nature of

a penalty.52 In tackling the question by favouring substance over form, Mason J’s approach is to be preferred; the issue is not, accordingly, to be blinkered merely by the statutory use of the term ‘damages’.

Meaning of ‘recoverable by virtue of an enactment’ 11.14 As the two year limitation period applies to cause of actions to recover a penalty or forfeiture ‘recoverable by virtue of an enactment’, meaning must be given to this phrase. The central issue that has surfaced in the case law here targets whether an ‘enactment’ is confined to a statute from the same State or Territory in which the limitation defence is pleaded, or rather can apply to statutes without discrimination as to jurisdiction. There being no statutory definition of ‘enactment’ for this purpose,53 its meaning must be derived from the context in which it appears. Only the wording of the Australian Capital Territory limitations legislation appears to assist to this end. By adopting the phrase ‘a law in force in the ACT’ in place of ‘enactment’, it can be construed as confined to legislation enacted by the Territory. The counterargument is that, at least so far as federal law is concerned, it is likewise amenable to being understood as a law in force in the Territory. The latter construction would be more compelling were the statutory language to read ‘any statute in force’; in this context at least two High Court judges have inclined against limiting the meaning of that phrase to statutes of the State (or Territory) Parliament in force in the State (or Territory).54 11.15 Notwithstanding no evident statutory attempt to confine the term to ‘enactments’ passed by the Parliament of the State or Territory in question, there is case authority that so confines the term. In Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd,55 where an issue was whether the New South Wales provision could extend to a penalty or forfeiture recoverable by virtue of a federal enactment, North and Flick JJ, as a majority of the Full Federal Court, gave three reasons for so concluding, albeit ‘[n]ot without considerable reservation’. First, their Honours referred to a ‘general rule of construction requiring an interpretation which would restrain the general words so that they would not apply to Federal proceedings’.56 Secondly, where the legislature intends that the term

‘enactment’ should extend beyond ‘enactments’ of bodies of the State with legislative power — and embrace, say, a federal ‘enactment’ — it has so provided via express words.57 Their omission in this context, North and Flick JJ reasoned, speaks against a legislative intent to expand the term ‘enactment’ beyond a State ‘enactment’. Thirdly, there was the broader issue of legislative competence of a State or Territory Parliament, their Honours endorsing the observation of Gibbs J that it is ‘quite outside the competence of [page 235] the State Parliament to impose a limitation period on an action which neither arose under the law of the State … nor was enforceable in any court of the State’.58 That s 79 of the Judiciary Act 1903 (Cth) serves to apply State laws in the exercise of federal jurisdiction59 did not alter this conclusion. The relevant New South Wales limitation provision (and indeed its counterparts in other jurisdictions), being confined in its operation to imposing a limitation period within which ‘a cause of action to recover a penalty or forfeiture’ pursuant to a New South Wales enactment may be commenced, when ‘picked up’ by s 79 has no wider operation.60 It imposes no time bar on ‘a cause of action to recover a penalty or forfeiture’ brought pursuant to a Commonwealth ‘enactment’.

Action to Recover Amount Paid Under a Revenue Statute Amount paid by reason of mistake or invalidity Backdrop 11.16 Notwithstanding the limitation period prescribed in relation to actions to recover a sum recoverable by virtue of an enactment,61 or to

recover a penalty or forfeiture,62 statute in each jurisdiction imposes time bars on actions to recover amounts paid under a revenue statute by reason of mistake and/or invalidity of the relevant law. The extant provisions were, excepting Western Australia, enacted to take effect in late 1993 or early 199463 in response to an (ultimately justified) fear that the High Court, in a case before it,64 would strike down as unconstitutional a fee-based licensing scheme, which could thereafter subject States and Territories to claims to recover large sums paid as fees or taxes declared by a court to have been invalidly levied.

Commonalities in statutory schemas 11.17 As the detail provisions vary between jurisdictions — both in relation to the applicable limitation period and its trigger — they justify separate treatment. But common to each is that the limitation period does not apply to the recovery of an amount that would, had the relevant statutory provision been valid, have nevertheless represented an overpayment of tax; in Victoria [page 236] and Western Australia, however, this is confined to where the Act in question allows the refund or recovery of the money within a longer time frame.65 Another common feature is that the limitation period cannot be extended66 and that, Victoria and Western Australia aside, the right to recover the amount in issue is extinguished once time elapses.67 In New South Wales, South Australia, Tasmania, Victoria and Western Australia, there is also a constraint on the amount recoverable, so as to avoid a windfall gain in the hands of the applicant, addressed separately below.68

Australian Capital Territory 11.18 The Australian Capital Territory statute is expressed to apply to actions for recovery of a ‘revenue amount’, defined as money paid voluntarily or under compulsion as a tax, licence fee or duty (purportedly) imposed

under an Act (or penalty tax in relation to the foregoing), if the money would have been legally owing had the provision under which it was paid been valid.69 Any such action is not maintainable unless proceedings in relation to that money are instituted within six months of the date it was paid.70 In a unique provision, it adds that an action against a State or another Territory71 for recovery of a revenue amount72 (purportedly) imposed under a law of the State or Territory is not maintainable if the relevant limitation period of the State or Territory has ended.73

New South Wales 11.19 The Recovery of Imposts Act 1963 (NSW)74 proscribes the bringing of proceedings to recover75 any sum paid, voluntarily or under compulsion, by way of (purported) tax recoverable on restitutionary grounds (including but not limited to mistake of law or fact, or by reason of the invalidity of taxation legislation) after the expiration of 12 months after the date of payment.76 But the foregoing does not apply to proceedings brought under specific provisions of any Act that provide a mode to challenge the validity or to recover any of tax actually paid, for which a different limitation period is stipulated.77 Nor does it apply to money that is not recoverable on a specified ground — the invalidity of any taxation legislation, mistake as to the (in)validity of any taxation legislation, or any other restitutionary ground relating thereto — that has come into existence because of a nonlegislative change of the law78 if the money was paid before that change.79 [page 237]

Northern Territory 11.20 In the Northern Territory, a six month time bar likewise applies, again vis-à-vis money paid voluntarily or under compulsion by way of a (purported) tax, fee, charge or other statutory impost, but in the context of a payment under a mistake, whether of law80 or fact, or on restitutionary grounds.81

Queensland 11.21 In Queensland an action to recover an amount paid — voluntarily or under compulsion, whether paid under a mistake of law or fact, including to recover the tax by legal proceeding82 — as a tax83 that is recoverable because of the invalidity84 of an Act or provision therein must be commenced within one year after the day of payment.85

South Australia 11.22 If money paid, voluntarily or under compulsion, by way of a (purported) tax86 is recoverable because of the invalidity of the tax, in South Australia an action for its recovery must be commenced within six months after the date of the payment.87 However, this is expressed to be subject to any other Act to the extent that the latter makes inconsistent provision.88

Tasmania 11.23 In Tasmania, notwithstanding any other law to the contrary, an action to recover any money paid by way of a (purported) tax or under a mistake cannot be brought after the expiration of the period of 12 months from the date of payment.89

Victoria 11.24 Prior to 15 October 1993, the relevant Victorian provision proscribed the bringing of an action to recover any tax, fee, charge or other impost paid under the (purported) authority of any Act after the expiration of 12 months after the date of payment.90 The High Court of Australia in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd,91 in construing this provision, noted that while it was introduced to protect the State from the obligation to repay moneys as a consequence of successful challenges to the constitutional validity of State fiscal laws,92 its terms had wider scope. At the same time, though, they [page 238]

were not wide enough to preclude a late application to recover an amount of duty paid by the respondent taxpayer due to its ignorance of statutory amendments that exempted the amounts in question from duty. The imposts sought to be recovered were, the court noted, not ‘paid under the authority or purported authority of any Act’, because the Act in question abrogated the liability to pay duty altogether. As Mason CJ explained, it was not possible to read the words ‘under the authority or purported authority’ as denoting ‘under a mistaken belief as to authority’.93 11.25 The section was replaced with effect on 15 October 1993, to ensure its operation ‘in the way that it was originally intended to operate’,94 to make explicit that: first, it applied to the recovery of payments made under mistake, whether of law or of fact; secondly, except where a payment was recoverable because of the invalidity of an Act (or provision therein), the limitation period could be extended by provisions in other statutes that allow for the refund or recovery of the money within a longer period;95 and thirdly, it applied to proceedings seeking administrative law remedies such as mandamus.96 11.26 The section saw further amendment, to take its current form, in 2004.97 It requires proceedings — defined to include proceedings seeking administrative law remedies98 — for the recovery of money paid by way of (a purported) tax99 (or an amount attributable thereto) under a mistake (whether of law or of fact) or under colour of authority to be commenced within 12 months of the date of payment (or within any longer period prescribed under another Act for the refund or recovery of the money).100 Despite the foregoing and anything to the contrary in another Act, the section adds that if money paid, voluntarily or compulsorily, by way of (a purported) tax (or an amount attributable thereto) is recoverable because of the invalidity of (a provision in) a law,101 a proceeding for its recovery must be commenced within 12 months of the date of payment.102 The foregoing is stated to apply to proceedings between parties of any [page 239]

kind,103 and so can embrace proceedings between private parties, wholesalers and retailers,104 as well as against revenue-collecting authorities. The reference to payments ‘made under colour of authority’ was designed to ensure that claimants would be unable to avoid the time bar by technical forms of pleading, as explained in the Second Reading speech:105 The extension … has been made because proceedings under this section, traditionally described as ‘actions for money had and received’, are often brought under several grounds. In addition to ‘mistake’, which is currently covered by the section, a further ground is that a taxation amount has been demanded ‘under the appearance or colour of authority’. This amendment seeks to ensure that the provisions apply equally to all cases in which recovery of taxes is sought whether a proceeding be brought under one name or another. Claimants should not be able to avoid the operation of this section by the technical way in which they plead their case.

Western Australia 11.27 When Western Australia enacted its Limitation Act 2005, it opted to follow a schema similar to the Victorian Act, as amended in 2004, by treating mistake and invalidity separately. It states that an action to recover, or in relation to the recovery of, money paid by way of (purported) tax106 under a mistake, either of law or fact, cannot be commenced if 12 months have elapsed since the payment, unless another Act provides for a longer limitation period for commencing the action.107 However, it adds that, despite the foregoing, and anything to the contrary in another Act, if money paid by way of (purported) tax is recoverable because of the invalidity of an Act (or provision therein), an action to recover, or in relation to the recovery of, that money cannot be commenced if 12 months have elapsed since the payment.108

Constraint on amount recoverable 11.28 The New South Wales, South Australian, Tasmanian, Victorian and Western Australian legislation imposes a constraint on the amount recoverable, so as to avoid a windfall gain in the hands of the claimant, albeit not in identical terms as between the jurisdictions. In New South Wales, the relevant proceedings to recover taxes are maintainable only to the extent that the claimant109 satisfies the court that

he or she has not charged to or recovered from, and will not charge to or recover from, any other person any amount in respect of the whole or any part of the amount paid.110 [page 240] In South Australia, in a provision taking effect on 2 June 1994,111 an action for recovery of money paid by way of a (purported) tax can be maintained only to the extent the claimant satisfies the court that recovery will not result in a ‘windfall profit’.112 The latter will ensue to the extent that the claimant has passed on the burden of making the payment to another person, and has not paid back, or entered into an enforceable agreement to pay back, the amount of the payment.113 In Tasmania, as from 23 December 1993,114 an action against the Crown, an instrumentality of the Crown or a public authority115 to recover money paid by way of a (purported) tax116 or under a mistake117 cannot be maintained unless the claimant satisfies the court that the claimant has not charged to or recovered from, and will not charge to or recover from, any other person any amount in respect of the whole or any part of the amount so paid. A claimant who has made such a charge, or effected such a recovery, must, to maintain the action, satisfy the court that he or she has reimbursed, or has contracted to reimburse,118 each other person for the amount claimed in the action.119 11.29 The Victorian legislation, by way of the 2004 amending Act,120 also introduced a provision dealing with the recovery of tax, or amounts attributable to tax, that have been ‘passed on’ that would otherwise result in a windfall gain to the claimant. Specifically, it provides that proceedings to recover a tax paid by reason of mistake, or recoverable because of the invalidity of the relevant law, is only maintainable to the extent that the claimant121 satisfies the court that its recovery would not result in a ‘windfall gain’ to the claimant.122 In line with provisions in South Australia and Tasmania, the recovery is declared not to result in windfall gain if the claimant has not charged to, or recovered from, and will not charge to or

recover from, any other person an amount in respect of that money. A claimant who has so charged or recovered can similarly avoid a windfall gain in this context if he or she has reimbursed, or entered into an unconditional and enforceable agreement to reimburse, each other person to whom the claimant has charged, or from whom he or she has recovered, an amount in respect of that money.123 11.30 The drafters of the Western Australian Limitation Act 2005, which commenced on 15 November 2005, took the opportunity to make equivalent provision. It states that, in respect of an action by a claimant to recover, or in relation to the recovery of, any money paid by way of (purported) tax, any judgment by a court in the claimant’s favour is confined to that part of the amount claimed that the court is satisfied:124 •

has not been directly charged to or recovered, and will not be so charged or recovered, from another person or, if it has been so charged or recovered, has been refunded to the other person; and [page 241]

•

in a provision unique to Western Australia, has not been incorporated into the price of or charge for any property or services.

Parallel provision, in constraining the amount recoverable, is made in the event that a court order, other than a judgment mentioned above, obliges a taxing authority125 to refund any money paid by way of (purported) tax.126 In each case the legislation makes explicit that the claimant has the burden of satisfying the court or taxing authority of the relevant matters,127 a point implicit in the equivalent provisions elsewhere. ______________________________ 1.

Only the New South Wales and Northern Territory provisions use the term ‘money’ here; in Queensland, Tasmania and Victoria, following the English model, the term adopted is ‘sum’. In view of defensible case authority to the effect that the term ‘sum’ in this context is not confined to liquidated claims (Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants VOF (The Gilbert Rowe) (No 2) [1999] CLC 1461 at 1466 per David Steel J; Green v Eadie [2012] Ch 363; [2011] EWHC B24 (Ch) at [38]–[42] per Mark Cawson QC), it is therefore consonant with the term ‘money’.

2.

3. 4. 5.

6. 7.

8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

NSW s 14(1)(d); NT s 12(1)(d) (see, for example, Ceric v CE Heath Underwriting & Insurance (Australia) Pty Ltd (1993) 91 NTR 26 at 32 per Mildren J, who held that an action conferred by the Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 27(1) — under which a charge created by the statute ‘is enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured’ — is an action to recover money recoverable by virtue of an enactment for this purpose); Qld s 10(1)(d); Tas s 4(1)(d); Vic s 5(1)(d). These provisions follow UK 1939 s 2(1)(d), now UK 1980 s 9(1). As to the position in the Australian Capital Territory and Western Australia see 11.5. As to the accrual of the relevant cause of action see 11.6–11.10. See 11.11. NSW s 14(3); NT s 12(3). Cf NSWLRC 3, para 108 (where, in recommending the enlarged definition of ‘enactment’, the Commission opined that, without such an enlargement, the word could be confined to enactments of the State in question). See the discussion in McGee, pp 206–8. See, for example, Gutsell v Reeve [1936] 1 KB 272 at 288 per Romer LJ; Pratt v Cook Son & Co (St Paul’s) Ltd [1939] 1 KB 364 at 386 per Goddard LJ; Brueton v Woodward [1941] 1 KB 680 at 685–6 per Singleton J. Central Electricity Board v Halifax Corporation [1963] AC 785 at 799 per Lord Reid (involving a sum sued for being recoverable because it vested in the appellant’s predecessors ‘by virtue of’ the Electricity Act 1947 (UK) s 14(1); on the facts this was an action to recover it), at 803 per Lord Morris (noting that although the decided cases had recognised a difference between an action which is given by a statute and an action on a statute, the wording introduced by UK 1939 s 2(1) (d) — namely, ‘actions to recover any sum recoverable by virtue of any enactment’ — ‘seems … to be wording which precisely covers the present action’, being an action to recover a sum that was recoverable by virtue of the Electricity Act). See further McGee, pp 56–7. [1983] 1 Qd R 450. Namely under the Workers’ Compensation Act 1916 (Qld) Sch, cl 24A(3) (repealed). To which Qld s 11 (as to which see 7.61) would otherwise have applied. Ex parte Workers Compensation Board of Queensland [1983] 1 Qd R 450 at 459 (thus being one within Qld s 10(1)(d), as to which see 11.2). ACT s 11(1); WA s 13(1): see 4.2. ACT s 15: see 11.11. WALRC 36(II), pp 311–15. Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 27(1). Ceric v CE Heath Underwriting & Insurance (Australia) Pty Ltd (1993) 91 NTR 26 at 33 per Mildren J. [1997] 3 All ER 506. Compulsory Purchase Act 1965 (UK) s 11(1) (the provision remains in this form at the date of writing). Hillingdon London Borough Council v ARC Ltd [1999] Ch 139. Hillingdon London Borough Council v ARC Ltd [1997] 3 All ER 506 at 519. On this point see also the remarks of Potter LJ on appeal: Hillingdon London Borough Council v ARC Ltd [1999] Ch 139 at 153–7.

23.

24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34. 35.

36. 37. 38. 39. 40. 41.

42. 43.

Legal Services Commission v Rasool [2008] 3 All ER 381; [2008] EWCA Civ 154 at [30] per Ward LJ, with whom Smith and Wilson LJJ concurred. See, for example, West Riding County Council v Huddersfield Corporation [1957] 1 QB 540 at 546–7 per Lord Goddard CJ; Sullivan v Oil Company of Australia Ltd [2002] 2 Qd R 94; [2001] QCA 252; BC200103499 at [40]–[47] per Muir J, with whom McPherson JA and Atkinson J concurred. (1996) 41 NSWLR 713; BC9605264. The case was decided under the predecessor to the Real Property Act 1900 (NSW) s 129(1) (namely s 127(1) of the same Act), directed to the same end. Registrar-General v Cleaver (1996) 41 NSWLR 713 at 721; BC9605264. Registrar-General v Cleaver (1996) 41 NSWLR 713 at 721 per Clarke JA, with whom Abadee AJA concurred, at 724 per Handley JA; BC9605264. The impact of a contingent loss on the issue of accrual is likewise relevant in other instances where accrual is premised upon proof of loss or damage, such as tort (see 6.8–6.13) and (most) breaches of statutory duty (see 6.7). [2010] NSWSC 173; BC201001320. Real Property Act 1900 (NSW) s 132(2), 132(3). Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [25] per Rein J. Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [19]. See, for instance, in relation to (latent) personal injuries, discussed in Ch 7. A provision that set a two year time bar in this context (SA s 37) was repealed as from 1 January 2006 (by virtue of the Defamation Act 2005 (SA)). Under WA s 13(1) (see 4.2). There was formerly complicated provision with varying time bars in this context (WA 1935 s 37), which has not translated into the current Act. The New South Wales and Northern Territory provisions, in adding the words ‘or a sum by way of a penalty or forfeiture’, state what is in any event implicit elsewhere. ACT s 15(1); NSW s 18(1); NT s 16(1); Qld s 10(5); Tas s 4(6); Vic s 5(5) (see, for example, Attorney-General (Vic) v Black [1959] VR 45). These provisions, it appears, had their genesis in the Civil Procedure Act 1833 (UK) s 3, although the Australian provisions follow the language of the successor provision (UK 1939 s 2(5)). In England, however, the former two year limitation period has since yielded to a six year time bar for all actions directed to sums recoverable by virtue of an enactment: UK 1980 s 9. Although only the Northern Territory provision makes this explicit, as a matter of principle the position is the same elsewhere. DTR Securities Pty Ltd v Deputy Commissioner of Taxation (Cth) (1987) 8 NSWLR 204 at 210 per Samuels JA. ACT s 15(2); NSW s 18(2); NT s 16(2); Qld s 10(5A); Tas s 4(6); Vic s 5(5)(b). See 3.25. Brown v Allweather Mechanical Grouting Co Ltd [1954] 2 QB 443 at 447 per Lord Goddard CJ. For example, the (former) Workplace Relations Act 1996 (Cth) s 407(1) (which empowered the court to order ‘the person who contravened the civil remedy provision to pay a pecuniary penalty’). Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; [2012] FCAFC 193; BC201210256 at [74], [75] per North and Flick JJ. See, for example, Thomson v Lord Clanmorris [1899] 2 Ch 523 at 528 per Kekewich J (who distinguished penalties, and indeed ‘damages or sums of money in the nature of penalties’, from compensation for loss suffered by persons who, on the facts, had subscribed for shares on the faith

44. 45. 46.

47. 48. 49.

50. 51. 52. 53. 54. 55. 56. 57.

of untrue statements in a prospectus) [affd Thomson v Lord Clanmorris [1900] 1 Ch 718 at 725–6 per Lindley MR, at 727–8 per Vaughan Williams LJ]; Jarvis v Surrey County Council [1925] 1 KB 554 (where Finlay J held that an action against the police authority under the Riot (Damages) Act 1886 (UK) for damages caused by a riot was not an action ‘for penalties, damages, or sums of money given to the party grieved, by any statute’ within the meaning of the Civil Procedure Act 1833 (UK) s 3 because it was directed to securing compensation for damage); State Government Insurance Commission v Teal (1990) 2 WAR 105 at 110–14; BC9003832 per Commissioner Williams QC (where the plaintiff insurer’s action, under the terms of a statute, to recover from the defendant insured amounts it paid in settlement of the claim was held not to be an action for either a penalty under WA 1935 s 38(1)(a)(i)). (1987) 8 NSWLR 204. Income Tax Assessment Act 1936 (Cth) s 207(1) (since repealed). DTR Securities Pty Ltd v Deputy Commissioner of Taxation (Cth) (1987) 8 NSWLR 204 at 210–11 per Samuels JA, with whom Glass JA (at 206) and McHugh JA (at 215) agreed on this point (revd but not on this point: Deputy Commissioner of Taxation v DTR Securities Pty Ltd (1988) 165 CLR 56; BC8802604). (1973) 129 CLR 65; BC7300013. Australian Industries Preservation Act 1906 (Cth) s 11(1) (since repealed). Namely SA s 37, which at the time applied a limitation period of two years for, inter alia, ‘all actions for penalties, damages or sums of money given to any party by any statute in force’. Such a clause, which owed its genesis to the Civil Procedure Act 1833 (SA) s 3 (and which first saw translation into a South Australian statute via the Limitation of Suits and Actions Act 1866 (SA) s 38; it also translated to WA 1935 s 38(1)(a)(i)), has been interpreted ejusdem generis, so as to restrict its application to penal actions, and not extend to claims for damages by way of compensation: Thomson v Lord Clanmorris [1900] 1 Ch 718 at 725–6 per Lindley MR; Mort v Bradley [1916] SALR 129 at 145 per Gordon J (ruling that damages for adultery were by way of compensation and not penalty, and thus not within the section); Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 at 485–7; BC9304922 per French J (finding that the claim under the Racial Discrimination Act 1975 (Cth) s 25ZA was for compensatory and remedial relief only, and not a penalty action). John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 75; BC7300013. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 89; BC7300013. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 96; BC7300013. Cf the broad definition of ‘enactment’ in the specific context of NSW s 14 and NT s 12: NSW s 14(3); NT s 12(3), as to which see 11.2. John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80 per Menzies J, at 82 per Walsh J; BC7300013 (dealing with the former SA s 37). (2012) 209 FCR 428; [2012] FCAFC 193; BC201210256 at [55] (the reasons being catalogued at [56]–[58]). Seaegg v The King (1932) 48 CLR 251 at 255; BC3290106 per Rich, Dixon, Evatt and McTiernan JJ. As in NSW s 14(3): see 11.2.

58.

59. 60.

61. 62. 63.

64. 65.

66. 67. 68. 69. 70. 71. 72. 73. 74. 75.

John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 89; BC7300013. North and Flick JJ, on the facts, remarked that the conferral by the Commonwealth Parliament of ‘standing’ by the Workplace Relations Act 1996 (Cth) s 405 upon specified persons to seek civil remedies, and the power conferred by s 407 upon the Federal Court to order the payment of a ‘pecuniary penalty’, ‘sits uncomfortably with any conclusion that a State legislature may impose a limit upon the time within which this court may exercise that power’: Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; [2012] FCAFC 193; BC201210256 at [58]. See 3.7–3.10. Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; [2012] FCAFC 193; BC201210256 at [60] per North and Flick JJ. Marshall J dissented on this point, viewing NSW s 18 as made applicable to federal legislation as a result of the operation of the Judiciary Act 1903 (Cth) s 79, provided all its requirements have been satisfied: at [26]. See 11.2–11.5. See 11.11. ACT s 21A (inserted by the Limitation (Amendment) Act 1993 (ACT), with effect on 30 November 1993); Recovery of Imposts Act 1963 (NSW) (as amended by the Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW), which commenced on 3 December 1993); NT ss 35C, 35D (inserted by the Limitation Amendment Act 1993 (NT), with effect on 6 December 1993); Qld s 10A (inserted by the Limitation of Actions Amendment Act 1993 (Qld), which commenced on 23 November 1993); SA s 38 (amended by the Limitation of Actions (Recovery of Taxes and Substantive Law) Amendment Act 1994 (SA) (with effect on 9 June 1994); Tas ss 25C, 25D (inserted by the Limitation Amendment Act 1993 (Tas), with effect on 23 December 1993); Vic s 20A (inserted by the Limitation of Actions (Amendment) Act 1993 (Vic), with effect on 15 October 1993). Parallel provision in Western Australia awaited the commencement of the Limitation Act 2005 (WA) (see s 28); cf the former WA 1935 s 37A; WALRC 36(II), pp 399–400. Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; BC9303553. ACT s 21A(2); Recovery of Imposts Act 1963 (NSW) s 3(4); NT s 35D(2); Qld s 10A(2); SA s 38(2); Tas s 25D(3) (which also applies in the event that the amount would have been recoverable as an overpayment had it not been paid under a mistake); Vic s 20A(3); WA s 28(4). As to the extension of limitation periods generally see Chs 18–21. Recovery of Imposts Act 1963 (NSW) s 5; NT s 35D(4), 35D(5); Qld s 10A(3); SA s 38(3); Tas ss 25D(5), 25E; Vic s 20A(4); WA s 28(5). See 11.28–11.30. ACT s 21A(4). ACT s 21A(1). A reference to ‘an action against a State or another Territory’ includes a reference to an action against an officer, a Minister or an authority of the State or Territory: ACT s 54(3). For this purpose, ‘revenue amount’ has the same meaning as in the text: ACT s 54(2). ACT s 54(1). Originally titled the Limitation of Actions (Recovery of Imposts) Act 1963 (NSW). From the Crown or the Government or the State of New South Wales or any Minister of the Crown, or from any corporation, officer or person or out of any fund to whom or which it was

76. 77. 78.

79. 80. 81. 82. 83.

84.

85. 86. 87. 88. 89. 90. 91. 92.

93. 94. 95.

96.

97.

paid. Recovery of Imposts Act 1963 (NSW) ss 2(1), 2(3), 7(1). Recovery of Imposts Act 1963 (NSW) s 2(2). ‘Non-legislative change of the law’ means a change of the law or of legal principles, or a change in what is generally perceived to be the state of the law or of legal principles, but does not include a change made by legislation: Recovery of Imposts Act 1963 (NSW) s 3(1). Recovery of Imposts Act 1963 (NSW) s 3(2), 3(3). For this purpose, ‘mistake of law’ includes a mistake as to the validity of a law: NT s 35B. NT s 35D(1). Qld s 10A(5). ‘Tax’ means: (a) a tax, fee, duty, levy, charge or other impost under, or purportedly under, an Act; or (b) a penalty in relation to a tax, fee, duty, levy, charge or other impost under, or purportedly under, an Act: Qld s 10A(5). ‘Invalid Act or provision of an Act’ includes an Act or provision of an Act that would be invalid apart from the Acts Interpretation Act 1954 (Qld) s 9 (Act to be interpreted not to exceed Parliament’s legislative power): Qld s 10A(5). Qld s 10A(1). ‘Tax’ includes a statutory business franchise or licence fee, or other statutory fee or charge: SA s 38(4). SA s 38(2). SA s 38(5). Tas ss 25B, 25D(2) (inserted by the Limitation Amendment Act 1993 (Tas)). Vis s 20A(1) (pre-15 October 1993) (as originally enacted under the Limitation of Actions (Recovery of Imposts) Act 1961 (Vic)). (1994) 182 CLR 51 at 80 per Mason CJ, at 91 per Brennan J, at 102–3 per Dawson J; BC9404663. Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 79; BC9404663 per Mason CJ (referring to speeches of the Attorney-General and others as reported in Hansard, in which reference was made to Dennis Hotels Pty Ltd v Victoria (1961) 104 CLR 621; BC6100660 (PC) and the ‘windfall’ that the hotel industry would have gained had its challenge to the licensing fees been successful). Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 80; BC9404663. See also at 102–3 per Dawson J. Victoria, Parliamentary Debates, Legislative Assembly, 21 October 1993, 1207 (Alan Stockdale, Treasurer, Second Reading speech). In conjunction with the Limitation of Actions (Amendment) Act 1993 (Vic), the Victorian Government introduced amendments to the refund provisions of the various State revenue statutes to provide three year time frames in which to seek a refund of an overpaid amount, except for refunds based on an argument that a provision in a relevant Act is invalid. The latter was a legislative response to the decision of the Full Court of the Supreme Court of Victoria in Royal Insurance Australia Ltd v Comptroller of Stamps (Vic) (1992) 23 ATR 528; BC9200658, which held that the section, in its pre-1993 form, did not apply to mandamus proceedings. Pursuant to the Limitation of Actions (Amendment) Act 2004 (Vic) (applicable to and in

98.

99. 100. 101.

102. 103. 104.

105. 106. 107. 108. 109. 110.

111. 112. 113. 114. 115.

relation to money paid before, on, or after 4 March 2004 but not to proceedings commenced before that date). ‘Proceeding’ includes: (a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or (b) seeking any order under the Administrative Law Act 1978 (Vic): Vic s 20A(5). ‘Tax’ includes fee, charge or other impost: Vic s 20A(5). Vic s 10A(1). ‘Law’ means: (a) an Act; (b) a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 (Vic); or (c) any other instrument that: (i) applies as a law of Victoria; or (ii) is made under, and is enforceable in accordance with, the provisions of an Act or of an instrument referred to in paragraph (b) or subparagraph (i): Vic s 20A(5). The pre-2004 s 20A(2) used the more restrictive term ‘Act’ in place of ‘Law’, so defined. The amendment therefore made clear that s 20A(2) is to operate in relation to all mechanisms by which a tax is exacted, including subordinate legislation (such as regulations) as well as other instruments that are applied as a law of Victoria or are enforceable under such applied law. Vic s 20A(2). Vic s 20A(2A). This is supported, in addition, by the introduction of language addressing amounts attributable to the payment of tax, and proceedings for the recovery of amounts that represent tax or purported tax: ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76; BC201501232 at [57] per Sloss J. The reason is that proceedings between private parties are generally for the recovery of amounts that are attributable to a tax or purported tax (see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68; BC200107592), rather than the recovery of a payment of tax or purported tax itself. Victoria, Parliamentary Debates, Legislative Assembly, 4 March 2004, 299 (Robert Hulls, Attorney-General). ‘Tax’ includes a fee, charge or other impost: WA s 3(1). WA s 28(1), 28(2). WA s 28(3). Here a reference to the ‘claimant’ extends to a predecessor, successor or assignee of the claimant: Recovery of Imposts Act 1963 (NSW) s 4(2). Recovery of Imposts Act 1963 (NSW) s 4(1) (expressed to apply whether or not any such amount has been itemised or otherwise separately identified in any invoice or other documentation). This provision, inserted by the Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW), applies to money paid, and proceedings commenced, whether before or after the commencement of that Act (which was 3 December 1993): Recovery of Imposts Act 1963 (NSW) s 7(3). Inserted by the Limitation of Actions (Recovery of Taxes and Substantive Law) Amendment Act 1994 (SA). SA s 38(3a). SA s 38(3b). Pursuant to the Limitation Amendment Act 1993 (Tas), and subject to minor amendment thereafter. ‘Public authority’ means any body corporate established under an enactment or in the exercise of a prerogative right of the Crown to administer or control any department, business, undertaking

116. 117. 118.

119. 120.

121. 122. 123. 124. 125. 126. 127.

or public institution on behalf of the State: Tas s 25A. ‘Tax’ includes a fee, charge or other statutory impost: Tas s 25A. ‘Mistake’ means mistake of law or fact as to the validity or invalidity of any ‘taxation legislation’ (as also defined in s 25A): Tas s 25A. The legislation adds that the person in question may sue for and recover, as a debt due and payable by the claimant, any amount that the claimant has satisfied the court that the claimant has contracted to reimburse to that person: Tas s 25C(2). Tas s 25C(1). Namely the Limitation of Actions (Amendment) Act 2004 (Vic) (which applies to and in relation to money paid before, on, or after 4 March 2004 but not to proceedings commenced before that date). ‘Claimant’ includes a predecessor or successor of a claimant: Vic s 20B(4). Vic s 20B(1). Vic s 20B(2). WA s 86(1), 86(2). ‘Taxing authority’ means a person who or which under an Act is responsible for the assessment or collection of any tax: WA s 87(4). WA s 87(1), 87(2). WA ss 86(3), 87(3).

[page 242]

CHAPTER 12

Other Causes of Action Action for an Account Time bar Meaning of ‘account’ Accrual of cause of action Action on a Judgment Arbitration Proceedings and Awards Arbitration proceedings Time bars When arbitration commences Where time suspended Ouster of contractual accrual provision Enforcement of arbitral award Time bars Accrual of cause of action Admiralty Actions Cause of Action in Contribution Action is sui generis Schema in the Territories, New South Wales, Queensland and Western Australia Limitation period Accrual of cause of action

12.2 12.2 12.4 12.7 12.8 12.10 12.10 12.10 12.11 12.13 12.14 12.15 12.15 12.16 12.17 12.21 12.22 12.23 12.23 12.24

Meaning of ‘principal cause of action’ Extension of time in principal action extends to contribution? Schema in South Australia Schema in Tasmania Schema in Victoria (Former) Protection for Public Authorities

12.25 12.27 12.29 12.30 12.31 12.32

12.1 The limitations legislation sets time bars for various causes of action beyond those already addressed in the span of Chapters 5 through 11. For the purposes of completeness they are grouped for discussion below. The chapter commences with limitations law in its application to actions for an account. An explanation of how the Limitation Acts impacts on actions upon a judgment, as well as on the commencement and enforcement of arbitral proceedings, next ensues. As actions in the admiralty sphere, or for contribution, are not [page 243] confined to matters of tort or contract, they also merit discrete treatment. Bookending the chapter is a discussion of the generous protection, via an abbreviated time bar, once the province of public authorities.

Action for an Account Time bar 12.2 Statute in each jurisdiction addresses limitation periods applicable to an action for an account. In New South Wales and the Northern Territory it

states that an action on a cause of action for an account ‘founded on a liability at law to account’ is not maintainable if brought after the expiration of the limitation period. That period is six years in New South Wales, but only three years in the Northern Territory.1 The Queensland, Tasmanian and Victorian statutes simply proscribe the bringing of an action for an account vis-à-vis a matter that arose more than six years before the commencement of the action.2 The South Australian Act similarly requires that ‘actions of account or for not accounting’, unless otherwise provided in the Act, be commenced within six years after the cause of action accrued.3 Each of the foregoing follows the English precedent, in both the original 1623 Act and its comprehensive successor in 1939.4 12.3 Rather than stipulate a limitation period peculiar to an action for an account, the Australian Capital Territory and Western Australian statutes, adopting the modern English approach,5 aligns the applicable time bar to that which governs the cause of action that forms the basis of the duty to account.6 In view of the six year limitation period applicable to ‘causes of action’ in these jurisdictions (unless alternative statutory provision is made),7 a six year time bar would commonly (though not invariably) apply to actions for an account in these jurisdictions too.

Meaning of ‘account’ 12.4 There have been attempts in the case law to argue that the term ‘account’, for the purposes of limitations law, is confined to an account at law, and does not extend to an account in equity.8 This view endeared itself to Megarry VC, albeit reluctantly and via obiter, in Tito v Waddell (No 2),9 who was influenced by the absence of an express reference to ‘equitable’ actions for an account in the relevant provision,10 and a sub-section (also featuring in Australian limitations statutes)11 that excluded its application to any claim ‘for other equitable relief except in so far as any provision thereof may be applied by the court by analogy’.12 As the original 1623 English provision was directed at the common law action of account, which by the time of the 1939 Act had become obsolete, it is unsurprising that there should be

[page 244] some confusion as to what is meant by ‘account’ in the 1939 Act and its Australian equivalents. The view Megarry VC espoused — that the term ‘account’ applies directly only to an action at law for an account, though obsolete, but by analogy in an action for an account in equity — was thus hardly indefensible, even if it proceeded on an assumption that the legislation intended to refer, via an ‘account’, to a then obsolete action. The alternative construction — to apply to an action in equity for an account whether the liability was one at law or in equity — overlooked the statutory analogy provision noted in the preceding paragraph. 12.5 In New South Wales and the Northern Territory, the statutory reference to an account ‘founded on a liability at law to account’ is amenable to Megarry VC’s interpretation.13 It seems, though, that it was intended to apply directly to an action, whether at law or in equity, for an account founded on a legal liability to account; it applies by analogy, however, to an action in equity for an account on an equitable liability to account.14 In other Australian jurisdictions, however, the direct application of the statute appears more encompassing. In Wheatley v Bower15 the Western Australia Court of Appeal (dealing with the former provision phrased like that in the Queensland, Tasmanian and Victorian statutes),16 refused to follow Tito v Waddell on this point, as it ignored the ordinary meaning of ‘action’ in limitations statutes, that is, ‘any proceedings in a court of law’.17 To confine this definition to proceedings at common law, to the exclusion of those in equity, would involve an artificial narrowing of the broad words utilised. This view — that all actions for an account, at law or in equity, based on either legal or equitable liability to account, are barred by the relevant limitation period — has been endorsed in Victoria.18 It essentially gives precedence to a general definition ahead of an exclusionary provision targeting claims ‘for other equitable relief’, and thereby does not directly address what had concerned Megarry VC in Tito v Waddell. A way of reconciling these views, albeit by way of a ‘tortuous scheme of indirection’,19 using the words of Megarry VC, is to exclude from this exclusionary provision actions for an account via the analogy doctrine,20 to the extent it

can legitimately apply.21 12.6 The position in the Australian Capital Territory and (now) Western Australia in patent; as the legislation in these jurisdictions is clearly expressed to apply to claims in equity,22 any supposed distinction, for limitation purposes, between an account at law and one in equity has no currency. [page 245]

Accrual of cause of action 12.7 As a general principle, the accrual of a cause of action for account occurs when the accounting party receives money or property in respect of which he or she is liable to account.23 The point is addressed explicitly in the Queensland, Tasmanian and Victorian statutes, which declare that a reference to the date of accrual of a right of action is to be read and construed as a reference to the date on which the matter arose in respect of which the account is claimed.24

Action on a Judgment 12.8 Other than in Western Australia,25 the limitations legislation provides that an action on a cause of action on a judgment26 is not maintainable if brought after the end of a limitation period of 12 (in South Australia and Victoria, 15) years, running from the date when the judgment becomes enforceable.27 The rationale for the longer than standard limitation period has been explained as follows:28 [A] judgment is something more than a contract debt or a debt due under a specialty. It is a declaration by the court under which the rights of the parties have been determined. Once the time for an appeal has passed, there is no room for dispute. Furthermore, the successful plaintiff cannot be said to have slept on his rights. He has taken action and, as a consequence, recovered judgment. Accordingly … a longer period should be allowed for actions on judgments than for those on ordinary contract debts or on specialties.

(Indeed, it may be noted, the above rationale has been proffered as a

reason for imposing no limitation period in this context.)29 For this purpose, the legislation in the Territories, New South Wales and Queensland states that a judgment of a court of a place outside the State or Territory (in New South Wales and the Northern Territory, not being a judgment of [page 246] a court of the Commonwealth) becomes enforceable on the date when the judgment becomes enforceable in the place where the judgment is given.30 12.9 When speaking of enforceability more generally in this context (and arguably others too), the reference is to that which is enforceable ‘in a practical way according to law’.31 It follows that time does not begin to run here if the enforceability of a judgment is statutorily subject to a further threshold requirement,32 or vis-à-vis an action that would amount to an abuse of process.33

Arbitration Proceedings and Awards Arbitration proceedings Time bars 12.10 The limitations legislation in each jurisdiction applies to arbitrations in like way as it applies to actions.34 It follows that the relevant time bar aligns with that applicable to the corresponding civil proceeding; if time has expired to pursue that civil proceeding in a court or tribunal, it has likewise expired to pursue it by means of an arbitration. This is made explicit in the Territories, New South Wales and Western Australia, where the legislation states that an arbitration for any difference or matter under any provisions for arbitration35 cannot be commenced after the expiry of the period of limitation for a cause of action for relief of the kind sought in the arbitration.36

When arbitration commences

12.11 It is accordingly critical, for limitations purposes, to identify, in a ‘clear and unequivocal’ fashion,37 when an arbitration has commenced. The limitations statutes excepting South Australia address the point, and while phrased in similar terms, differ sufficiently to merit grouping into three schemas. In the Territories, New South Wales and Western Australia, should the provisions for arbitration require or permit one party (A) to give written notice to another party (B) requiring B to appoint (or concur therein) an arbitrator, or require B to submit (or concur therein) a difference or matter to an arbitrator, the arbitration is commenced, as between A and B, on the date when the notice is given.38 If the foregoing does not apply, the outcome is nonetheless the same if A takes a step required or permitted by the provisions for arbitration to bring a difference or matter before an arbitrator and gives to B written notice thereof.39 [page 247] In Queensland and Tasmania, an arbitration is similarly taken to commence when one party (A) serves on another (B) a notice40 requiring B to appoint an arbitrator (or to agree thereto) or, where the agreement to arbitrate requires a reference to a person named or designated therein, requiring B to submit the dispute to the person so named or designated.41 The same applies to an arbitration under statute.42 For the purposes of the Victorian legislation, an arbitration pursuant to an arbitration agreement is taken to commence on the date agreed by the parties to the agreement or specified in the Commercial Arbitration Act 2011 (Vic) (namely the date on which a request for the dispute to be referred to arbitration is received by the respondent).43 An arbitration under a statute is taken to commence when one party (A) serves44 on another party (B) a notice requiring B to appoint an arbitrator (or agree thereto) or, should the statute require that the reference be made to a named or designated person, to submit the dispute to that person.45 12.12

While the above provisions identify a moment when an arbitration

is taken to commence, they do not purport to exhaust the instances where this may occur. Aside from these provisions, the relevant ‘cause of action’ for limitations purposes is to be construed here as ‘cause of arbitration’.46 With this change, the relevant ‘cause of arbitration’ must be located under the classification schema applicable to causes of action generally, say, in contract, tort or under statute. In turn this serves to identify the applicable limitation period.

Where time suspended 12.13 The limitations legislation in most jurisdictions makes provision for the suspension of the running of time in the context of arbitration in defined circumstances. In New South Wales and Western Australia, it applies if a court removes an arbitrator, restrains a party or an arbitrator from proceeding with an arbitration, or sets aside an arbitral award. In this event, the court may, at that time or within six months afterwards, order that all or any part of the time between the date of the commencement of the arbitration and the date of the order does not count in the reckoning of the limitation period.47 The court may make such an order even if the relevant limitation period has expired, in which event that expiry has no effect.48 In Queensland, Tasmania and Victoria, an equivalent provision applies only where the court orders that an arbitral award be set aside. In this circumstance, the court enjoys a discretion to further order that the period between the commencement of the arbitration and the date of this order be excluded in computing time for the commencement of proceedings (including an arbitration) with respect to the dispute referred.49 It does not serve, however, to extend time for the commencement of the arbitration.

Ouster of contractual accrual provision 12.14 In each jurisdiction except South Australia, the limitations legislation operates to override provisions in any agreement for arbitration that purport to govern the accrual of the relevant cause of action. The legislation states that if, under a term of any provisions for arbitration, a cause of action in relation to any difference or matter referable to arbitration

[page 248] under those provisions does not accrue until the making of an arbitral award,50 the cause of action is deemed to accrue, for the purposes of the limitations legislation, on the date when it would accrue apart from that term.51 The same is expressed to apply, by limitations statutes in the Australian Capital Territory, New South Wales and Western Australia, where a term states that a cause of action does not accrue until the happening of some other event in or relating to the arbitration, or does not accrue at all. These provisions serve to overcome case law that recognises the legitimacy of a term of the provisions for arbitration that makes arbitration a condition precedent to the commencement of any action at law.52 Any such term is therefore ineffective, as from the commencement of the relevant provision, for the purposes of identifying the date of accrual of the cause of action.53

Enforcement of arbitral award Time bars 12.15 In each jurisdiction the limitations statutes regulate the enforcement of an arbitral award, once it is made. In the Territories and New South Wales, the limitation period for an action to enforce an arbitral award is six years (three years in the Northern Territory) unless the award is made under an arbitration agreement54 that was made by deed, in which case it is 12 years.55 A six year time bar likewise applies in Western Australia, albeit not confined in its application to arbitrations.56 In Queensland, Tasmania and Victoria, an ‘action to enforce an award’ — which in its context targets an arbitral award57 — where the agreement to arbitrate is not by an instrument under seal (that is, by deed),58 cannot be brought after the expiration of six years from the date on which the cause of action arose.59 A six year limitation period is likewise imposed in South Australia on actions founded upon ‘any award’,60 again referring to arbitral awards,61 unless the submission is by specialty, to which a discrete time bar applies.62

Accrual of cause of action 12.16 The relevant cause of action accrues on the date when default first happens in observance of the award, being the default in relation to which the action is brought.63 [page 249] This reflects what the case law identified as the date of accrual absent explicit provision,64 and thus represents the law in the remaining jurisdictions. This stems from an implied term of an agreement to submit contractual disputes to arbitration ‘that an award will be honoured when it is made’, and that ‘the action to enforce an award is an independent cause of action’, being ‘distinct from and in no way entangled with the original contract or the breach occurring from it’.65 Time therefore begins to run from the moment the implied promise to perform the award is breached, as opposed to the date of the arbitration agreement or the date of the award.

Admiralty Actions 12.17 The limitations statutes in the Territories, New South Wales and Tasmania prescribe a shorter than usual — two year — limitation period for admiralty-related actions.66 A dedicated avenue through which time can be extended is, however, prescribed so as to counterbalance the abbreviated time bar, and is elaborated in the extension of time part of this work.67 Specific provision setting time bars on liability of shipowners dates to early seventeenth century Europe. The first targeted English statute was enacted in 1733,68 its preamble expressing a policy to ‘promote the increase of the number of ships and vessels and to prevent any discouragement to merchants and others from being interested and concerned therein’. The shorter limitation period, ‘very specific to shipping matters’, reflected this protectionist approach,69 and first translated to Australian shores via the former Navigation Act 1912 (Cth),70 before finding replication in the limitations legislation referred to above.

12.18 The relevant provisions in the limitations statutes apply the two year limitation period to actions on a cause of action to enforce a claim or lien against a vessel71 (the ‘former vessel’) or its owners in relation to:72 •

any damage or loss to another vessel, its cargo or freight,73 or any property on board the other vessel; or [page 250]

•

damage for loss of life or personal injuries suffered by anyone on board the other vessel caused by the fault of the former vessel,74 whether the former vessel is completely or partly at fault.

Time begins to run, for this purpose, from the date when the damage, loss or injury is caused. The limitations statutes also impose a two year time bar on actions to enforce a claim or lien in relation to any salvage services, running from the date when the salvage services are rendered.75 12.19 That there are no dedicated admiralty-related limitation provisions in the remaining jurisdictions dictates that the general six year limitation period, prescribed by a general limitation provision in Western Australia,76 and on actions in contract and tort in South Australia and Victoria,77 governs causes of action in this context. The excision of admiralty actions in rem from limitations legislation means that no limitation period applies in this context in Queensland.78 12.20 In cases where State or Territory limitations legislation fails to deal with a particular category of admiralty action, however, s 37 of the Admiralty Act 1988 (Cth) imposes a three year limitation period.79 Its terms are expressed to apply to proceedings on a ‘maritime claim’,80 or on a claim on a maritime lien or other charge, accruing from when the cause of action arose.

Cause of Action in Contribution 12.21

Statute in each Australian jurisdiction makes provision for

limitation periods applicable to actions on a cause of action in contribution by one wrongdoer against another. These are found, in largely similar form, in the limitations statutes in the Territories, New South Wales, Queensland and Western Australia. Elsewhere the wrongs statutes, in discrete terms, address the issue. For this reason, the relevant jurisdictions receive separate treatment below.

Action is sui generis 12.22 At the outset it should be noted that statutory provisions dedicated to causes of action in contribution stem from the fact that, even though the proceedings between the main parties are often in tort, the cause of action for contribution is not one in tort but is instead sui generis conferred by statute.81 It is, the High Court has explained, ‘a cause of action apart from and independent of a cause of action which the injured party has or would have had against the tortfeasor from whom contribution is sought’.82 The time bars governing torts do not, as a consequence, have application to causes of action for contribution. Indeed, more generally, that a specific limitation provision is directed to contribution suggests that it operates to the exclusion of ostensibly more general limitation provisions directed to causes of action.83 [page 251]

Schema in the Territories, New South Wales, Queensland and Western Australia Limitation period 12.23 In the Territories, New South Wales and Queensland the limitations statutes state that an action on a cause of action for a contribution under the relevant legislation84 is not maintainable if brought after the earlier of the expiry of: (a) two years running from the date when the cause of action for contribution first accrues to the plaintiff (or to someone through whom the plaintiff claims); and (b) four years running

from the date of the end of the limitation period for the principal action.85 The alternative four year period acts, it has been said, essentially as a longstop period, and is long enough to give the claimant ample time to make enquiries and commence proceedings even in the face of appeals or new trials in the action against him or her.86 The phrase ‘limitation period for the principal action’ in paragraph (b) above means the limitation period ‘fixed’ (or ‘prescribed’) by the relevant limitations statute or any other enactment87 for the action for the liability in respect of which contribution is sought.88 As the limitation period for many principal actions is six years, it has been observed that the ‘plain intention’ of these provisions is to afford a defendant ‘with a substantial period after the action against that person has commenced, within which to claim contribution’.89 The Western Australian equivalent omits paragraph (b) altogether, and simply proscribes the commencement of an action for contribution under the relevant legislation90 once two years have elapsed since the cause of action accrued.91

Accrual of cause of action 12.24 The legislation identifies the date when a cause of action for contribution ‘first accrues’ under paragraph (a) above (in Western Australia, the language is simply ‘accrues’).92 It essentially states that the cause of action does not accrue until either there is a judgment against the person who then claims contribution, or otherwise that person makes an agreement with another fixing the liability of the person seeking contribution. This is substantially a replication of the approach the courts adopted in respect of the accrual of a cause of action for contribution independent of a dedicated statutory provision.93 [page 252]

Meaning of ‘principal cause of action’ 12.25 An issue of construction arises as to the interpretation of ‘the principal action’ in the context of paragraph (b) above. While, as noted, the

statute purports to define the broader phrase ‘limitation period for the principal action’, it does not make explicit what ‘the principal action’ refers to. The phrase could refer to the cause of action maintainable between the plaintiff and the defendant under which the liability of the defendant arises. Or it may be directed to the cause of action maintainable between the plaintiff and the joint tortfeasor from whom contribution is sought under which liability to pay damages to the plaintiff would have arisen. 12.26 Which interpretation is adopted may yield different outcomes where, typically, discrete limitation periods are set by different statutes for actions between plaintiff and defendant as opposed to between plaintiff and a joint tortfeasor. For example, in Zraika v Walsh94 the plaintiff sought an extension of time to bring an action against the defendant arising out of a motor vehicle accident. The Motor Accidents Compensation Act 1999 (NSW), via s 109(1), disentitles a claimant from commencing proceedings for compensation more than three years after the date of the motor accident to which the claim relates, except with the leave of the court, and s 109(5) disapplies the Limitation Act 1969 (NSW) to proceedings of this kind. In Zraika the defendant sought to resist the application for extension of time on the ground that, inter alia, acceding to the application would deprive it of the opportunity to seek contribution from other (alleged) tortfeasors. This was because a claim for contribution would have been out of time, being longer than seven years — that is, via the addition of the three year period in s 109(1) and the four year time bar imposed on contribution actions by the limitations legislation — after the accident. This argument therefore proceeded on the basis that ‘the principal action’ in the latter provision is to be construed as the cause of action between the plaintiff and the defendant. Rothman J sought to overcome the unfairness to the defendant of the inability to counterclaim against other potential joint tortfeasors by suggesting the drafting of a condition that would require the plaintiff to bring proceedings against those other persons, as nominated by the defendant. Had ‘the principal action’ instead received the second of the above interpretations — wherein the liability for which contribution is sought is that of the joint tortfeasor to the plaintiff — the above four year time bar would not have run from the expiry of the three year period under s 109(1) because the claim against joint tortfeasors, which was in the tort of

negligence, fell outside the terms of s 109(1). Rather, it would have run from the expiry of the six year time bar set by the limitations legislation for claims in negligence,95 which on the facts would have been within time. Though Rothman J favoured this interpretation, he acknowledged that the weight of case authority had proceeded on the assumption that the ‘principal action’ was that between the plaintiff and the defendant.96 Indeed, this appears to represent a more natural reading of the statutory words, as it is usual to speak, in the context of claims for contribution, to the principal action being that between the parties to the main dispute. Indeed, that claims for contribution are commonly made via what is known as a third party procedure97 itself suggests a distinction between the main parties and others.

Extension of time in principal action extends to contribution? 12.27 Where a court extends time on a claim by the plaintiff against the defendant,98 a further issue surfaces as to whether this extension of time translates for the purposes of the above provisions in limitations statutes that set time bars for actions on a cause of action for [page 253] contribution. The issue came before the Victorian Full Court in Robins v Downes99 in 1996, albeit construing the Queensland provision. It construed the phrase ‘period of limitation prescribed by this Act or by any other enactment’ in s 40(3) of the Limitation of Actions Act 1974100 as referring to the period fixed as the result of an extension application under s 31 of the Act.101 Hayne JA, with whom Callaway JA and Smith AJA agreed, in rejecting the defendant’s argument that the phrase should be confined to the time bar independent of any extension of time, reasoned as follows:102 Section 31 contemplates the making of an order extending the period of limitation. True it is, that period is extended for the purposes of a particular action but it is, nevertheless, an extension of the period of limitation and is an extension that is provided for by the Act. That is, it is a limitation period that is prescribed by the Act for the purposes of the particular action concerned. To construe the legislation in the way for which the defendant contends would mean either that plaintiffs seeking extension of limitation periods under s 31 would find themselves barred

from commencing action against joint tortfeasors at the expiration of the principal limitation period plus four years or that the joint tortfeasors would be unable to pursue rights of contribution against each other. If plaintiffs are barred, that would not be because it would be unjust as between the plaintiff and each of those joint tortfeasors to extend the limitation period but because the defendants could not make contribution claims between themselves. If plaintiffs are not to be barred in the case which I have given, the defendants would be denied their rights of contribution. Neither result is acceptable and the difficulty apparently thus created is one tending strongly against the construction for which the defendant contended. However, even without regard to these consequences I would read the words of the section as bearing the meaning for which the plaintiff contended.

The Queensland Court of Appeal endorsed this approach shortly thereafter.103 More recently again, in Mulpha Hotel Pty Ltd v Goff,104 it applied the same reasoning vis-à-vis the phrase ‘period of limitation prescribed by … any other enactment’ in s 40(3). It ruled, as a result, that ‘the period of limitation for the principal action’ in s 40(1)(b), as that phrase is defined in s 40(3), includes the period within which the principal action might be commenced, by virtue of an order extending time made under the s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld). The latter envisages that the proceeding in question may be started after the expiry of the applicable period of limitation only if it is started within: (a) six months after a complying notice is given or leave to start the proceeding is granted; or (b) a longer period allowed by the court. 12.28 The same approach appears extant in New South Wales, at least where the relevant statute clearly provides for the court to extend time,105 although it awaits a final determination. In Creevy v Barrois106 an issue was the interaction between s 26 of the Limitation Act 1969, which sets the limitation period for actions on a cause of action for contribution, and s 52(4) of the Motor Accidents Act 1988,107 under which a limitation period applies to claims ‘except with the leave of the Court in which the proceedings are to be taken’. The court’s remarks as to whether the grant of leave under s 52(4) translates to a corresponding extension in s 26 were strictly obiter, as the matter was not argued. What caused the court some concern in [page 254]

directly applying Robins v Downes was that, unlike the extension provision in that case, s 52(4) empowered the court only to disapply the time bar, not to extend it. Hence, Handley JA reasoned, even if the court grants leave under s 52(4), the limitation period ‘as such is not affected’, and any such order does not ‘fix’ a longer limitation period for the purposes of s 26.108 Such an outcome is not without its difficulties, a point elaborated by Basten JA:109 The combination of a flexible rule with respect to the commencement of primary proceedings by an injured party, together with an inflexible limitation period on claims for contribution by a putative defendant, clearly has potential to cause results which may be arbitrary and unjust. For example, a claimant with an excellent case for leave to commence proceedings out of time may be met with a complaint by the principal tortfeasor that the delay in commencing proceedings has caused prejudice to it because it is no longer able to bring proceedings for contribution. Such a situation could, in theory, arise even where the claimant had sought leave months, or even a year or two, prior to the expiration of the contribution claim limitation period, where an adverse decision of the primary judge was overturned after consecutive appeals to this Court and the High Court, followed by a rehearing in the District Court.

This in turn led his Honour to countenance arguments that may resist that conclusion.110 First, the exclusion found in s 52(5) of the 1988 Act, which states that ‘[t]he Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim’, could be treated as extending to proceedings by way of a claim for contribution in respect of a claim. Secondly, once a court grants leave to a claimant to proceed in relation to ‘the principal cause of action’, it could be argued that there is no longer an operative limitation period in respect of that cause of action, such that s 26(1)(b) imposes no limitation on the right to bring an action for contribution. Thirdly, the effect of a grant of leave could be viewed as a de facto extension of the time bar set by s 52(4). Building on the latter argument, if the effect on the principal parties of a grant of leave or instead an extension of time are practically the same, it seems odd that there should be an entirely different effect as to a defendant’s claims against joint tortfeasors.

Schema in South Australia 12.29 In South Australia, an action for contribution may be brought by way of a separate action within the ‘relevant time limit’ against the person from whom contribution is sought.111 The ‘relevant time limit’ is the longer

of: (a) the period within which the person who suffered the harm could have brought an action against the person from whom contribution is sought; and (b) two years after the damages payable by the person entitled to contribution are finally determined.112

Schema in Tasmania 12.30 The limitations legislation in Tasmania declares that, for an action brought against a person in respect of any damage,113 nothing in that legislation prejudices or affects the operation of the Wrongs Act 1954 (Tas) as to an action for contribution in respect of that damage.114 Under the latter statute, proceedings for contribution may be commenced at any time within 12 months (or within such extended period as may be allowed) of the writ in the original action being served on the person seeking to recover contribution.115 Provision thus exists for [page 255] a court, on the application of a person seeking to recover contribution, in its discretion and subject to any conditions it may impose, to extend the relevant period notwithstanding that it may have expired, if the court ‘is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension’.116

Schema in Victoria 12.31 The Wrongs Act 1958 (Vic) states that a person (A) is liable to make contribution by virtue of s 23B(1)117 unless A’s liability ceased due to the expiry of a limitation period that extinguished118 the right on which the claim against A in respect of the damage was based.119 The Act, however, adds that, notwithstanding any provision in any statute prescribing the period within which an action may be brought, where under s 23B a person (B) becomes entitled to a right to recover contribution in respect of any damage from another person, B may commence proceedings to recover

contribution by virtue of that right:120 •

at any time within the longer of the period within which the action against B might have been commenced, or 12 months after the writ in the action against B was served on him or her; or

•

where another person liable in respect of that damage, within either of the periods stated in the first dot point, serves a writ on B seeking to recover contribution in respect of that damage from B — at any time within six months after that writ is so served.

(Former) Protection for Public Authorities 12.32 The Limitation Act 1935 (WA) discretely addressed actions against any ‘person’ — which included a body corporate, Crown agency or Crown instrumentality created by an Act, or an official or person nominated under an Act as a defendant on the Crown’s behalf,121 but excluded the Crown — for any act done pursuant to, or execution or intended execution of, any Act, or of any public duty or authority, or in respect of any neglect or default in its execution.122 In a provision, once shared by several other Australian jurisdictions,123 applicable notwithstanding other provisions of the Act,124 s 47A(1) proscribed such an action being brought unless a prescribed notice procedure was followed125 and the action was commenced within one year of the cause of action accruing. It added that no cause of action in respect of a continuing act, neglect or default accrues until the said act, neglect or default ceases, although [page 256] it envisaged that the required notice could be given and an action then brought while the act, neglect or default continued. 12.33

There was, however, scope for a prospective defendant to consent

in writing to an action against him or her, or for a prospective plaintiff to apply to the court for leave to bring an action, at any time before the expiry of six years from the date when the cause of action accrued, whether or not the above notice had been given.126 At least 14 days before making an application for leave, the intending applicant was required to give written notice thereof to the prospective defendant (including the grounds therefor).127 The court could grant leave, if it thought it just to do so, if the failure to give the required notice, or the delay in bringing the action, was occasioned by mistake128 or another reasonable cause,129 or if the defendant was not materially prejudiced in the defence or otherwise by the failure or delay.130 The prospective plaintiff carried the onus to convince the court to grant leave,131 albeit in response in some instances to an initial evidentiary burden on the defendant as to prejudice.132 Leave could not be granted retrospectively.133 12.34 Section 47A further made provision, within the parameters set by s 47A(1), for differently calculated accrual dates and limitation periods for causes of action arising from a person having suffered a latent injury134 that was attributable to the inhalation of asbestos.135 12.35 The complications of s 47A (and its equivalents elsewhere) surfaced in various difficulties in the case law,136 and when coupled with a belief that public authorities should not receive special limitations law treatment, prompted its omission from the Limitation Act 2005 (WA).137 Parallel provisions in England, New South Wales, Queensland, Tasmania and Victoria had been repealed between the 1950s and 1970s,138 where arguments traditionally [page 257] proffered for shorter time bars in the case of public authorities139 had lost any carriage they may once have enjoyed. In recommending the repeal of s 47A, moreover, the Western Australian Law Reform Commission branded it as anachronistic, unfair, discriminatory and incapable of being rationally justified.140

______________________________ 1. 2. 3. 4. 5. 6. 7. 8.

9. 10. 11. 12. 13.

14. 15.

16. 17. 18. 19. 20. 21.

22. 23.

24.

NSW s 15; NT s 13. Qld s 10(2); Tas s 4(2); Vic s 5(2). SA s 35(b). UK 1623 s 3; UK 1939 s 2(2). UK 1980 s 23. ACT s 12; WA s 26 (see WALRC 36(II), pp 294–6). ACT s 11(1); WA s 13(1): see 4.2. As to accounts at law compared to accounts in equity generally see J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Australia, 2015, paras 26-005–26-090. [1977] Ch 106 at 250–1. See also Attorney-General v Cocke [1988] Ch 414 at 421 per Harman J; Barnett v Creggy [2016] WTLR 17; [2014] EWHC 3080 (Ch) at [82] per David Richards J. Namely UK 1939 s 2(2). See 3.26. Namely UK 1939 s 2(7). See, for example, Manufacturers Mutual Insurance Ltd v Government Insurance Office (1993) 7 ANZ Ins Cas ¶61-158 at 77,841–2; BC9303655 per Cohen J; Fairtrouni v El Omar [1999] NSWSC 84; BC9900667 at [5], [6] per Windeyer J. NSWLRC 3, para 112. [2001] WASCA 293; BC200105713 at [123] per Malcolm CJ, with whom Kennedy and Wallwork JJ concurred (decided under WA 1935) (endorsing the view expressed in R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines and Remedies, Butterworths, 3rd ed, Sydney, 1992, para 3406; this view is reiterated in J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Australia, 2015, para 36-025). See also Hewitt v Henderson [2006] WASCA 233; BC200609324 at [26] per Buss JA, with whom Steytler P and Pullin JA concurred; Giacci v Giacci Holdings Pty Ltd [2010] WASC 349; BC201008965 at [102] per E M Heenan J (each involving remarks in the context of WA 1935 s 38(1)(c)(iii)). WA 1935 s 38(1)(c)(iii). See 4.11–4.13. See, for example, Feiglin v Ainsworth [2011] VSC 454; BC201107186 at [32] per Mukhtar AsJ; Jane v Bob Jane Corp Pty Ltd [2013] VSC 406; BC201311707 at [64]–[70] per Sifris J. Tito v Waddell (No 2) [1977] Ch 106 at 251. As to the application of the analogy doctrine to accounts see 13.38, 13.39. See Fairtrouni v El Omar [1999] NSWSC 84; BC9900667 at [5] per Windeyer J; Hewitt v Henderson [2006] WASCA 233; BC200609324 at [26] per Buss JA, with whom Steytler P and Pullin JA concurred. See 3.27. Giacci v Giacci Holdings Pty Ltd [2010] WASC 349; BC201008965 at [99] per E M Heenan J; Feiglin v Ainsworth [2011] VSC 454; BC201107186 at [12] per Mukhtar AsJ; Jane v Bob Jane Corp Pty Ltd [2013] VSC 406; BC201311707 at [78] per Sifris J. Qld s 5(7)(d); Tas s 2(8)(a); Vic s 3(7)(a).

25.

26.

27.

28. 29. 30. 31. 32.

33. 34. 35.

Under the former WA 1935 s 32(1), the issue was addressed, in line with UK 1833 s 40 and then UK 1874 s 8, via a provision applicable to actions to ‘recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent’. The current Western Australian legislation does not, however, address the point specifically because actions to enforce a judgment fall within the general six year limitation period it prescribes: WA s 13(1) (see WALRC 36(II), pp 307–8). A six year limitation period now also applies in England for actions brought upon any judgment: UK 1980 s 24(1) (formerly 12 years under UK 1939 s 2(4) and its predecessor UK 1874 s 8; the backdrop to the change was explained by the Orr Committee, paras 4.12–4.16; see also Lowsley v Forbes [1999] 1 AC 329 at 335–41 per Lord Lloyd, with whom Lords Browne-Wilkinson, Nolan, Hoffmann and Hope concurred; Canny, pp 40–2). This shorter limitation period has also been recommended in Singapore (SLRC, pp 47–9) but has not yet translated to statute. An action ‘upon [a] judgment’ has developed a special or technical meaning of a ‘fresh action’ brought upon a judgment in order to obtain a second judgment, which can be executed: Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] 2 All ER 304; [2005] EWCA Civ 92 at [29] per Mummery LJ, with whom Brooke and Scott Baker LJJ concurred (ruling that a winding up petition against a company is neither an action upon a judgment in the special sense of being designed to re-establish by legal proceedings the liability of the company to pay a judgment debt and obtain another judgment for it, nor a process of execution of the judgment on which the petition is based). However, that what is involved are new proceedings, separate from those in which the relevant judgment was recovered, does not necessarily mean that they comprise an action ‘on a judgment’. Insolvency proceedings, for instance, while they may exhibit the said characteristics, are not by way of enforcement of any earlier judgment, and accordingly do not comprise an action ‘on a judgment’: O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55; BC200602897 at [38]–[57] per the court (involving a petition seeking a sequestration order). ACT s 14(1); NSW s 17(1); NT s 15(1) (speaking of ‘[a]n action to recover moneys due under a judgment of a court’); Qld ss 5(7)(e), 10(4); SA s 34 (‘after the cause of action accrued or the recovery of the judgment’); Tas ss 2(8)(b), 4(4); Vic ss 3(7)(b), 5(4). Ontario Law Reform Commission, Report on Limitation of Actions, 1969, p 49. BCLRC 6, pp 33–4. The same sentiments appear in MLRC, pp 75–80. ACT s 14(2); NSW s 17(2), 17(3); NT s 15(2); Qld s 10(4A). Chohan v Times Newspapers Ltd [2001] 1 WLR 1859; [2001] EWCA Civ 964 at [33] per Aldous LJ, with whom Robert Walker and Jonathan Parker LJJ concurred. See, for example, Chohan v Times Newspapers Ltd [2001] 1 WLR 1859; [2001] EWCA Civ 964 (where, dealing with a bankruptcy petition based on a judgment for costs, there was nothing to enforce until the amount of costs had been certified). See Canny, pp 42–3. See 3.12. ‘Provisions for arbitration’ are the provisions of an agreement to submit present or future differences to arbitration, whether or not an arbitrator is named therein (in the Northern Territory adding ‘or whether or not the differences arise under the same or some other collateral agreement between the parties’), and the provisions of a written law requiring or permitting the determination of any matter by arbitration or relating to the arbitration (to which the limitations legislation is subject): ACT s 46(1), 46(2); NSW s 69(1), 69(2); NT s 45(1), 45(2); WA s 3(1), 3(7).

36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

52. 53. 54.

55. 56.

57. 58. 59. 60. 61.

ACT s 47(2); NSW s 70(2); NT s 46(2); WA s 29 (see WALRC 36(II), pp 480–1). Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 486 per Kerr J. How notice may be given is prescribed, in essentially the same terms, by ACT s 49(2); NT s 48(2); NSW s 72(2); WA s 88(2). ACT s 49(1); NSW s 72(1); NT s 48(1); WA s 88(1). How notice may be served is prescribed by Qld s 41(4); Tas s 33(4). Qld s 41(3); Tas s 33(3). This follows the language of UK 1939 s 27(3), now Arbitration Act 1996 (UK) s 14(3). Qld s 41(6); Tas s 33(6). Commercial Arbitration Act 2011 (Vic) s 21. How notice may be served is prescribed by Vic s 28(4). Vic s 28(3). Pegler v Railway Executive [1948] AC 332 at 338–41 per Lord Uthwatt, with whom Lords Thankerton, Porter, Oaksey and du Parcq concurred. NSW s 73(1); WA s 54(1). NSW s 73(2); WA s 54(2). Qld s 41(5); Tas s 33(5); Vic s 28(5). This follows the English model in UK 1939 s 27(5) (before translating to UK 1980 s 34(5), and then to the Arbitration Act 1996 (UK) s 13(2)). That is, what is known as a Scott v Avery clause, as to which see 4.37, 4.38. ACT s 48; NSW s 71 (see NSWLRC 3, paras 335–337); NT s 47; Qld s 41(2); Tas s 33(2); Vic s 28(2); WA s 63. These provisions are based on UK 1939 s 27(2). The current English equivalent provision is found in the Arbitration Act 1996 (UK) s 13(3). The leading case is Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 601, discussed at 4.40, 4.41. Polimich Pty Ltd v Argent [1977] 2 NSWLR 439 (dealing with the position in New South Wales prior to the commencement of NSW s 71, wherein the relevant law was governed by UK 1623). ‘Arbitration agreement’ means an agreement to submit present or future differences to arbitration, whether or not an arbitrator is named in the agreement: ACT s 17(4); NSW s 20(4); NT s 18(1) (which adds ‘whether or not … the differences arise under the same or a collateral agreement between the parties’, and states that it ‘includes an Act or an instrument of a legislative or administrative character where the Act or instrument provides for the submission of differences between parties to arbitration’). ACT s 17(1), 17(2); NSW s 20(1), 20(2); NT s 18(2). WA s 13(1) (which applies to all ‘causes of action’, unless alternative provision is made, and governs actions to enforce arbitral awards because WA s 3(1) defines the term ‘action’ to include ‘an arbitration under an arbitration provision’). Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436 at 444 per Otton J (dealing with the equivalent English provision, namely UK 1980 s 7). To which a longer 12 year (in Victoria, 15 year) limitation period applies: see 5.42. Qld s 10(1)(c); Tas s 4(1)(c); Vic s 5(1)(c). SA s 35(a). See Westfield Design & Construction Pty Ltd v LR & M Construction Pty Ltd (1999) 204 LSJS 50; [1999] SASC 319; BC9904455 at [50] per Olsson J, with whom Mullighan and Nyland JJ

62. 63. 64.

65. 66.

67. 68. 69. 70.

71. 72. 73. 74.

75. 76. 77. 78. 79. 80. 81. 82.

concurred. Namely SA s 34 (‘all actions of covenant or debt upon any bond or other specialty’): see 5.42. ACT s 17(3); NSW s 20(3); NT s 18(3); WA s 64. Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436 at 443–4 per Otton J (referring to UK 1980 s 7, which requires an action to enforce an award to be brought within six years from the date on which the cause of action accrued). Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436 at 443 per Otton J. They add, ostensibly out of the abundance of caution, that the general limitation periods applicable to actions in contract, tort etc, do not apply to a cause of action in rem in admiralty: NSW s 22(1); NT s 20(2); Tas s 8(1). An equivalent provision is found in the Queensland legislation (Qld s 10(6)(a)), which does not, however, contain a dedicated provision for admiralty actions. These provisions ensued upon UK 1939 s 2(6), which reflected what had been understood at general law: see The Kong Magnus [1891] P 223 at 228 per Sir James Hannen P. In its 1977 report, the Orr Committee found no ground for retaining this exception from the normal rules of limitation, opining that ‘it may well be that the reason for the exception is no more than that the Statutes of Limitation were originally drafted in terms of the common law forms of action’: para 4.4. This prompted the removal of s 2(6), and the current Limitation Act 1980 (UK) to make no exemption in this context. See 21.30–21.32. Responsibility of Shipowners Act 1733 (UK) (7 Geo 2, c 15). Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [28], [32] per Rein J. The relevant provision was the Navigation Act 1912 (Cth) s 396, which has no equivalent in the current Navigation Act 2012 (Cth) (see Australian Law Reform Commission, Civil Admiralty Jurisdiction, Report No 33, 1986, para 253). The section, in any case, read in much the same terms as that found in limitations statutes. ‘Vessel’ means a vessel used in navigation, other than air navigation, and includes a barge, lighter or similar vessel: ACT s 19(4); NSW s 22(5); NT s 20(1)(b); Tas s 8(6). ACT s 19(1); NSW s 22(2); NT s 20(3); Tas s 8(2). ‘Freight’ includes passage money and hire: ACT s 19(4); NSW s 22(5); NT s 20(1)(a); Tas s 8(6). A reference to damage or loss caused by the fault of a vessel includes salvage or other expenses, consequent on that fault, recoverable at law by way of damages: ACT s 19(5); NSW s 22(5); NT s 20(1)(c); Tas s 8(6). ACT s 19(2); NSW s 22(3); NT s 20(4); Tas s 8(3). ACT s 11(1); WA s 13(1): see 4.2. SA s 35(a), 35(c); Vic s 5(1)(a). See 5.2 (contract), 6.2 (tort). Qld s 10(6)(a). This provision ensued upon the recommendation of the Australian Law Reform Commission: Civil Admiralty Jurisdiction, Report No 33, 1986, para 249. As defined in Admiralty Act 1988 (Cth) s 4. Harvey v R G O’Dell Ltd [1958] 2 QB 78 at 107–8 per McNair J; Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 at 490 per Kaye J, with whom Gray and Phillips JJ concurred. Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 218; BC6600230 per Barwick CJ.

83. 84.

85.

86. 87.

88. 89.

90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105.

This can be gleaned from the remarks of Stephen J in Bargen v State Government Insurance Office (Queensland) (1982) 154 CLR 318 at 323–4; BC8200073. Namely the Civil Law (Wrongs) Act 2002 (ACT) s 21; Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1); Law Reform (Miscellaneous Provisions) Act (NT) s 12; Law Reform Act 1995 (Qld) s 6(c). ACT s 21(1) (culminating with the phrase ‘principal cause of action’ rather than ‘principal action’ but the difference is not one of substance); NSW s 26(1) (see NSWLRC 3, paras 158– 160); NT s 24(1); Qld s 40(1). As the legislation targets a statutory cause of action, it does not in its terms apply to a cause of action for contribution at common law: Zraika v Walsh (2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372 at [68] per Rothman J (who added, however, that the relevant provision ‘is plainly intended to allow a defendant to effect that which the plaintiff could otherwise effect under the common law’: at [69]). NSWLRC 3, para 160. In New South Wales, the Northern Territory and Queensland, ‘including an Act or an enactment repealed or omitted by’ the limitations statute; in the Australian Capital Territory, ‘by or under any other law in force in the ACT’. ACT s 21(3); NSW s 26(3); NT s 24(3); Qld s 40(3). Mulpha Hotel Pty Ltd v Goff [2012] 1 Qd R 226; [2011] QCA 204; BC201106326 at [84] per Peter Lyons J, with whom Margaret McMurdo P and Margaret Wilson AJA agreed. See also Queensland Law Reform Commission, Report of the Law Reform Commission on a Bill to Amend and Consolidate the Law Relating to Limitation of Actions (Qld), Report No 14, p 9 (noting that ‘[f]rom the point of view of the person against whom contribution is claimed, the possible period of ten years which may run before any claim against him is statute-barred (although a long one) is, in our opinion, not unduly so in all the circumstances’). Namely the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7. WA s 17 (cf WALRC 36(II), pp 316–20, which had recommended an alternative scheme). ACT s 21(2); NSW s 26(2); NT s 24(2); Qld s 40(2); WA s 58 (see WALRC 36(II), p 296). See Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221; BC6600230 per Windeyer J. (2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372. NSW s 14(1)(b), as to which see 6.2. Zraika v Walsh (2011) 60 MVR 17; [2011] NSWSC 1569; BC201110372 at [73]. See Cairns, pp 361–7. As to extensions of time see generally Chs 18–21. (1996) 24 MVR 180; BC9602689. As to Qld s 40(3) see 12.23. As to Qld s 31 see generally 20.78–20.117. Robins v Downes (1996) 24 MVR 180 at 189–90; BC9602689. See Workers’ Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679; BC9806532 at [26]–[29] per McMurdo P and Cullinane J, with whom Byrne J agreed. [2012] 1 Qd R 226; [2011] QCA 204; BC201106326 at [82]–[87] per Peter Lyons J, with whom Margaret McMurdo P and Margaret Wilson AJA agreed. Yates v Costain Australia Ltd (1989) 18 NSWLR 312 at 318 per Smart J (‘The extension of time in

106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117.

118.

119. 120. 121. 122. 123. 124.

125.

126. 127. 128.

respect of a claim for contribution is limited to the case where the time has been extended in respect of an antecedent cause of action for negligence, nuisance and breach of duty for damages for personal injury’). [2005] NSWCA 264; BC200506073. As to the Motor Accidents Act 1988 (NSW) s 52 see 3.15. Creevy v Barrois [2005] NSWCA 264; BC200506073 at [2], [3]. Creevy v Barrois [2005] NSWCA 264; BC200506073 at [42]. Creevy v Barrois [2005] NSWCA 264; BC200506073 at [43]–[45]. Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(3) (b). Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(4). ‘Damage’, for this purpose, takes the same meaning as it has under the Wrongs Act 1954 (Tas): Tas s 7(2). Tas s 7(1). Wrongs Act 1954 (Tas) s 3(5). Tas s 3(6). Under which ‘a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise)’. The term ‘extinguished’ does not sit well with the focus of limitations legislation in Victoria, which is principally to bar the remedy rather than extinguish the right. In this context, it seems, the term ‘extinguished’ is being used synonymously with the barring of the relevant relief by the elapsing of time. Wrongs Act 1958 (Vic) s 23B(3). Wrongs Act 1958 (Vic) s 24(4). WA 1935 s 47A(4)(a). See generally Handford, pp 259–66. The backdrop to the relevant provisions is catalogued in NSWLRC 21, paras 40–133. Accordingly, WA 1935 s 47A prevailed over any otherwise applicable limitation provisions: Brown v Minister for Education [2003] WASCA 204; BC200304995 at [14]–[21] per Pullin J, with whom McKechnie and Hasluck JJ concurred. This meant, for instance, that the provision postponing the running of time for reason of disability (WA 1935 s 40; see further Ch 14) had no application to an action to which s 47A applied: Scott v State of Western Australia (1994) 11 WAR 382; BC9406802. Which required the prospective plaintiff to give the prospective defendant, as soon as practicable after the cause of action accrued, notice in writing giving reasonable information of the circumstances upon which the proposed action would be based, including his or her name and address and that of any solicitor or agent. WA 1935 s 47A(2) (consent of defendant), 47A(3)(a) (leave of the court). WA 1935 s 47A(3)(c). The word ‘mistake’ in this context received its ordinary meaning, including a mistake of fact, and a mistake of mixed law and fact: Hughes v Minister for Health [1999] WASCA 131; BC9905321 at [42] per Malcolm CJ, with whom Pidgeon and Steytler JJ concurred.

129. A ‘reasonable cause’ is a cause that a reasonable person would regard as sufficient, ‘a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man’: Hughes v Minister for Health [1999] WASCA 131; BC9905321 at [43] per Malcolm CJ, with whom Pidgeon and Steytler JJ concurred. 130. WA 1935 s 47A(3)(b). 131. Beyond questions of material prejudice to the prospective defendant, such matters as the strength of the cause of action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue were identified as relevant: Matheson v Commissioner of Main Roads (2001) 25 WAR 269; [2001] WASCA 402; BC200108098 at [56] per Murray J, with whom Scott, Steytler and Parker JJ, and Einfeld AJ concurred. 132. Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 at 235 per Burt CJ, with whom Jones and Smith JJ concurred; Baker v Shire of Albany (1994) 14 WAR 46 at 56; BC9401910 per Kennedy J, with whom Malcolm CJ and Pidgeon J concurred. 133. Matheson v Commissioner of Main Roads (2001) 25 WAR 269; [2001] WASCA 402; BC200108098 at [36], [45] per Murray J, with whom Scott, Steytler and Parker JJ, and Einfeld AJ concurred; Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2010) 267 ALR 530; [2010] FCA 367; BC201002256 at [21] per Kenny J. 134. ‘Latent injury’ means a disease or injury of such a nature that, at the time it is suffered, the sufferer does not know and could not reasonably be expected to know that he or she has suffered the disease or injury: WA 1935 ss 38A(1), 47A(9). 135. WA 1935 s 47A(5)–47A(9). 136. See the catalogue in NSWLRC 21, paras 13–39, 104–123 (dealing with former equivalent New South Wales provisions); WALRC 36(II), pp 260–6. 137. See WALRC 36(II), pp 271–5. 138. See NSWLRC 21, paras 47–71; WALRC 36(II), pp 266–8. The watershed for these initiatives was the recommendation of the Tucker Committee that the (then) relevant English legislation (the Public Authorities Protection Act 1893 (UK)) be repealed, in view of its ‘curtailment of the rights of the individual’: para 6. 139. Namely that any longer a limitation period would cause public authorities difficulty in preparing their budgets, a handicap in retaining records for longer periods, problems arising from loss of evidence (in view of substantial staff turnover), and not cater for the element of risk to which public authorities were subject in running their affairs: NSWLRC 21, paras 79–97. 140. WALRC 36(II), p 275 (on the latter point noting that private companies are in exactly the same position as public authorities, especially those that conduct commercial enterprises).

[page 258]

CHAPTER 13

Causes of Action in Equity Defence of Laches Application of laches Nature of laches Compared to acquiescence Onus of proof When time begins to run Parameters for laches Impact of nature of the claim or relief Specific performance Interlocutory injunctions Undue influence Recovery of trust property Enforcement of express trust Impact of subject matter of the claim Impact on nature and scope of remedy Application of Limitation Periods by Analogy Backdrop Modern application Identifying the analogy Application in the context of contribution Application in the context of accounts

13.2 13.2 13.4 13.7 13.11 13.12 13.13 13.17 13.18 13.22 13.24 13.26 13.27 13.30 13.31 13.32 13.32 13.34 13.35 13.37 13.38

Role for discretion?

13.40

13.1 A discussion of time bars, and their accrual, would be incomplete were the impact of equity not mentioned. As this chapter reveals, the historical omission of equitable causes of action from the purview of limitations statutes does not entirely deprive prospective defendants of protection from stale claims. The first part of the chapter explains how the equitable defence of laches can operate to protect defendants in this regard. What ensues, in the second part of the chapter, is a discussion of how equity applied limitations time bars, whether in obedience or by analogy, distinct from laches. [page 259]

Defence of Laches Application of laches 13.2 That the Limitation Act 1623 (UK) did not apply to causes of action in equity1 did not mean that equity would necessarily overlook delay when it came to granting relief. It developed the doctrine of laches — essentially a defence grounded in proof of undue delay in the circumstances2 — which in its discretion could operate to bar an equitable remedy. It also aimed to ensure that claims in equity that exhibited the requisite analogy with those at law, and thus otherwise subject to limitations statutes, would not be advantaged by reason of having been pursued in courts of equity. It did so by applying statutory limitation periods — by analogy — in these circumstances, a doctrine elaborated later in this chapter.3 The maxim vigilantibus et non dormientibus aesquitas succurit — the law assists those who are vigilant with their rights, and not those that sleep

thereupon — informed equity’s recognition of the defence of laches. It is unsurprising, in view of this maxim, that laches reflects essentially the same public policy that underscores limitations legislation. Persons, it is said, ‘should be able to organize their affairs without the constraint of the threat of exercise against them of rights that have long remained dormant with the result that it has become inequitable to enforce them’.4 In view of the historical backdrop to laches as an equitable response to the undue elapsing of time, Australian law offers no scope for laches to bar claims at common law.5 These were (and remain), in any case, almost invariably addressed under the auspices of limitations statutes. Nor can laches bar claims under statute;6 for claims of this kind, either statute prescribes time limits (and often avenues for their extension) or the law proceeds on the assumption that the legislature intended no time bar in the circumstances. 13.3 Instead, laches responds to the breadth of claims in equity — except those subject to a statutory bar, whether expressly7 or by analogy,8 for which laches arguably has no use9 — and, given equity’s fundamental nature, operates within the court’s discretion. A leading judicial exposition of the doctrine of laches is that of Lord Selborne LC in Lindsay Petroleum Co v Hurd, who remarked as follows:10 [T]he doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the

[page 260] length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

Nature of laches 13.4 Several important matters regarding laches stem from the above exposition. Perhaps the core point is that the doctrine is grounded in questions of justice. This speaks to an absence of technicality — after all, justice is not always served by inflexible technical rules, especially in their application to a broad range of scenarios as surface in the equity sphere. At the same time, his Lordship sought to distance the doctrine from perceptions of arbitrariness, which some could perceive as the product of a touchstone as amorphous as ‘justice’. This in turn explains the reference to matters that inform what is ‘just’ (or ‘unjust’) in the circumstances, targeting chiefly questions of justice from the perspective of the defendant. Hence the inquiry into both the length of the delay and the events ensuing during that time,11 as elaborated below. In line with the mischief to which limitation periods are directed, inquiry into the length of the delay proves hardly surprising. Equity’s concern with the broader justice of the case, though, is perhaps best exemplified by inquiry into ‘the nature of the acts done during the interval’. What ensues is that the length of the delay does not, by itself, determine the availability of laches;12 there is no ‘hard and fast rule in equity’ that the elapsing of a particular time should bar some claim.13 In this sense, laches differs from limitation, which is grounded in prescribed time limits. Unless the delay is contextualised, any inquiry into questions of justice (or injustice) could smack of arbitrariness.14 (Indeed, as an aside, time bars imposed by limitations statutes have been criticised for being arbitrary).15 13.5 As foreshadowed above, its very nature as an equitable defence dictates that laches cannot be circumscribed by set rules; no doctrine that rests on an inquiry into justice can be. Within four years of Lord Selborne LC uttering his venerable remarks in Lindsay Petroleum Co v Hurd, Lord Blackburn conceded that the determination of the issue ‘must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty’, before branding this as ‘inherent in the nature of the inquiry’.16 In line with Lord Selborne’s remarks, his Lordship couched the inquiry as ‘whether the balance of justice or injustice is in favour of granting the remedy or withholding it’, by reference to ‘the degree of diligence which

might reasonably be required, and the degree of change which has occurred’.17 Expressed more concisely, ‘what is ultimately required is a balancing of competing rights and equities’.18 [page 261] It is accordingly where the plaintiff’s delay makes it unjust to grant equitable relief that the court will refuse relief, usually where the evidence reveals that the delay will prejudice the defendant or a third party or else give the plaintiff an unjust advantage.19 This reflects a broader principle governing relief in equity, namely one that ‘takes into account the injustice of awarding relief against a party who will be prejudiced on account of the change of position which results from the acts or omissions of the party seeking relief’.20 Some have used the language of ‘unconscionable prejudice’ in this context,21 presumably to highlight not only a notion — that of unconscionability — that often informs the availability and scope of relief in equity, but in tandem to highlight that ‘mere’ prejudice (or detriment) may not suffice to trigger laches.22 For instance, proof that the defendant has, by reason of the plaintiff’s delay, been lulled into believing that it will not be sued is not, of itself, prejudice sufficient to attract equity’s intervention. The level or nature of prejudice (or detriment) must, to be probative, be such as to make it unjust (or unconscionable) to grant relief. 13.6 As laches targets a personal disqualification on the part of the particular plaintiff, it cannot be treated as a stigma that, once impressed, binds all successors in title.23

Compared to acquiescence 13.7 While delay may go to the core of the equitable defence of laches, it can also be probative of the equitable defence of acquiescence. In the midnineteenth century Lord Chelmsford even remarked that acquiescence, ‘in the sense of mere passive assent, cannot be regarded as anything more than laches’.24 More recently, a Canadian judge has spoken of ‘two distinct branches to the laches doctrine’ — one where delay makes it unconscionable

to grant relief, and another where delay evidences acquiescence25 — either of which ‘will suffice as a defence to a claim in equity’.26 13.8 This supposed distinction is not, however, necessarily precise in practice, in large part because acquiescence does not know a stable meaning in equity. In some contexts it inhabits, for instance, the territory of estoppel; it may refer to a representation by silence of a type that may found an estoppel by conduct.27 Or it may be synonymous with the acceptance of a past [page 262] wrongful act in circumstances that trigger a release of liability. In these instances, it can be divorced, at least in theory, from the doctrine of laches,28 while still involving an element of delay. In the case of estoppel by conduct, the relevant delay focuses on the time within which the silence has caused the representee to act to its detriment. As a release of an equitable right can be effected by conduct, the lapse of time during which the transaction in issue has been allowed to stand can be probative of a release.29 13.9 But otherwise it may prove difficult to draw a precise line between laches and ‘acquiescence’.30 An attempt to differentiate these doctrines via the distinction between inaction in the face of ‘assertion of adverse rights’ (acquiescence) and inaction ‘in prosecuting rights’ (laches) may prove fruitless, in that laches may comprise silence or inaction in the face of an unwarranted assertion of adverse rights by another as well as inaction or delay in prosecuting one’s own rights. Alternatively, acquiescence may be aligned with conduct by a person (A), with knowledge of the acts of another person (B), that encourages B reasonably to believe that B’s acts are accepted.31 If so, the essence of acquiescence is knowledge and encouragement by conduct,32 whereas the essence of laches is delay.33 Yet even this distinction is partly illusory, as prejudice to the defendant or third parties, and knowledge in the person claiming the defence, are inherent features of the defence of laches. 13.10

Divergence in the use of the term ‘acquiescence’ stems partly from

the malleability of the term ‘laches’. In Orr v Ford34 Deane J opined that the doctrine of laches comprises those rules that define the circumstances in which equity will, without need to resort to the rules governing other more particular defences and in the absence of applicable statutory provisions, refuse relief by reason of standing by or lapse of time before action. His Honour recognised that, so understood, the doctrine of laches may to an extent overlap the areas of operation of other more specific defences, such as release and estoppel.35 But this does not mean that laches is governed by the same parameters as dictate the availability of those other defences. For example, estoppel aims to rectify the detriment suffered by a person in reliance on another’s representation, whereas laches aims to guard against unjust consequences that may stem from [page 263] delay in pursuing legal proceedings. In the latter case, the defendant need not establish a representation or reliance, although the existence of these elements may prove relevant to a court’s decision regarding laches.

Onus of proof 13.11 Like practically all defences, in principle the onus lies on the party pleading laches, namely the defendant, to establish grounds for it. Hence, the defendant must satisfy the court on the balance of probabilities that, by reason of the delay and the intervening events, it would be unjust to allow the claim to proceed.36

When time begins to run 13.12 For the purposes of the doctrine of laches, time begins to run (and so the cause of action in equity accrues) once the plaintiff becomes aware of the facts upon which the right to relief is founded.37 Yet consistent with equitable principle, this does not prevent the court inquiring whether it was reasonable for a plaintiff with knowledge of the underlying facts to be

ignorant of his or her rights.38 If the court sees this as unreasonable, especially where the delay in enforcing the plaintiff’s rights would prejudice the defendant or a third party, time begins to run, and laches can be pleaded, even if the plaintiff was unaware of those rights.39

Parameters for laches 13.13 As noted earlier, while the essence of laches is delay — perhaps better phrased in terms of undue delay — it is clear that proof of delay by itself does not, with the possible exception of where relief is sought by way of an interlocutory injunction,40 suffice to substantiate the defence of laches.41 There may be some correlation between the length of the delay and the nature or level of prejudice to the defendant or third parties. Elapsing of time, after all, increases the likelihood of loss of evidence, the death or memory loss of witnesses and the alteration of rights in any property in issue. So, for essentially the same reasons that underscore time bars in limitations statutes,42 the passing of time may itself be probative of potential prejudice to a defendant. [page 264] For example, in Paki v Attorney-General43 a claim against the Crown by original indigenous landholders for breach of fiduciary duty44 concerning the Crown’s acquisition of a riverbed was declared barred by laches. The ‘extraordinary delay’ — the transactions in issue occurred in or before 1899 but the claim awaited 1989 for its formulation — caused what William Young J described as ‘substantial forensic prejudice’.45 There was substantial uncertainty as to the parties’ understanding of ownership of the riverbed because all involved in the transactions had long since died and the documentary record was incomplete. This compromised the Crown’s ability to defend the proceedings, particularly if required to prove that the transactions were fair and understood by the vendors. Moreover, acting on the assumption that it owned the riverbed, the Crown then extensively developed it for power generation, and other interests had been created

therein. It must, as a result, have been obvious to the appellants’ ancestors that the Crown asserted ownership of the riverbed. This prompted his Honour to conclude that ‘[t]he delay has simply been too long for the case to be able to be determined fairly and too much has happened on the river for it to be practicable or fair to return to the situation as it was in the last years of the 19th century’.46 13.14 Of course, Paki represents an extreme example when it comes to the length of the delay. Far shorter delays can sound in actionable prejudice here. Where, for example, in Lamshed v Lamshed47 an action for specific performance of a contract for the sale of land was commenced in 1956 but left dormant until 1962, during which time the defendant contracted to resell the land to a third party, the High Court denied the plaintiffs specific performance due to their delay. Kitto J, with whom Windeyer J agreed, reasoned as follows:48 The case is therefore not one of bare delay; it is not even one in which all that can be said against the granting of relief is that the plaintiffs’ delay has unfairly placed the appellant in a position of uncertainty over a substantial period; it is a case in which the defendant, not precipitately but at length, in circumstances which made it not altogether unreasonable to do so, has prejudiced his position; and it is a case in which third parties, not shown to be in any way at fault and not being warned by any caveat of title, have acquired interests which will be defeated if a decree for specific performance should now be made.

13.15 However lengthy or brief the delay, though, there is no automatic assumption of prejudice stemming from it.49 Prejudice here must be established, not merely presumed. So if, for instance, a claim of prejudice is based on the loss of evidence, the defendant must do more than merely point to evidence that could have been helpful; he or she must show particular evidence of probative value that would support his or her case that, due to delay, has been lost.50 13.16 As foreshadowed earlier, the question in each case targets the justice or otherwise in permitting the plaintiff to enforce his or her rights. No a priori standards determine the availability of the defence of laches; each case must rest on its own facts, and citing other cases with points of similarity does not necessarily assist.51 The remark that ‘[d]elay is the period of time beyond that within which, in ordinary expectation, the act in question should have been done’,52 though vague, speaks to the fact-specific nature of the doctrine.

[page 265] It follows that where delay is coupled with the existence of factors that tip the balance of justice towards withholding the relief sought, a relatively confined period of delay may be sufficient to ground the defence, especially in view of modern methods of communication. Indeed, in 1972 an Australian judge cautioned that ‘[c]ourts today should not measure delay in the enforcement of equitable claims by the yardstick permissible in the more leisurely age of a century or so ago’, but ‘must take note of readily available methods of easy communication and the quickening needs of the modern world’.53 On other occasions a lengthy delay may have little or no prejudicial impact. In making an assessment as to prejudice here, the ledger must also take into account any benefits the defendant secured and enjoyed during the period of delay as a result of its breach of equitable duty. While potentially relevant as to all questions of delay, it is arguably the most likely to assume weight where the delay is prolonged. In Fisher v Brooker54 the House of Lords found that any prejudice to the defendants in allowing the claim 38 years after the event was outweighed by the financial benefits they obtained in breaching the plaintiff’s rights over that time. And in Eastern Services Ltd v No 68 Ltd55 the Supreme Court of New Zealand rejected the defence of laches, as to a claim for specific performance some 26 years after entry into the relevant contract, by reference to the defendant’s use of the property the subject of the contract during that period.

Impact of nature of the claim or relief 13.17 The nature of the claim or relief impacts upon the availability of the defence of laches and what suffices to make it good. The point can be illustrated by way of the following examples of equitable claims and relief.

Specific performance 13.18 Equity requires that an applicant for specific performance be ‘ready, desirous, prompt and eager’56 to perform his or her contractual obligations.

This requirement manifests itself in a requirement for an applicant to aver and prove that he or she, first, has performed or is ready and willing to perform the essential terms he or she ought to have performed, and secondly, is ready and willing to perform all future obligations thereunder.57 This in turn explains case law involving delays of only months or little more than a year that have precluded the grant of specific performance.58 13.19 Yet if nothing in the circumstances justifies either a conclusion that the delay has prejudiced the defendant or a third party, or that the plaintiff ought to be regarded as having abandoned any rights, specific performance is not ordinarily refused. In No 68 Ltd v Eastern Services Ltd,59 for example, in what is an admittedly exceptional case, a delay of 26 years before assertion of rights under a contract was held not to frustrate a claim for specific performance. McGrath J, in delivering the judgment of the New Zealand Court of Appeal, reasoned as follows:60 [A] defendant who … is not able to show abandonment of its rights by the plaintiff, and who seeks to invoke laches, must be able to show there are circumstances giving rise to an equity

[page 266] that on balance outweighs the plaintiff’s rights. That may be difficult to do in the absence of any significant prejudice. It follows that while a long period of delay will more readily give rise to circumstances from which an inference of prejudice is drawn, it does not follow … that in those circumstances little by way of prejudice is needed to make it unjust for the plaintiff to succeed.

On the facts, it was not possible to identify circumstances linked to the delay that prejudiced the defendant. This meant, according to the court, that the defendant ‘has not been placed in a situation because of the delay which makes it unreasonable or unconscionable to allow the [plaintiff] to enforce its rights’.61 This finding was affirmed on appeal.62 What also informed the outcome in the Eastern Services case was the reticence of judges, established for over a century, to allow laches (or acquiescence) to oust an existing equitable interest in land — secured by a purchaser or lessee entering into a contract to purchase or lease the land,63 usually in the face of possession being taken — except in the face of an abandonment of that interest.64 On the basis that ‘equity treats as done that which ought to be done’, the

purchaser or lessee is treated as having already obtained what was promised, and so the transfer of the legal title is treated as a technicality that should not ordinarily be barred by delay.65 13.20 Eastern Services moreover highlights that the parties’ mutuality in the delay may be highly probative against a defence of laches, a point also illustrated in the decision of McLaughlin AsJ in Broulee Developments Pty Ltd v Mackay.66 There a contract for the sale of land remained on foot for almost 15 years. That no date had ever been able to be fixed for its completion was, the evidence revealed, due to the vendor’s inactivity in carrying out its terms. Nor had the purchaser progressed the matter, even though at no time did it have the benefit of, or possession of, the land, which at all times remained in the vendor. The delay did not, according to his Honour, serve to prejudice the purchaser’s claim for specific performance. 13.21 Where, however, the defendant denies being bound by the contract, this obliges the plaintiff to sue promptly. Therefore, in cases of purported rescission for breach of contract or under a special condition as to title, a purchaser who wishes to attack the validity of the rescission must come promptly to equity.67

Interlocutory injunctions 13.22 Delay, while it does not by itself automatically disentitle an applicant to interlocutory relief, is relevant to the balance of convenience in two main ways. First, it may prejudice the respondent, who may, as a result, have altered its conduct of affairs, assumed liabilities and incurred costs. But absent evidence of prejudice caused by the delay, the applicant’s tardiness is unlikely to prove a fatal obstacle to the grant of relief.68 Secondly, delay may have evidentiary value tending to cast doubt upon the reality of the applicant’s alleged injury.69 Although no longer described as ‘injunctions’, the same may be said of freezing orders and search orders in view of being interlocutory avenues of a prohibitory or mandatory nature.70 [page 267]

13.23 As to the period of delay, the urgent nature of interlocutory relief may mean that even a relatively short delay may speak against the grant of relief.71 The nature of the case may influence the court’s determination of the balance of convenience in this respect. Delay is, for instance, more likely to be accorded weight in matters of purely private or commercial litigation, but less so where the matter is one going to the protection of a public interest.72 For example, absent any proof of prejudice to the respondent, delay in claiming interlocutory relief for an alleged breach of the (then) s 52 of the Trade Practices Act 1974 (Cth)73 is usually not decisive because of the public interest in protecting the community from misleading or deceptive conduct.74

Undue influence 13.24 A plaintiff’s delay in commencing an action, once the undue influence has ceased, may undermine his or her claim of undue influence in the first place, or may function as an affirmation of the transaction.75 It may otherwise bar equitable relief, by way of laches, if this would unreasonably prejudice the defendant.76 This may be so where the delay has led the defendant to alter his or her position detrimentally. For this purpose, the period of delay generally commences when the plaintiff first became aware of the facts upon which the right to relief is founded.77 Here the leading case is Allcard v Skinner.78 The plaintiff became a member of a sisterhood in 1871, and in so doing transferred considerable property to the lady superior of the sisterhood (the defendant). Though she left the sisterhood in 1879, the plaintiff made no demand for the return of that property until 1885. The English Court of Appeal found that, while the plaintiff was under the defendant’s influence, her claim was barred by laches (and acquiescence). Lindley LJ construed the plaintiff’s inactivity and delay as ‘conduct amounting to confirmation of her gift’,79 and proceeded to explain that:80 [a] gift made in terms absolute and unconditional naturally leads the donee to regard it as his own; and the longer he is left under this impression the more difficult it is justly to deprive him of what he has naturally so regarded. So long as the relation between the donor and the donee which invalidates the gift lasts, so long as it is necessary to hold that lapse of time affords no sufficient ground for refusing relief to the donor. But this necessity ceases when the relation itself comes to an end; and if the donor desires to have his gift declared invalid and set aside, he ought … to seek relief within a reasonable time after the removal of the influence under which the gift was made. If he does not the inference is strong, and if the lapse of time is long the

inference becomes inevitable and conclusive, that the donor is content not to call the gift in question, or, in other words, that he elects not to avoid it, or, what is the same thing in effect, that he ratifies and confirms it.

[page 268] His Lordship refused to accept that the plaintiff did not know of her rights until shortly before her request for the return of the property, but that, even if she did, her ignorance resulted from her own omission to inquire about them. ‘Ignorance which is the result of deliberate choice is no ground for equitable relief’, he noted, adding that ‘nor is it an answer to an equitable defence based on laches and acquiescence’.81 13.25 But if the plaintiff’s lack of resources and difficulty in funding the litigation is directly connected with the impoverishing nature of the gift, the consequent delay, even if substantial, may not bar relief, particularly where the defendant is not prejudiced by the lapse of time.82 That delay may, however, impact remedy-wise, so as to deny the plaintiff interest in respect of the period of delay.83

Recovery of trust property 13.26 In those jurisdictions where no period of limitation applies to an action by a trust beneficiary to recover trust property from the trustee or the proceeds thereof in the trustee’s possession, or previously received by the trustee and converted to his or her own use,84 the question necessarily arises as to whether any such action is amenable to being barred by laches. Presumably reflective of the trustee’s fiduciary position in holding the legal ownership of the trust property, the case law largely sides against the notion that the equitable interest of beneficiaries to recover trust property should be easily amenable to being barred by laches. As explained by Mummery LJ in Patel v Shah:85 In the case of an ordinary trust by way of gift to trustees for the benefit of the beneficiaries, where the beneficiary is not required or expected to do more than receive what has been given for his benefit, it will obviously be extremely rare for laches and delay on the part of the beneficiary to make it unconscionable for that beneficiary to assert his claim to the beneficial interest, or for the trustee to claim that he has been released from the equitable obligations that

bind his conscience.

His Lordship, however, perceived the reticence to countenance laches here as potentially less compelling in the case of trusts within a purely commercial setting, as in Patel itself, where the trusts were a by-product or incidental equitable consequence, namely a vehicle for accomplishing a commercial aim.86

Enforcement of express trust 13.27 Perhaps informed by parallel considerations, only ‘gross laches’, it is said, can defeat a claim from a party seeking to enforce an express trust.87 The courts have not defined ‘gross laches’ with precision because, as Deane J in Orr v Ford88 explained, any attempt to specify exhaustively the combinations of circumstances that would suffice to attract the label ‘gross’ would be ‘likely to introduce an inappropriately arbitrary and technical element into an area of equity doctrine which has traditionally been kept free of arbitrary and technical constraints’. His Honour characterised ‘gross laches’ broadly by reference to ‘circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party’.89 [page 269] Independent of waiver, release or estoppel, Deane J identified only two situations where laches renders it inequitable to grant relief in proceedings for the enforcement of an express trust in relation to trust property remaining in the trustee’s possession:90 first, where there is a dispute or mistake as to the existence of the trust, or as to the identity or extent of the trust property; and secondly, where prejudice to third parties, such as beneficiaries, is involved. In the former case, unreasonable delay in instituting proceedings to enforce the claim may itself effect the serious and unfair prejudice necessary to constitute ‘gross laches’, for it may bring about a situation in which the

means of resisting the claim, if it is unfounded, have perished. 13.28 Orr v Ford involved the 1968 acquisition of leasehold selection for $156,000 by a Dr Stone. The appellant, the husband of Dr Stone’s niece, alleged that he had contributed $30,000 to the purchase price on the understanding that Dr Stone would hold a one-half share in the property on trust for him. Two letters written by Dr Stone that year corroborated the existence of the trust alleged. The original intention had been that the appellant would work the property in partnership with Dr Stone, although this never eventuated. In 1977, Dr Stone, then mentally ill, asserted himself as sole owner of the selection, granted a sub-lease of it to his manager, and made a will under which he purported to dispose of it to his manager and housekeeper (who had been Dr Stone’s confidant). In August 1982, two months prior to Dr Stone’s death, the appellant wrote a letter to the Public Trustee (at that stage administering Dr Stone’s estate) alleging an interest in the selection proportionate to his contribution. Some three years later, giving evidence in support of his wife and daughter’s opposition to the grant of probate of Dr Stone’s last will, the appellant repeated the claim. When this opposition to probate failed, the appellant expanded his claim to include a full half share of the selection. By this stage, Dr Stone’s housekeeper had died. The High Court unanimously upheld the trial judge’s finding as to the existence of an express trust, but only a majority (Wilson, Toohey and Gaudron JJ) acceded to the appellant’s submissions. Their Honours noted that the substance of the respondent executors’ case in relation to laches was that of prejudice in defending the appellant’s claim by reason that evidence that might earlier have been available was lost to them. They proceeded to consider the role of such prejudice:91 Prejudice is a consideration properly to be taken into account in relation to laches, although the respondents were not able to point to any authority where such a consideration had defeated the claim of a beneficiary to specific property the subject of an express trust. However, where entitlement depends upon factual matters which are fairly open to dispute we see no reason why prejudice occasioned by loss of evidence as a result of delay on the part of the claimant might not be raised in answer to such a claim. The question of prejudice resulting from unavailability of evidence necessarily involves some degree of speculation, but it is not a question of pure speculation. The issue is not whether evidence may have been lost but whether evidence which may have cast a different complexion on the matter has been lost.

The majority concluded that the loss of evidence was entirely suppositional and, for this reason, it could not properly amount to prejudice sufficient to defeat the appellant’s claim. Their Honours characterised the view least favourable to the appellant as being that ‘he was content to stand by and let matters take their course in the expectation that they could be resolved within the family after the death of Dr Stone’.92 13.29 Deane J, in dissent, with whom Mason CJ agreed, held that the claim under an express trust was defeated by laches. According to his Honour, once it became apparent to the appellant that Dr Stone denied the alleged agreement, ‘ordinary considerations of fairness [page 270] plainly required that Mr Orr act with reasonable promptness if he were to insist upon actually receiving the benefit of Dr Stone’s alleged generosity’.93 Moreover, the parties’ subsequent conduct supported the argument that the appellant’s half share was contingent upon the establishment of the partnership between Dr Stone and himself. For example, the appellant did not contribute to subsequent instalments of the purchase price, the cost of improvements or outgoings, and Dr Stone did not account to the appellant for any share of profits from the property. Deane J branded the appellant’s delay in pursuing his claim as calculated to preclude the evidence of Dr Stone and his housekeeper, adding that:94 Equity is not so misguided as to recognise laches as a defence when it causes evidence to perish but to treat the defence as lost if the laches continues for so long that it not only obliterates evidence but produces conjecture or speculation as to what, if any, precise defences would have been available if proceedings had been instituted within a reasonable time.

Had the appellant asserted his claim within a reasonable time, Dr Stone could have made other provision in his will to deal with this contingency, such as increasing the interest under the will accruing to his manager and housekeeper. Were the appellant’s claim successful, the interests of third parties, being the beneficiaries of the will, might have been inequitably prejudiced. Therefore, Deane J concluded that the lapse of time had materially affected the situation by inducing testamentary dispositions that it

would be inequitable to disturb.

Impact of subject matter of the claim 13.30 In dealing with the defence of laches, it is necessary to take into account the nature of the property in which a right is claimed. Claims concerning business ventures that require the plaintiff to act without delay are more likely barred by laches than those relating to a specific non-income producing asset.95 For example, in Re Jarvis (decd)96 Upjohn J held that a claim to constructive trust relief must be pursued promptly in relation to such an asset as a business, the operation of which required time, care, attention and skill, and involved a risk of capital and the possibility of losses. On the facts of the case, the plaintiff, though aware of her rights, delayed six years before seeking relief, and for this reason was denied that relief. Remarks of the same kind can be made vis-à-vis mining ventures, which are risky, uncertain and speculative in character.

Impact on nature and scope of remedy 13.31 For completeness, it should be noted that, beyond operating as a defence, in equity delay can impact on the nature and scope of the remedy awarded. A court may, for instance, refuse to order an account of profits for fiduciary breach if, say, it believes that the plaintiff unduly delayed the proceeding for tactical reasons. An award of equitable compensation — directed to restoring to the plaintiff what he or she has lost as opposed to what the defendant has gained — may better reflect the equitable dynamics here.97 [page 271]

Application of Limitation Periods by Analogy

Backdrop 13.32 As foreshadowed earlier, that causes of action in equity traditionally fell outside limitations statutes, and in most Australian jurisdictions remain largely so, did not preclude equity from promulgating its own vehicles to guard against the making of stale claims. Just as laches was informed by considerations not too distant from those that underscore limitations statutes,98 equity’s role ‘supplementary’ to the common law dictated that it was influenced, where appropriate vis-à-vis claims for equitable relief, to apply the statutory time bars by analogy. Equity’s course in this regard represented one application of the maxim ‘equity follows the law’. In 1767 Lord Camden reasoned, in support of the analogy doctrine, that ‘when the Legislature had fixed the time at law it would have been preposterous for equity, which by its own proper authority always maintained a limitation, to countenance laches beyond the period that law had been confined to by Parliament’.99 This point was the more compelling where Chancery Courts were, preceding the Judicature reforms, called upon to decide, as part of equity’s auxiliary jurisdiction, purely legal claims as an incident of a larger equitable proceeding. Indeed, in the latter context, the case law contained the suggestion that equity acted in obedience to the Statute of Limitations, not merely by way of analogy.100 The same could be said regarding claims that fell within equity’s concurrent jurisdiction. Strictly speaking, it was rather to claims or remedies in equity’s exclusive jurisdiction that the language of analogy was best suited.101 In due course, though, this language has nonetheless translated to all forms of equity jurisdiction.102 13.33 While courts of equity fell outside the words of the Statute of Limitations, they came, it has been observed, ‘within its spirit and meaning’.103 In thus favouring substance over form, equity aimed to prevent plaintiffs at law from avoiding a limitation statute by disguising their claims as equitable.104 A leading statement as to the nature of equity’s jurisdiction here is that of Lord Westbury in Knox v Gye:105 Where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point in time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. Where a Court of Equity frames its remedy upon the basis of the Common Law, and supplements the Common Law by extending the remedy to parties who cannot have an action at Common Law, there the Court

of Equity acts in analogy to the statute; that is, it adopts the statute as a rule of procedure regulating the remedy it affords.

[page 272] Into the twentieth century, Isaacs J remarked that ‘[w]here a court of equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an Act of Parliament, it has no more power to remove or lower that bar than has a court of law’ but that ‘where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free’.106 Equity is ‘free’ to qualify certain limitation periods, in the context of the latter, because equity had voluntarily adopted the limitation periods in the first place.107

Modern application 13.34 Equity’s modern application of the limitation period by way of analogy presupposes that, first, the cause of action does not come within the actual words of the statute, and second, there is a requisite analogy between the equitable cause of action and one to which a statutory limitation period applied. In speaking in terms of a remedy in equity ‘correspondent’ to one at law, Lord Westbury indicated that the equitable bar by analogy rests on a corresponding common law claim being statute-barred. The relevant inquiry, to this end, concerns whether the equitable claim parallels the statute-barred claim so closely that it would be inequitable to allow it to outflank the statutory bar.108 As the equitable action is barred by analogy with the statutory bar to the common law action, the analogy doctrine is distinct from the doctrine of laches.

Identifying the analogy 13.35 To determine the closeness of the respective causes of action, the court examines, inter alia, the scope, policy and purpose of each cause of action.109 The closer the scope and policy underscoring the causes of action, and the purpose they are designed to serve, the more compelling is the case

for the statutory time bar to be applied by way of analogy. Though most likely in the context of equity’s concurrent jurisdiction, there are instances where it can emerge in its exclusive jurisdiction. Where, say, proof of a breach of fiduciary duty rests on the same factual allegations as a common law claim of fraud, there is sufficient closeness to apply the limitation period for fraud to the fiduciary claim by analogy.110 13.36 In the face of no proper analogy or an inexact one, the doctrine lacks justification. So, for instance, a claim in equity for specific performance lacks a common law analogy because ‘relief comparable to that available from the courts of equity was not available from the common law courts’ and ‘the facts needed to support a claim for specific performance are not in all respects the same as those necessary to support a claim for breach of contract’.111 [page 273]

Application in the context of contribution 13.37 Nor is there necessarily an analogy, for this purpose, between a contribution claim under statute and that in equity.112 These differ fundamentally, in that the equitable claim requires that liability be ‘of the same nature and to the same extent’, which entails notions of equal or comparable culpability and causal significance,113 whereas the remedy under statute makes no such presupposition. Instead its apportionment is by reference to the moral culpability of, and causal contribution made by, each party towards the damage.114 There are instances where a claim to contribution can, even though based on equitable principles, arise in a contractual (or quasi-contractual) context — say, as between co-guarantors under the one instrument115 — wherein the claim is subject, whether directly or by analogy, to time bars applicable to claims in contract (or quasicontract).116 The same may be said of other instances with a contractual tinge, say, an action between two partners where one has discharged a tortious obligation to which both were exposed, being based upon an implied contract between the partners to contribute equally to partnership liabilities

for wrongs.117 Outside of a contractual (or quasi-contractual) environment, though, any analogy likely dissipates.118

Application in the context of accounts 13.38 As discussed elsewhere, the limitations legislation other than in the Australian Capital Territory and Western Australia makes explicit provision for limitation periods applicable to an action for an account.119 That the New South Wales and Northern Territory provisions, however, apply to an account ‘founded on a liability at law to account’ suggests that the limitation period has no direct application to a liability in equity to account. In the remaining jurisdictions, there is a compelling argument, supported by case authority, that the limitation period should be construed as applying to liability to account both at law and in equity.120 There is accordingly no need, in these jurisdictions, to apply any doctrine of analogy in this context. Nor is there an equivalent need in the Australian Capital Territory and Western Australia, where the Limitation Acts extend in their application to claims in equity.121 13.39 Even for the purposes of the New South Wales and Northern Territory position, though, case law reveals that a claim for an account in equity, absent any trust, has no equitable element; it is based on legal, not equitable rights. Hence, where the liability to account is contractually based, equity acts in obedience to the statute of limitations, not by way of any [page 274] analogy.122 Where, conversely, no contractual relationship exists between the parties, so that the liability is exclusively equitable, there is scope to apply the doctrine of analogy. There is, in these jurisdictions, arguably likewise a distinction, for limitations purposes, between a duty to account in a fiduciary that represents a fiduciary duty from one that does not. The simple duty to account, even if owed by a fiduciary (such as an agent or partner), is not a fiduciary duty.123 Hence, the limitation period applicable to accounts cannot be side stepped merely by describing a duty to account as

a claim for breach of fiduciary duty. It is, instead, a claim to which the limitation period applies directly, wherein equity acts in obedience to the statute.124 The position differs if the claim for an account involves a trust element (including liability as a constructive trustee), making it a claim in equity’s exclusive jurisdiction. Assuming that no limitation period applies directly — a defensible assumption in New South Wales and the Northern Territory — equity can apply the time bar in the statute by analogy if it is convinced of the requisite analogy.125

Role for discretion? 13.40 As the application of statutory time bars by analogy remains an exercise of equitable jurisdiction, there is a legitimate question over the extent to which the application of the analogy doctrine is discretionary. Where equity acts ‘in obedience to’ the statute, as opposed to strictly by way of analogy, it stands to reason that it is essentially applying the statute itself, and thus not exercising any discretion. But where, in the case of purely equitable proceedings, there is scope for a true analogy, in theory this represents the exercise of an equitable jurisdiction. By its very nature, such a jurisdiction is discretionary.126 Hence the cases to the effect that the application of any analogy in this context is discretionary, informed by questions of justice, such that equity would not apply a statute of limitations by analogy if it would be unjust or unconscionable to do so.127 13.41 Yet in Gerace v Auzhair Supplies Pty Ltd128 the New South Wales Court of Appeal opined, arguably by way of obiter, that if, absent any defence of laches, equity retained a residual discretion not to apply a limitation statute by analogy, it would not truly be acting by analogy and following the law. While the court accepted that, in line with equitable principle more generally, there was a (limited) discretion not to apply the statute if the defendant’s reliance thereon would in the circumstances be unconscionable, it was unwilling to concede that the same discretion would accrue should applying the statute by analogy prove unjust.129 [page 275]

Yet it is difficult to draw the requisite dividing line in this context; perhaps the way forward is to assimilate the concepts in question in terms that:130 … [i]f the circumstances of the case make it unjust to apply the statute of limitations by analogy to prevent a plaintiff from obtaining an equitable remedy arising from the defendant’s breach of [a purely equitable] duty so that it would be against conscience for the court to apply a rule founded on the analogy, it is arguable that it would be unconscientious for the defendant to rely on the analogical application of the statute.

Moreover, once having identified a suitable analogy, equity can, in determining the appropriate time limit to apply, clearly take into account other provisions in the limitations statute that suspend or extend the time bar to which the action would otherwise be subject. For instance, if the defendant has fraudulently concealed the cause of action, equity’s application of a limitation period by analogy must be modified by the impact of that concealment;131 otherwise the defendant would be better positioned in equity than at law. Similarly, if the limitations legislation envisages a discretion to extend the relevant time bar,132 in applying that time bar by analogy equity may pay regard to scope for such an extension.133 ______________________________ 1. 2. 3. 4. 5.

6. 7. 8. 9. 10. 11.

See 3.26. ‘Laches’ means ‘remissness’ or ‘slackness’, from Old French laschesse. See 13.32–13.41. No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [56] per McGrath J [affd Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991]. Orr v Ford (1989) 167 CLR 316 at 340 per Deane J; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [18] per Gleeson CJ, Gummow, Hayne and Crennan JJ. Fisher v Brooker [2009] 4 All ER 789; [2009] UKHL 41 at [79] per Lord Neuberger; Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247; BC201001887 at [93]–[100] per Ward J. For example, in relation to trusts (see Ch 10) and equitable interests in land (see 8.3, 8.4). Re Loftus (decd) [2006] 4 All ER 1110; [2006] EWCA Civ 1124 at [39], [40] per Chadwick LJ, with whom Thomas and Lloyd LJJ agreed. But note case authority suggesting that laches can, in some instances, bar a claim within the limitation period: see 3.31, 3.32. (1874) LR 5 PC 221 at 239–40. These two foci have been reiterated manifold times in the case law: see, for example, Fysh v Page (1956) 96 CLR 233 at 243–4; BC5600650 per Dixon CJ, Webb and Kitto JJ; Boyns v Lackey [1958] SR (NSW) 395 at 402 per Hardie J; O’Brien v Australia and New Zealand Bank Ltd (1971) 5 SASR 347 at 358 per Zelling J; Orr v Ford (1989) 167 CLR 316 at 341 per Deane J; No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [53] per McGrath J [affd Eastern Services Ltd v No 68 Ltd

12. 13. 14.

15. 16.

17. 18. 19.

20. 21.

22. 23.

24. 25.

26. 27.

[2006] 3 NZLR 335; [2006] NZSC 42; BC200660991]; Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181; BC201404422 at [73] per Meagher JA, with whom Beazley P and Emmett JA concurred. Hence occasions when very long periods of delay, even amounting to decades, have not substantiated a defence of laches: see 13.16. Weld v Petre [1929] 1 Ch 33 at 65 per Sankey LJ. Harris v Lindeborg [1931] SCR 235 at 248 per Rinfret J (‘mere lapse of time is not sufficient to deprive the appellant of his equitable rights against the respondents’; instead ‘we must examine the nature of the acts done in the interval, the degree of change which has occurred, how far they have affected the parties and where lies the balance of justice and injustice’). See 1.32. Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218 at 1279–80. See also M(K) v M(H) [1992] 3 SCR 6 at 77 per La Forest J (describing the rule developed in Lindsay Petroleum Co v Hurd as ‘certainly amorphous, perhaps admirably so’). Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218 at 1279. Williams v Auckland Council [2015] NZCA 479; BC201563349 at [102] per Harrison J, delivering the reasons of the court. Fysh v Page (1956) 96 CLR 233 at 243; BC5600650 per Dixon CJ, Webb and Kitto JJ; Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417 at 424; BC9600951 per Lockhart J; Ariaans v Hastings (1996) 36 IPR 211 at 213 per Franklyn J, at 218–19 per Heenan J; BC9604188. TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (2003) 57 IPR 530; [2003] FCA 371; BC200302511 at [35] per Finkelstein J. See, for example, Crawley v Short (2009) 262 ALR 654; [2009] NSWCA 410; BC200911618 at [163] per Young JA, with whom Allsop P and Macfarlan JA agreed. See also Frawley v Neill [2000] CP Rep 20 (where the English Court of Appeal characterised the ‘modern approach’ to applying the doctrine of laches as involving an inquiry into whether, in all the circumstances, it would be ‘unconscionable’ for a party to be permitted to exercise his or her beneficial right). Some judges, to this end, speak of ‘actual’ prejudice: see, for example, Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979 at [130] per Perry J. Anachuna Nwakobi v Eugene Nzekwu [1964] 1 WLR 1019 at 1024 (PC); No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [57] per McGrath J [affd Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991] (adding, however, that a successor who is an assignee may be barred from asserting its interests ‘because it can only stand in the shoes of the assignor when seeking to enforce the assigned rights’). Archbold v Scully (1861) 9 HLC 360 at 388; 11 ER 769 at 780. Yet there are also judicial statements aligning the defence of acquiescence as a vehicle to avoid unconscionable conduct: see, for example, Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at 151–2 per Oliver J (albeit under the guise of estoppel by acquiescence); Jones v Stones [1999] 1 WLR 1739 at 1744 per Aldous LJ, with whom Tuckey LJ concurred (viewing Oliver J’s statement as representing the law, in a case not necessarily grounded in estoppel). M(K) v M(H) [1992] 3 SCR 6 at 77 per La Forest J. Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 326; BC4600010 per Latham CJ (‘Acquiescence is an instance of estoppel by words or conduct … A person who so acquiesces is not allowed in equity to complain of the violation of his right because he has really induced the person infringing his right to pursue a course of action from which the latter person might

28. 29. 30.

31.

32.

33. 34. 35.

36.

37.

38. 39.

otherwise have abstained’); Holder v Holder [1968] Ch 353 at 403–5 per Sachs LJ. Glasson v Fuller [1922] SASR 148 at 161–2 per Poole J; Orr v Ford (1989) 167 CLR 316 at 337–8 per Deane J. Wright v Vanderplank (1856) 8 De GM & G 133 at 147; 44 ER 340 at 345 per Turner LJ. See Cashman v 7 North Golden Gate Gold Mining Co (1897) 7 QLJ 152 at 153 per Griffith CJ; Glasson v Fuller [1922] SASR 148 at 161–2 per Poole J; Orr v Ford (1989) 167 CLR 316 at 338 per Deane J; M(K) v M(H) [1992] 3 SCR 6 at 78 per La Forest J. Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56; BC200400430 at [57]–[65] per Young CJ in Eq; Galaxidis v Galaxidis [2004] NSWCA 111; BC200402976 at [138] per Tobias JA; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233; BC200506255 at [662] per Chesterman J; MLW Technology Pty Ltd v May [2005] VSCA 29; BC200500670 at [70] per Gillard AJA. In M(K) v M(H) [1992] 3 SCR 6 at 79 La Forest J opined that, in practical terms, the inquiry into knowledge inherent in acquiescence ‘comes very close to the approach one takes to the reasonable discoverability rule in tort’, which at common law Canadian courts were willing to entertain as a means of addressing the injustices otherwise surfacing in the context of the accrual of latent personal injuries in limitations law: see 7.23. His Honour branded this ‘a laudable development given the similar policy imperatives that drive both inquiries’, although he proceeded to disclaim any suggestion that an inquiry under the common law would reach the same result as in equity in every case: at 79–80. The point has little carriage in Australian law, however, which awaited statutory responses to the latent personal injury problem: see 7.4–7.6. Jones v Stones [1999] 1 WLR 1739 at 1746 per Aldous LJ, with whom Tuckey LJ concurred (noting that mere delay is insufficient to establish a defence of acquiescence). (1989) 167 CLR 316 at 339. Deane J further observed that ‘[i]t may well be that the developing scope and flexibility of estoppel by conduct is leading to a unification of doctrine in those areas, such as the field of laches, where equity precludes relief in cases where the enforcement of rights would be unconscionable’: Orr v Ford (1989) 167 CLR 316 at 339. However, his Honour believed that this matter could be left for a future case to address. Neylon v Dickens [1987] 1 NZLR 402 at 407 per Cooke P; Crawley v Short (2009) 262 ALR 654; [2009] NSWCA 410; BC200911618 at [164] per Young JA, with whom Allsop P and Macfarlan JA agreed. Stafford v Stafford (1857) 1 De G & J 193 at 201–2; 44 ER 697 at 700–1 per Knight Bruce LJ; Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619 at 651; BC3400027 per Dixon J; Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 at 472 per Street J; Orr v Ford (1989) 167 CLR 316 at 341 per Deane J; Baburin v Baburin (No 2) [1991] 2 Qd R 240; Humphreys v Humphreys [2005] 1 FCR 712; [2004] EWHC 2201 (Ch) at [99] per Rimer J. A leading case illustration is found in Allcard v Skinner (1887) 36 Ch D 145, discussed at 13.24. The same is the case in the context of acquiescence: Re Howlett [1949] Ch 767 at 775 per Danckwerts J; Re Pauling’s Settlement Trusts [1961] 3 All ER 713 at 729–30 per Wilberforce J [affd Re Pauling’s Settlement Trusts [1964] Ch 303 at 353 per Upjohn LJ]; Holder v Holder [1968] Ch 353 at 393–4 per Harman LJ, at 403–5 per Sachs LJ. M(K) v M(H) [1992] 3 SCR 6 at 76–9 per La Forest J; Williams v Auckland Council [2015] NZCA 479; BC201563349 at [108]–[110] per Harrison J, delivering the reasons of the court. Baburin v Baburin [1990] 2 Qd R 101 at 112 per Kelly SPJ; Baburin v Baburin (No 2) [1991] 2 Qd

40. 41.

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60. 61. 62. 63. 64.

65. 66. 67.

R 240 at 257 per Williams J. See 13.22, 13.23. Reader v Fried [2001] VSC 495; BC200108064 at [27] per Pagone J; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233; BC200506255 at [645] per Chesterman J; No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [53], [54] per McGrath J [affd Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991]. See 1.23, 1.24. [2015] 1 NZLR 67; [2014] NZSC 118; BC201463834. The court, in any case, found no relevant fiduciary obligations. William Young J addressed the laches point in the event that fiduciary obligations had been found. Paki v Attorney-General [2015] 1 NZLR 67; [2014] NZSC 118; BC201463834 at [308]. Paki v Attorney-General [2015] 1 NZLR 67; [2014] NZSC 118; BC201463834 at [309]. (1963) 109 CLR 440; BC6300350. Lamshed v Lamshed (1963) 109 CLR 440 at 455; BC6300350. No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [54] per McGrath J [affd Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991]. Reader v Fried [2001] VSC 495; BC200108064 at [28] per Pagone J. Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593 at 602; BC5400120 per Dixon CJ, Fullagar and Kitto JJ. Nowell v Palmer (1993) 32 NSWLR 574 at 580 per Mahoney JA. Whereat v Duff [1972] 2 NSWLR 147 at 180–1 per Asprey JA. [2009] 4 All ER 789; [2009] UKHL 41 at [68], [79] per Lord Neuberger. [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991 at [38] per Anderson J. Being the phrase attributed to Lord Alvaney MR in Milward v Earl Thanet (1801) 5 Ves 720n. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 1062– 4. See Watson v Reid (1830) 1 Russ & M 236; 39 ER 91 (one year); Pollard v Clayton (1855) 1 K & J 462; 69 ER 540 (11 months); Glasbrook v Richardson (1874) 23 WR 51 (three and a half months); Dillon v Macdonald (1902) 21 NZLR 45 (over a year). See also Mills v Haywood (1877) 6 Ch D 196 at 202 per Cotton LJ; Bela v Beehag (1984) 3 BPR 9402 at 9408–9 per Kearney J; Bailey v Cassaniti (1991) 5 BPR 11,683 at 11,684–5; BC9101342 per McLelland J. [2006] 2 NZLR 43. No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [54]. No 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43 at [70]. Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335; [2006] NZSC 42; BC200660991. See G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015, pp 47–8, 51–2, 1191–4. See, for example, Sharp v Milligan (1856) 22 Beav 606; 52 ER 1242 [affd Sharp v Milligan (No 2) (1857) 23 Beav 419; 53 ER 165] (lease of land); Williams v Greatrex [1956] 3 All ER 705 (purchase of land). Cf Hughes v Schofield [1975] 1 NSWLR 8 at 12–13 per Needham J. Law Com 270, para 4.271. [2008] NSWSC 32; BC200800259. Fitzgerald v Masters (1956) 95 CLR 420 at 433; BC5600420 per Dixon CJ and Fullagar J.

68. 69.

70. 71.

72. 73. 74.

75. 76. 77. 78. 79. 80.

81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91.

See, for example, Nintendo Co Ltd v Care (2000) 52 IPR 34; [2000] FCA 1538; BC200006594. Imac Security Services Pty Ltd v Tyco Australia Pty Ltd [2002] VSC 592; BC200208337 at [44], [45] per Redlich J; Capgemini US LLC v Case [2004] NSWSC 674; BC200404786 at [40] per Campbell J. As to these order see P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Australia, 2008. See, for example, Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at 638–9 (FC(FCA)); Bush v Minister for Local Government (2002) 124 LGERA 256 at 260–1; [2002] NSWLEC 203; BC200206874 per Bignold J. Of course, there may be exceptional cases where a longer delay does not, by itself, cause a sufficient prejudice to justify time being barred by laches: see, for example, Legg v Inner London Education Authority [1972] 3 All ER 177 at 191 per Megarry J; Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87 at 99 per Jacob J. Director of Public Prosecutions (WA) v Bennett & Co (a firm) (2005) 151 A Crim R 516; [2005] WASC 1; BC200500003 at [62] per Roberts-Smith J. Now Australian Consumer Law s 18 (located in the Competition and Consumer Act 2010 (Cth) Sch 2). CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 per Bowen CJ; Gollel Holdings Pty Ltd v Kenneth Maurer Funerals Pty Ltd (1987) 9 IPR 109 at 121–2 per Einfeld J; Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd (1999) 47 IPR 593 at 603; [1999] FCA 1000; BC9904170 per Sackville J. See, for example, Public Trust v Ottow [2009] NZHC 2904 at [56], [57] per Asher J. Whereat v Duff [1972] 2 NSWLR 147 at 179–82 per Asprey JA; Goldsworthy v Brickell [1987] Ch 378 at 410–11 per Nourse LJ, at 416–17 per Parker LJ. See 13.12. (1887) 36 Ch D 145. Allcard v Skinner (1887) 36 Ch D 145 at 186. Allcard v Skinner (1887) 36 Ch D 145 at 187. See also at 193 per Bowen LJ. Cf at 174–5 per Cotton LJ in dissent; Quek v Beggs (1990) 5 BPR 11,761 at 11,779–80; BC9001679 per McLelland J. Allcard v Skinner (1887) 36 Ch D 145 at 188. Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810; BC200205275 at [103] per Bryson J. Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810; BC200205275 at [104] per Bryson J. See 10.20, 10.21. [2005] EWCA Civ 157 at [33], with whom Keene LJ and Sullivan J concurred. Patel v Shah [2005] EWCA Civ 157 at [34]. Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619 at 650; BC3400027 per Evatt and McTiernan JJ; Orr v Ford (1989) 167 CLR 316 at 340 per Deane J. (1989) 167 CLR 316. Orr v Ford (1989) 167 CLR 316 at 341. Orr v Ford (1989) 167 CLR 316 at 341–2. Orr v Ford (1989) 167 CLR 316 at 330.

92. 93. 94. 95. 96. 97. 98. 99. 100. 101.

102.

103.

104. 105. 106.

107. 108.

109. 110.

Orr v Ford (1989) 167 CLR 316 at 331. Orr v Ford (1989) 167 CLR 316 at 343. Orr v Ford (1989) 167 CLR 316 at 344–5. Clegg v Edmondson (1857) 8 De GM & G 787 at 814–15; 44 ER 593 at 604 per Knight Bruce LJ. [1958] 2 All ER 336. See also Boyns v Lackey [1958] SR (NSW) 395 at 403–4 per Hardie J; Loizou v Derrimut Enterprise Pty Ltd [2004] VSC 176; BC200402919 at [154]–[158] per Whelan J. See, for example, Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27; BC200500581 at [76]–[82] per Phillips JA, with whom Winneke P and Charles JA concurred. As to the considerations underscoring limitations statutes generally see 1.17–1.28. Smith v Clay (1767) 3 Bro CC 639n. Hovenden v Annesley (1806) 2 Sch & Lef 607 at 630; 9 RR 119 at 120 per Lord Redesdale. See J Brunyate, Limitation of Actions in Equity, Stevens & Sons, London, 1932, pp 11–12. See also Chittick v Maxwell (1993) 118 ALR 728 at 741–2; BC9302302 per Young J [affd Maxwell v Chittick (CA(NSW), Mahoney, Priestley and Powell JJA, 23 August 1994, unreported) BC9402909 at 13 per Mahoney JA, with whom Priestley and Powell JJA concurred]. See I C F Spry, The Principles of Equitable Remedies, 9th ed, Lawbook Co, Australia, 2014, p 252 (who maintains the phrase ‘by analogy’ should be construed widely to encompass instances where equity acts ‘in obedience’ to the Statute of Limitations); H M McLean, ‘Limitation of Actions in Restitution’ (1989) 48 CLJ 472 at 491 (remarking that the distinction between applying the statute by analogy and acting in obedience to it ‘has little practical import nowadays’). Cf D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 458–61. Bulli Coal Mining Co v Osborne [1899] AC 351 at 363 per Lord James (PC). See also Hovenden v Annesley (1806) 2 Sch & Lef 607 at 630; 9 RR 119 at 120 per Lord Redesdale (‘courts of equity are not within the statutes of limitations … but they are within the spirit and meaning of the statutes, and have always been so considered’). Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [91] per McColl JA. Note the continuing attempts in the case law to this end: see 3.29. (1872) LR 5 HL 656 at 674–5. R v McNeil (1922) 31 CLR 76 at 100; BC2290111 (emphasis supplied). See also Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181; BC20140442 at [33], [34], [70]– [74] per Meagher JA, with whom Beazley P and Emmett JA concurred. Commerce Commission v Roche Products (New Zealand) Ltd [2003] 2 NZLR 519 at [44] per Fisher J. Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177 at 184; BC6700290 per Kitto J; Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 544 per Tipping J; Manufacturers Mutual Insurance Ltd v Government Insurance Office (1993) 7 ANZ Ins Cas ¶61-158 at 77,840–1; BC9303655 per Cohen J; Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 at 478 per Jules Sher QC; Johns v Johns [2004] 3 NZLR 202 at [78]–[85] per Tipping J; Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979 at [82] per Perry J; P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288; [2006] EWCA Civ 1717 at [38]–[43] per MooreBick LJ, with whom Jonathan Parker and Buxton LJJ concurred. Johns v Johns [2004] 3 NZLR 202 at [80] per Tipping J. Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 at 478 per Jules Sher QC; Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 at 124 per Waller LJ, at 126 per Clarke LJ. Cf McGee and Scanlan, ‘Fiduciary Duties and Limitation Periods’ (2001) 20 CJQ 171; Chittick v

111.

112.

113. 114.

115. 116. 117.

118.

119. 120. 121. 122.

123. 124. 125. 126.

Maxwell (1993) 118 ALR 728 at 742; BC9302302 per Young J [affd Maxwell v Chittick (CA(NSW), Mahoney, Priestley and Powell JJA, 23 August 1994, unreported) BC9402909 at 13 per Mahoney JA, with whom Priestley and Powell JJA concurred]. P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288; [2006] EWCA Civ 1717 at [43] per Moore-Bick LJ, with whom Jonathan Parker and Buxton LJJ concurred. This decision has been followed in the Antipodes: Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of New South Wales Nominees Ltd [2013] NSWSC 1168; BC201312704 at [32]–[48] per Ball J; Zhang v Zhai [2014] 3 NZLR 69; [2014] NZHC 1026; BC201461723 at [41]–[43] per Toogood J. It has, however, been branded as ‘incorrect’ in I C F Spry, The Principles of Equitable Remedies, 9th ed, Lawbook Co, Australia, 2014, p 253 (who argues that the English Court of Appeal in Nedlloyd paid insufficient attention to the requirement that courts of equity should act ‘in obedience’ to the Statute of Limitations, and should not grant auxiliary relief where the legal rights in question have been barred by that Statute). Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [450], [451] per Macaulay J (adding that the statutory remedy did not even exist in Victoria before 1949, ‘so it would be a surprising result to find that it was the appropriate analogue of a remedy which has its historical roots well before that time’: at [451]). Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17; BC200201732 at [16] per Gaudron ACJ and Hayne J. Macquarie Pathology Services Pty Ltd v Sullivan (CA(NSW), Kirby P, Mahoney and Clarke JJA, 28 March 1995, unreported) BC9504341; Papadopoulos v MC Labour Hire Services Pty ltd (No 4) (2009) 24 VR 66; [2009] VSC 193; BC200904191 at [76] per Beach J. See, for example, Lang v Le Boursicot (1993) 5 BPR 11,782 at 11,785; BC9301960 per McLelland J. As to these time bars see 5.2. See, for example, Amaca Pty Ltd v CSR Ltd [2015] VSC 582; BC201510489 at [461] per Macaulay J (referring to an analogy with Vic s 5(1)(a), which applies a six year limitation period to causes of action on, inter alia, a contract implied in law: see 5.2). See, for example, Manufacturers Mutual Insurance Ltd v Government Insurance Office (1993) 7 ANZ Ins Cas ¶61-158 at 77,840–1; BC9303655 per Cohen J (in the context of contribution in equity arising out of double insurance for the one loss, in which case there is no contractual basis for the relevant claim). See 12.2, 12.3. See 12.4–12.6. See 3.27. Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 at 415–16 per Millett LJ; Sze Tu v Lowe [2014] NSWCA 462; BC201411179 at [360] per Gleeson JA, with whom Meagher and Barrett JJA concurred. Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 at 477–8 per Jules Sher QC. Sze Tu v Lowe [2014] NSWCA 462; BC201411179 at [362] per Gleeson JA, with whom Meagher and Barrett JJA concurred. Sze Tu v Lowe [2014] NSWCA 462; BC201411179 at [363], [370] per Gleeson JA, with whom Meagher and Barrett JJA concurred. R v McNeil (1922) 31 CLR 76 at 100; BC2290111 per Isaacs J (‘Where a Court of equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an

127.

128. 129. 130.

131. 132. 133.

Act of Parliament, it has no more power to remove or lower that bar than has a Court of law. But where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free’; emphasis in original). M(K) v M(H) [1992] 3 SCR 6 at 74 per La Forest J; Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 at 120–1 per Waller LJ, with whom Sir Christopher Staughton and Clarke LJ agreed; Duke Group Ltd (in liq) v Alamain Investments Ltd (2003) 232 LSJS 58; [2003] SASC 415; BC200308348 at [114] per Doyle CJ; Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979 at [84], [114] per Perry J; Hewitt v Henderson [2006] WASCA 233; BC200609324 at [25] per Buss JA, with whom Steytler P and Pullin JA concurred; Brightwell v RFB Holdings (in liq) (2003) 44 ACSR 186; [2003] NSWSC 7; BC200300068 at [63] per Austin J; Short v Crawley (No 30) [2007] NSWSC 1322; BC200711857 at [583] per White J. (2014) 87 NSWLR 435; [2014] NSWCA 181; BC201404422 at [74] per Gleeson JA, with whom Beazley P and Emmett JA agreed. Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181; BC201404422 at [70] per Gleeson JA, with whom Beazley P and Emmett JA agreed. Issa v Issa [2015] NSWSC 112; BC201500955 at [79] per White J. See also A O’Dea and P O’Dea, ‘The Application of Statutory Time Limitation Provisions by Analogy to Claims in Equity’s Exclusive Jurisdiction’ (2015) 4 J Civ LP 56. Commerce Commission v Roche Products (New Zealand) Ltd [2003] 2 NZLR 519 at [46] per Fisher J. As to the impact of fraudulent concealment under the limitations statutes see generally Ch 15. As to discretion to extend time see generally Chs 18–21. Barker v Duke Group Ltd (in liq) (2005) 91 SASR 167; [2005] SASC 81; BC200500979 at [121] per Perry J.

[page 277]

PART III

Time Suspended Even if a cause of action has otherwise accrued, there are instances that would make it unjust to a plaintiff to be subjected to the statutorily prescribed time bar. Limitations legislation, to this end, acknowledges that, in circumstances discussed in this Part, it is apt to postpone, suspend or defer the running of time. These target where the plaintiff suffers a disability, is the victim of fraud or concealment of the cause of action, labours under a mistake as to the cause of action, or has been the recipient of an acknowledgement or part payment in relation to moneys owed to him or her. For completeness, it should be noted that the limitations legislation in most jurisdictions also provides for the suspension of time vis-à-vis arbitration in defined circumstances, but that this is addressed in the material in Chapter 12 dealing with arbitration.

[page 279]

CHAPTER 14

Disability Impact of Disability on Limitation Backdrop Distinguished from extension of time Application to supervening disability? Onus of proof Statutory Disability Schemas Schema in the Territories and New South Wales Suspension of the running of time Exceptions and qualifications Meaning of ‘under a disability’ Impact of plaintiff’s incarceration? Schema in Queensland, Tasmania and Victoria Suspension of the running of time Exceptions and qualifications Tasmania — ‘custody of a parent’ qualification Meaning of ‘under a disability’ / ‘unsound mind’ Impact of war Schema in South Australia Suspension of the running of time Meaning of ‘under a legal disability’ Absence ‘beyond the seas’

14.2 14.2 14.4 14.5 14.7 14.8 14.9 14.9 14.11 14.12 14.17 14.18 14.18 14.19 14.20 14.23 14.27 14.28 14.28 14.29 14.30

Schema in Western Australia Backdrop and overview Meaning of ‘mental disability’ Persons under 18 when cause of action accrues Suspension of the running of time for minority or disability without a guardian Defendant in close relationship with minor or person with mental disability Extension of time for minor or person under mental disability with guardian Distinguishing Degrees of Mental Incapacity Drawing the line between capacity and incapacity Intermittent (in)capacity Triggering the Running of Time Via Notice to Proceed Australian Capital Territory

14.31 14.31 14.32 14.33 14.34 14.38 14.39 14.43 14.43 14.46 14.49 14.50 [page 280]

New South Wales Northern Territory Tasmania

14.51 14.52 14.53

14.1 The limitations statutes in each jurisdiction make provision for the suspension of the running of time in the event that the plaintiff suffers a disability. There is no uniform statutory schema across Australia, however, but instead four broad models, each elaborated below. As disability can be manifested by mental incapacity, the chapter then probes how degrees of incapacity can impact in this regard. It concludes by cataloguing the ‘notice to proceed’ procedure legislated in some jurisdictions that aims to plug the

prospect of an indefinite running of time in the face of ongoing disability.

Impact of Disability on Limitation Backdrop 14.2 The suspension of the running of time for limitations purposes in the face of disability in the plaintiff has a history dating to the seminal limitation statute, the Limitation Act 1623 (UK). Informed by the notion that ‘[t]hose under legal disability are presumed not to know their rights and remedies and [so] it would be unfair to expect them to proceed diligently in such matters’,1 s 7 of the 1623 Act read as follows: If any person or persons that is or shall be entitled to any such action … be or shall be at the time of any such cause of action given or accrued, fallen or come within the age of 21 years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited after their coming to or being of full age, discovert, of sane memory, at large and returned from beyond the seas, as other persons having no such impediment should have done.

This provision enlarged the time limited for suing so that a person freed of a disability would have a period of capacity within which to sue no shorter than that applicable to persons under no disability, calculated from and after the day on which the causes of action of such persons arose.2 As a consequence, while the plaintiff remained under the requisite disability, no time bar applied.3 This evinced (and still evinces in modern law) a Parliamentary judgment that, subject to any ultimate limitation period,4 the consequent delay, whilst necessarily prejudicial to the defendant, is not to be taken without more as resulting in an unfair trial.5 But it does [page 281] not preclude a person under a disability from starting proceedings,6 typically via a litigation guardian, while remaining under a disability, and thus before the deferred accrual date.7 Nor, as a result of a statutory ‘notice to proceed’

schema in the Territories, New South Wales and Tasmania discussed at the conclusion of this chapter,8 does it prevent a putative defendant from triggering the running of time during a plaintiff’s disability. 14.3 Although deriving from the language of the Limitation Act 1623, modern Australian regimes do not adopt the express the relevant threshold in terms of persons being ‘fallen or come within the age of 21 years, feme covert, non compos mentis, imprisoned or beyond the seas’. Parallel concepts emerge, though. Minority, in modern times targeting those aged under 18, remains a disability. The same may be regarding of those once described as ‘non compos mentis’ (not of sound mind), although it cannot be assumed that its parameters are identical to those adopted in modern legislation. Imprisonment nowadays is mentioned only in the Northern Territory legislation,9 presumably because it is now less of an impediment to accessing legal advice.10 The phrase ‘beyond the seas’ is now passé — only the outdated South Australian legislation makes mention of it11 — in view of improved avenues for communication. Gender equality has ousted any reference to a ‘feme covert’ (married woman) being under a disability for this purpose.

Distinguished from extension of time 14.4 The suspension of the running of time in the event of disability is not to be confused with provisions for the extension of time that has already expired. By definition, while the running of time is suspended, there is no expiry of time, and therefore no reason to prevail upon to the court, in its discretion, to extend time.12 At the same time, it must be acknowledged that the legislation in some jurisdictions directs the court, in assessing if it is just and reasonable to extend time, to have regard to the duration of any ‘disability’ (the parameters of which could benefit from greater clarity) on or after the accrual of the cause of action.13 Yet the purpose of this inquiry remains different, and discrete, from that directed at suspending the running of time.

Application to supervening disability?

14.5 The operative Queensland, Tasmanian, Victorian and (former) Western Australian provisions are phrased in terms whereby the relevant (mental) disability must exist at the time the cause of action accrued (what may be described as ‘initial’ disability); the cases accordingly find no scope to extend time if the putative plaintiff became subject to a mental disability once [page 282] the limitation period had begun to run.14 Referring to parallel developments at the time in the United States, a commentator explained such an approach as follows:15 This qualification … apparently derived from early difficulties presented by interrupting the running of the statute; yet it may represent in part a recognition that … a plaintiff who has had some opportunity, however short, to bring his suit is less deserving of consideration. The rule may also reflect an expectation that a cause of action frequently arises as the result of some contact between the plaintiff and defendant. Therefore an existing incapacity, unlike subsequent incapacities, may be expected often to come to the defendant’s notice, warning him that he may not reasonably rest secure from suit until after that disability is terminated.

14.6 That the above considerations are not overly compelling explains why the wording of the provisions in the Territories, New South Wales, South Australia and (now) Western Australia is, instead, amenable to being interpreted as encompassing a disability arising after the accrual but before the expiry of time (what may be described as a ‘supervening’ disability).16 This, it is said, serves to ‘prevent the obvious injustice which may arise in such a situation’,17 and has often been a candidate for law reform commission recommendation.18 Also, unlike its counterparts elsewhere, it can take into account an interval between successive disabilities.19

Onus of proof 14.7 In each jurisdiction, whether explicit or not, the legislation envisages that the onus of establishing a relevant disability lies on the person (or his or her guardian) who maintains that the running of time should have been suspended by reason of the disability.20

Statutory Disability Schemas 14.8 While each Australian State and Territory makes provision for the impact of disability on the running of time for limitation law, there is no uniform schema. Instead there are four [page 283] schemas operative within Australia, as the ensuing discussion reveals. But these should be not seen as exhaustive of the impact of disability of the law of limitation. Criteria specified to inform the curial discretion to extend time typically refers to a period of disability in the plaintiff as a factor favouring an extension.21 Also, the current personal injury limitations regimes in New South Wales and Victoria22 address disability to the exclusion of the disability provisions below,23 but similarly operate to suspend the running of time for the duration of a plaintiff’s disability.24

Schema in the Territories and New South Wales Suspension of the running of time 14.9 The limitation statutes in the Territories and New South Wales states that if, as regards a cause of action for which a limitation period fixed by the legislation that has begun to run, the plaintiff is ‘under a disability’,25 the running of time is suspended for the duration of the disability.26 It adds that if the limitation period would end before the lapse of three years after the earlier of the date when the plaintiff last (before the end of that period) ceases to be under a disability, or the date of his or her death, the limitation period is extended so as to end three years27 after the earlier of those dates. The latter envisages that, in these circumstances, a plaintiff is to enjoy an unbroken period of three years from when he or she last ceased to be under a disability,28 and to this end:29 … seems plainly to apply to the case where there have been periods of intermittent disability which lead to a situation that the date on which the plaintiff last ceased to be under a disability within the period of limitation is a date only shortly before the expiry of the limitation period.

That may occur from time to time … where the disability is due, for example, to disease. In that case, the plaintiff is given the benefit of a maximum of three years from the last occasion on which the disability ceased within the limitation period within which to bring an action.

14.10 The foregoing is expressed to apply whenever a person is under a disability, whether or not he or she is under the same or another disability at any time during the limitation period.30 It follows that a disability may arise during the course of the running of the limitation period and need not exist at its commencement, and the fact that a plaintiff was not suffering from a disability at one or other times during the limitation period does not determine the question whether or not the limitation period had been suspended.31 It consequently obviates any argument that the effect of the relevant provision is spent once the plaintiff has ceased to be under his or her first relevant disability.32 And it also avoids what has been described as the ‘absurd’ situation that ‘time should not run against a person who was of unsound mind when [page 284] a cause of action accrued to him but that it should run against him if he became unsound of mind the following day’.33

Exceptions and qualifications 14.11 The suspension of time for disability must yield to confirmation,34 and to the ‘notice to proceed’ process whereby a defendant can trigger the running of time.35 Nor can it survive the 30 year ultimate (‘long-stop’) limitation period in New South Wales and the Northern Territory, running from when the cause of action accrued.36 The suspension also does not apply to a cause of action to recover a penalty or forfeiture, or a sum by way of penalty or forfeiture,37 unless the plaintiff is an aggrieved party,38 or, in the Australian Capital Territory, to particular claims relating to health services for children.39

Meaning of ‘under a disability’

14.12 In the Territories and New South Wales, a person is ‘under a disability’ while under the age of 18 years.40 Beyond this, the definitions diverge in terminology although not as much in substance. In New South Wales a person is also ‘under a disability’ while, for a continuous period of 28 days or more, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of one of four scenarios, namely:41 (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her 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.

The reference to ‘a continuous period of 28 days or more’ was designed to obviate a result that ‘odd days of disability happening during a limitation period42 measured in years should be added up so as to produce an extension of the limitation period’.43 The Australian Capital Territory legislation makes similar provision, but replaces (i) above with what seems a more comprehensive list of conditions — ‘intellectual retardation or disability, mental illness or disorder, brain damage, senility or physical disability’ — and perhaps for this reason omits (ii) above.44 In the Northern Territory, ‘person under a disability’ extends to ‘a disabled person, or a convicted person who, after conviction, is undergoing a sentence of imprisonment’.45 ‘Disabled person’ means ‘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’.46 14.13 Hence, in each of these jurisdictions the concept of ‘disability’ for limitations purposes is not confined to a mental disability. In New South Wales the definition mentions impairment [page 285] of a plaintiff’s ‘physical … condition’; in the Australian Capital Territory and the Northern Territory the phrases adopted are ‘physical disability’ and ‘physical infirmity’ respectively. Accordingly, it is conceivable that the

running of time could be suspended to benefit a person without a mental disability but whose ability to manage his or her own affairs relevantly is compromised by a physical impediment. 14.14 The New South Wales definition speaks of any impairment of the plaintiff’s ‘mental condition’. That phrase has been judicially described as ‘a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings’ that is ‘meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment’.47 While its counterparts in the Territories do not refer explicitly to impairment of mental condition, they nonetheless reflect parallel notions; in the Australian Capital Territory it is via reference to ‘intellectual retardation or disability, mental illness or disorder, brain damage, senility’; in the Northern Territory it stems from the reference to ‘mental … infirmity’. 14.15 A core distinction between the definition in the Australian Capital Territory and New South Wales, and that in the Northern Territory, is that the former explicitly envisages an assessment of degree by reference to the plaintiff being ‘substantially impeded’ in managing his or her affairs in relation to the cause of action. Those words take their ordinary meaning; ‘impede’ means to obstruct in progress or action, or to hinder or to stand in the way of; ‘substantially’ is the converse of trivial or minimal, but does not mean total.48 In the Northern Territory (and in other jurisdictions too), the definition ostensibly invites an ‘all or nothing’ inquiry relating to the relevant incapacity. Yet whether this difference is really consequential may be queried, as ‘disability’ in the legal sense (and indeed in other senses) necessarily traverses a continuum of mental states.49 Only as regards imprisonment, to which no such continuum applies, is there arguably any distinction in practice.50 14.16 In each jurisdiction the legislation broadly invites the court to inquire into how a reasonable person without any impairment would behave in managing of his or her affairs; such a reasonable person, it may be said, is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.51 How this collocates with the management of a person’s ‘affairs’ in

this context has been explained as follows:52 [page 286] In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of cooperation, interaction and decision-making that exists between lawyer and client in running any civil action.

It follows that, for a person able to manage his or her affairs in relation to numerous and diverse areas of life, a good explanation is needed to substantiate an inability to manage affairs in relation to the subject matter of the proceedings in issue.53

Impact of plaintiff’s incarceration? 14.17 Of these jurisdictions, only the Northern Territory, in what a commentator has branded ‘misplaced legislative solicitude’,54 explicitly refers to disability as a result of a plaintiff’s incarceration.55 It proceeds on the basis that an incarcerated person is a ‘person under a disability’, and so time does not run during the period of the incarceration. The Australian Capital Territory definition of ‘under a disability’, conversely, does not countenance incarceration as a relevant disability for this purpose; and it does not appear that it can be brought under the umbrella of a ‘physical disability’. The New South Wales definition treads a middle ground. The phrase ‘restraint of his or her person’, while it can evidently encompass incarceration, does not compel a conclusion that it amounts to a relevant disability capable of suspending the running of time. This effect is premised on the incarceration rendering the plaintiff incapable of, or substantially impeded in, managing his or her affairs vis-à-vis the relevant cause of action. It follows that ‘mere impediment is not sufficient’; proof of substantial impediment, to this end, is required for the incarceration to suspend the running of time.56 Incarceration, though it may present an inconvenience

and potential practical disadvantages to a plaintiff, does not itself authenticate a substantial impediment for this purpose.57 In Karaagac v GRE Insurance Ltd,58 for example, the evidence showed that despite having access to facilities to communicate with his solicitors during incarceration, which he had utilised when incarcerated on an earlier occasion, the plaintiff did nothing for some three years. This disinclined the New South Wales Court of Appeal from countenancing any substantial impediment in this context by reason of incarceration. The outcome may have differed had the plaintiff shown attempts to reach his legal representatives had been frustrated by reason of imprisonment, but lacking evidence of this kind, there was no reason to suspend the running of time.59 The case law reveals various other instances where an evident ambivalence to pursuing the action has precluded a prisoner from convincing a court of the requisite substantial impediment.60 [page 287]

Schema in Queensland, Tasmania and Victoria Suspension of the running of time 14.18 If, on the date when a cause of action accrued for limitations purposes, the plaintiff was under a disability, the Queensland, Tasmanian and Victorian limitations legislation allows the action to be brought at any time within a set time from when the plaintiff ceased to be under a disability (or, if earlier, died), notwithstanding that the period of limitation has expired.61 The set time is ordinarily six years, except as regards an action for which a shorter limitation is prescribed, in which event the set time is that shorter period. As to the latter, for example, as causes of action to recover damages in respect of personal injury, or damages in respect of injury resulting from death, are subject to a three year time bar,62 time expires in this context upon three years after the plaintiff ceased to be under a disability (or, if earlier, died)63 (except, in Victoria, in relation to a personal injury cause of action under Pt IIA,64 which sets a six year time bar, running from when the cause of action was discoverable by the plaintiff or, if earlier,

12 years from the date of the act or omission alleged to have resulted in the injury).65

Exceptions and qualifications 14.19 Though not explicitly mentioned in the disability provision, the suspension of time for disability must yield to acknowledgement, it seems,66 and in Tasmania also to the ‘notice to proceed’ process whereby a putative defendant can trigger the running of time.67 Nor can it survive the 30 year long-stop limitation period, running from the date the cause of action accrued, but this bar is, unlike its counterparts in New South Wales and the Northern Territory, confined to actions to recover land or money charged on land.68 Also, the disability provisions do not apply to actions to recover a penalty or forfeiture, or sum by way of a penalty or forfeiture, by virtue of an enactment except where the action is brought by an aggrieved party.69 If a cause of action, which has accrued to a person under a disability, accrues on his or her death while still under a disability to another person under a disability, no further extension of time is allowed by reason of the latter’s disability.70 Moreover, no suspension of time ensues for a cause of action that first accrued to a person (not under a disability) through whom the person under a disability claims.71 The assumption, in this event, is that the person who is not under a disability is to pursue the matter, and should not be able to shield inaction by reference to another’s disability. The relevant provisions, to this end, seek to avoid the possibility of an almost indefinite limitation period;72 any significant injustice, in any event, may be a plank upon which an application to extend time may rest.73 However, each of the [page 288] instances mentioned in this paragraph are, in Victoria, subject to Pt IIA,74 where it applies, and the time bars stipulated therein75 mentioned earlier.76

Tasmania — ‘custody of a parent’ qualification

14.20 In Tasmania the suspension of time for disability does not apply to an aggrieved party proposing to bring a personal injury action77 except upon proof that, inter alia, he or she or, as the case requires, the person under a disability, was not in the ‘custody of a parent’.78 Referring to the policy underscoring the (then) equivalent English provision, Lord Pearson feared that if time did not run against a person under disability so long as a disability remained, ‘there could be too many stale claims and actions brought many years after the event’.79 Only a short time earlier, an Australian judge elaborated the point as follows:80 The underlying concept would seem to be that where a child is in the custody of the parent as distinct from some other person, his parent might, in the ordinary course of nature, be expected to interest himself in asserting his child’s rights of action by litigation and consider himself to be under a duty to institute proceedings on his child’s behalf notwithstanding possible liability for costs. The like confidence apparently is not to be reposed in a guardian other than a parent, who might happen to have custody of a child at the relevant time.

Although these remarks may target underage children, the language of the relevant provision envisages that a person of full age who suffers mental incapacity can be under the custody of a parent. For this reason, and also because underage children approaching majority can live an independent life away from their parents,81 it has been held that the term ‘custody’ here speaks of a state of fact rather than a state of law, namely to ‘actual physical custody rather than any bare legal right to custody’82 or ‘the existence of effective or actual care and control of a child by a parent’.83 That parents are neglectful of their child’s interests,84 or allow their child to go on holidays with another family,85 does not of itself deny ‘custody’ of the child in this regard. [page 289] 14.21 Yet it cannot be assumed that every child is blessed with a competent and conscientious parent who will, in a proper and diligent sense, pursue the child’s claim. The so-called ‘custody of a parent rule’ here can cause an injustice if, say, an infant plaintiff’s parent is unable or unwilling — say, for inadvertence, incompetence, insolvency, culpability or intellectual disability — to commence proceedings in time. To ‘visit the sins of the

fathers upon the children’ in such circumstances, it is said, ‘would be a harsh application of the law’.86 As a consequence, the tide of law reform reports express disdain for any such rule,87 including in its application to instances where a substitute decision-maker is appointed for a disabled plaintiff.88 14.22 Concerns of this nature prompted an amendment of the relevant provision by the Limitation Amendment Act 2004 (Tas), with effect for proceedings starting on or after 1 January 2005,89 to cover the scenario where an aggrieved person is in the custody of a parent under a disability at the time the cause of action accrued.90 In another step to overcome the above injustice, the amending Act provides that, for a cause of action, accruing from 1 January 2005,91 by a minor under a disability where his or her parent is, or is in a close relationship92 with, the intended defendant, a three year time bar applies, running from when the plaintiff attains 25 years of age.93 In this instance the court may, if in the interests of justice to do so, extend this period of limitation to three years commencing on the date of discoverability.94

Meaning of ‘under a disability’ / ‘unsound mind’ 14.23 In each of these jurisdictions, like elsewhere, a person who is a minor is taken to be under a disability while the minority subsists.95 In Queensland and Victoria, a person is also [page 290] deemed to be under a disability while of ‘unsound mind’; in Tasmania, the parallel provision refers to a person who is ‘incapable, by reason of mental disorder, of managing his property or affairs’.96 In this latter context, a person is conclusively presumed to be under a ‘disability’ in circumstances where this status is substantiated via a formal order.97 If the plaintiff is, upon reaching 18 years of age, under another disability, the suspension of the running of time persists.98 If the second disability, conversely, occurs thereafter, time commences to run once the plaintiff turns 18. 14.24

Critically, the concept of ‘disability’ in these jurisdictions, for

limitations purposes, appears narrower than that in the Territories and New South Wales, in targeting, beyond minority, disabilities of a mental nature. It ostensibly excludes physical disabilities, even if these may impact upon a person’s capacity to manage his or her affairs,99 and incarceration whatever its effect.100 Yet at the same time, that ‘disability’ is defined by way of a deeming provision, may speak against an exclusive definition,101 in which event there may remain room for some broader concept of legal ‘disability’ as understood at law.102 [page 291] 14.25 The phrase ‘unsound mind’, as it appears in the Queensland and Victorian statutes, is not statutorily defined, but has been held, in this statutory context, to envisage a person at a time ‘when he is, by reason of mental illness, incapable of managing his affairs in relation to the [claim] as a reasonable man would do’.103 In the leading English case, Kirby v Leather,104 the issue was whether the plaintiff, who had been injured as a result of a scooter accident, was of ‘unsound mind’ so as to suspend the running of time for limitations purposes. In concluding that the plaintiff was of ‘unsound mind’, Lord Denning MR reasoned as follows:105 It appears that, after [the plaintiff] recovered consciousness, he was badly affected mentally, his behaviour being extremely abnormal. After a time he was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter. But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have. In particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.

Relying on Lord Denning’s observations, Macrossan J in King v Coupland106 targeted as relevant inquiries on the question of soundness of mind a plaintiff’s capacity to properly instruct a lawyer, to exercise reasonable judgment upon a possible settlement, and to appreciate the nature and extent of any available claim. These, said his Honour, should be seen as ‘aspects of a broader concept of a mental illness causing an incapacity to manage affairs’, in relation to the subject matter of the claim rather than life generally, ‘in the manner that a reasonable man would achieve’.107 The

use of the phrase ‘mental illness’ here is not meant as a term of art as it may be in psychiatry, but ‘in the more general sense as connoting an abnormality of the mind’.108 14.26 The cases also establish that, to constitute unsoundness of mind in this context, the relevant condition must be ‘more or less continuous’ and, in line with the preceding paragraph, periods of lucidity must be assessed as to their sufficiency (or otherwise) to enable the plaintiff to manage affairs in relation to court proceedings in the manner that a reasonable person would achieve.109 Amelioration of a disability that proves too short to enable a plaintiff’s comprehension of all relevant matters, or action upon them, does not accordingly operate to oust the beneficial purpose of the disability provisions.110 [page 292]

Impact of war 14.27 Instead of defining ‘disability’ to include ‘war or warlike operations’ or ‘circumstances arising out of war or warlike operations’, as in the Australian Capital Territory and New South Wales,111 the issue is approached by the Tasmanian and Victorian legislation by way of a shorter suspension of time. The legislation excludes, for the purposes of computing the period prescribed for the commencement of the action, any time during which it is not reasonably practicable to commence any action by reason of any war, or circumstances arising out of any war, in which the Commonwealth is engaged; it then declares that the said period is not deemed to expire before 12 months from when it became reasonably practicable to commence the action.112 It therefore envisages a suspension of the running of time, including once time has already begun to run, if the plaintiff can substantiate its requirements. The Queensland legislation makes no specific provision for suspension of the running of time in the event of war, a scenario that is therefore to be addressed, if at all, via an application to extend time.113

Schema in South Australia Suspension of the running of time 14.28 The South Australian limitation provision dealing with disability is expressed to apply not only to time bars on actions imposed by the Limitation of Actions Act 1936, but by any other Act or law.114 In this event, like its counterparts elsewhere, it operates to suspend the running of time for the duration of the plaintiff’s ‘legal disability’.115 That it refers to time being ‘extended’ by the duration of the disability does not make this a provision whereby the court, in its discretion, may extend time. There is no discretion here, once the relevant ‘legal disability’ and its duration has been established. Although only one exception is explicitly recognised to the suspension of time here — a 30 year ultimate time bar that runs from when the right to bring the action arose116 — it seems that an effective acknowledgement117 should likewise operate as an exception.

Meaning of ‘under a legal disability’ 14.29 A person is ‘under a legal disability’ in relation to an action while remaining a child or while 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’.118 As the term ‘mental’ prefaces, it seems, not only the word ‘deficiency’, but also the words ‘disease’ and ‘disorder’, the South Australian definition, like its counterparts in Queensland, Tasmania and Victoria, does not extend to any physical disabilities that may impact upon a plaintiff’s capacity to pursue the relevant legal affairs. [page 293] That the South Australian Act states that no person is entitled to any further time beyond the period fixed by statute within which to bring an action by reason of being imprisoned119 speaks of imprisonment not being a ‘disability’ capable of suspending the running of time.

Absence ‘beyond the seas’ 14.30 If any person against whom there is a cause of action in simple contract or tort120 was, at the time when the cause of action otherwise accrued, absent from the State, the relevant six year limitation period does not commence to run, and accrual is not deemed to have occurred, until that person returns ‘from beyond the seas’.121 The phrase ‘beyond the seas’, with a statutory pedigree in this context back to 1623,122 has been construed broadly to mean ‘out of the realm’, ‘out of the land’ or ‘out of the territory’;123 Australian authority to the effect that it can encompass someone returning from both outside Australia and another State or Territory thereof124 may be queried in view of Australia constituting a federated realm.125 But if that cause of action has accrued against two or more joint debtors, the plaintiff is entitled to no additional time to commence any action against a joint debtor (A) who was within the State at the time of its accrual simply because another joint debtor (B) was at that time absent therefrom. At the same time, the plaintiff is not barred from proceeding against B after his or her return only because judgment has already been recovered against A.126

Schema in Western Australia Backdrop and overview 14.31 As the product of the most recent Australian wholesale review of limitations law, the Limitation Act 2005 (WA) contains a more detailed and specific regime for dealing with issues of disability.127 It replaced a brief provision, with antecedents harking back to at least 1874 in England,128 phrased in terms that if a person to whom a cause of action accrued was at the time ‘within the age of eighteen years or insane, then such person may commence the same within such time as is before limited after being of full age or sane as if that was the time at which the cause of action accrued’.129 [page 294]

The 2005 Act makes explicit provision for limitation periods applicable to persons under the age of 15, and between the ages of 15 and 18, when the cause of action accrues.130 It provides, in separate sections, for the running of time to be suspended while a plaintiff is a minor, or suffers a mental disability, and is without a guardian.131 It then makes provision, again by way of discrete sections, for the extension of time vis-à-vis a minor or person under disability who has a guardian.132 And it addresses circumstances where a defendant is in a close relationship with a plaintiff who was a minor or suffering a mental disability at the time the cause of action accrued.133 The need for discrete provision — for minors and for persons with a mental disability — stems from the differential treatment of each class.

Meaning of ‘mental disability’ 14.32 The phrase ‘mental disability’ above refers to a disability — including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia — an effect of which is that the sufferer is unable to make reasonable judgments in respect of matters relating to the sufferer or his or her property.134 There is no scope, as a result, to argue that some physical disability can be probative in this context.135

Persons under 18 when cause of action accrues 14.33 If a cause of action accrues to a person who is under 15 years of age, an action on that cause of action cannot be commenced if six years have elapsed since its accrual,136 unless a longer limitation period is prescribed by another applicable provision.137 For a cause of action accruing to a person aged 15, 16 or 17, no action on that cause of action can be commenced if the person has reached 21 years of age,138 again unless a longer time bar is prescribed another applicable provision.139 The foregoing does not, however, apply to an action relating to the publication of defamatory matter.140

Suspension of the running of time for minority or disability without a guardian 14.34 If a cause of action accrues to a plaintiff under 18 years of age (‘minor’), who thereafter but before attaining majority is at any time without

a guardian,141 the time during which he or she is without a guardian does not count in the reckoning of the limitation period for commencing the relevant action.142 The plaintiff carries the burden of proof in this regard.143 [page 295] Despite the foregoing, such an action cannot be commenced if the plaintiff has attained 21 years of age or, if the legislation144 sets a longer limitation period for commencing the action (that is, which extends beyond the plaintiff turning 21), that limitation period has expired.145 Similarly, if a cause of action accrues to a plaintiff who is suffering a mental disability, during which time he or she is suffering the mental disability and is without a guardian,146 the time during which the plaintiff lacks a guardian does not count in the reckoning of a limitation period for commencing the relevant action.147 The plaintiff, again, carries the burden of proof.148 However, the foregoing is subject to a 12 year ultimate time bar, running from when the cause of action accrued.149 14.35 Each of the above provisions, moreover, is subject to the provisions applicable to where the defendant is in a close relationship with the plaintiff, whether a minor or person under a disability,150 below.151 14.36 It is conceivable that a cause of action could accrue to a person who is a minor, but who thereafter suffers a mental disability. In this event, as appears from the foregoing, different limitation periods for commencing the action may apply.152 To deal with potential inconsistencies, the relevant limitation period is declared to be the longer of those limitation periods.153 14.37 If a cause of action accrues to a minor who dies before reaching the age of majority, or to a person suffering a mental disability who dies whilst still suffering a mental disability, which cause of action then accrues to another person who is either a minor or suffering a mental disability, no further extension of time is allowed by reason of the latter’s minority or disability.154

Defendant in close relationship with minor or person with mental disability 14.38 If a cause of action accrues to a minor (A), and during any time thereafter but before A reaches majority, a defendant is a person in a close relationship155 with A, the relevant action [page 296] is time-barred if A has reached 25 years of age.156 But the foregoing does not apply if a longer period of limitation (that is, which would extend beyond A turning 25) is prescribed.157 If a cause of action accrues to a person suffering mental disability (A), and while suffering the disability is in a close relationship158 with a defendant, the relevant action is time-barred if three years have elapsed since the relationship ceased.159 But the foregoing does not apply if a longer limitation period160 (that is, one extending beyond those three years) is prescribed.161 In any event, though, no cause of action here can be commenced if 30 years have elapsed since it accrued.162

Extension of time for minor or person under mental disability with guardian 14.39 A plaintiff who was a minor when a cause of action accrued, or who suffers a mental disability at any time after its accrual, may apply to a court for leave to commence an action even if the relevant limitation period has expired,163 unless the cause of action relates to publication of defamatory matter.164 In a case of minority, the court may, on such an application, extend the time within which to commence the action up to when the plaintiff reaches 21 years of age,165 whereas in a case of mental disability, it may extend time up to 12 years from when the cause of action accrued.166 But in each case the court may only do so if satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to proceed within time.167

14.40 The court’s jurisdiction to extend time therefore rests on what is meant by the words ‘in the circumstances it was unreasonable for a guardian’. This statutory language countenances, it has been held, an inquiry from an objective perspective. This derives from the words ‘unreasonable … not to commence the action’, and is supported by the choice of the indefinite article ‘a’ (as opposed to ‘the’) guardian. It targets, to this end, not the actual guardian, but ‘a’ guardian in the relevant position.168 An alternative view — whereby the reference to ‘a’ guardian is treated as no more than a drafting technique to address a situation where there are two (or more) actual guardians, and so is intended to mean, in effect, ‘the’ actual guardian of the plaintiff, or if more than one, either of them169 — arguably gives insufficient weight to the chosen words or the broader context of the relevant provision. Pullin JA in Barr v Farrell170 interpreted the ‘circumstances’ to which the relevant provision refers as ‘all the circumstances relating to whether there was a cause of action worth pursuing’. [page 297] Yet the decision of the majority in that case suggests a more restrictive view of the ‘circumstances’ in this context. The plaintiff’s father (as the plaintiff’s guardian) there did not commence proceedings within time, arising out of the injury the plaintiff allegedly suffered at birth by the defendant doctor’s negligent use of forceps, because of advice from solicitors (which proved incorrect) that the limitation period would not (yet) expire. Pullin JA was not willing to view the (incorrect) advice as a ‘circumstance’ to have been considered in deciding whether it was unreasonable for ‘a’ guardian not to commence the action within the limitation period.171 14.41 Yet the grounds upon which his Honour excluded the incorrect legal advice from consideration are not, with respect, entirely clear. The reasoning proceeded as follows: the relevant provision asks the court to consider whether it was unreasonable for a guardian not to commence the action ‘within the limitation period’; the latter is a matter of law; so the solicitors’ wrong view of the law, which produced a belief in the guardian

that the limitation period would not expire when, in fact, it was to expire, was accordingly not relevant.172 There is also some indication that including incorrect legal advice within a ‘circumstance’ would in effect convert the inquiry into what was unreasonable for ‘the’ (as opposed to ‘a’) guardian. This appeared to influence the thinking of the other judge in the majority, Murphy JA, who reasoned as follows:173 As [the relevant provision] is not concerned with the state of mind of the actual guardian, the ‘circumstances’ in [that provision] would not be the circumstances actually influencing the actual guardian’s state of mind. In other words, it is irrelevant whether the actual guardian who has consciously allowed the minor’s claim to become statute-barred did so in the mistaken, but reasonable, belief that the limitation period had not expired. Even if the guardian’s actual belief was based on erroneous legal advice, a decision not to commence proceedings within time based on what is objectively an unreasonable view of the limitation period is itself unreasonable from the perspective of the plaintiff, for the protection of whom [the relevant provision] is designed.

His Honour viewed that the ‘circumstances’ to which the legislation refers as ‘those which would objectively be relevant to a guardian, knowing the limitation period, in deciding whether to commence proceedings’, in the usual case including the nature and strength of the claim, the damages that expected to be recoverable, and any costs considerations that might reasonably bear upon a decision to sue in the circumstances.174 On the facts, there was medical opinion suggesting a causal connection between negligence and severe injury; in turn, this made it unreasonable for ‘a’ guardian not to commence the action within the limitation period. Newnes JA dissented on this point, refusing to accept the plaintiff’s argument that legal advice obtained by a guardian is not a relevant ‘circumstance’. Characterising ‘circumstances’ as simply ‘the external conditions affecting or that might affect action’, his Honour considered that whether the guardian obtained legal advice within the limitation period, and the nature of that advice, would usually be ‘highly relevant circumstances in determining whether the guardian acted unreasonably in not commencing proceedings within time’.175 As a matter of statutory construction, this interpretation of the term ‘circumstances’ seems defensible. 14.42 In any event, it must be noted that the court’s satisfaction that ‘in the circumstances it was unreasonable for a guardian’ not to proceed within time, while it performs the ‘jurisdictional’ task of opening the door to curial

discretion to extend time, does not mandate that the discretion be exercised. To make an extension of time an automatic response to evidence of a cause of action would essentially deprive the court of its discretion, the exercise of which must rest on the justice of the individual case. [page 298]

Distinguishing Degrees of Mental Incapacity Drawing the line between capacity and incapacity 14.43 There are instances where a person is evidently mental incapable, such as where the expert evidence makes clear that he or she suffers a pervasive recognised mental disease176 or pervasive permanent brain damage.177 Notwithstanding the impression created by the ‘all or nothing’ language of the relevant provisions (excepting in the Australian Capital Territory and New South Wales, which speak of a ‘substantial’ impediment),178 much of the litigation in this context centres on questions of degree in assessing a person’s mental (or other) capacity. It cannot be assumed, for this purpose, that a person who lacks ‘full mental capacity’ suffers a legal disability for limitations purposes,179 and comparisons between that person’s mental capacity at an earlier time (or projections as to his or her mental capacity in future) are not determinative in themselves.180 Nor is evidence of irrational behaviour determinative of the presence of mental disability; after all, ‘a person can act irrationally without having a disease or impairment of the mind’,181 or can act rationally even in the face of a mental disability. Conversely, evidence of almost plenary dependence on others for decision-making, when coupled with a recognised clinical condition, may speak of a relevant disability for this purpose.182 14.44 Importantly, the question over capacity for the purposes of limitations law focuses not on a person’s capacity generally, but on capacity

in the specific context of pursuing the action in question. There is, accordingly, no reason to presume that a person’s capacity is either constant or necessarily translates to each aspect of life.183 So merely because a person ostensibly has sufficient capacity to manage affairs in some aspects of life does not by itself speak to a coincident capacity to pursue the particular litigation. The case law evinces multiple illustrations of persons who have raised a family and held paid employment who have nonetheless been held to be subject to a disability when it came to pursuing certain litigation. [page 299] Many (though not all)184 of the cases have targeted sexual or other physical abuse suffered as a child.185 A prevailing understanding in this context is that daily functioning can coexist with a disability sufficient to stymie capacity to pursue litigation to address the consequences of the abuse. The impact of the abuse, supported by expert evidence, in tandem with the particular circumstances of the individual plaintiff, can substantiate the relevant disability.186 In Saunders v Jackson,187 for example, the respondent sought damages against the appellants for psychiatric injury arising from alleged sexual and physical assaults suffered at a young age. Hoeben J, with whom Ipp and Macfarlan JJA concurred, noted that this was not an industrial or motor vehicle accident, where a decision whether or not to commence and continue with an action is relatively straightforward. Instead the cause of action alleged persistent sexual assault by a family member within a family with considerable prestige in the community. In these circumstances, his Honour opined, ‘[i]t would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition’.188 Expert medical evidence, which ‘was all one way’, supporting the ‘devastating effect’ of these assaults on the respondent, led the court to uphold the trial judge’s finding that she was ‘under a disability’ by reason of depression and other psychological issues.189 As to the respondent’s ability to conduct ordinary aspects of life, Hoeben J remarked:190

The fact that the [respondent’s] mental condition fluctuated between a ‘major depressive illness’ and a ‘low grade level of depression with little interest in enjoyment of life’ over the years is not decisive. The fact that she was able to maintain employment and raise two children (although it is clear that she received considerable help from her mother in that regard) is also not decisive. From the psychiatric evidence it was well open to [the trial judge] to find, as she did, that the [respondent] was substantially impeded by her mental condition in the management of her affairs in relation to the cause of action … This is particularly so when to commence and maintain the cause of action required in the circumstances of this case, such a difficult and emotional decision by the [respondent] with potentially devastating repercussions for her family.

[page 300] 14.45 In each case, the court inquires as to when the particular plaintiff possessed the requisite psychological robustness to pursue the action; this evidently rests on the facts in each case. Abuse hardly exhibits a uniform impact on each person; its severity can vary between individuals, and from circumstance to circumstance. Here the law acknowledges that a capacity to complain to the police does not always equate to a willpower (and capacity) to take the further step to ‘sustain, and pursue effectively’191 a civil cause of action. So in Glennie v Glennie,192 against a backdrop of alleged incest, subsequent destitution, psychiatric disturbance, and heavy alcohol and cannabis use, Kirby J did not view the plaintiff’s ‘giant step’, at her partner’s urging, of reporting the abuse to police as indicative of a capacity to attend to her own affairs. His Honour found that not until the plaintiff witnessed her father’s confession in court did she develop the capacity or the willpower to instruct lawyers in her civil cause of action.193 Before this moment her psychiatric conditions substantially impeded the commencement of proceedings and so evinced a disability sufficient to suspend the running of the limitation period.

Intermittent (in)capacity 14.46 One of the challenges facing courts, to this end, is to distinguish plaintiffs who, for the relevant period, suffer what can be described as supervening (or pervasive) incapacity albeit with lucid intervals from plaintiffs who exhibit, in the relevant time frame and purpose, supervening

capacity punctuated by intervals of disability. In the Australian Capital Territory and New South Wales the point is addressed, at least partly, by defining the concept of ‘disability’ by a minimum temporal (continuous 28 day) prescription.194 14.47 Whether for the purposes of such a prescription or otherwise, a plaintiff’s admission(s) to psychiatric facilities may speak of period(s) of requisite disability; other events may reveal that such a condition did not continue to be incapacitating in the requisite sense. In A, DC v Prince Alfred College Inc195 Vanstone J held that while the plaintiff may have been mentally disordered from time to time during the relevant period, particularly when his state of mind necessitated admission to psychiatric facilities, there was not the continuity between those periods as to amount to a disability. That the plaintiff had over time been involved in at least eight legal disputes, in none of which was he represented by a litigation guardian, and in the present dispute his presentation and response to crossexamination ‘showed an intelligent man … well able to comprehend complex issues and to respond to them appropriately and indeed to protect his own interests’,196 supported this finding, which was affirmed on appeal.197 14.48 Just as the foregoing highlights that disability, to suspend the running of time in limitations law, must usually be more than merely intermittent, the cases equally establish that moments of lucidity against a backdrop of a supervening or pervasive incapacity may not preclude a suspension of time. In New South Wales v Higgins198 the evidence established that the plaintiff had lucid intervals during the period of claimed disability, when she ‘was able more or less to cope with the various pressures on her’; she had, for example, been able to take action to regain the custody of her son. Yet the New South Wales Court of Appeal accepted psychiatric [page 301] evidence that, for the purposes of the action in question, the plaintiff was substantially impeded in managing her affairs so as to be under a disability.

That the action in Higgins alleged sexual abuse suffered by the plaintiff as a child, in relation to which courts have, as noted above, shown justifiable tenderness, likely influenced this outcome. While A, DC v Prince Alfred College Inc, mentioned above, also involved child sexual abuse, the allegations targeted events much further in the past than those in Higgins, which events the court remained unconvinced, on the evidence, had a continuing and pervasive impact upon the plaintiff’s capacity in relation to the action.

Triggering the Running of Time Via Notice to Proceed 14.49 The limitations legislation in the Territories, New South Wales and Tasmania prescribes a process whereby a putative defendant can trigger the running of time in the face of a plaintiff’s disability. Independent of some long-stop (or other) limitation provision, this process provides an effective avenue to obviate a defendant being at the ongoing mercy of the plaintiff’s disability (in the Australian Capital Territory and New South Wales, other than by reason of minority) suspending the elapsing of time.199 While fostering the same broad aim, detail variations between the schemas justify discrete treatment. Each jurisdiction, though, makes patent that a notice to proceed is not an acknowledgement or confirmation200 or an admission for any purpose by the person giving the notice.201

Australian Capital Territory 14.50 The Australian Capital Territory provision states that if a person has a cause of action in relation to which he or she is under a disability other than a disability arising from his or her minority, and a guardian202 has been appointed in relation to that person (or his or her property), a putative defendant may give203 to the guardian a notice to proceed that meets the requisite formalities.204 If a notice to proceed is so given, the person under the disability is taken, for the purposes of the limitations legislation, to cease to be under a disability on the day when the notice is so served.205

New South Wales 14.51 In New South Wales, if a person having a cause of action is under a disability but has a curator,206 a putative defendant may give207 to the curator a notice to proceed that meets the [page 302] requisite formalities.208 Where, after such a notice is given, for the purposes of the relevant action the person under a disability ceases, on the date the notice is given, to be under any disability.209

Northern Territory 14.52 In the Northern Territory, the relevant provision states that where a court has appointed a tutor210 to conduct the relevant legal proceedings arising from the affairs of a disabled person, or where a manager with power to conduct legal proceedings has been appointed,211 a putative defendant may serve on the tutor or manager a notice to proceed that meets the requisite formalities.212 Once that notice is served, the disabled person is taken, for the purposes of the limitations legislation, to cease to be under a disability.213 The Northern Territory legislation also provides for a putative defendant to serve on a parent or guardian of an infant214 a notice requiring the parent or guardian to bring, as guardian ad litem, within six months of being served, an action against the putative defendant based upon the incidents identified in the notice.215 Inability after reasonable inquiry to trace a parent or guardian, or the latter’s failure to comply with the said notice in the time specified, entitles the putative defendant to apply to the Supreme Court for an order appointing the Public Trustee as the tutor of the infant for the purpose of bringing against the putative defendant an action arising out of incidents stated in the notice.216 If the court makes such an order, subject to its general jurisdiction to extend time,217 no such action can be brought against the putative defendant after either three years from the date of the

order or the limitation period otherwise fixed for the bringing of the action, whichever is later.218

Tasmania 14.53 In Tasmania a ‘prospective defendant’ to a cause of action by a person under a disability may serve219 a notice to proceed that meets the requisite formalities,220 upon which the person [page 303] under the disability is, in relation to any action on that cause of action, deemed to have ceased to be a person under a disability.221 If there is a person authorised under the Guardianship and Administration Act 1995 to conduct proceedings on the cause of action on behalf of the person under a disability, the notice to proceed must be served on that person (and also on the Public Trustee if the latter is not that person).222 Otherwise, the notice must be served both on the Public Trustee and the person with or by whom the disabled person resides or is cared for. This is so unless the person under a disability is an infant, in which case the notice must be served on the Crown Solicitor and the father or guardian of that person (or, absent the father or guardian, the person with or by whom the disabled person resides or is cared for).223 ______________________________ 1.

2.

3.

Murphy v Welsh [1993] 2 SCR 1069 at 1080 per Major J, delivering the reasons of the court. See also T v H [1995] 3 NZLR 37 at 61 per Tipping J (‘Time does not run against persons [under a disability] because it is regarded as wrong in principle to have time running against people who are unable to pursue their rights’). Tyley v Dougherty [1932] SASR 307 at 308 per Richards J; Prowse v McIntyre (1961) 111 CLR 264 at 269–70; BC6100880 per Dixon CJ; Noja v Civil and Civic Pty Ltd (1990) 26 FCR 95 at 108 (FC). Tolley v Morris [1979] 2 All ER 561 at 570–1 per Lord Diplock, at 572–3 per Lord Keith; Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493 at 499 per Ambrose J, with whom Connolly and Thomas JJA concurred; Turner v W H Malcolm Ltd (1992) 15 BMLR 40 at 48 per Glidewell LJ (noting that Parliament has effectively ‘provided that there is no limitation period for a plaintiff who is under a permanent disability if he, or his solicitor, does not proceed with his action expeditiously’, which in turn means that ‘the maxim that it is in the public interest that there

4. 5. 6.

7.

8. 9. 10. 11. 12.

13. 14.

15. 16. 17.

18.

19.

should be an end to litigation has little or no application to an action by such a plaintiff’); Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 20 per Lee J, with whom McPherson JA and Williams J concurred. As to reforms by way of ultimate limitation periods see 23.1–23.12. As to the general ultimate limitation period operative in New South Wales see 4.62–4.64. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [183] Kirby J. At the same time, the appointment of a litigation guardian (or the like) does not, per se, affect the accrual of a cause of action or its suspension: Darke v Eltherington [1963] Qd R 375 at 378 per Hanger J; State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 at 401–2 per Kirby P. See, for example, Forbes v Smith (1855) 11 Ex 161; 156 ER 786. This in turn reflects the notion that minors do not, except as recognised under the terms of a limitations statute, enjoy any general immunity from time provisions: James v Commissioner for Railways (1963) 63 SR (NSW) 373 at 378 per Sugerman J; O’Brien v O’Brien (1995) 35 NSWLR 664 at 665 per Priestley JA, at 666 per Handley JA (hence ruling that, as the Motor Accidents Act 1988 (NSW) made no explicit provision for exempting minors from the time bars it imposed, minors enjoyed no immunity from those provisions). See 14.49–14.53. See NT s 4(1) (definition of ‘person under a disability’). See 14.17. See 14.30. New South Wales v Bennie [2005] NSWCA 172; BC200503622 at [12] per M W Campbell AJA; Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; BC200910295 at [10], [141] per Campbell JA, with whom Basten JA and Handley AJA concurred; SW v New South Wales [2010] NSWSC 966; BC201006358 at [178] per Johnson J. See 20.34–20.36, 20.117. Garner v Wingrove [1905] 2 Ch 233 at 236 per Buckley J; Purnell v Roche [1927] 2 Ch 142 at 149 per Romer J; Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305; BC200106995 at [436] per McLure J. Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1229–30 (emphasis in original). ACT s 30(1); NSW s 52(1); NT s 36(1); SA s 45(1); WA s 35(1). QLRC 53, 131. See also M A Jones, ‘Limitation Periods and Plaintiffs Under a Disability — A Zealous Protection?’ (1995) 14 CJQ 258 at 268 (seeing ‘little obvious justification for the distinction between a plaintiff under a disability when the cause of action accrues and the plaintiff who is subject to a supervening disability’). See, for example, ALRI 55, p 41; Law Com 151, p 297; QLRC 53, p 132; WALRC 36(II), pp 429–31; MLRC, p 71 (as to the running of time for the purposes of an ultimate limitation period). Contra SLRC, p 63 (though conceding that to overlook supervening disability could cause hardship, seeing the difficulties involved in recognising subsequent disability, especially in cases of intermittent disability, as outweighing the case for reform). Cf Keating v Woods (SC(WA), Adams M, 17 May 1994, unreported) BC9401685 at 6 (in the context of the former WA 1935 s 40 (as to which see 14.31), noting that ‘if there is any interval

20.

21. 22. 23. 24. 25. 26. 27.

28. 29. 30.

31. 32. 33. 34. 35. 36.

37. 38. 39. 40.

between the determination of the first disability and the supervening of the second, time will begin to run on the determination of the first disability, and the second disability would have no effect’, but that ‘[i]f a person entitled to a cause of action is under one disability when the cause of action accrues and this disability comes to an end, but such person is then under another disability, time will not begin to run until the second disability has ceased’). Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 478 per Bowen CJ in Eq. Cf Limitations Act 2002 (Ont) s 10(2) (which, in creating a rebuttable presumption that a person claiming to have been assaulted was ‘incapable of commencing the proceeding earlier than it was commenced if at the time of the assault one of the parties to the assault had an intimate relationship with the person or was someone on whom the person was dependent, whether financially or otherwise’, reverses the relevant onus of proof in this context; as to the backdrop to this provision see Ontario, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group, Ministry of the Attorney General, Toronto, 1991, p 20). See 20.34–20.36, 20.117. Namely Div 6 (NSW) and Pt IIA (Vic), as to which see 7.36–7.57. NSW s 50F(5); Vic s 23(1A). NSW s 50F(1); Vic s 27J(2). See further 7.54–7.57. As to the meaning of ‘under a disability’ see 14.12–14.16. ACT s 30(1); NSW s 52(1); NT s 36(1). In the Australian Capital Territory, for an action involving penalty and forfeiture (see ACT s 15, as to which see 11.11), or shipping (see ACT s 19, as to which see 12.18), the latter time frame is abbreviated to two years: ACT s 30(1)(e). New South Wales v Higgins [2005] NSWCA 244; BC200505188 at [19] per Handley JA, with whom Campbell AJA and Adams J concurred. Shortland Electricity v O’Connor [1999] NSWCA 87; BC9901519 at [13] per Sheller JA, with whom Beazley and Fitzgerald JJA concurred. ACT s 30(2); NSW s 52(2); NT s 36(2). See NSWLRC 3, para 90 (to the effect that the distinction between disability at the accrual of the relevant cause of action and that arising once time has begun to run is one that ‘ought to be made’). New South Wales v Harlum [2007] NSWCA 120; BC200703974 at [70] per Beazley JA. NSWLRC 3, para 245. Ontario Law Reform Commission, Report on Limitation of Actions, 1969, p 97. As to confirmation see 17.9. As to the ‘notice to proceed’ procedure see 14.49–14.53. NSW s 51 (as to which see 4.62–4.64); NT s 36(4). See further Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; BC200604226 at [177] per Kirby J (dissenting, but not a point addressed by the majority); Ciantar v New South Wales [2008] NSWSC 191; BC200801333 at [47] per Michael Grove J. As to the application of limitations law to actions to recover a penalty or forfeiture see 11.11–11.15. ACT s 30(3)(a); NSW s 52(3); NT s 36(3). ACT s 30(3)(b) (being claims to which ACT s 30B is addressed: see 7.30). ACT Dictionary; NSW s 11(3)(a); NT s 4(1).

41. 42. 43. 44.

45. 46. 47. 48. 49.

50. 51.

52. 53. 54. 55. 56. 57.

NSW s 11(3)(b). Which is premised, in these jurisdictions, upon a relevant disability arising once time has already begun to run: see 14.5, 14.6. NSWLRC 3, para 90 (footnote supplied). The terms of NSW s 11(3)(b)(ii) were, it seems, introduced to overcome the House of Lords’ decision in Harnett v Fisher [1927] AC 573 (where the appellant, whom it was found had been wrongly certified as a lunatic by the respondent doctor nine years earlier, was held time-barred from recovering damages for the respondent’s negligence in issuing the certification): NSWLRC 3, paras 91, 92. NT s 4(1). NT s 4(1). Kotulski v Attard [1981] 1 NSWLR 115 at 118 per Slattery J. Kotulski v Attard [1981] 1 NSWLR 115 at 117 per Slattery J. Pointon v Walkley [1951] SASR 121 at 125 per Mayo J (noting that ‘deficiency in the faculty of reasoning, inadequate power of interpreting sensory impressions, inability to communicate correctly thoughts to another, or the like … may be great or slight’, and that ‘[s]uch imperfections will vary in degree’). Cf A, DC v Prince Alfred College Inc [2015] SASC 12; BC201500271 at [186], [187], where Vanstone J suggested that, by reason of the words ‘substantially impeded in the management of his or her affairs in relation to the cause of action’, the New South Wales (and Australian Capital Territory) provision sets a lower disability threshold, or a ‘more benevolent’ test, than the legislation elsewhere. Vanstone J did not, however, find it necessary to evaluate the precise differences between the respective provisions, as on the facts her Honour was not satisfied that, under either approach, the plaintiff was under a legal disability in the relevant period. The point was not addressed on appeal: A, DC v Prince Alfred College Inc [2015] SASCFC 161; BC201512914. See 14.17. Kotulski v Attard [1981] 1 NSWLR 115 at 118 per Slattery J. His Honour’s remarks, to this end, have been cited with apparent approval in multiple occasions: see, for example, Olive v Johnstone [2006] NSWCA 21; BC200600666 at [61] per Santow JA, with whom Handley and Tobias JJA concurred; New South Wales v Harlum [2007] NSWCA 120; BC200703974 at [62] per Beazley JA; Saunders v Jackson [2009] NSWCA 192; BC200905953 at [38] per Hoeben J, with whom Ipp and Macfarlan JJA concurred; Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; BC200910295 at [125]–[130] per Campbell JA, with whom Basten JA and Handley AJA concurred. Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; BC200910295 at [140] per Campbell JA, with whom Basten JA and Handley AJA concurred. Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; BC200910295 at [178] per Campbell JA, with whom Basten JA and Handley AJA concurred. Note, ‘Developments in the Law: Statutes of Limitations’ (1950) 63 Harv L Rev 1177 at 1232 (remarking as to (then) equivalent provisions in some US states). NT s 4(1). Karaagac v GRE Insurance Ltd (CA(NSW), Hope, Clarke and Meagher JJA, 26 April 1989, unreported) BC8902246 at 2 Meagher JA, at 4 per Clarke JA. SW v New South Wales [2010] NSWSC 966; BC201006358 at [195]–[200] per Johnson J; Conridge v Schaapveld [2015] NSWSC 663; BC201504464 at [56] per Rein J.

58. 59. 60.

61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79.

80.

(CA(NSW), Hope, Clarke and Meagher JJA, 26 April 1989, unreported) BC8902246. Karaagac v GRE Insurance Ltd (CA(NSW), Hope, Clarke and Meagher JJA, 26 April 1989, unreported) BC8902246 at 5 per Clarke JA. See, for example, Morris v New South Wales [2005] NSWDC 10; BC200540266 at [15] per Rein DCJ; SW v New South Wales [2010] NSWSC 966; BC201006358 at [195]–[200] per Johnson J; Conridge v Schaapveld [2015] NSWSC 663; BC201504464 at [57] per Rein J. Qld s 29(1); Tas s 26(1); Vic s 23(1). These provisions follow UK 1939 s 22(1) (now UK 1980 s 28). See 7.12. Qld s 29(2); Tas s 26(1A); Vic s 23(1). As to Vic Pt IIA see 7.36–7.57. Vic ss 23(1A), 27E (see 7.54–7.56). As to acknowledgement generally see Ch 17. See 14.53. Qld s 29(2)(b); Tas s 26(4); Vic s 23(1)(c). This follows the language of UK 1939 s 22(1)(c) (now UK 1980 s 28(4)). Qld s 29(3)(b); Tas s 26(5); Vic s 23(1)(d). This follows the language of UK 1939 s 22(1)(e). Qld s 29(2)(a); Tas s 26(3); Vic s 23(1)(b). Equivalent provision is found in WA s 53(2). This follows the language of UK 1939 s 22(1)(b). Qld s 29(3)(a); Tas s 26(2); Vic s 23(1)(a). This follows the language of UK 1939 s 22(1)(a) (now UK 1980 s 28(2)). QLRC 53, p 138. See, for example, 20.34–20.36, 20.117. Vic s 23(1A). Vic s 27E, as to which see 7.56. See 14.18. Under Tas s 5A, as to which see 7.66–7.69. Tas s 26(6), in this regard following the relevant wording of the (now repealed) Vic s 23(1)(e), which itself reflected UK 1939 s 22(2)(b). The current English Act contains no equivalent. Todd v Davison [1972] AC 392 at 411. See also QLRC 53, pp 121–2 (noting that, in the case of a plaintiff under the age of 18, the effect of delaying the commencement of the limitation period until the plaintiff has attained his or her majority is that ‘a potential defendant is at risk of being sued for a very long period’, citing by way of example an action alleging that the plaintiff’s injuries were caused at birth by the negligence of a medical practitioner, which may be brought up to 21 years after the birth (18 year age of majority plus the three year limitation period), in which event ‘[i]t is almost inevitable that in such a situation the quality of the available evidence will have deteriorated to some extent by the time the claim is heard’). Verboon v McMahon [1970] VR 282 at 286 per Adam J. See also Lang v Victoria [1965] VR 390 (where the plaintiff was in the custody of a capable parent, and so the suspension of the running of time was held not to apply; Herring CJ identified the purpose of the exceptions as ‘to prevent an infant taking advantage of the [suspension of time], in cases where he is injured in some way … if he is in the custody of his parents and his parents are available to arrange for proceedings to be taken on his account’); WALRC 36(II), p 399.

81.

82. 83.

84.

85.

86. 87.

88. 89. 90. 91. 92.

See, for example, Brook v Hoar [1967] 3 All ER 395; Hewer v Bryant [1970] 1 QB 357; Verboon v McMahon [1970] VR 282 (each involving an underage child held not to be in the ‘custody’ of a parent by reason of an independent existence). Verboon v McMahon [1970] VR 282 at 287 per Adam J. Verboon v McMahon [1970] VR 282 at 291 per Adam J. See also Hewer v Bryant [1970] 1 QB 357 at 369 per Lord Denning MR; Todd v Davison [1972] AC 392 at 401 per Lord Morris, at 407–9 per Viscount Dilhorne, at 412 per Lord Pearson, at 413 per Lord Diplock; Tung v Augustine [1973] VR 616 at 619–20 per Little J. See, for example, Todd v Davison [1972] AC 392 (where Lord Morris opined that the word ‘effective’ in the phrase ‘effective … care and control’ was ‘only used to describe an existing state of affairs pointing to care and control, and in no sense to suggest that there must be a test as to the quality of performance or adequacy attained in the exercise of the care and control’: at 401). See, for example, Tung v Augustine [1973] VR 616 (where Little J remarked that ‘it is unreal and unfounded … to say that the normal incidence of the relationship between the plaintiff and his parents, namely care and control, which obtained prior to his departure on holiday ceased to exist during his absence and that he was accordingly, whilst on holiday, not in the custody of a parent’: at 620). TLRC 69, p 42. See, for example, Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, paras 104–10; ALRI DP4, pp 292–3 (‘We are familiar with too many cases in which a parent … or a guardian, as the case may be, has permitted a limitation period to expire without bringing a claim, to the serious prejudice of a person under disability’); NZLC 6, para 257 (remarking that ‘[t]his is an area where the law has traditionally been protective, and it is not possible to generalise about the reasonableness or responsibility of parents’ or guardians’ actions to protect the interests of children and young persons (or to distinguish easily or effectively between those that may have been reasonable and those that may not)’); QLRC 53, pp 127–8 (‘any possible prejudice to potential defendants which results from suspension of the limitation period is outweighed by the risk that a minor plaintiff might be deprived of the right to seek compensation because proceedings are not initiated on the minor’s behalf within the limitation period’); Law Com 151, pp 297–301 (also because any right of action against a parent for failing to commence proceedings would be a poor substitute for the child’s own claim for damages against the original tortfeasor); Law Com 270, para 3.117 (reasoning that if the minor has a representative adult who is conscious of his or her responsibilities, and willing and able to take action, it is likely that proceedings will be issued on behalf of the child promptly even under the current law; hence, ‘[t]he only practical effect of providing that time runs where there is a representative adult would be to penalise those minors where the representative adult is negligent’). Contra ILRC, para 4.128 (which favoured a ‘custody of a parent’ rule). Cf WALRC 36(II), pp 421–9 (representing a qualified custody of a parent approach, not adopted in the Limitation Act 2005 (WA)). See, for example, ALRI 55, p 78; Law Com 151, pp 297–301; QLRC 53, p 138. Cf WALRC 36(II), pp 429–31. See Stevenson v Tasmania [2008] TASSC 27; BC200804302. Tas s 26(6). Being the day on which the Limitation Amendment Act 2004 (Tas) commences. A ‘close relationship’ is a relationship where: (a) either parent may be directly or indirectly influenced by the intended defendant not to bring an action on behalf of the minor against the

intended defendant; or (b) the minor may be unwilling to disclose to the parent the conduct or events on which the action may be based: Tas s 26(8). 93. Tas s 26(7). Cf QLRC 53, p 123. 94. Tas s 26(9). ‘Date of discoverability’, in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death: (a) had occurred; (b) was attributable to the conduct of the defendant; and (c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings: Tas s 2(1). See further 7.67. 95. Qld s 5(2); Tas s 2(2)(a); Vic s 3(2). 96. Qld s 5(2); Tas s 2(2)(b); Vic s 3(2). 97. Qld s 5(3) (namely while the person is: (a) an involuntary patient under the Mental Health Act 2000 (Qld); (b) a forensic disability client under the Forensic Disability Act 2011 (Qld); or (c) in strict custody pursuant to an order of the court or in safe custody pursuant to an order given by the Governor in the name of Her Majesty, under the Criminal Code s 647); Tas s 2(3) (namely while: (a) he or she is subject to an assessment order or treatment order under the Mental Health Act 2013 (Tas); or (b) a guardianship order or an administration order in respect of his estate is in force under the Guardianship and Administration Act 1995 (Tas)); Vic s 3(3) (namely if the person is a ‘protected person’ within the meaning of the Guardianship and Administration Act 1986 (Vic) s 85 or a ‘represented person’ within the meaning of that Act). The former English equivalent, UK 1939 s 31(3), was introduced to overcome the House of Lords’ decision in Harnett v Fisher [1927] AC 573 (where the appellant, whom it was found had been wrongly certified as a lunatic by the respondent doctor nine years earlier, was held time-barred from recovering damages for the respondent’s negligence in issuing the certification). 98. Seaton v Seddon [2013] 1 All ER 29; [2012] EWHC 735 (Ch) at [90]–[94] per Roth J. 99. See, for example, Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) at [614] per Ouseley J (poverty, illiteracy and ignorance held not to be disabilities for this purpose); Mowen v Morning Bulletin/APN [2013] QCA 36; BC201301021 (where the plaintiff’s status as a disabled pensioner was held not to attract the operation of Qld s 29, as it had nothing to do with his soundness of mind: at [21] per Dalton J, with whom Holmes and Fraser JJA concurred). It should not be assumed, in any event, that the plaintiff’s status here would necessarily have amounted to a requisite physical disability in the Territories and New South Wales. 100. Prior to its amendment by the Corrective Services and Other Legislation Amendment Act 2008 (Qld) on 7 November 2008, Qld s 5(2) included the words ‘a convict who, after conviction, is undergoing a sentence of imprisonment’. Their deletion was a belated response to a recommendation by the QLRC 53, pp 139–44 (which favoured bringing any such claim within the general scheme of limitations law, whilst leaving any injustice to be addressed pursuant to the judicial discretion to extend time). The same had been recommended in Western Australia the year before: WALRC 36(II), pp 387–8. Cf NZLC 6, para 260 (which, against a backdrop of recommending that ‘incapacity’ should include restraint resulting in inability to manage affairs in relation to a claim, made explicit that its proposal was not intended to provide an automatic extension of a limitation period for prisoners; it did, however, envisage extraordinary circumstances — perhaps some form of solitary confinement — where a prisoner could discharge the ‘difficult’ onus of proving that the relevant circumstances of imprisonment actually impeded the management of his or her affairs). 101. W v Attorney-General [1999] 2 NZLR 709 at [90] per Thomas J (in the context of an equivalent provision in NZ 1950 s 2(2)). Cf T v H [1995] 3 NZLR 37 at 48 per Hardie Boys J (who opined that, in the context of NZ 1950 s 2(2), ‘the only complete disabilities imposed by law are infancy

102.

103. 104. 105.

106. 107.

108.

109. 110.

111. 112.

and unsoundness of mind’, and the sub-section ‘does not extend to physical disability, or [to] a mental inability or incapacity short of unsoundness of mind’); Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) at [614] per Ouseley J (same view expressed in the absence of a deeming provision; cf the obiter remark of Sedley LJ on appeal conceding some scope for arguing against an exhaustive definition: Chagos Islanders v Attorney-General [2004] EWCA Civ 557 at [47]). Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 540 per Tipping J (remarks made in the context of an equivalent provision in NZ 1950 s 2(2), but nonetheless ruling that a company in receivership was not under a disability, as the company may ‘take action in the same way as may a company not in receivership’ (at 540) and ‘the powers of the directors of a company in receivership are not completely abrogated by the receivership’ (at 541)). Cf Re Harule Pty Ltd (1994) 13 ACSR 500; BC9402607 (where Santow J refused to suspend the limitation period visà-vis a corporate plaintiff for the period of its deregistration, noting that the liquidator could have, in any case, brought the action on the company’s behalf; his Honour did not, however, express any strict rule, or couch his reasons by reference to disability). Kirby v Leather [1965] 2 QB 367 at 383 per Lord Denning MR. [1965] 2 QB 367. Kirby v Leather [1965] 2 QB 367 at 384. See also at 385 per Danckwerts LJ, at 387 per Winn LJ; Pointon v Walkley [1951] SASR 121 at 125 per Mayo J (opining that the phrase ‘of unsound mind’ in the statute is ‘sufficiently comprehensive to include (inter alia) any person who by defect of reasoning powers is unable to understand the matters involved, and in his mind necessary to decide whether he will or will not institute litigation, and who is unable to give directions accordingly’). [1981] Qd R 121 at 123. King v Coupland [1981] Qd R 121 at 123, cited with approval in Flemming v Gibson (2001) 34 MVR 40; [2001] QCA 244; BC200103244 at [3] per the court (adding that ‘[s]hortly stated it was necessary for the respondent to establish a mental illness producing incapacity to manage her affairs … in the manner of a reasonable person’: at [4]); State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [17]—[19] per McMeekin J, with whom Margaret McMurdo P and White JA concurred; Bergemann v Tilly’s Administrative Services Pty Ltd [2012] QSC 266; BC201207341 at [15] per Douglas J. State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [22] per McMeekin J, with whom Margaret McMurdo P and White JA concurred (adding that the word ‘mind’ means the mind in all its aspects, ‘including the ability to form a rational judgment and to act upon any such judgment so formed’). State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [20] per McMeekin J, with whom Margaret McMurdo P and White JA concurred. State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [20] per McMeekin J, with whom Margaret McMurdo P and White JA concurred. Cf Bergemann v Tilly’s Administrative Services Pty Ltd [2012] QSC 266; BC201207341 (where Douglas J, while accepting that there would have been periods when the plaintiff may have had difficulties in managing his affairs in relation to the claim, did not accept that ‘he would have been so incapacitated for all but brief periods which were too short to enable him to comprehend all the relevant matters or actions required by him’: at [28]). ACT Dictionary; NSW s 11(3)(b)(iii), (iv). Tas s 28; Vic s 23(2).

113. See QLRC 53, pp 144–7 (recommending against introducing a specific provision to this effect, in the belief that any judicial discretion to extend time is capable of addressing potential injustices in this context). 114. Its broader application was prompted by a recommendation of the Law Reform Committee of South Australia: see Law Relating to Limitation of Time for Bringing Actions, Twelfth Report, 1970, p 6 (lamenting that it would be ‘an absurd result’ were disability to cause a suspension of the running of time in limitations legislation but not, say, some other legislation that prescribes a time bar). 115. SA s 45(1). 116. SA s 45(3). 117. As to acknowledgement in South Australia see 17.21–17.23. 118. SA s 45(2). 119. SA s 46. 120. Under SA s 35, as to which see 5.2 (contract), 6.2 (tort). 121. SA s 39. 122. UK 1623 s 7 (albeit confined to where the plaintiff went ‘beyond the seas’; the position of defendants going ‘beyond the seas’ was equated via by the Administration of Justice Act 1705 (UK) (IV Anne c 16, s 19), following the decision in Dupleix v De Rovan (1705) 2 Vern 540; 23 ER 950). In view of ‘the current ease of transport and communication’, in 1967 the New South Wales Law Reform Commission recommended against any provision that extended the limitation period by reason of the plaintiff being ‘beyond the seas’: NSWLRC 3, para 6. The force of this recommendation has only intensified with the passage of time (see WALRC 36(II), pp 405–6, 414–15), especially against the backdrop of a curial disposition to interpret the phrase broadly (see, for example, Societé Egyptienne Financiére Pour le Commerce et L’Industrie SAE v Clyde Industries Ltd [1960] SR (NSW) 315, where Walsh J held that the phrase extended to a foreign corporation). 123. Ruckmaboye v Lulloobhoy Mottichund (1852) 8 Moo PC 4; 14 ER 2. 124. Griffith v Bloch (1878) 4 VLR (L) 294 at 298 per Stawell CJ, at 299 per Barry J (ruling that Tasmania is ‘beyond the seas’ from Victoria). See also Lane v Bennett (1836) 1 M & W 70 at 74– 6; 150 ER 350 at 352–3 per Lord Abinger CB (ruling that Ireland is a place ‘beyond the seas’ from England, notwithstanding the Act of Union). 125. See Witten v Lombard Australia Ltd (1968) 14 FLR 322 (ruling that New South Wales is not ‘beyond the seas’ from the Australian Capital Territory, as each of these jurisdictions forms part of the same realm by reason of federation: at 326–31 per Gibbs J). 126. SA s 40. 127. See WALRC 36(II), pp 427–33 (although the scheme recommended only partly translated to the 2005 Act). 128. See UK 1874 s 3. 129. WA 1935 s 40. No material distinction exists between the term ‘insane’ and the phrase ‘unsound mind’ (as to which see 14.23–14.26): Keating v Woods (SC(WA), Adams M, 17 May 1994, unreported) BC9401685 at 7; Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305; BC200106995 at [437] per McLure J. 130. See 14.33. 131. See 14.34–14.37.

132. See 14.39–14.32. 133. See 14.38. 134. WA s 3(1). This follows the language recommended in ALRI 55, p 41 (which cited two advantages of this formulation: first, it does not discriminate between different kinds of disability; and second, ‘[i]n connecting the disability to the particular claim’, it recognises that ‘a person may be competent for one purpose … but not for another’, and so ‘opens the way to flexible interpretations appropriate to specific facts and circumstances’), and implemented in Limitations Act 2000 (Alta) s 1(h)(ii). 135. A point identified in QLRC 53, p 129 as a shortcoming of the definition in overlooking a potential plaintiff who is unable to communicate effectively. Hence the recommendation, which has not seen implementation, that ‘disability’ should be defined as ‘[t]he lack of the physical or mental capacity to: (a) understand the nature and foresee the effects of decisions about a claim; or (b) communicate or otherwise give effect to those decisions’ (p 131). 136. WA s 30(1). 137. WA s 30(2) (that is, prescribed under WA Pt 2 Div 3 (limitation periods for particular causes of action)). 138. WA s 31(1). 139. WA s 31(2) (that is, WA Pt 2 Div 2 (general limitation period) or Div 3 (limitation periods for particular causes of action)). 140. WA s 34. As to the limitations law applicable to defamation actions see 6.45–6.48. 141. ‘Guardian’, in relation to a person (A) who is a minor when a cause of action accrues, means a person: (a) who at law has responsibility for the long-term care, welfare and development of A before A reaches 18 years of age; and (b) for whom it is practicable, having regard to the person’s relationship with A, to commence an action on behalf of A: WA s 3(1). 142. WA s 32(1). 143. WA s 79(2). 144. Under WA Pt 2 Div 2 (general limitation period) or Div 3 (limitation periods for particular causes of action). 145. WA s 32(2). 146. ‘Guardian’, in relation to a person with a mental disability (A), means a person who: (a) is either a guardian of A or the administrator of A’s estate, or both; and (b) has, under the guardianship order, the administration order, or the provisions of the Guardianship and Administration Act 1990 (WA), as is relevant to the case, the function of considering the appropriateness of commencing an action on behalf of A: WA s 3(1). In this definition the terms ‘administrator’, ‘administration order’, ‘guardian’ and ‘guardianship order’ have the respective meanings that they have in the Guardianship and Administration Act 1990 (WA) s 3(1): WA s 3(1). 147. WA s 35(1). 148. WA s 79(2). 149. WA s 35(2). 150. WA ss 32(3) (minor), 35(3) (person under disability). 151. See 14.38. 152. Namely under WA Pt 3 Div 1 (‘Extension for persons under 18 years when cause of action accrues’: ss 30–34, as to which see 14.33, 14.34), Div 2 (‘Extension for persons with mental disability’: ss 35–37, as to which see 14.34, 14.38). There is also a potentially different limitation

153. 154. 155.

156. 157. 158.

159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169.

170. 171. 172. 173. 174. 175.

provided for under WA s 7 (‘Special provisions for certain personal injury actions relating to childbirth’, as to which see 7.90, 7.91). WA s 52. WA s 53(2). Equivalent provision is made in the Queensland, Tasmanian and Victorian legislation: see 14.19. Here ‘person in a close relationship’, in relation to A, means: (a) a person (B) who at law has responsibility for: (i) the long term care, welfare and development of A before the latter’s majority; or (ii) the day to day care, welfare and development of A before majority; or (b) a person (C) whose relationship with A or B is such that it is in the circumstances reasonable: (i) for A or B not to commence an action against C; or (ii) for A not to wish to divulge the conduct or events in respect of which an action against C would be founded: WA s 33(3). WA s 33(1). WA s 33(2) (the longer period being prescribed by WA Pt 2 Div 3). Here ‘person in a close relationship’, in relation to A, means: (a) a guardian of A; or (b) a person (B) whose relationship with A (or A’s guardian) is such that it is in the circumstances reasonable: (i) for A (or the guardian) not to commence an action against B; or (ii) for A not to wish to divulge the conduct or events in respect of which an action against B would be founded: WA s 36(4). WA s 36(1). The longer period being prescribed by WA Pt 2 Div 2 (general limitation period) or Div 3 (limitation periods for particular causes of action). WA s 36(2). WA s 36(3). WA ss 41(1) (minority), 42(1) (mental disability). WA ss 41(4) (minority), 42(2) (mental disability). As to the limitations law applicable to defamation actions see 6.45–6.48. WA s 41(2). WA s 42(2). WA ss 41(3), 42(3). Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [12] per Pullin JA, at [63] per Murphy JA. Being the interpretation favoured by Newnes JA, dissenting in Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [48]. While his Honour viewed the relevant inquiry in terms of whether it was unreasonable for the actual guardian not to commence proceedings within time, he accepted that this was to be determined objectively. In view of the latter, it may be legitimate to query the extent to which, in practice, this approach differs from that of the majority. (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [17]. Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [21]. Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [18]. Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [65]. Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [66]. Barr v Farrell (2013) 45 WAR 530; [2013] WASCA 211; BC201303340 at [54].

176. See, for example, Curic v Sprudzans (1980) 91 LSJS 232 (where Walters J found that ‘grave cerebral injury and consequent brain damage’ established the relevant disability); Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 (where the plaintiff’s cerebral palsy resulted in moderately severe intellectual disability: at [31] per Hoeben J). 177. See, for example, Pointon v Walkley [1951] SASR 121 (where Mayo J found that permanent brain damage as a result of an assault, to which the action was directed, amounted to a legal disability). Cf Maga v Archbishop of Birmingham [2010] 1 WLR 1441; [2010] EWCA Civ 256 (where the English Court of Appeal accepted that a plaintiff who suffered only minor brain damage at birth, but also had a low IQ and suffered epilepsy, was of unsound mind for limitations purposes; that the case involved a claim stemming from proven child sexual abuse may have swayed the court in this regard). 178. See 14.12, 14.15. 179. See, for example, Keating v Woods (SC(WA), Adams M, 17 May 1994, unreported) BC9401685 at 12 (where the expert evidence, though it indicated that the plaintiff suffered some memory impairment, did not reveal any deficiency in the faculty of reasoning, inadequate powers of interpretation, or inability to communicate, sufficient to substantiate a mental disability); C v CSIRO (SC(NSW), Harrison M, 19 September 1997, unreported) BC9704531 at 11–12 (that the plaintiff suffered depression, a frontal lobe deficit, and consequent difficulties in planning and organisation, sustained attention and flexibility and active memory, as well as coping with novel, complex or abstract information did not render her unable to understand the matters involved to decide whether or not to institute litigation); Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305; BC200106995 at [439] per McLure J (who found that a plaintiff in the early stages of Alzheimer’s type dementia did not lack capacity in manage his affairs in relation to the relevant litigation). 180. Cocchi v Cocchi [1989] 1 Qd R 266 at 269 per Ambrose J. 181. New South Wales v Harlum [2007] NSWCA 120; BC200703974 at [136] per Basten JA (dissenting, but not on this specific point). 182. See, for example, Mabbett v Josef & Sons Contracting Pty Ltd (in liq) [2006] NSWSC 1452; BC200610920 [leave to appeal refused: Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237; BC200707743] (where the plaintiff, who suffered head injuries after falling at a demolition site in 1993, received further head injuries with a different employer when hit on head by a sheet of metal, and was subsequently diagnosed with schizophrenia, simply trusted his solicitor and his sister to do what was best for him vis-à-vis the proceedings; Adams J noted (at [94]) that ‘[m]any persons who are relevantly disabled do the same’). 183. T v H [1995] 3 NZLR 37 at 60–1 per Tipping J. 184. See, for example, Kotulski v Attard [1981] 1 NSWLR 115 (where a plaintiff who suffered psychiatric problems as a result of her husband’s work-related death, out of which the civil proceedings arose, was found to be under a disability for the purposes of those proceedings even though she had, in the period between the date of the accident and the filing of the statement of claim, given instructions to her solicitor at the Coronial Inquest into her husband’s death, brought a Worker’s Compensation claim and attended to aspects of the deceased’s estate; Slattery J found that notwithstanding the plaintiff’s capacity to carry out these activities, her depressive state ‘impaired her volition and judgment’ in relation to the cause of action sued upon: at 122); Flemming v Gibson (2001) 34 MVR 40; [2001] QCA 244; BC200103244 (where the plaintiff in an action stemming out of a motor vehicle accident was held to suffer a relevant disability — even though she had obtained employment, established conjugal relationships and cared for young

185.

186.

187. 188. 189. 190. 191. 192. 193. 194. 195. 196.

197.

198. 199.

200. 201. 202.

children — substantiated by medical evidence of her social phobia, dependence on others for routine and decision-making, and low IQ: see at [10]—[16] per the court). See, for example, Saunders v Jackson [2009] NSWCA 192; BC200905953 (discussed in the text); Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369; BC200910295 (alleged sexual assault by school teacher); State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 (alleged sexual abuse by step-father: see at [28]—[31] per McMeekin J, with whom Margaret McMurdo P and White JA concurred); DC v New South Wales [2012] NSWSC 142; BC201200905 (involving alleged sexual abuse by the plaintiff’s step-father some 29 years earlier, Harrison AsJ finding that the plaintiff only developed the ‘robustness’ to persist in the cause of action after the criminal prosecution and once she had lodged a Victims Injury Compensation claim: [99], [100]). Cf Ciantar v New South Wales [2008] NSWSC 191; BC200801333 (where the plaintiff, who alleged historical abuse at the hands of foster parents, was found unable to substantiate a relevant disability deriving from a belief that he would not be believed, which Michael Grove J viewed as ‘an anticipation that any action taken by her will fail, rather than an inhibition upon seeking to have any action instituted on her behalf’: at [42]). T v H [1995] 3 NZLR 37 at 49 per Hardie Boys J, at 60–1 per Tipping J; W v Attorney-General [1999] 2 NZLR 709 at [70]—[72], [90], [91] per Thomas J (focusing on the subjective characteristics of the abused person). [2009] NSWCA 192; BC200905953. Saunders v Jackson [2009] NSWCA 192; BC200905953 at [45]. Saunders v Jackson [2009] NSWCA 192; BC200905953 at [46], [47]. Saunders v Jackson [2009] NSWCA 192; BC200905953 at [48]. State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [31] per McMeekin J, with whom Margaret McMurdo P and White JA concurred. [2009] NSWSC 154; BC200901664 at [74]. Glennie v Glennie [2009] NSWSC 154; BC200901664 at [74]. See 14.12. [2015] SASC 12; BC201500271. A, DC v Prince Alfred College Inc [2015] SASC 12; BC201500271 at [187]. See also Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [240] per White J. A, DC v Prince Alfred College Inc [2015] SASCFC 161; BC201512914 at [137] per Gray J (noting the clear medical opinions of symptoms sufficient to express a (delayed) diagnosis of a posttraumatic stress disorder evident from the early 1980s, if not earlier). [2005] NSWCA 244; BC200505188 at [19] per Handley JA, with whom M W Campbell AJA and Adams J concurred. Cf M A Jones, ‘Limitation Periods and Plaintiffs Under a Disability — A Zealous Protection?’ (1995) 14 CJQ 258 at 262–7 (cataloguing English defendants’ largely unsuccessful attempts to constrain the applicable limitation period, in the absence of a notice to proceed procedure, by resorting to, inter alia, the court’s jurisdiction to dismiss an action as an abuse of process). As to acknowledgement and confirmation in the context of limitations law see Ch 17. ACT s 31(5); NSW s 53(10); NT s 40(1)(d), 40(1)(e); Tas s 27(8). ‘Guardian’ refers to a guardian or manager under the Guardianship and Management of Property Act 1991 (ACT): ACT s 31(7).

203. The requirements for the ‘giving’ of the notice are prescribed by ACT s 31(6). 204. ACT s 31(1). The requisite formalities are that the notice: (a) be in writing; (b) be addressed to the guardian concerned; (c) show the name of the person under a disability; (d) state the circumstances out of which the cause of action may arise or may be claimed to arise with the particularity necessary to enable the guardian to investigate the question whether the person under a disability has the cause of action; (e) give warning that a cause of action arising out of the circumstances stated in the notice is liable to be barred by this Act; and (f) be signed by the person giving the notice: ACT s 31(2). However, minor deviations from these requirements, not affecting the substance nor likely to mislead, do not invalidate a notice: ACT s 31(3). 205. ACT s 31(4). 206. ‘Curator’ is defined in NSW s 53(1). 207. The requirements for the ‘giving’ of the notice are prescribed by NSW s 53(6), 53(7). 208. NSW s 53(2). The formality requirements for a notice to proceed are equivalent to those in the Australian Capital Territory (as to which see n 204 above): NSW s 53(4), 53(5). 209. NSW s 53(3). 210. ‘Tutor’ means, in relation to a person under a disability, another person appointed by a court to institute or defend legal proceedings on his behalf: NT s 4(1). The legislation itself makes provision for a putative defendant to apply to the Supreme Court for a declaration that the person to whom the cause of action has accrued is a disabled person and request the appointment of a tutor to conduct legal proceedings arising from the affairs of that person: NT s 37. 211. Under the Aged and Infirm Persons’ Property Act 1979 (NT) s 13. 212. NT s 38(1). The formalities are that the notice: (a) be in writing; (b) identify generally the incidents (including the name of the person under a disability) upon which the supposed cause of action is based; and (c) give warning that a cause of action arising out of the incidents referred to in the notice is liable to be barred by the limitations legislation: NT s 40(1)(a)—(c). 213. NT s 38(2). 214. The term ‘infant’ means a person who has not attained the age of 18 years: Interpretation Act 1978 (NT) s 17. 215. NT s 39(1). 216. NT s 39(2). 217. Found in NT s 44, as to which see 19.1. 218. NT s 39(3). 219. The requirements for the ‘service’ of the notice are prescribed by Tas s 27(6). 220. The notice to proceed must be in writing addressed to the person on whom it is served and signed by the prospective defendant, and must: (a) state the name of the person under a disability; (b) state the circumstances out of which the cause of action arose, or may be claimed to arise, with such particularity as is necessary to enable the person on whom the notice is served to investigate the question whether the person under a disability has a cause of action; and (c) give warning that a cause of action arising out of the circumstances of the notice is liable to be barred by the legislation: Tas s 27(4). Minor deviations from these requirements, not affecting the substance nor likely to mislead, do not affect the validity of a notice to proceed: Tas s 27(5). 221. Tas s 27(1). 222. Tas s 27(2). 223. Tas s 27(3).

[page 304]

CHAPTER 15

Fraud and Concealment Backdrop and Context Australian Statutory Schemas The Territories and New South Wales Queensland, Tasmania and Victoria South Australia Western Australia Observations pertaining to the statutory schemas ‘Based on’ fraud ‘Fraud or deceit’ Concealment of ‘cause’ compared to ‘fact’ Language of concealment Accrual pegged to discoverability Pleading of fraud Extension of persons to whom time bar applies Meaning of Core Concepts ‘Fraud’ Jurisdictions except Western Australia Western Australia ‘Fraudulent concealment’ Parameters of concealment Concealment of identity

15.2 15.9 15.10 15.11 15.12 15.13 15.14 15.15 15.16 15.17 15.19 15.20 15.22 15.23 15.27 15.27 15.27 15.31 15.32 15.32 15.34

‘Deliberate concealment’ Subsequent Concealment Purchase by an Innocent Third Party

15.36 15.41 15.48

15.1 With a predominant genesis through equitable doctrine, time saw the inclusion within limitations statutes of fraud and concealment as avenues to suspend the running of time against a prospective plaintiff. Translating to each Australian jurisdiction, there nonetheless emanates no uniform statutory language. There is also, as a chief product of its genesis, debate over the parameters of ‘fraud’ in this (statutory) context. The incidents of the relevant schemas, questions over terminology and the scope of protection form the subject matter of this chapter. [page 305]

Backdrop and Context 15.2 As noted elsewhere, the Limitation Act 1623 (UK) did not apply to causes of action in equity.1 ‘Courts of equity’, it was said, ‘are not within the words of the statute, which only apply to certain legal remedies’.2 It was not until 1833 that any English statute imposed express time bars on equitable actions,3 but this did not prevent equity from addressing matters of delay in its own way. It did so via the doctrine of laches, wherein a claim in equity could, in the court’s discretion, be barred by undue delay.4 It also applied statutory limitation periods by way of analogy in certain circumstances.5 These equitable responses to delay meant that equity judges, like their common law counterparts, needed to establish from when time should run. Whereas judges at common law were informed in so doing by the terms of the 1623 Act, equity judges had greater freedom in conceptualising the running of time in accordance with equitable principle.

15.3 Consistent with equity’s abhorrence of ‘fraud’ in all its forms,6 it was unsurprising that fraud should impact on the running of time for equitable purposes.7 Equity declared, to this end, that in cases of fraud time did not begin to run until discovery of the fraud.8 In the words of Lord Westbury, ‘the right of the party defrauded is not affected by lapse of time, or, generally speaking, by anything done or omitted to be done, so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed’.9 15.4 It should not be assumed, though, that common law courts entirely ignored fraud in the limitations context. It has been remarked that ‘there is good ground for thinking that the common law, under its best judges, would have done the same’.10 But this did not mean that ‘fraud’ as understood and applied by common law courts equated to the same concept in equity. ‘Fraud’ in equity was, and remains,11 a broader concept than its namesake at common law.12 [page 306] 15.5 Equity also envisaged that fraud could impact upon the running of time via fraudulent concealment. In cases of ‘concealed fraud’,13 courts of equity refused to apply by analogy statutes of limitation that operated upon actions at law.14 Time was prevented from running here too, by reason of the concealment,15 until the plaintiff was fully cognisant of his or her rights, unless there had been laches or acquiescence.16 This doctrine was ‘based on the moral injustice of allowing a man to take advantage of his own fraud and concealment’.17 Equity’s approach to concealment is illustrated by Trevelyan v Charter,18 where a solicitor (C), having been retained by a client (T) to arrange the sale of two pieces of land, in breach of equitable duty concealed from T both the price obtained and the fact that he became the ultimate purchaser of one of them. When nearly 40 years later T’s executors learned that C had been the true purchaser of the land, they brought proceedings against C’s estate to have the conveyances set aside. In refusing to dismiss the proceeding due to lapse of time, Pepys MR reasoned as follows:19 In cases of fraud, time is no bar, otherwise justice would be defeated, not because the case was

not a proper one for the interference of the Court, but because the deception was continued by the author of the fraud so long as to enable himself to reap the benefit of it. It is fitting that those who thus appropriate the property of others, should be assured, that in this court no time will secure to them the fruits of their dishonesty, but that their children’s children will be compelled to restore the property of which their ancestors have fraudulently possessed themselves. Time is no bar, except the party, having full information of his injuries and rights, allows time to elapse, without seeking relief.

15.6 The doctrine of ‘concealed fraud’ furnished no answer, on equitable grounds, to a pleading of the Statute of Limitations in a common law court to, say, an action in tort.20 But this did not mean that the common law eschewed any recognition of fraudulent concealment for limitations purposes. Where there was a concurrent remedy both at common law and in equity, common law courts essentially brought a notion of concealment under the banner of common law fraud. They did so in circumstances where the concealment was of itself an actionable wrong (that is, fraudulent) — in which case time ran from the moment the fraud was discovered — but otherwise maintained that the time ran from when the cause of action [page 307] arose.21 Yet the narrow concept of ‘fraud’ at common law made a deferral of the running of time ‘relatively rare’.22 Accordingly, the impact of ‘fraudulent concealment’ was much broader in scope in equity than at common law. 15.7 The fusion of the administration of common law and equity via the Judicature Act of 1873 and 187523 was a step towards breaking down the distinction between equitable and common law fraudulent concealment. Via s 25(11) the 1783 Act declared that, in the event of a conflict or variance between the rules of equity and those of the common law concerning the same matter, the rules of equity were to prevail. This required the courts to resolve the different approaches of law and equity to limitation. In particular, the question arose whether and, if so, how the equitable principles in respect of fraud and fraudulent concealment were to apply to actions at law. At the outset it was established that the equitable rule should prevail in all cases in which before the Judicature Acts there had been a concurrent remedy at common law and equity.24 It took longer for judges to accept a broader

conclusion that the equitable rule should also apply to purely common law actions,25 though it could hardly be said that the case law was any paragon of clarity to this end.26 It was accordingly apt that the issue be addressed via a specific provision in limitations legislation, a course that the Wright Committee suggested in 1936, reasoning as follows:27 As a general rule it is no answer to a plea of the Statutes of Limitation to say that the plaintiff was unaware of the existence of his cause of action until after the expiration of the statutory period. But cases may occur in which such ignorance on the part of the plaintiff is brought about by the fraudulent conduct of the defendant. Either the cause of action may spring from the fraud of the defendant or else the existence of a cause of action untainted in its origin by fraud may have been concealed from the plaintiff by the fraudulent conduct of the defendant. It is obviously unjust that a defendant should be permitted to rely upon a lapse of time created by his own misconduct, but the present state of the law is so obscure and pregnant with difficulties that it must be regarded as uncertain whether a fraudulent defendant can in all cases be prevented from setting up the plea that the action has been brought out of time.

The Committee proceeded to recommend a statutory provision to the effect that, in every instance where a Statute of Limitation applies (including by analogy), for a cause of action founded on fraud committed by the defendant (or an agent, or a person through whom the [page 308] defendant claims), or a cause of action unconnected with fraud is fraudulently concealed from the plaintiff by any such person, the plaintiff’s right to sue should be deemed to accrue when he or she discovered the fraud or could with reasonable diligence have discovered it. This distinction between cases where a cause of action springs from the fraud of the defendant, and those where, untainted in its origin by fraud, it was concealed by the fraudulent conduct of the defendant, became part of the Limitation Act 1939 (UK),28 and has translated to Australian limitations statutes. 15.8 In a sense, the 1939 Act largely superseded the existing law of fraudulent concealment. But as the legislature chose to couch the relevant provision in terms of a doctrine — ‘fraudulent concealment’ — with an existing meaning in equity, it proved hardly surprising that courts should apply the equitable doctrine in interpreting this provision.29 In line,

moreover, with the trend of preceding case law, it has been observed that one of the purposes of the aforesaid provision was to ensure that the principles developed in equity as to postponement of the running of time in the face of fraudulent concealment were to have ‘general application’.30 In speaking of general application, though, it is confined to causes of action subjected to time bars by limitations statutes whether directly or by analogy in equity. Statutory causes of action are, unless a contrary intention appears, not subject to limitations statutes or the doctrine of fraudulent concealment.31

Australian Statutory Schemas 15.9 In each Australian jurisdiction except South Australia and Western Australia, the limitations statutes follow the broad schema (though not necessarily the wording) of the provision first enacted as s 26 of the Limitation Act 1939 (UK) (a schema reiterated in the current Limitation Act 1980 (UK) via s 32) by making discrete reference to causes of action based on fraud, as compared to those involving concealment, albeit producing the same effect. Other than in Western Australia, the schemas envisage a suspension of the commencement of the time bar, not any avenue for extending time once the time bar has expired;32 an allegation of fraud or deceit, to this end, may be relied on as an answer to a defence pleading the expiry of the limitation period (by way of reply), and is a matter usually addressed at the trial.33

The Territories and New South Wales 15.10 The limitation statutes in the Territories apply to ‘a cause of action based on fraud or deceit’ and to where a ‘cause of action or the identity of a person against whom a cause [page 309] of action lies is deliberately concealed’.34 The New South Wales provision

does likewise, but retains the traditional language ‘fraudulently concealed’ in place of ‘deliberately concealed’.35 In each instance, the statutes declare that the time that elapses after an applicable limitation period begins to run and before the plaintiff (either solely or with other persons) ‘first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment’, does not count in the reckoning of the limitation period against a person ‘answerable for the fraud, deceit or concealment’.36 The foregoing has effect whether the limitation period for the cause of action would otherwise end before or after the date when the plaintiff (ought to have) discovered the fraud, deceit or concealment.37 But in New South Wales it must be read subject to the ultimate time bar of 30 years,38 which cannot be extended by reason of fraud (or any other postponing factor).39

Queensland, Tasmania and Victoria 15.11 The Queensland, Tasmanian and Victorian provisions remain phrased in terms paralleling those in s 26 of the Limitation Act 1939 (UK). They apply to actions based upon the fraud of the defendant,40 or rights of action concealed by the fraud of such a person. In these circumstances, the period of limitation begins to run only when the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.41

South Australia 15.12 In South Australia the relevant provision makes no reference to actions that are based on the fraud of the defendant, and so the general law discussed above42 remains extant in this jurisdiction. The South Australian legislation does, however, target ‘concealed fraud’. In cases of this kind, it provides that the right of any person to bring equitable proceedings43 to recover any land or rent of which he or she (or any person through whom he or she claims) has been deprived by that fraud is ‘deemed to have first accrued’ when that fraud was, or with reasonable diligence might have been, first known or discovered.44

Western Australia

15.13 Unlike the fraud and concealment provisions elsewhere, which operate to suspend the commencement of the time bar, the Western Australian legislation empowers the court, on application, to extend the time in which the action (excepting a defamation action) can be commenced ‘up to three years from when the action ought reasonably to have been commenced’ [page 310] if satisfied that the failure to commence the action was ‘attributable to’45 the ‘fraudulent or other improper conduct’ of the defendant (or a person for whom the defendant is vicariously liable).46 So instead of deferring the commencement of time, the Western Australian provision in essence empowers the court to extend the time within which a cause of action may be pursued. That the existence of fraudulent concealment was a relevant consideration in this discretionary exercise obviated, it was reasoned, any need for a separate rule dealing with fraudulent concealment.47 But as foreshadowed above, any extension of time here is limited to a maximum of three years running from when, in the opinion of the court, the cause of action should have been commenced. There is nothing in the statutory language to require the latter date to precede the expiry of the relevant limitation period.48 Nor does the legislation give any indication of the factors that may influence the duration of any time extension. It is not explicitly premised on notions of discoverability that inform statutory initiatives elsewhere. Yet by being premised on a court’s satisfaction that the delay was ‘attributable to fraudulent or other improper conduct’ of the defendant, in tandem with aligning the running of time from when the action ‘ought reasonably to have been commenced’, implicit in the relevant provision is some notion of discoverability as the relevant time trigger.

Observations pertaining to the statutory schemas 15.14 Several observations can be made regarding the statutory schemas that adopt the distinction between ‘fraud’ and ‘concealment’ emanating from

the 1939 English Act, namely excepting South Australia and Western Australia.

‘Based on’ fraud 15.15 In so far as ‘fraud’ is concerned, the relevant provisions target a cause of action ‘based on’ fraud. Use of the phrase ‘based on’, referring to fraud (or deceit), is designed to distinguish those actions where fraud is an ingredient of the cause of action relied on, whether at law or in equity, from those where it is not. Only in the former case can an action be said to be ‘based on’ fraud (or deceit). In what appears the leading case, Beaman v ARTS Ltd,49 the English Court of Appeal narrowly interpreted the phrase ‘based on fraud’ in s 26(a) of the Limitation Act 1939 (UK). The plaintiff, before departing overseas, deposited five packages with the defendant for safekeeping, with instructions that they were to be sent to her when she gave notice. After one package was sent, changes in regulations and the outbreak of war precluded the remaining packages being sent. When the defendant’s business was taken over by the custodian of enemy property, who set about winding it up, officers of the defendant opened the packages. Deciding that their contents were of little value, they chose to donate them to a charity, making no effort to inform the plaintiff thereof. On returning to England after the war, the plaintiff sued for damages for conversion, to which the defendant pleaded the defence [page 311] of limitation. The court rejected this defence on the grounds of fraudulent concealment (s 26(b)) but not by reason of fraud (s 26(a)). On the latter point, this was because s 26(a) operated only where fraud was an essential element of the cause of action. Lord Greene MR reasoned as follows:50 … the plaintiff’s argument under [s 26(a)] fails on the ground … that the action is not based on fraud. It must be borne in mind that s 26 is a section of general application. It applies to every sort of action which is affected by the Act. Of these many can properly be said to be based upon fraud: for example, an action for damages for deceit and an action claiming rescission of a transaction brought about by fraud. In all such cases fraud is a necessary allegation in order to constitute the cause of action. In other actions covered by the Act fraud is not a necessary

allegation at all and the action of conversion is one of them.

Beaman has seen application in Australian courts, in cases involving conversion51 as well as other torts,52 where fraud is not an essential element of the cause of action. The relevant provision does not, accordingly, confer benefits on a plaintiff who makes general allegations of fraud (or deceit) in a statement of claim that does not rely on such fraud (or deceit) to provide a basis for any cause of action sued upon.53

‘Fraud or deceit’ 15.16 The Territories and New South Wales refer to ‘fraud or deceit’, whereas in Queensland, Tasmania and Victoria the relevant provision speaks only of ‘fraud’. As the law of ‘deceit’ necessarily involves what is ordinarily described as ‘fraudulent’ behaviour — being a statement that is untrue, made with knowledge of its falsity or in reckless disregard of the truth54 — it is unclear what the term ‘deceit’ adds for this purpose. It appears to be encompassed within the broader concept of ‘fraud’, however defined.55

Concealment of ‘cause’ compared to ‘fact’ 15.17 So far as concealment is concerned, in most jurisdictions the legislation speaks of a right (or cause) of action concealed by fraud, but in the Australian Capital Territory the equivalent provision is phrased in terms of ‘a fact relevant to a cause of action’.56 The latter provision has a potentially broader purview than the former; it is easier for a defendant to establish the concealment of ‘a fact relevant to a cause of action’ than to establish the concealment of a right (or cause) of action itself.57 Notwithstanding the breadth of the said phrase, however, it encompasses only those facts constituting the cause of action, namely those that the plaintiff must prove to establish a prima facie case, not additional facts that increase the prospects of success in the action.58 [page 312] 15.18

In the Territories and New South Wales the legislation also refers

to the concealment of ‘the identity of a person against whom a cause of action lies’.59 But the omission of any explicit reference to concealment of identity in the Queensland, South Australia, Tasmanian and Victorian provisions — which here follow the English model60 — has proven no insurmountable obstacle for the courts in those jurisdictions to construe the relevant language as capable of addressing the concealment of the identity of a putative defendant.61

Language of concealment 15.19 As noted earlier, the relevant provision in the Territories (following the current English model)62 eschews the language of fraud in dealing with the topic of concealment. It speaks of a fact relevant to a cause of action, or the identity of a person against whom a cause of action lies, being ‘deliberately concealed’.63 In other jurisdictions, including in South Australia here too, which follow the former English model64 in using the language of ‘concealed fraud’, there is an evident legislative intention to give statutory recognition to the equitable doctrine of concealed fraud. No equivalent statement can be made vis-à-vis the language adopted in the Territories and the current English model, nor that found in the relevant Western Australia provision in its reference to ‘fraudulent or other improper conduct’.65 In each case, the basal logic is that ‘if the defendant is not sued earlier, he has only himself to blame’.66 It has been expressed, alternatively, in policy terms that defendants should not ‘benefit from their own alleged unconscionable behaviour by deliberately concealing the facts relevant to the plaintiffs’ cause of action’.67 In this latter quote, however, the term ‘unconscionable’ should be understood as descriptive, not an expression of the legal test to be applied.68 At the same time, it provides some insight into why fraudulent concealment in American law is viewed as a sub-set of the larger doctrine of equitable estoppel, which precludes a person by his or her own prior conduct from asserting a defence that the person might otherwise have had where it would be unconscionable to do so.69 [page 313]

Accrual pegged to discoverability 15.20 Each jurisdiction, here also including South Australia, beyond providing for fraud (or its equivalent) to suspend the running of time, triggers the running of time from the moment when the plaintiff either first discovered the fraud or could with reasonable diligence have discovered it. These dates may coincide, or the latter can antedate the former;70 after all, the legislation envisages that a plaintiff cannot plead ignorance of a cause of action where it was, in the circumstances, reasonably discoverable by him or her.71 The latter brings to the inquiry an objective flavour, albeit one informed by the position and knowledge of the plaintiff. (The Western Australian statute, while it is not phrased explicitly in terms of discoverability, is amenable to being so construed.)72 But the fact that a person in the plaintiff’s circumstances might have discovered a fraud via an enquiry in some collateral matter is arguably insufficient to establish that he or she could have discovered fraud with reasonable diligence at that time; ‘there must have been something to put the person on enquiry in respect of the matter itself and the enquiry, if made, must have led to the discovery of the real facts’.73 It has been said, in this regard, that the plaintiff must establish that he or she ‘could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take’.74 15.21 In the case of an insurance contract, the requirement of full disclosure by the insured stemming from its character as uberrimae fidei75 impacts upon questions of reasonable diligence in the insurer, as appears from the more broadly expressed observations of the Victorian Full Court in Clark v Clark:76 A person, who at the time of the transaction which is impeached was under no obligation to examine anything, but to whom everything ought to have been disclosed, cannot be wanting in due diligence if he does not discover that which he has not the clue to discover, or which he has no reason to suppose he can discover from the materials to which he has access; which is really tantamount to saying, when nothing has occurred to awaken suspicion. Where there is nothing to put a man upon inquiry he is not responsible for not inquiring.

[page 314]

Pleading of fraud 15.22 As a matter of general principle, allegations of fraud must not ordinarily be made without some firm foundation, and must be pleaded with particularity.77 The onus, which rests upon the person who alleges the fraud in question,78 must be discharged to the standard of the balance of probabilities. Within the confines of this standard, though, the seriousness underscoring allegations of fraud, speaks to a need for clear, or cogent or strict proof. This, it is said, reflect ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct’.79 The same point now underscores s 140 of the Uniform Evidence Law.80

Extension of persons to whom time bar applies 15.23 The suspension of the running of time in the context of fraud or fraudulent concealment is not confined as against the actual defendant. In each Australian jurisdiction statutory provision is made to extend the persons against whom the time bar may be suspended. In the Territories and New South Wales the statute applies the suspension of time vis-à-vis a person who is ‘answerable for fraud, deceit or concealment’, which refers to a person who is a party to it or, in relation to the cause of action, is a successor of a party ‘under a devolution from the party occurring after the date when the fraud, deceit or concealment first occurs’.81 The Western Australian legislation addresses the issue by extending the limitations consequences of fraud to the conduct of a person for whom the defendant is vicariously liable.82 In Queensland, Tasmania and Victoria, following the English lead,83 the suspension of time is expressed to apply as against not only the defendant, but the defendant’s agent, or a person through whom the defendant claims (or his or her agent).84 The relevant South Australian provision similarly refers to any person through whom the defendant claims.85 In these jurisdictions the legislation adds that A is taken (or deemed) to claim through B if A became entitled by, through or under the act of B to the

‘right’ claimed.86 The foregoing, it has been said, means that ‘a person is deemed to claim property through another person, if he derives his title to the property from that person’,87 such as to comprise ‘any person from whom the property or any right asserted or challenged has been received or derived’.88 [page 315] 15.24 A leading case is Eddis v Chichester Constable.89 A tenant for life illegitimately sold a painting that formed part of the estate, which dealing was discovered by the trustees of the estate some 11 years later when the life tenant died. Fourteen years after the sale, the trustees instituted proceedings for breach of trust against the personal representatives of the tenant for life, and for conversion against a consortium that had purchased the painting through one of their number as agent. Notwithstanding the elapsing of the otherwise applicable time bar, the trustees succeeded against the personal representatives, as the life tenant had fraudulently concealed the trustees’ right of action. They also succeeded against the agent (and thus the consortium) because the life tenant was the person ‘through whom’ the agent claimed title to and any right to deal with the painting.90 In so ruling, the English Court of Appeal unanimously approved of and applied the judgment of Danckwerts J in G L Baker Ltd v Medway Building and Supplies Ltd,91 where a company auditor illegitimately siphoned moneys entrusted to him by the company into the account of a company (the defendant) he controlled in his capacity as director. The fraud was not discovered until some six years later. The suspension of the running of time that applied as against the auditor was held to apply equally as against the defendant, as the action in the latter context was based on the fraud of a person (the company) through whom the auditor claimed.92 15.25 The same would ensue, not only in those Australian jurisdictions that adopt the English precedent, but in the remaining Australian jurisdictions. In the Territories and New South Wales, the running of time would be suspended against the consortium (in Eddis) or company (in Baker) by reason of being a ‘party’ to the fraud or concealment (by the agent or

auditor, respectively). The consortium or company would, in the language of the Western Australian provision, arguably represent a person for whom the defendant (the agent or auditor) is vicariously liable (although this proceeds on the notion that liability of a principal for an agent’s defaults is vicarious, whereas under strict agency law the liability is direct).93 In any event, another avenue to approach scenarios of this kind is via the application of limitations legislation vis-à-vis constructive trustees in the recipient and accessory liability context, as in each instance the consortium or company could be seen as a constructive trustee by reason of involvement in the breach of duty by the (alleged) fiduciary.94 15.26 Aside from the scenarios catalogued above, however, for fraud to postpone the running of time it must be the fraud of, or fraud attributable to, the person relying on the limitation defence. Fraud that is perpetrated by a third party, to which the person relying on the limitation defence was not a party, is not effective to defer the running of time. For example, in Re McCallum95 a husband conveyed the fee simple in land to his wife, who shortly thereafter conveyed the same to their daughter. Neither the husband nor the daughter knew of this latter conveyance, which the wife concealed, and the husband remained in possession of the land until his death some 15 years later. The husband bequeathed the land to the defendant, against whom the daughter sought to recover possession. A majority of the English Court of Appeal, [page 316] variously remarking that the fraud must be that of ‘the person setting up the statute, or of some one through whom he claims’96 and that the concealment must ‘have been a concealment by the defendant or imputable to him’,97 ruled that title of the defendant was preserved by limitation. After all, the husband, through whom the defendant secured title, was not a party to any fraudulent concealment, and nor was the defendant.

Meaning of Core Concepts

‘Fraud’ Jurisdictions except Western Australia 15.27 As noted earlier, the limitations legislation in all Australian States retains the language of ‘fraud’ in a broad provision directed to postponing (or, in Western Australia, extending) the running of time. This language had its genesis in s 26 of the Limitation Act 1939 (UK), since superseded and the language of fraud removed,98 which in turn reflected notions understood at general law, primarily via the equitable jurisdiction. Meaning must therefore be given to the term ‘fraud’ for this purpose. English authority indicates that ‘fraud’ in the 1939 English legislation does not mean common law fraud, but instead envisages conduct that is ‘unconscionable having regard to the relationship between the parties’; the term is said to be used in the equitable sense to ‘denote conduct by the defendant or his agent such that it would be against conscience for him to avail himself of the lapse of time’.99 Given the prevailing role equity performed vis-à-vis fraud in the (broader) limitations context, there may be compelling reasons to conclude that legislators intended, by using the language of ‘fraud’, to tap into this rich history. It appears that courts in Canada are likewise inclined to give ‘fraud’ in this context a broad meaning.100 15.28 Yet various Australian judges, in jurisdictions that retain reference to ‘fraud’ in this context, have exhibited reticence in construing ‘fraud’ so broadly. A New South Wales judge has branded it ‘a misuse of language’ and ‘unsound’ to apply the term ‘fraudulently’ in the limitations statutes to any conduct that ‘did not involve some form of dishonesty or moral turpitude’.101 Though endorsed on multiple occasions,102 these remarks may not necessarily [page 317] confine ‘fraud’ to common law fraud, or require proof of dishonesty.103 Rather, it seems, they seek to dispel a notion that it is ‘sufficient merely that

for the defendant to take advantage of the statute of limitations would be unconscionable or inequitable in the wide sense of these terms’.104 Equity, it has been reasoned, in modern times uses terms such as unconscionable and inequitable to describe conduct that, in previous times, would not have fallen within them.105 Moreover, notions of ‘equitable fraud’ have been said to depend, for their proper application in the limitations statutory context, ‘too much upon nice distinctions which have been drawn in other times’.106 15.29 The foregoing reasoning prompted Mahoney ACJ, with whom Meagher JA and Abadee AJA concurred, in Seymour v Seymour107 to couch ‘fraud’ in terms of ‘a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing’. Interestingly, dicta can be found in English courts locating conduct of this kind under the banner of equitable fraud,108 thus raising questions as to where any dividing line is to be drawn. In any case, that Mahoney ACJ in Seymour was unwilling to be categorical, adding that ‘this is so in the generality of cases’ and acknowledging the problem of dealing with the person who ‘closes his eyes to wrong’ or ‘is so lacking in conscience that he is not conscious of his own lack of proper standards’, suggests some fluidity in the relevant test. There is, to this end, Australian case law to the effect that reckless indifference can amount to fraud in this context,109 and indeed Australian case law here is (including by reference to English case authority) hardly devoid of reference to unconscionable conduct as underscoring fraudulent concealment.110 It seems, accordingly, that the alleged distinction between Australian and English law in this regard may be fine at best. 15.30 Conversely, whether in Australia or the United Kingdom, a defendant who unwittingly or merely negligently commits a wrong, or ought to have known but did not in fact know the relevant facts that constituted the cause of action against him or her, can plead a time bar, as he or she cannot, on any concept of ‘fraud’, be described as culpable.111 [page 318]

Western Australia

15.31 The Western Australian legislation, unlike its counterparts elsewhere, uses the language ‘fraudulent or other improper conduct’.112 The term ‘fraudulent’ in this context has, not unsurprisingly, been interpreted in accord with the trajectory of Australian case authority explained above.113 Conduct is ‘improper’, it has been said, if it ‘breaches the standards of conduct that would be expected of a person in the defendant’s position’, which is determined objectively and, unlike fraudulent conduct, does not rest on a defendant’s consciousness of the impropriety.114 At the same time, though, well known syntactical presumptions of statutory interpretation115 dictate that the term ‘improper’ here cannot escape the shadow of the term ‘fraudulent’. The relevant context denotes, it is said, ‘some element of moral turpitude beyond a mere breach of contract, duty of care or even fiduciary duty’.116 Moreover, if every breach of contract, duty of care or fiduciary duty amounted to ‘other improper conduct’, general limitation provisions applicable to these causes of action would lack meaning. ‘Something more is required, which may be in the nature of a particularly egregious breach of contract, duty of care or fiduciary duty’.117 It can also encompass conduct that is independent of the cause of action, done with the effect of concealing it. It stands to reason, therefore, that the equitable doctrine of concealed fraud may provide assistance by way of analogy as to what may amount to ‘other improper conduct’.118

‘Fraudulent concealment’ Parameters of concealment 15.32 To constitute fraudulent concealment in equity, sufficient to take a case out of the Statute of Limitation, it is not enough that the plaintiff be unaware of the defendant’s wrongful act; equity required there to be an abuse of a confidential position or some deliberate concealment of facts.119 Yet case law envisages that fraudulent concealment can arise from the manner in which the act that gives rise to the right of action is performed,120 against the backdrop of a legal duty to disclose the information,121 and is not confined to instances of active concealment of the right of action once it has arisen. Illustrating the point is Beaman v ARTS Ltd,122 which, as noted earlier,123 involved a claim for conversion against bailees who had donated

to charity the plaintiff’s goods, without consulting the plaintiff. Although the claim was nominally out of time, the English Court of Appeal, in liberally construing the phrase ‘concealed by … fraud’ in s 26(b) of the Limitation Act 1939 (UK) (as distinct from its [page 319] narrow construction of ‘based on fraud’ for the purposes of s 26(a)),124 held that the running of time had been suspended by reason of fraudulent concealment by the defendant. It viewed the phrase as extending beyond steps taken by a tortfeasor after the tortious conduct in order to conceal it, to encompass concealment as ‘implicit in the technique adopted in committing the tort, and therefore contemporaneous with it’.125 15.33 The above interpretation led the court to countenance that the very circumstances in which the property had been converted could themselves amount to fraudulent concealment. Lord Greene MR, who delivered the leading judgment, reasoned as follows:126 [T]here may … be fraudulent concealment of a cause of action which is not subsequent to the act which gives rise to the cause of action; it may acquire its character as such from the very manner in which that act is performed. It is not, I think, a right construction of the statute to confine ‘fraudulent concealment’ to what [counsel for the defendants] described as ‘fraud in the ordinary sense’. This, as far as I understood him, meant fraud which, in its nature, is sufficient to give rise to an independent cause of action. This definition would exclude the wide range of conduct which before the statute was regarded in equity as so dishonest as to prevent the Statute of Limitations (or its analogous application in equity) from coming into operation. As this is an amending statute it would, of course, have been open to the legislature to effect so sweeping a change in the law. If it had done so a striking result would have followed. Provided an action was not based on fraud and provided there was not any subsequent active concealment of a fraudulent nature, the wrongdoer would have obtained the benefit of the statute, however furtively or surreptitiously the act complained of was committed.

Influenced by the fiduciary duties owed by a bailee to a bailor, his Lordship viewed the defendants’ conduct — ‘by the very manner in which they converted the plaintiff’s chattels in breach of the confidence reposed in them … in circumstances calculated to keep her in ignorance of the wrong that they had committed’ — as a fraudulent concealment of the cause of action.127 The concealment could be described as ‘fraudulent’, Lord Greene

MR explained, because it was ‘furtive and surreptitious’.128 Although his Lordship, and the other two judges, conceived of the concept of ‘fraud’ in this context as informed by equitable doctrine,129 which cannot be uncritically accepted in Australia,130 the nature of the defendants’ conduct in the circumstances would in any event likely fall within the narrower concept of ‘fraud’ in Australian law.

Concealment of identity 15.34 As noted earlier,131 the relevant provisions in the Territories and New South Wales explicitly refer, under the banner of deliberate (in New South Wales, ‘fraudulent’) concealment, to the concealment of ‘the identity of a person against whom a cause of action lies’. There is no parallel explicit reference as to concealment of the defendant’s identity in the Queensland, South Australian, Tasmanian and Victorian provisions, which speak only of rights of action concealed by the fraud of such a person (in South Australia, ‘concealed fraud’). The broad construction of fraudulent concealment evident in Beaman has, in any case, translated to bring within the concept of fraudulent concealment, in an appropriate case, a concealment of the defendant’s identity. The point appears from the judgment of the Victorian Court of Appeal in Levy v Watt.132 [page 320] In Levy the appellant (a solicitor) received a painting as a bequest from a client, unaware that the painting had previously been stolen and searched for by respondents, who were executors and residuary beneficiaries of its true owner’s estate. The identity of thief remained unknown throughout. The appellant argued that the respondents’ proprietary claim to the painting should be precluded by reason of the effluxion of time, as time had begun to run against the owner from the time of the theft, even though the owner did not know of the thief’s identity or the painting’s whereabouts. The court ruled that, as the thief had fraudulently concealed his identity from the owner, and the appellant claimed title through the thief, his possessory title was tainted by fraudulent concealment. Time had therefore not commenced

to run, and the appellant did not have good legal title over the painting. Santamaria JA, with whom Warren CJ and Tate JA agreed, reasoned that concealment of the thief’s identity to the true owner of the property, so as to frustrate the owner’s ability to vindicate his or her rights as to what became trust property in the thief’s hands,133 ‘is plainly unconscionable’.134 Flowing from this characterisation, his Honour declared this to amount to fraudulent concealment. As it would have been unconscionable for the thief to plead a limitation defence to a claim in conversion from the true owner, ‘[t]hat circumstance also affects those who claim through the thief even if not a party to the theft’.135 15.35 Although the court in Levy grounded fraudulent concealment in equitable notions of unconscionable conduct, and thus aligned itself to the concept of ‘fraud’ in equity supported by English authority but queried by some other Australian (mainly New South Wales) judges,136 the act of theft is ‘fraudulent’ on any definition of the term, and it follows that concealing the thief’s identity is likewise ‘fraudulent’. A plaintiff who proves unable to establish the identity of the thief may struggle to identify the proper defendant, which in turn may have the effect of concealing the right of action.137 Santamaria JA in Levy also saw the statutory phrase ‘or could with reasonable diligence have discovered it’ as having ‘plain work to do’ where ‘the existence of the cause of action is known, but the identity of the person against whom the right of action exists is unknown’.138 In so remarking, his Honour endorsed the observations of Habersberger J at first instance that:139 … it does not make sense … to say that time should begin to run because all of the ingredients of the cause of action are present and a statement of claim could be drawn, if the identity of the defendant is not known to the plaintiff and could not with reasonable diligence have been discovered by him or her … [I]t seems to me that it is not relevant to talk about people ‘sleeping upon their claims’ when the identity of the thief or subsequent converters is not known and could not with reasonable diligence have been discovered.

[page 321] In so deciding, Habersberger J (and also the Court of Appeal) refused to follow the decision of Streatfeild J in RB Policies at Lloyd’s v Butler,140 who had held that the plaintiffs’ inability to pursue a cause of action to recover

their stolen car, seven years after the event, because of their ignorance of the thief’s identity was not a case of fraudulent concealment and so was timebarred. Beyond misaligning with the broad construction of ‘fraudulent concealment’ in the English Court of Appeal’s (slightly) earlier decision in Beaman,141 to which Streatfeild J made no reference, his Lordship’s fear of ‘appalling results’ — illustrated by the scenario of A’s watch being stolen and then discovered years later in the possession of an innocent person who had bought it years before, wherein if the plaintiffs were right, A could sue to recover the watch merely because A had not known who was the original thief — is allayed by provision in the limitations legislation protecting the rights of innocent purchasers, discussed below.142

‘Deliberate concealment’ 15.36 As presaged above, the relevant provisions in the Territories, as well as their counterpart in s 32(1)(b) of the Limitation Act 1980 (UK), obviate the language of fraud in respect of concealment, and in its place speak of ‘deliberate concealment’.143 What drove this modification, it seems, were concerns that the concept of ‘fraud’ in this context remained open to interpretation144 — evidenced by more than one view being espoused in the cases145 — along with an attendant judicial focus on fraud rather than on concealment.146 It follows, as noted earlier, that the words ‘deliberately concealed’ are not aimed to be a statutory replication of the equitable doctrine of concealed fraud.147 The ordinary meaning of ‘deliberate’ suggests that something is ‘deliberately’ concealed if the concealment is intended,148 as opposed to unintended, inadvertent or accidental.149 The notion indicates that the defendant ‘must have considered whether to inform the claimant of the fact and decided not to’.150 At the same time, the focus is on the fact of concealment, not the reason or motive for it.151 15.37 The Australian Capital Territory Act adds that ‘deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty’.152 This adopts the language of s 32(2) of the Limitation Act 1980 (UK), which served to supplement rather

[page 322] than circumscribe the phrase ‘deliberately concealed’.153 The approach of English courts to interpreting this provision may accordingly be persuasive of the law in the Territory.154 Removing references to ‘fraud’ in s 32 of the 1980 Act, however, created a risk that ‘deliberate concealment’ may be construed as meaning ‘active concealment’.155 Section 32(2) targeted cases where active concealment should not be required. As s 32(2) could cover instances of non-disclosure rather than active concealment, there was sense in limiting it to the deliberate commission of a breach of duty — and thus instances where there is an existing duty to disclose what is withheld156 — in that ‘it is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it’.157 15.38 At the same time, s 32(2) does not operate to deprive a defendant of a limitation defence in the event that ‘he is charged with negligence if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose’.158 It targets intentional wrongdoing, not simply an intentional act, and so is not concerned with negligent or inadvertent wrongdoing. There is no rational basis, it can be reasoned, to deprive a defendant of a limitation defence ‘where neither his original wrongdoing nor his failure to disclose it to the plaintiff was deliberate’.159 That deliberate concealment in s 32(1)(b) involves an intended result does not make s 32(2) otiose, for the reasons proffered by Lord Scott in Cave v Robinson Jarvis & Rolf (a firm):160 A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to provide. The standard of proof would be the usual balance of probabilities standard and inferences could of course be drawn from suitable primary facts but, none the less, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult. Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty.

15.39 It remains, though, that the commission of a ‘breach of duty’ for the purposes of s 32(2) — which is concept amenable to a broad interpretation, namely a legal wrongdoing that is justiciable161 — must be ‘deliberate’, in the sense of intentional wrongdoing noted above. In so ruling, the House of Lords in Cave overruled the English Court of Appeal’s extempore decision some three years earlier in Brocklesby v Armitage & Guest (a firm),162 which held that s 32(2) was attracted where ‘the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence’. [page 323] In Brocklesby the plaintiff claimed that the defendant solicitors had negligently failed to procure a release from his mortgage obligations. The defendants denied any negligence (indeed, they denied that the plaintiff had been a client), and in any case pled that the action was statute-barred. In response, the plaintiff sought to rely on s 32(2). That the plaintiff did not and could not allege that the defendants were aware of the fact that they had been negligent did not preclude the court from finding for the plaintiff on this point. Laddie J followed Brocklesby the following year, in a case where the plaintiff alleged that the defendant had given it negligent tax advice, finding it sufficient to bring the case within s 32(2) that the defendant had intentionally given the advice in question and that (if negligent) it amounted to a breach of duty.163 It was unnecessary, he said, that the defendant have appreciated that the advice was wrong or that he or she had been negligent. 15.40 What the foregoing meant, noted Lord Millett in Cave,164 was that a person who ‘sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent’. Such an outcome, not unsurprisingly, did not appeal to his Lordship, who reasoned as follows:165 The effect of Brocklesby v Armitage & Guest is to deprive a professional man, charged with

having given negligent advice and who denies that his advice was wrong let alone negligent, of any effective limitation defence. However stale the claim, he must defend the action on the merits, for he will not have the benefit of a limitation defence unless he can show that his advice was not negligent. This subverts the whole purpose of the Limitation Acts. The harshness of the rule is evident. In the absence of any intentional wrongdoing on his part, it is neither just nor consistent with the policy of the Limitation Acts to expose a professional man to a claim for negligence long after he has retired from practice and has ceased to be covered by indemnity insurance.

Subsequent Concealment 15.41 In circumstances where the cause of action has accrued, and time has accordingly commenced the run, there is a legitimate question over whether subsequent fraudulent concealment can function to stop the running of time, or whether only initial fraudulent concealment of the cause (or right) of action can produce this effect. Of course, should a plaintiff be aware of all facts relevant to the cause of action, there cannot be subsequent ‘concealment’ of them from the plaintiff. But if time begins to run despite the plaintiff lacking an awareness of all such facts, there is sense in concluding, by reference to the mischief to which the provisions governing fraudulent concealment is directed, that a subsequent concealment should suspend the running of time. Yet while consistent with the object of the relevant provisions, it cannot be assumed that their wording is necessarily consistent with such an outcome. 15.42 Under s 26(b) of the Limitation Act 1939 (UK), which referred to ‘the right of action [being] concealed by … fraud’, Megarry VC in Tito v Waddell (No 2)166 opined, by way of obiter, that if time had begun to run, a supervening fraudulent concealment would not stop time running, and then have time recommence, or start again, as from the date of disclosure [page 324] of the relevant fraud. A literal reading of this provision is open to this interpretation, given that it speaks of the right (or cause) of action itself being fraudulently concealed. If time has commenced to run, then the right

of action cannot by definition have been concealed. The same language appears in the current Queensland, Tasmanian and Victorian provisions,167 and parallel wording (a ‘cause of action … is fraudulently concealed’) is found in New South Wales and the Northern Territory.168 In Western Australia, where the relevant sub-section refers to ‘the failure to commence the action’ being attributable to ‘fraudulent or other improper conduct’,169 the focus appears likewise on the initial accrual of the action. 15.43 However, English law has shifted, chiefly due to changes in the wording of the relevant provision, now in s 32(1)(b) of the Limitation Act 1980, triggered where ‘any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant’. In Australia, only the Australian Capital Territory has followed this particular course.170 The change in wording, in the English context, prompted the House of Lords in Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd171 to rule, by a threetwo majority, that fraudulent concealment that takes place so as to hide facts from a plaintiff after time had commenced to run could postpone the running of time. In other words, the statutory words were sufficiently wide to apply both where the concealment was contemporaneous with the accrual of the cause of action and where it occurred subsequently. After all, the concealment of ‘any fact relevant to the … right of action’ could logically occur at any time; it need not predate the accrual of the cause of action generally.172 Assuming that the plaintiff is unaware of all facts relevant to the right of action, and that the defendant takes steps to keep the plaintiff in the dark, Lord Nicholls perceived ‘as much need to prevent that defendant from gaining a limitation advantage as the defendant who conceals the position from the outset’.173 Rejecting the argument that s 32(1)(b) applies only when the concealment takes place from the outset, his Lordship said:174 Self-evidently, this contention produces an absurd result. It draws a distinction between initial concealment and subsequent concealment which lacks all rhyme and reason. If initial concealment should stop time running, so equally should subsequent concealment. The underlying mischief is the same. This contention means that the professional person who realises he has been negligent will be positively encouraged to take steps to hide his errors from his client. If he can do so for six years, he will be home and dry.

Such an artificial distinction, his Lordship concluded, ‘can have no place in modern legislation aimed at counteracting improper conduct’.175 Lord

Browne-Wilkinson likewise saw ‘no common-sense reason’ why Parliament should have wished to distinguish between [page 325] cases where the concealment takes place at the time of the commission of the wrong and concealment at a later date. In both cases the mischief aimed at is the same, namely ‘to ensure that the Act does not operate to bar the claim of a plaintiff whose ignorance of the relevant facts is due to the improper actions of the defendant’.176 15.44 What the foregoing meant, accordingly to their Lordships, is that time is not merely suspended for the period of subsequent concealment, but starts to run afresh from the date of the subsequent concealment; the impact of the subsequent concealment would, for limitations purposes, otherwise be less favourable to the plaintiff than the initial concealment. As explained by Lord Browne-Wilkinson:177 I do not find it absurd that the effect of section 32(1) is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment. In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding the concealment … If the defendant then deliberately takes a step to conceal the relevant facts (a step which is by ordinary standards morally unconscionable if not necessarily legally fraudulent) it does not seem to me absurd that a plaintiff who has been prevented by the dishonourable conduct of the defendant from learning of the facts on the basis of which to found his action should be afforded the full six-year period from the date of the discovery of such concealment to bring his action.

15.45 The logic underscoring the majority judgments in Sheldon appears capable of extending to occasions where the deliberate concealment occurs after the cause of action has become statute-barred. Even assuming that a court would go so far, which seems to undermine the broader statutory scheme,178 such occasions would most likely be rare, as they presume a longstanding lack of knowledge of the claim independent of concealment. 15.46 The Sheldon approach arguably informs Australian Capital Territory law in this regard, given the parallel statutory language. The South Australian statutory counterpart, by being phrased to apply ‘[i]n every case of a concealed fraud’,179 could conceivably be open to the same interpretation;

‘a concealed fraud’, it seems, is capable of surfacing as much post-accrual as it is pre-accrual. In the remaining Australian jurisdictions it is difficult — purely as a matter of statutory construction, perhaps distinguished from matters of principle — to encompass concealment subsequent to the accrual of the cause of action as capable of triggering another suspension of the time bar. Yet this has not precluded at least two Victorian judges, whilst acknowledging the difference in language between the Victorian and current English provisions, from endorsing the House of Lords’ approach in Sheldon as representative of (at least) Victorian law.180 15.47 In the English context, case authority also supports the proposition that a ‘fact relevant to the plaintiff’s right of action’ in s 32(1)(b) is a fact without which the cause of action is incomplete.181 Accordingly, facts that do no more than improve prospects of success, or facts bearing on a matter that is not a necessary ingredient of the cause of action but that may provide a defence, are not facts relevant to the plaintiff’s right of action. By its literal wording the sub-section does not, however, appear to require that the defendant must have known that the fact(s) concealed were relevant to the right of action (although commonly the [page 326] defendant will have known this),182 but there remains some ambivalence in English courts on this point.183

Purchase by an Innocent Third Party 15.48 Obvious injustice can befall an innocent purchaser of property should fraud or fraudulent (or deliberate) concealment have the effect of postponing the running of time. This explains why limitations statutes (except in Western Australia)184 oust the fraud provisions in this context, providing ‘a mechanism for balancing the competing interests of the true owner of the chattel and the possessor of the chattel’.185 Consistent with the policy of the law generally, the interests of the possessor are favoured where,

broadly speaking, he or she has purchased the item for valuable consideration without knowledge of the fraud. This in turn explains why, as in Levy v Watt,186 a person who receives property by way of gift is subject to an intervening fraud on the true owner. 15.49 Three schemas are adopted, and although they exhibit the same basic focus, their language varies in detail. In the Territories and New South Wales, the relevant provision is expressed to apply where property is, after fraud, deceit or concealment (here collectively ‘fraud’) first occurs, purchased for valuable consideration by a non-party to the fraud who does not, at the time of the purchase, know or have reason to believe that the fraud has occurred. In this event, the fraud provision does not apply to a limitation period for a cause of action against the purchaser (or a person claiming through him or her).187 The Australian Capital Territory legislation adds, in similar vein, that nothing therein applies ‘to an action in relation to goods that are stolen property unless the person against whom the action is instituted is an honest purchaser of the goods or a person claiming the goods through such a purchaser’.188 In Queensland, Victoria and Tasmania, the fraud provisions are expressed not to enable an action to recover, or enforce a charge against, or set aside a transaction affecting, property (or, arguably, its value)189 that has been purchased for valuable consideration by a non-party to [page 327] the fraud who did not at the time of purchase know190 or have reason to believe that a fraud had been committed.191 The South Australian provision states that nothing in the relevant section enables any owner of lands or rents to bring equitable proceedings192 for their recovery on account of fraud against any bona fide purchaser for valuable consideration, who has not assisted in the commission of that fraud and who at the time of the purchase did not know and had no reason to believe that any such fraud had been committed.193 15.50

In each of the schemas, via reference to the third party ‘knowing’ or

‘having reason to believe’ that a fraud had been committed, the legislation goes beyond merely what the third party actually knew as a certainty. It has been applied, for instance, where the third party ‘must have had a pretty good idea’ of the fraud but at the same time ‘turned a blind eye to’ or ‘winked at’ the fraud.194 Accordingly, as in other limitations contexts where parallel language is used, while it cannot be said that the inquiry is purely objective, it nonetheless has an objective flavour, coloured by the position and knowledge of the third party.195 ______________________________ 1. 2. 3. 4. 5. 6.

7. 8.

9.

10.

11. 12. 13.

See 3.26. Bulli Coal Mining Co v Osborne [1899] AC 351 at 363 per Lord James (PC). See UK 1833 s 26 (with respect to concealed fraud when an action is brought for the recovery of any land or rent). See 13.2–13.31. See 13.32–13.41. See Irvine v Kirkpatrick (1851) 17 LT 32 at 33 per Lord Brougham (‘a Court of Equity will overleap the barrier of time to get at the fraudulent parties and their deeds, and to undo those deeds, and to prevent anyone, whether accomplice or innocent, from profiting by the fruits of fraud’). Alden v Gregory (1764) 2 Eden 280 at 285; 28 ER 905 at 907 per the Lord Chancellor (who in response to the question ‘whether delay will purge a fraud?’, responded ‘[n]ever while I sit here’). Blair v Bromley (1846) 5 Hare 542 at 559; 67 ER 1026 at 1033 per Wigram VC (‘The jurisdiction of this Court is assumed on the ground of the fraud, and the time will run only from the discovery of the fraud’); Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 707–8 per Mahon J. Rolfe v Gregory (1865) 4 De G J & S 576 at 579; 46 ER 1042 at 1044 (where a wife and her infant children brought proceedings against trustees and others for the purpose of restoring part of a trust fund that had been fraudulently diverted by a trustee to a knowing recipient, the defendants’ plea of laches and acquiescence was dismissed). See also Bulli Coal Mining Co v Osborne [1899] AC 351 at 363 per Lord James (PC) (referring to ‘a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded’). Eddis v Chichester Constable [1969] 2 Ch 345 at 355 per Lord Denning MR. His Lordship referred to the remark of Lord Mansfield that ‘[t]here may be cases too, which fraud will take out of the Statute of Limitations’ (Bree v Holbech (1781) 2 Doug 654 at 656; 99 ER 415 at 416), whose view saw wider acceptance: see, for example, Clark v Hougham (1823) 2 B & C 149; 107 ER 339 at 154; 340–1 per Bayley J, at 156; 341 per Best J; Granger v George (1826) 5 B & C 149 at 152; 108 ER 56 at 56–7 per Abbott CJ; Gibbs v Guild (1881) 8 QBD 296 at 303 per Field J; Gibbs v Guild (1882) 9 QBD 59 at 69 per Brett LJ. See J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Australia, 2015, paras 12–005-12-095. As to the concept of ‘fraud’ under limitations legislation see 15.16, 15.27–15.31. Indeed, there is a suggestion in the case law that equity’s jurisdiction as to concealed fraud

14.

15.

16. 17. 18. 19. 20.

21.

22. 23. 24.

encompassed fraud generally: State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 269 (FC) [affd albeit not specifically on this point: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; BC9202700]. Re McCallum [1901] 1 Ch 143 at 157 per Rigby LJ, at 159 per Vaughan Williams LJ; Hawkins v Clayton (1988) 164 CLR 539 at 590; BC8802597 per Deane J (referring to ‘the notion of unconscionable reliance upon the provisions of a Statute of Limitations which provides the foundation of the long-established equitable jurisdiction to grant relief in a case of concealment of a cause of action until after the limitation period has expired’); State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 269–70 (FC) [affd Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; BC9202700]; Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [9] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. Hence the need to identify a concealment, not merely what may be fraud in equity: Azaz v Denton [2009] EWHC 1759 (QB) at [61] per Richard Seymour QC (rejecting the notion that pleading the defence of undue influence, while it may broadly come within notions of fraud in equity, could be characterised in terms of concealment; his Lordship reasoned that as it is ‘implicit in the analysis that the person the subject of the undue influence was aware of the relevant facts, but was dissuaded by the influence from doing anything in consequence of that knowledge’, there is no scope for concealment in this context). Bulli Coal Mining Co v Osborne [1899] AC 351 at 363 per Lord James (PC). Thorne v Heard [1894] 1 Ch 599 at 605 per Lindley LJ. (1835) 4 LJ (NS) (Ch) 209. Trevelyan v Charter (1835) 4 LJ (NS) (Ch) 209 at 214 (paragraph break omitted). Metacel Pty Ltd v Ralph Symonds Ltd [1969] 2 NSWR 201 at 203 per Sugerman JA (‘Concealed fraud remains a special doctrine of courts of equity applicable where relief is sought in those courts and is not applicable in bar of the Statute of Limitations in a pure common law action’); Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 707 per Mahon J; Commerce Commission v Roche Products (New Zealand) Ltd [2003] 2 NZLR 519 at [42] per Fisher J; Cork v AAL Aviation Ltd [2014] FCA 1085; BC201408357 at [65] per Foster J. See, for example, Hunter v Gibbons (1856) 1 H & N 459; 156 ER 1281 (where the plaintiff, in an action for trespass, was not allowed to reply, as an equitable answer, that the trespass had been fraudulently concealed from him until the limitation period expired). Imperial Gas Light & Coke Co v London Gas Light Co (1854) 10 Ex 39; 156 ER 346 (where it was held that it is no answer to a plea of the Statute of Limitations that the plaintiff was prevented by the defendant’s fraud from knowing of the cause of action until after the time of limitation had expired); Hunter v Gibbons (1856) 1 H & N 459; 156 ER 1281; Lynn v Bamber [1930] 2 KB 72 at 74–5 per McCardie J; Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [42] per Santamaria JA, with whom Warren CJ and Tate JA concurred. M(K) v M(H) [1992] 3 SCR 6 at 53 per La Forest J. Supreme Court of Judicature Act 1873 (UK) (36 & 37 Vict c 66); Supreme Court of Judicature Act 1875 (UK) (38 & 39 Vict c 77). Gibbs v Guild (1882) 9 QBD 59 (where, in an action to recover by way of damages money lost by the fraudulent representations of the defendant, a majority of the English Court of Appeal upheld as good a reply to the defendant’s plea of the Statute of Limitations that the plaintiff lacked reasonable means of discovering the fraud within six years before the action, and that the existence of that fraud was fraudulently concealed by the defendant during that time).

25.

26. 27. 28. 29.

30. 31.

32. 33.

34.

35. 36.

37. 38. 39. 40.

A trajectory, to this end, appears via decisions including Armstrong v Milburn (1886) 54 LT 723, Oelkers v Ellis [1914] 2 KB 139 and ultimately Lynn v Bamber [1930] 2 KB 72 (where McCardie J declared that ‘even in a “pure” common law action active and fraudulent concealment is now, since the Judicature Acts, a good reply to the Statute of Limitations’: at 78); Legh v Legh (1930) 143 LT 151 at 153 per Mackinnon J (remarking that a result of the Judicature Act 1873 was that ‘the common law imported the equitable doctrine that where delay had been due … to the fact that he had been ignorant of the cause of action because of the fraud of the defendant, then the statute would only run against him from the time when he discovered the existence of the cause of action’). As to the shift towards equity’s dominant role see J Brunyate, Limitation of Actions in Equity, Stevens & Sons Ltd, London, 1932, Ch II; J Brunyate, ‘Fraud and the Statutes of Limitations’ (1930) 4 CLJ 174. See the examples listed in Wright Committee, para 22. Wright Committee, para 22. UK 1939 s 26. Beaman v ARTS Ltd [1949] 1 KB 550 at 567 per Somervell LJ (noting, in this context, that ‘[w]here a word has been construed judicially in a certain legal area, it is … right to give it the same meaning if it occurs in a statute dealing with the same general subject-matter unless the context makes it clear that the word must have a different construction’). See further 15.32–15.35. Beaman v ARTS Ltd [1949] 1 KB 550 at 558 per Lord Greene MR. See also G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1223–4 per Danckwerts J. See, for example, Fenech v Sterling (1983) 51 ALR 205 at 223 per Davies J (involving the (former) Trade Practices Act 1974 (Cth) s 82(2)); Commerce Commission v Roche Products (New Zealand) Ltd [2003] 2 NZLR 519 at [50]–[61] per Fisher J (involving the Commerce Act 1986 (NZ) s 80(5)); Re Stewart [2004] 1 NZLR 354 (involving the Family Protection Act 1955 (NZ) s 9) (each statutory provision imposing a limitation period on the relevant statutory action but making no provision for its suspension or extension in the event of fraudulent concealment). Piscioneri v Reardon [2015] ACTSC 61; BC201502638 at [51] per Refshauge J. Mann v Department of Immigration and Ethnic Affairs (SC(NSW), Malpass M, 16 April 1996, unreported) BC9601215 at 11 (hence revealing a disinclination to summary dismissal on the point: at 11–12). The relevant Australian Capital Territory provision is phrased in terms of ‘a fact relevant to a cause of action’ as opposed to merely ‘a cause of action’. As to the impact of this distinction see 15.17. As to the distinction between ‘fraudulently concealed’ and ‘deliberately concealed’ see 15.36–15.40. ACT s 33(1); NSW s 55(1); NT s 42(1). For this purpose, a person is ‘answerable for fraud, deceit or concealment’ only if he or she is a party to it or, in relation to the cause of action, is a successor of a party thereto under a devolution from the party occurring after the date when the fraud, deceit or concealment first occurs: ACT s 33(4); NSW s 55(3); NT s 42(3). See further 15.23. ACT s 33(2); NSW s 55(2); NT s 42(2). NSW s 51(1), as to which see 4.62–4.64. Cork v AAL Aviation Ltd [2014] FCA 1085; BC201408357 at [57]–[62] per Foster J. The ‘defendant’, for this purpose, includes the defendant’s agent, or a person through whom the defendant claims (or his or her agent).

41. 42. 43. 44. 45.

46. 47.

48.

49. 50. 51.

52.

53. 54. 55. 56. 57. 58.

59.

Qld s 38(1); Tas s 32(1); Vic s 27. See 15.2–15.8. ‘Equitable proceedings’ means any proceedings of a kind which before the passing of the Supreme Court Act 1878 (SA) could have been brought by way of a suit in equity: SA s 25(2). SA s 25(1). The phrase ‘attributable to’ requires some element of causal relationship, as there is ‘no justification in principle for the limitation period to be extended if the fraudulent or other improper conduct did not in some way cause the plaintiff not to commence the action within the ordinary limitation period’: Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [156] per Gething AM. WA s 38(2), 38(4). WALRC 36(II), pp 352–4 (although this does not preclude the equitable doctrine of concealed fraud providing assistance by way of analogy as to what conduct would be ‘other improper conduct’: Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [147] per Gething AM). A similar approach has been recommended, but not implemented, under a revised limitations scheme in Queensland: QLRC 53, pp 177–8 (which, however, proffered multiple factors to guide judicial discretion in this context). Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [110] per Gething AM (reasoning that this interpretation ‘reflects the evident purpose of the section: to give a party whose cause of action has been concealed by fraud or improper conduct a set period of time within which to commence the action commencing from when it ought reasonably to have been commenced’). [1949] 1 KB 550. Beaman v ARTS Ltd [1949] 1 KB 550 at 558. See, for example, Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [69], [70] per Santamaria JA, with whom Warren CJ and Tate JA concurred (involving the conversion of a painting; his Honour noted that when in 1955 (via the Limitation of Actions Act 1955 (Vic)) the Victorian Parliament adopted UK 1939 s 26, it had already been authoritatively construed in Beaman, and so ‘[i]t seems reasonable to presume that Parliament also intended to accept that construction’: at [69]). See, for example, Paramasivam v Flynn (1998) 90 FCR 489 at 511; BC9807072 (FC) (ruling that an action for assault cannot be ‘based on’ fraud or deceit since fraud or deceit does not constitute an ingredient of a cause of action in assault). Paramasivam v Flynn (1998) 90 FCR 489 at 510–11; BC9807072 (FC). Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell. As to the meaning of ‘fraud’ for limitations purposes see 15.27–15.30. The same approach is adopted in the current UK 1980 s 32(1)(b) (referring to ‘any fact relevant to the plaintiff’s right of action [having] been deliberately concealed’): see 15.43. Skrijel v Mengler [1998] VSC 71; BC9805370 at [48] per Eames J. Harris v AAL Aviation Ltd [2015] VSC 602; BC201512650 at [81] per Lansdowne AsJ (where the concealed facts that were alleged to postpone the running of the limitation period were not elements of the cause of action, but were pleaded because they strengthened the plaintiff’s case: at [85]). See, for example, Piscioneri v Reardon [2015] ACTSC 61; BC201502638 at [30] per Refshauge J (where the deliberate concealment of ‘the identity of a person against whom a cause of action lies’

60.

61. 62. 63. 64. 65. 66. 67.

68.

69. 70.

71.

72. 73.

was overt, namely the refusal of a person who knows that identity of the putative defendant to disclose that identity to the putative plaintiff). UK s 32(1)(b) (and formerly UK 1939 s 26(b)). The absence of explicit provision relating to the concealment of the identity of a putative defendant in UK 1939 s 26(b) prompted the New South Wales Law Reform Commission to recommend a provision of this kind, which translated to NSW s 55(1)(b): see NSWLRC 3, para 270. See 15.34, 15.35. UK 1980 s 32(1)(b). The backdrop to this provision was explained by the Orr Committee (see paras 2.21–2.38). As to the meaning of ‘deliberately concealed’ see 15.36–15.40. UK 1939 s 26(b). As to the meaning of ‘fraudulent or other improper conduct’ in the Western Australian provision see 15.31. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [8] per Lord Millett (speaking of the equivalent provision in UK 1980 s 32(1)(b)). Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 145 per Lord BrowneWilkinson (speaking of the equivalent provision in UK 1980 s 32(1)(b)). See also Chua Teck Chew v Goh Eng Wah [2009] 4 SLR(R) 716 at [27] per Chao Hick Tin JA (CA) (remarking that fraudulent concealment is not limited to the common law sense of fraud or deceit but ‘includes unconscionability in the form of a deliberate act of concealment of a right of action by the wrongdoer or if he or she had knowingly or recklessly committed a wrongdoing in secret without telling the aggrieved party’). Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [65] per Lord Scott (remarking that while it may be difficult to think of a case of deliberate concealment for the purposes of UK 1980 s 32(1)(b) that would not involve unconscionable behaviour, the statutory language does not require that the behaviour of the defendant be unconscionable and the plain words of the statutory requirements ‘need no embellishment’). See C B Handler, ‘Civil Claims of Adults Molested as Children: Maturation of Harm and the Statute of Limitations Hurdle’ (1987) 15 Fordham Urb LJ 709 at 722–9. Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [81] per Santamaria JA, with whom Warren CJ and Tate JA concurred (noting that the phrase ‘or could with reasonable diligence have discovered it’ may have work to do in cases in which a person is wholly unaware that he or she has a cause of action). See, for example, Chetham v Hoare (1870) LR 9 Eq 571 (where the question turned on whether the plaintiff had exercised reasonable diligence in discovering alleged concealed fraud surrounding a marriage; Malins VC found no such diligence, as there were alternative ways of proving a marriage than the marriage certificate the subject of the fraud allegation: at 577–8). See 15.13. CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) BC9503848 at 121–2 (citing Sturgis v Morse (1857) 24 Beav 541; 53 ER 466 (see at 546–7; 468–9 per Romilly MR); Clark v Clark (1882) 8 VLR (E) 303 at 328 per Holroyd J, delivering the reasons of the court; but rejecting the obiter suggestion of the New Zealand Court of Appeal to the contrary in Official Assignee of Collier v Creighton [1993] 2 NZLR 534 at 540 (where Gault J did not consider it a necessary requirement of the equivalent New Zealand provision to identify ‘something which reasonably could be expected to stimulate

74.

75. 76.

77.

78. 79.

80.

81. 82. 83. 84. 85. 86. 87. 88. 89. 90.

investigation’). Cf the concept of ‘reasonable diligence’ in the context of mistake, as to which see 16.12, 16.13. Paragon Finance plc v D B Thakerar & Co (a firm) [1999] 1 All ER 400 at 418 per Millett LJ, with whom Pill and May LJJ concurred (emphasis in original). See, for example, Brown v Bird & Lovibond (a firm) [2002] EWHC 719 (QB) (where Moxon-Browne J found that for a lay client to go over her solicitor’s head, and make inquiries of her own that her solicitor did not apparently see fit to make, would have been an ‘exceptional measure’ in this context: at [23]). See also Canny, p 85 (‘The client of a solicitor is not expected to hire a second firm of solicitors to check on the work of a first, but is entitled to assume that the work has been competently done’, though adding that ‘at a certain point the negligence will be so gross as to be obvious to a non lawyer, in which case a claimant will not get the benefit of [UK 1980] s 32(1)’). Of the utmost good faith. (1882) 8 VLR (E) 303 at 328 per Holroyd J, delivering the reasons of the court, applied in the context of an insurer in CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) BC9503848 at 121. Wallingford v Mutual Society (1880) 5 App Cas 685 at 701 per Lord Hatherley; Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221–2 per Lord Watson; Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285; BC9002932 per Mason CJ and Gaudron J; Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 at [34] per Tipping J. See further Cairns, pp 240–2. Cameron v Blau [1963] Qd R 421 at 425 per Gibbs J, with whom Mansfield CJ and Jeffriess J concurred. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; BC9202685 per Mason CJ, Brennan, Deane and Gaudron JJ (referring to Dixon J’s remarks in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; BC3800027 that ‘[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved’). Evidence Act 1995 (Cth) s 140; Evidence Act 2011 (ACT) s 140; Evidence Act 1995 (NSW) s 140; Evidence (National Uniform Legislation) Act 2011 (NT) s 140; Evidence Act 2008 (Vic) s 140. ACT s 33(4); NSW s 55(3); NT s 42(3). WA s 38(2). Originally UK 1939 s 26, and now UK 1980 s 32(1). Qld s 38(1); Tas s 32(1); Vic s 27. SA s 25(1). Qld s 5(4); SA s 3(1); Tas s 2(4); Vic s 3(4). See also ACT s 8(a); NSW s 11(2); WA s 3(3). See further 3.11. Eddis v Chichester Constable [1969] 2 Ch 345 at 356–7 per Lord Denning MR. Eddis v Chichester Constable [1969] 2 Ch 345 at 362 per Winn LJ. [1969] 2 Ch 345. Eddis v Chichester Constable [1969] 2 Ch 345 at 356–7 per Lord Denning MR, at 362 per Winn LJ, at 364 per Fenton Atkinson LJ. The agent could not rely on the proviso that targets innocent purchasers for value (as to which see 15.48–15.50) because of a finding that she ‘must have had a pretty good idea’ that the life tenant was selling the painting in fraud of the trustees: at 358 per

91. 92.

93.

94. 95. 96. 97. 98. 99.

100. 101. 102.

103.

104.

Lord Denning MR. [1958] 1 WLR 1216. G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1223. Although the English Court of Appeal allowed the appeal with respect to another ground (likewise reported at [1958] 1 WLR 1216), it did not consider the limitation point. A subsequent petition for leave to appeal to the House of Lords in Baker was dismissed: G L Baker Ltd v Medway Building and Supplies Ltd [1959] 1 WLR 492. Scott v Davis (2000) 204 CLR 1; [2000] HCA 52; BC200005826 at [106] per McHugh J (in dissent but the majority did not query this point), at [239] per Gummow J; NIML Ltd v MAN Financial Australia Ltd (2006) 15 VR 156; [2006] VSCA 128; BC200604416 at [56] per Nettle JA, with whom Buchanan JA and Bongiorno AJA concurred. See 10.33–10.36. [1901] 1 Ch 143. Re McCallum [1901] 1 Ch 143 at 150 per Lord Alverstone CJ. Re McCallum [1901] 1 Ch 143 at 159 per Vaughan Williams LJ. See 15.36. Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 537 per Brightman J. See also Kitchen v RAF Association [1958] 2 All ER 241 at 249 per Lord Evershed MR (‘no degree of moral turpitude is necessary to establish fraud within the section’, which encompasses ‘equitable fraud’, which in turn ‘covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other’); Applegate v Moss [1971] 1 QB 406 at 413 per Lord Denning MR (remarking that ‘fraud’ in UK 1939 s 26 is used in the equitable sense, such that the section applies ‘whenever the conduct of the defendant or his agent has been such as to hide from the plaintiff the existence of his right of action, in such circumstances that it would be inequitable to allow the defendant to rely on the lapse of time as a bar to the claim’); King v Victor Parsons & Co [1973] 1 All ER 206 at 209 per Lord Denning MR (noting that the word ‘fraud’ here is ‘used in the equitable sense to denote conduct by the defendant or his agent such that it would be “against conscience” for him to avail himself of the lapse of time’); Tito v Waddell (No 2) [1977] Ch 106 at 245 per Megarry VC (‘any unconscionable failure to reveal is enough’). See, for example, M(K) v M(H) [1992] 3 SCR 6 at 57 per La Forest J. Hamilton v Kaljo (1989) 17 NSWLR 381 at 386 per McLelland J. See, for example, New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 at 505; BC9304909 per Beazley J; CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) BC9503848 at 78–80 (in the context of Vic s 27); Skrijel v Mengler [1998] VSC 71; BC9805370 at [46] per Eames J (in the context of Vic s 27); Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 246; BC9802262 per Heerey J (in the context of Tas s 32(1)(b)); Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [136] per Gething AM (in the context of WA s 38(2)). See also Law Com 270, paras 3.134–3.137 (likewise favouring an approach based on proof of dishonesty). Honey v McLennan (1997) 18 WAR 384 at 389–92; BC9705863 per Scott J; Reader v Fried [2001] VSC 495; BC200108064 at [25] per Pagone J. See also King v Victor Parsons & Co [1973] 1 All ER 206 at 209 per Lord Denning MR (no requirement to establish a ‘dishonest motive’). Seymour v Seymour (1996) 40 NSWLR 358 at 372; BC9605024 per Mahoney ACJ, with whom Meagher JA and Abadee AJA concurred.

105. See, for example, Baumgartner v Baumgartner (1987) 164 CLR 137 at 147; BC8701827 per Mason CJ, Wilson and Deane JJ (in the context of the remedial constructive trust imposed to remedy an unconscionable denial of a beneficial interest in property). 106. Seymour v Seymour (1996) 40 NSWLR 358 at 372; BC9605024 per Mahoney ACJ, with whom Meagher JA and Abadee AJA concurred. 107. (1996) 40 NSWLR 358 at 372; BC9605024. See also Honey v McLennan (1997) 18 WAR 384 at 389–92; BC9705863 per Scott J; Skrijel v Mengler [1998] VSC 71; BC9805370 at [46] per Eames J; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2007] WASC 118; BC200704260 at [54]–[56] per Murray J; Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [136] per Gething AM. 108. King v Victor Parsons & Co [1973] 1 All ER 206 at 209 per Lord Denning MR (noting that if a person knowingly commits a wrong (such as digging underground another man’s coal: see Bulli Coal Mining Co v Osborne [1899] AC 351) or a breach of contract (such as putting in bad foundations to a house: see Archer v Moss [1971] 1 QB 406), in ‘circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim’). There are also remarks to this effect in New Zealand courts: see, for example, Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 534 per Tipping J; Kay v Dickson Lonergan Ltd [2006] NZHC 605 at [65] per Ellen France J. 109. See, for example, Grahame Allen & Sons Pty Ltd v Water Resources Commission [2000] 1 Qd R 523; [1998] QSC 181; BC9804653 at [19] per Wilson J. See also King v Victor Parsons & Co [1973] 1 All ER 206 at 209 per Lord Denning MR (speaking of a person who turns a blind eye, being ‘aware that what he is doing may well be a wrong, or a breach of contract’, but ‘refrains from further enquiry least it should prove to be correct; and says nothing about it’). 110. See, for example, Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [65], [85] per Santamaria JA, with whom Warren CJ and Tate JA concurred. See further 15.19. 111. Ward v Lewis (1896) 22 VLR 410 at 416 per Hood J; King v Victor Parsons & Co [1973] 1 All ER 206 at 209–10 per Lord Denning MR; Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [41] per Lord Scott. 112. WA s 38(2). 113. Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [131]–[136] per Gething AM. 114. Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [146] per Gething AM (in line with the interpretation of the term ‘improper’, appearing in the phrase ‘improper use’, in the context of the duties of a director, espoused in R v Byrnes (1995) 183 CLR 501 at 513–15; BC9506451 per Brennan, Deane, Toohey and Gaudron JJ). 115. Namely noscitur a sociis and ejusdem generis. 116. Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [147] per Gething AM. 117. Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [147] per Gething AM. 118. Shire of Toodyay v Merrick [2016] WASC 29; BC201600574 at [147] per Gething AM. 119. Halsbury’s Laws of England, ‘Limitation of Actions’, 3rd ed, vol 24, para 631 (cases cited in note (q)). 120. CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) BC9503848 at 77. 121. Montgomerie’s Brewery Co Ltd v Blyth (1901) 27 VLR 175 at 200 per Madden CJ (‘It would be unfair to say that those persons who are entrusted with the affairs of others may by the mere passage of these years go free, by reason of the fraudulent concealment of those whose duty it was

122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137.

138. 139.

140. 141.

to inform’), at 203 per Holroyd J (‘It is fraud in itself not to disclose a fraud which the fiduciary duty of the person who knows it binds him to disclose’); Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 709–11 per Mahon J (speaking of a contractual or fiduciary duty to disclose); Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 536–8 per Tipping J (finding that, on the facts, a receiver owed no contractual or fiduciary duty to disclose in this context). [1949] 1 KB 550. See 15.15. See 15.15. Beaman v ARTS Ltd [1949] 1 KB 550 at 560 per Lord Greene MR. Beaman v ARTS Ltd [1949] 1 KB 550 at 559. Beaman v ARTS Ltd [1949] 1 KB 550 at 566. Beaman v ARTS Ltd [1949] 1 KB 550 at 566. See further Beaman v ARTS Ltd [1949] 1 KB 550 at 567 per Somervell LJ, at 572 per Singleton LJ. See 15.28, 15.29. See 15.10. (2014) 308 ALR 748; [2014] VSCA 60; BC201404537. See generally S Barkehall Thomas, ‘Thieves, Owners and the Problem of Title’ (2011) 5 J Eq 228 (Pt 1), (2012) 6 J Eq 1 (Pt 2). Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [65]. Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [85]. See 15.28, 15.29. Skrijel v Mengler [1998] VSC 71; BC9805370 at [60] per Eames J; Levy v Watt [2012] VSC 539; BC201208690 at [75] per Habersberger J (‘[it is] incongruous that time can run against the owner of a chattel and that ownership rights can be lost when the owner does not know who he or she can sue to recover the chattel’) [affd Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537]. See also Photinopoulos v Photinopoulos (1988) 54 DLR (4th) 372 (where the Alberta Court of Appeal, also dealing with a limitation provision that made no explicit reference to concealment of the identity of the defendants, who had assaulted the plaintiff, held that the concealment of their identity operated to suspend time running because ‘the question of the identity of the responsible individuals is something that would certainly have to be proved by the [plaintiff] according to the appropriate standard in order to recover any damages in his civil action’: at 378 per Stratton JA). Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [81]. Levy v Watt [2012] VSC 539; BC201208690 at [71], [74] [affd Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537, albeit subject to the qualification that ‘in so far as the trial judge’s reasons may be read as suggesting that, in a case of conversion by theft, the cause of action does not accrue until the identity of the thief is known, I cannot agree with them’: at [78] per Santamaria JA, with whom Warren CJ and Tate JA concurred]. [1950] 1 KB 76. Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [85] per Santamaria JA, with whom Warren CJ and Tate JA concurred. As to Beaman v ARTS Ltd [1949] 1 KB 550 see 15.32. Indeed, it has been suggested that RB Policies at Lloyd’s v Butler [1950] 1 KB 76, even if it represented English law when it was decided (which is debatable), no longer represents English law: Canny, p 92.

142. See 15.48–15.50. 143. See 15.19. 144. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [19], [20] per Lord Millett (adding that in enacting the Limitation Act 1980 (UK) Parliament substituted ‘deliberate concealment’ for ‘concealed fraud’, being ‘a different and more appropriate concept’, such that ‘[i]t cannot be assumed that the law remained the same’: at [23]). 145. See 15.27–15.30. 146. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [19] per Lord Millett. 147. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 145 per Lord BrowneWilkinson. As to the equitable doctrine of concealed fraud see 15.5–15.8. 148. Whether intention in this context encompasses recklessness as to whether or not the plaintiff discovered the truth (as suggested in Law Com 151, pp 147–8) remains to be determined. Yet the evident legislative intention to constrain the former liberal interpretation of fraudulent concealment may speak against too ready an assumption that a person who acts recklessly as a matter of course necessarily acts deliberately. 149. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [59], [60] per Lord Scott. 150. Williams v Fanshaw Porter & Hazelhurst (a firm) [2004] 2 All ER 616; [2004] EWCA Civ 157 at [14] per Park J. See also at [28] per Mance LJ (speaking of ‘a conscious decision by the defendant not to communicate that fact to the plaintiff’). 151. Williams v Fanshaw Porter & Hazelhurst (a firm) [2004] 2 All ER 616; [2004] EWCA Civ 157 at [16] per Park J. 152. ACT s 33(3). 153. Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [40], [43]–[45] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; Piscioneri v Reardon [2015] ACTSC 61; BC201502638 at [34] per Refshauge J. 154. Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16; BC200702711 at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. 155. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [23] per Lord Millett. 156. Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) at [646] per Ouseley J. 157. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [24] per Lord Millett. See also at [59] per Lord Scott. 158. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [25] per Lord Millett. 159. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [27] per Lord Millett. 160. [2003] 1 AC 384; [2002] UKHL 18 at [60] (emphasis supplied). 161. Giles v Rhind (No 2) [2009] Ch 191; [2008] EWCA Civ 118 at [37]–[39] per Arden LJ, with whom Sedley and Buxton LJJ concurred. See also Bocardo SA v Star Energy UK Onshore Ltd [2009] 1 All ER 517; [2008] EWHC 1756 (Ch) at [134], [135] per Peter Smith J. 162. [2001] 1 All ER 172 at 180 per Morritt LJ, with whom Wilson J concurred (emphasis supplied). 163. Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1 All ER 182. 164. [2003] 1 AC 384; [2002] UKHL 18 at [12]. 165. Cave v Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384; [2002] UKHL 18 at [15]. Lord Scott (at [47]) branded the Brocklesby ‘a very unsatisfactory vehicle’ for the purpose of establishing an

166. 167. 168. 169. 170. 171. 172.

173. 174. 175. 176. 177. 178. 179. 180.

181.

182.

important point of principle on the construction and effect of UK 1980 s 32, as it was an interlocutory appeal on a pleading point, and heard by a two-man Court of Appeal, and the case was completed within the day and one extempore judgment, by Morritt LJ, was delivered. In the Court of Appeal (Cave v Robinson Jarvis & Rolf (a firm) [2002] 1 WLR 581; [2001] EWCA Civ 245) their Lordships expressed strong reservations about Brocklesby, noting (at [14]) that it was an unreserved judgment in a case in which numerous authorities, both judicial and textbook, were not cited. See also C Nasir, ‘Deliberate Concealment and the Limitation Act’ (2000) 150 NLJ 1526 (who described the approach in Brocklesby as ‘a travesty of statutory interpretation’). [1977] Ch 106 at 245–6. Qld s 38(1)(b); Tas s 32(1)(b); Vic s 27(b). NSW s 55(1)(b); NT s 42(1)(b). WA s 38(2), as to which see 15.13. ACT s 33(1)(b). [1996] AC 102. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 140 per Lord Keith, at 142 per Lord Browne-Wilkinson (noting that, literally construed, UK 1980 s 32(1)(b) ‘applies to any concealment of relevant facts: there is no express provision limiting the time at which such concealment must take place’), at 152 per Lord Nicholls. Contra at 148–9 per Lord Lloyd (dissenting), with whom Lord Mustill concurred (who, having construed ‘fraud’ in UK 1980 s 32(1)(a) as the fraud upon which the action is based rather than subsequent fraud, could not see how concealment in s 32(1)(b) included subsequent concealment; his Lordship surmised that had Parliament intended to cover subsequent concealment, it would have done so by clear(er) language). At the same time, the statutory language is not wide enough to sustain the argument that the plaintiff’s earlier knowledge of a relevant fact (which includes constructive knowledge: see Bocardo SA v Star Energy UK Onshore Ltd [2009] 1 All ER 517; [2008] EWHC 1756 (Ch) at [122] per Peter Smith J) should be ignored for this purpose upon it being subsequently forgotten or the subject of reassessment, including under the influence of the defendant: Ezekiel v Lehrer [2002] Lloyd’s Law Rep PN 260; [2002] EWCA Civ 16 at [44]–[46] per Jonathan Parker LJ. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 152. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 152. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 153. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 142. Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 at 144. See A McGee, ‘Subsequent Concealment of Material Facts’ (1995) 111 LQR 580. SA s 25(1). See CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 3 August 1995, unreported) BC9503848 at 76–7; Skrijel v Mengler [1998] VSC 71; BC9805370 at [68] per Eames J (targeting the equivalence in purpose of the respective provisions). Johnson v Chief Constable of Surrey (EWCA, Rose, Russell and Neill LJJ, 23 November 1992, unreported); AIC Ltd v ITS Testing Services (UK) Ltd, The ‘Kriti Palm’ [2007] 1 All ER (Comm) 667; [2006] EWCA Civ 1601 at [307], [323], [325] per Rix LJ, at [384] per Sir Martin Nourse, at [452], [453] per Buxton LJ; Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 at [30]– [49] per Sir Terence Etherton C, with whom Richards and Patten LJJ concurred. Williams v Fanshaw Porter & Hazelhurst (a firm) [2004] 2 All ER 616; [2004] EWCA Civ 157 at

183.

184. 185. 186. 187. 188. 189.

190.

191. 192. 193. 194. 195.

[14] per Park J. See Williams v Fanshaw Porter & Hazelhurst (a firm) [2004] 2 All ER 616; [2004] EWCA Civ 157 at [37]–[39] per Mance LJ (who appeared to favour, without ultimately deciding, a more restrictive reading of the statutory language, which requires deliberate concealment of a fact in circumstances where the defendant realises that the fact has some relevance to an actual or potential claim against him or her (or is reckless as to whether or not it does), opining that, so read, UK 1980 s 32(1)(b) and s 32(2) ‘can be said to present a more coherent scheme’, such that ‘the running of a limitation period would not be postponed by a deliberate concealment of a fact by a defendant, which was in breach of a duty unrelated to the wrongdoing in respect of which the claimant later claims and which occurred in circumstances where the defendant did not realise that the fact suppressed had relevance to any such wrongdoing (and was not reckless in not realising this)’: at [37]). In Western Australia, ‘fraudulent or other improper conduct’ is addressed via a curial discretion to extend time: see 15.13. Levy v Watt [2012] VSC 539; BC201208690 at [72] per Habersberger J [affd Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537]. (2014) 308 ALR 748; [2014] VSCA 60; BC201404537, discussed at 15.34, 15.35. ACT s 33(5); NSW s 55(4); NT s 42(4). ACT s 5(b). Although the legislation in these jurisdictions does not include the phrase ‘or its value’, there is case authority to the effect that the relevant provisions should be so read: Eddis v Chichester Constable [1969] 2 Ch 345 at 358 per Lord Denning MR, at 364 per Fenton Atkinson LJ. There is sense in this judicial supplementation of the statutory words, as otherwise the proviso could have application vis-à-vis detinue (involving the recovery of property) but not conversion (which presupposes the recovery of the value of property). Lord Denning MR, in this regard, reasoned that ‘[w]e should apply the proviso so as to enable innocent purchasers of property to avail themselves of the period of limitation, whatever the form of action taken against them’: at 358 (emphasis supplied). The current English provision (UK 1980 s 32(3)(a)) has, in any case, been amended to reflect the foregoing (it reads: ‘recover, or recover the value of, any property’). For this purpose, it has been held that an agent’s knowledge of the fraud, at least where acquired in the course of the relevant dealing he or she was engaged to effect for his or her principal, is to be imputed to the principal: Vane v Vane (1873) LR 8 Ch App 383 at 399–401 per James LJ, delivering the reasons of the court. Qld s 38(2)(a); Tas s 32(2)(a); Vic s 27 (proviso (i); being similar to the proviso to UK 1939 s 26; now see UK 1980 s 32(3)). ‘Equitable proceedings’ means any proceedings of a kind which before the passing of the Supreme Court Act 1878 (SA) could have been brought by way of a suit in equity: SA s 25(2). SA s 25(1) (proviso). Eddis v Chichester Constable [1969] 2 Ch 345 at 358 per Lord Denning MR. See, for instance, NSW s 60I(1) (discussed at 20.68–20.70).

[page 328]

CHAPTER 16

Mistake Backdrop as Between Law and Equity Statutory Response The relevant provisions Meaning of ‘for relief from the consequences of a mistake’ Meaning of ‘reasonable diligence’ Application to mistake of law

16.2 16.5 16.6 16.9 16.12 16.14

16.1 As in the case of fraud and concealment, discussed in Chapter 15, the impact of mistake on the running of time for limitations purposes must be seen against an historical divide between common law and equity. This is the subject of the first part of this chapter, which forms the backdrop to the statutory schemas found in the Australian limitations landscape. For completeness, it should be noted that the limitations legislation makes specific provision for time bars on actions to recover amounts paid under a revenue statute by reason of, inter alia, a mistake, which are discussed in Chapter 11.1

Backdrop as Between Law and Equity 16.2 At common law, for limitations purposes a cause of action to recover moneys paid under a mistake, being an action in quasi-contract (or, in

modern terms, an action in restitution), accrued as from the date the money was paid, not the date when the mistake was discovered or could have been discovered by the exercise of reasonable diligence.2 In the modern language of unjust enrichment, it can be said that where money is paid that unjustly enriches a payee, the enrichment of the payee occurs upon the receipt of the money, and so the cause of action against the payee should accrue at that moment.3 16.3 While equity applied the relevant statute of limitation by analogy where equitable remedies were sought vis-à-vis a mistaken payment,4 it set time running from when the mistake [page 329] was discovered or ought reasonably to have been discovered.5 In this regard, courts of equity viewed mistake through the same lens they applied to fraud in this context, as explained by Alderson B in Brooksbank v Smith:6 The statute [of limitation] does not absolutely bind Courts of equity, but they adopt it as a rule to assist their discretion. In cases of fraud, however, they hold that the statute runs from the discovery, because the laches of the plaintiff commences from that date, on his acquaintance with all the circumstances. In this, Courts of equity differ from Courts of law, which are absolutely bound by the words of the statute. Mistake is, I think, within the same rule as fraud.

16.4 So where a party lacked the means of knowing the truth, by reason of mistake (or fraud), ‘equity would not consider laches to be attributable to him’, which in turn meant that ‘the equitable period of limitation’ — namely that applied by analogy — would not run against that party.7 But where he or she had the means of discovering the mistake from its commencement, the period of limitation applied in equity by analogy ran, as it did under statute, from the moment of the mistake. In Denys v Shuckburgh8 a tenant-incommon of certain mines (the plaintiff) who, by reason of a mistake for more than six years received less than his proper share of the profits, filed a bill for an account. Alderson B found that the plaintiff had the means of discovering the mistake from the outset; any entitlement to an account was accordingly confined to the period limited by the limitations legislation (applied by way of analogy), not from the date of the mistake. His Lordship reasoned as

follows:9 … the plaintiff had the means with proper diligence of removing the misapprehension of fact under which I think he did labour. He had in his power the deed on which the question turns; and although it is perhaps rather obscurely worded, still I think he has allowed too much time to elapse not to be fairly considered as guilty of some negligence; and a Court of Equity, unless the mistake be clear and the party be without blame or neglect in not having discovered it earlier, ought in the exercise of a sound discretion to adopt the rule given by the statute law as its guide. That is what I shall do here.

Statutory Response 16.5 The discrepancy between the position at law and in equity, which had been described as ‘unsatisfactory’,10 was addressed by the Limitation Act 1939 (UK), which via s 26(c)11 in effect applied the position in equity to all causes of action for relief from the consequences of mistake. The sub-section declared that time did not start to run until the plaintiff discovered, or could with reasonable diligence12 have discovered, the mistake.13 Excepting South Australia and Western Australia — where the above distinction between common law and equity remains extant — each Australian jurisdiction has followed suit. [page 330]

The relevant provisions 16.6 Queensland, Tasmania and Victoria adopted the English sub-section almost verbatim. The legislation in these jurisdictions, to this end, states that where in an action for which a period of limitation is prescribed by the legislation, the action is for relief from the consequences of mistake, ‘the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it’.14 The equivalent provision in the Territories and New South Wales Acts adopted the substance, albeit not the precise wording, of its English predecessor. It is likewise phrased to refer to a cause of action for relief from the consequences of a mistake, but states that the time that elapses after the relevant limitation

period starts to run and before the date when the plaintiff first discovers, or may with reasonable diligence discover, the mistake, ‘does not count in the reckoning of the limitation period’ for an action on that cause of action.15 16.7 In each of the above jurisdictions, the legislation qualifies the foregoing in the event that property is, after a transaction in which a mistake is made, purchased for valuable consideration by a third party who does not, at the time of the purchase, know or have reason to believe that the mistake has been made. In this event, the mistake provision does not apply to a limitation period for a cause of action for relief from the consequences of the mistake against the third party,16 thereby reflecting the evident need to protect innocent third parties. 16.8 Outside of the third party scenario just mentioned, the legislation therefore casts upon the plaintiff the onus of establishing the grounds to overcome the otherwise applicable time bar. This requires the plaintiff to show that the cause of action is one ‘for relief from the consequences of a mistake’ and that it was brought within the set time after he or she discovered the mistake or could, with the exercise of ‘reasonable diligence’, have discovered the mistake.17 Each element is elaborated below.

Meaning of ‘for relief from the consequences of a mistake’ 16.9 As noted above, scope for the delaying of the commencement of the relevant limitation period is premised, in the first instance, upon an action ‘for relief from the consequences of a mistake’. Meaning must therefore be given to this phrase. The case law reveals that a plaintiff’s cause of action will be one ‘for relief from the consequences of a mistake’ if the mistake is ‘an essential ingredient’18 or the ‘gist’19 of the cause of action. Mistake is the ‘gist of the cause of action’, it is said, in a case ‘where it is the mistake itself that gives a right to apply to a court for relief, for example, in an action for recovery of money paid under a mistake of fact’.20 16.10 In Phillips-Higgins v Harper21 Pearson J opined that the phrase ‘relief from the consequences of a mistake’ applies ‘only where the mistake is an essential ingredient of the cause of action’, that is, where money has been paid or a contract entered into, as a consequence of a mistake, and relief is sought in relation to this. It is not, accordingly, every action in which

mistake is somehow involved that defers the running of time. The distinction appears from the facts in Phillips-Higgins. Under a 1938 oral agreement, the parties agreed that [page 331] the defendant would pay the plaintiff, for her services as an assistant solicitor, a weekly salary plus an annual sum to bring her total remuneration up to a proportion of the profits. In 1951 the plaintiff discovered that the sums she had received were underpayments according to her understanding of the agreement, for which she sued. The defendant pleaded, inter alia, that the action was time-barred vis-à-vis any of the plaintiff’s claims preceding 1945 (being six years — the limitation period — before the action was commenced), in response to which the plaintiff argued that the running of time was suspended by reason of mistake. Pearson J, though accepting that by reason of the mistake the plaintiff failed to realise that the balance was due to her and so the right of action was concealed from her, did not consider this sufficient to substantiate a claim for ‘relief from the consequences of a mistake’. The statement of claim set out that sums became due and that only a smaller amount of £x had been paid, and the prayer was for an account to ascertain the sums still due and for payment of them when so ascertained. This meant that the action was not one for relief from the consequences of a mistake within the meaning of the relevant provision, but to recover unpaid moneys. The plaintiff’s claim for unpaid amounts preceding 1945 was therefore statute-barred. 16.11 His Lordship, in a decision affirmed on appeal,22 viewed s 26 of the Limitation Act 1939 (UK) as ‘intended to be a narrow provision’, the concern being that ‘any wider provision would have opened too wide a door of escape from the general principle of limitation by six years’ lapse of time’.23 This narrow construction has been endorsed in Australian courts24 (and by the English Supreme Court for essentially the same reasons)25 although, as Pearson J himself conceded, it can produce anomalies.26 For instance, it means that a person who by mistake paid too much can benefit

from the section but not a person who, like the plaintiff in Phillips-Higgins, by mistake received too little and made no protest; the ‘carefully chosen wording’ of the section dictates such a result.27 After all, ‘mistake’ by a defendant does not itself found a cause of action. To construe the section more broadly could facilitate a claim for negligence, in circumstances where the negligence can be characterised as stemming from the defendant’s mistake, with the benefit of the deferral of the limitation period from when the mistake was discovered or discoverable.28 This would in turn upset core principles surrounding accrual of negligence actions.29 [page 332] So in Hillebrand v Council of the City of Penrith,30 where the plaintiffs sued the defendant for wrongfully selling three portions of the plaintiffs’ land as a result of alleged mistakes by the defendant, Austin J refused to defer the commencement of the running of time by reason of those mistakes because the ‘gist’ of the cause of action was relief from the consequences of negligence, rather than a mistake.

Meaning of ‘reasonable diligence’ 16.12 As noted earlier, the plaintiff must not only prove that the action is one ‘for relief from the consequences of a mistake’ to postpone the commencement of the running of time. He or she must also prove that the moment he or she discovered, or could with reasonable diligence have discovered, the mistake did not precede six years (or another applicable limitation period) before the action was commenced. While the plaintiff bears the onus of proving the date of discovery (or discoverability), the defendant may lead evidence to show that the plaintiff discovered, or should have with reasonable diligence discovered, the mistake at an earlier time. 16.13 The expression ‘reasonable diligence’, while it must take its meaning from its context, does not mean doing everything possible, or using any means at a plaintiff’s disposal, ‘but the doing of that which, under ordinary circumstances and with regard to expense and difficulty, could be

reasonably required’.31 Its meaning is best understood by way of illustration. In Peco Arts Inc v Hazlitt Gallery Ltd32 the plaintiff purchased from the defendant art dealer what was believed to be an original drawing by a noted nineteenth century French artist. Both the plaintiff and the defendant, upon whose expertise the plaintiff relied in making the purchase, were of the belief, which proved mistaken, as to the originality of the drawing. When the plaintiff, some ten years later, discovered the drawing to be a reproduction, the issue was whether his claim for rescission against the defendant was time-barred. This rested on whether he could, ‘with reasonable diligence’, have discovered the mistake more than six years preceding the institution of the proceedings. According to Webster J, ‘reasonable diligence’ here meant ‘the doing of that which an ordinarily prudent buyer and possessor of a valuable work of art would do having regard to all the circumstances, including the circumstances of the purchase’.33 As the defendants ran a gallery of ‘very considerable reputation’, there was no expectation that a prudent purchaser, in these circumstances, would obtain independent authentification of the art work; instead such a purchaser would be entitled to rely on the reputation and recommendation of the defendants and their satisfaction as to the authenticity of the drawing.34 As a result, the plaintiff’s claim was not statute-barred. His Lordship added, however, that the decision should not be understood to suggest that the running of time is deferred ‘whenever there is a bona fide mistake as to the attribution of a picture’, and elaborated the point as follows:35 It may well be the case that, where attribution forms a term of the contract, either as a condition or as a warranty, and where that attribution is mistaken, then in those circumstances [the section] does not apply either because it is not a mistake within the meaning of that subsection or because, where goods are sold with a condition or warranty as to attribution which is broken because the seller is under a mistake, the price paid is not to be regarded as money paid in consequence of

[page 333] a mistake. If it is to be regarded as money paid in consequence of a mistake then it would seem to follow that, in many instances of sales of many kinds of goods, where a warranty or condition is honestly but mistakenly given, the statutory limitation periods do not apply unless the buyer

has acted without reasonable diligence. That result, if right, might be regarded as surprising and would seem to be generally contrary to the interests of normal trading where goods are often sold on, and some goods, such as works of art, often sold on more than once in the years following the sale in question.

In other words, in line with what was noted earlier,36 not every action here is necessarily one ‘for relief from the consequences of a mistake’. It may, as Webster J envisaged, be one for breach of contract.

Application to mistake of law 16.14 The relevant provisions, in referring to relief from the consequences of ‘a mistake’, do not address whether the ‘mistake’ in question covers all mistakes, whether of fact or law, or instead only mistakes of fact. There was no need, when the provisions were enacted, to address the point because the case law at the time, in both England and Australia, mostly precluded the recovery of money paid under a mistake of law. But consequent upon the House of Lords’ decision in Kleinwort Benson Ltd v Lincoln City Council,37 which decided that the general rule precluding the recovery of a payment made because of a mistake of law no longer formed part of English law, it became necessary to determine how this should impact upon limitations law. The same has proven an issue in Australia following the High Court’s ruling in David Securities Pty Ltd v Commonwealth Bank of Australia,38 which followed the Kleinwort Benson path. 16.15 That English law in 1939, when the first general ‘mistake’ limitation provision was enacted, did not permit the recovery of moneys paid under mistake of law was an insufficient reason, declared the House of Lords in Kleinwort Benson, to read down the literal words of that provision, which referred (and continue to this day to refer) to ‘a mistake’ without qualification. Moreover, as in 1939 there were (limited) exceptions to the rule precluding recovery in a case involving a mistake of law, it made little sense to continue to confine ‘mistake’ for the purposes of the limitation provision to mistakes of fact; instead, if that provision could apply to some mistakes of law, it was logical to apply it to mistakes of law generally.39 Though it remains to be determined with certainty in Australian law, the trajectory aligns with that in England. In Paciocco v Australia and New Zealand Banking Group Ltd40 Besanko J, albeit by way of obiter,41 largely

endorsed the views expressed in Kleinwort Benson on the limitation point. His Honour favoured construing the relevant provision as ‘always speaking’ (an ambulatory construction) rather than as a ‘fixed-time’ provision, reasoning as follows:42 The words used in [the relevant provision, being s 27(c) of the Limitation of Actions Act 1958 (Vic)] are quite general, and are capable of being given an ambulatory effect. Having regard to the inferred objects of s 27(c), I do not think there is a convincing reason, not to give the paragraph an ambulatory construction. The [defendant] referred to the general policy objectives that lie behind Limitation of Actions legislation … but I think it is the object which lies behind

[page 334] s 27(c) itself which is significant. That object is to postpone the activation of limitation periods in the case of a mistake until the mistake is discovered, or could, with reasonable diligence, have been discovered. At the risk of stating the obvious, it seems perfectly reasonable, as a general proposition, that time should not run against a person whose cause of action is based on a mistake until that person discovers or could, with reasonable diligence, discover the mistake.

In reaching this conclusion, his Honour was not dissuaded by the defendant’s argument that an ambulatory construction could upset transactions considered final and settled many years after they have taken place on the basis of a mistake of law, possibly revealed by a judicial decision that reverses earlier authority. Though seeing ‘some force’ in this argument, Besanko J envisaged that this scenario could at some stage attract the attention of the legislature. In any event, the same type of problem (albeit not to the same degree) potentially arises where proceedings are issued shortly before the expiration of the limitation period.43 ______________________________ 1. 2.

3. 4.

See 11.16–11.30. Baker v Courage & Co [1910] 1 KB 56 at 63 per Hamilton J; Re Mason [1929] 1 Ch 1 at 9 per Lord Hanworth MR; Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 596; BC9701370 per Sackville J, with whom Foster and Lehane JJ concurred. David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 389; BC9202662 per Brennan J. See, for example, Re Robinson [1911] 1 Ch 502 (claim in equity by one beneficiary against another to recover moneys paid to the latter under a mistake of fact treated as analogous to action for money had and received at common law, and thus subjected, by analogy, to the same limitation

5.

6. 7. 8. 9. 10. 11.

12. 13.

14. 15. 16. 17. 18. 19.

20. 21. 22. 23. 24.

period as applicable to the latter (as to which see 5.35–5.39)). As to the doctrine of analogy generally see 13.32–13.41. Cf Re Diplock [1948] Ch 465 at 512–14 per Lord Greene MR, delivering the reasons of the English Court of Appeal [affd Ministry of Health v Simpson [1951] AC 251] (ruling that the words ‘action in respect of any claim to the personal estate of a deceased person’ in UK 1939 s 20 (now UK 1980 s 22(a): see 10.7) can cover actions by one beneficiary against another who has been overpaid by mistake). See, for example, Brooksbank v Smith (1836) 2 Y & C Ex 58; 160 ER 311 (involving trustees who filed a bill praying that the defendant should be decreed to retransfer to them certain stock that the trustees had transferred to him under the mistaken belief that he was entitled to an interest under the will of which they were the trustees). (1836) 2 Y & C Ex 58 at 60; 160 ER 311 at 312. Baker v Courage & Co [1910] 1 KB 56 at 63 per Hamilton J; Re Blake [1932] 1 Ch 54 at 62 per Maugham J. (1840) 4 Y & C Ex 42; 160 ER 912. Denys v Shuckburgh (1840) 4 Y & C Ex 42 at 53; 160 ER 912 at 916. Wright Committee, para 23. The equivalent current provision is UK 1980 s 32(1)(c). See also Lord Sumption JSC’s discussion of the backdrop to the provision in Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] 2 AC 337; [2012] UKSC 19 at [179]–[181]. The words ‘reasonable diligence’ had, however, appeared in a limitation statute as early as UK 1833 s 26. It has been observed the observation that a general discovery-based limitations regime (see 22.16–22.25) could obviate the need for a dedicated mistake provision: see QLRC 53, pp 180–2; NZLC 61, p 12; ILRC, para 4.146. Qld s 38(1)(c); Tas s 32(1)(c); Vic s 27(c). ACT s 34(1); NSW s 56(1) (implementing the recommendation of the NSWLRC 3, para 271); NT s 43(1). ACT s 34(3); NSW s 56(3); NT s 43(3); Qld s 38(2)(b); Tas s 32(2)(b); Vic s 27 (proviso (ii)). Equivalent provision is made in relation to fraud and concealment: see 15.48–15.50. Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [27] per Rein J; ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76; BC201501232 at [136] per Sloss J. Phillips-Higgins v Harper [1954] 1 QB 411 at 419 per Pearson J [affd Phillips-Higgins v Harper [1954] 2 All ER 51n]. Barton v Chibber (SC(Vic), Hampel J, 29 June 1989, unreported) BC8908628 at 4; Hillebrand v Council of the City of Penrith [2000] NSWSC 1058; BC200007069 at [48] per Austin J; Candibon Pty Ltd v Minister for Planning (2011) 183 LGERA 10; [2011] VSC 415; BC201106481 at [346]– [350] per Emerton J. Barton v Chibber (SC(Vic), Hampel J, 29 June 1989, unreported) BC8908628 at 4. [1954] 1 QB 411 at 419. Phillips-Higgins v Harper [1954] 2 All ER 51. Phillips-Higgins v Harper [1954] 1 QB 411 at 419. See, for example, Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [39] per Rein J (who, in rejecting the plaintiff’s argument that a wide inclusive view should be taken of NSW s 56 because it is an ameliorative provision, cited the remarks of Pearson J in Phillips-Higgins v

25.

26.

27. 28. 29. 30.

31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Harper [1954] 1 QB 411 at 419 as ‘apt in the present context of s 56’). It has also been applied in New Zealand: see, for example, Trewin v Flower [1965] NZLR 8 at 14 per Wilson J (in the context of the New Zealand equivalent provision, namely NZ 1950 s 28(c)). See Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] 2 AC 337; [2012] UKSC 19 at [42]–[63] per Lord Walker (noting (at [63]) that, so far as policy is concerned, departure from Pearson J’s relatively narrow interpretation would bring a real risk (as M Franks, Limitation of Actions, Sweet & Maxwell, London, 1959, pp 206–7) put it, that ‘the scope of [s 32(1)(c)] might be expanded dangerously close to the basic rule of common law limitation that ignorance of the existence of a cause of action does not prevent time from running’), at [185] per Lord Sumption JSC. See the criticism of Phillips-Higgins v Harper in J Edelman, ‘Limitation Periods and the Theory of Unjust Enrichment’ (2005) 68 MLR 848 at 852–3. Cf Re Diplock [1948] Ch 465 at 514–16 per Lord Greene MR, delivering the reasons of the English Court of Appeal [affd Ministry of Health v Simpson [1951] AC 251] (who in obiter was prepared to assume that a personal representative’s mistake in distributing the estate could postpone time running against the claimants (who were the next-of-kin properly entitled) even though, it appears, mistake was not an essential ingredient of the cause of action, which was instead based on a personal action against the recipients who were not entitled). Phillips-Higgins v Harper [1954] 1 QB 411 at 419 per Pearson J. Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [38] per Rein J. See 6.5–6.7. [2000] NSWSC 1058; BC200007069 at [48]. See also Sinclair v Registrar-General [2010] NSWSC 173; BC201001320 at [37], [38] per Rein J (who held that an error or omission by the RegistrarGeneral, equivalent to a mistake, did not ‘take the cause of action out of being one for money recoverable by virtue of an enactment and make it a cause of action for relief from the consequences of a mistake’: at [38]). Allen v Vehicle Builders Employees’ Federation of Australia (1978) 22 ALR 510 at 513 per Smithers J (referring with approval to Young v Paddle Brothers Pty Ltd [1956] VLR 38 at 42 per Herring CJ, who endorsed a statement made by Dr Lushington in The Europa (1863) 2 Moo PC (NS) 1 at 15; 15 ER 803 at 808 to the effect of the text). See also Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 at 199 per Webster J. [1983] 3 All ER 193. Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 at 199. Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 at 201–2. Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 at 203. See 16.9–16.11. [1999] 2 AC 349. (1992) 175 CLR 353; BC9202662. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 at 388–9 per Lord Goff, at 417–18 per Lord Hope. (2015) 236 FCR 199; [2015] FCAFC 50; BC201503488. His Honour’s remarks in this context were obiter because it was not strictly necessary to address the limitation point in view of the court’s findings on substantive issues. Allsop CJ, who delivered the leading judgment, nonetheless expressly agreed with Besanko J’s remarks on the limitation point: Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015]

42. 43.

FCAFC 50; BC201503488 at [192]. Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50; BC201503488 at [396]. Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50; BC201503488 at [396].

[page 335]

CHAPTER 17

Acknowledgement and Part Payment Backdrop At common law Translation to statute Pre–1939 Post–1939 Australian Legislative Schemas Schema in the Territories, New South Wales and Western Australia Concept of a ‘confirmation’ Effect of a ‘confirmation’ Scope of confirmation vis-à-vis interest / income recovery Schema in Queensland, Tasmania and Victoria Acknowledgement and part payments Application in the context of multiple parties Schema in South Australia Nature of an Acknowledgement Acknowledgement as an ‘admission’ Identifying an ‘admission’ Without prejudice communications not relevant ‘admissions’ Acknowledgement and its effect a question of construction Formalities for acknowledgement Proof going to form

17.1 17.1 17.2 17.2 17.5 17.8 17.9 17.9 17.10 17.11 17.12 17.12 17.15 17.21 17.24 17.24 17.24 17.26 17.29 17.34 17.34

Signature Acknowledgement via agency Balance sheet entry as acknowledgement Acknowledgement to be ‘made to’ the creditor Temporal coincidence between debt and acknowledgement Part Payment Revival of action by part payment Where more than one debt owed Characteristics Shared by Acknowledgement and Part Payment Voluntariness Timing

17.35 17.37 17.39 17.42 17.44 17.47 17.47 17.50 17.53 17.53 17.54 [page 336]

Extension to unliquidated claims Traditionally restricted to liquidated claims Modern translation to include unliquidated claims Application vis-à-vis joint debtors

17.56 17.56 17.58 17.60

Backdrop At common law 17.1 The Limitation Act 1623 (UK) made no reference to a prospect that the running of time in relation to a cause of action in debt should

recommence in the event that the debtor acknowledged or confirmed the debt.1 Yet in what has been judicially described as ‘originally judge made law’,2 ‘invented’ by judges3 or, in terms more trenchant, the result of ‘decisions of three centuries … decorously disregarding an Act of Parliament’,4 the law came to recognise the concept of acknowledgement, and of part payment, as a means of mitigating the potentially unjust effects that the limitation statute could work. Where the debtor had acknowledged the debt, or made a part payment on account of it, within the limitation period, the law declared it in the interests of justice that time should not start afresh for limitations purposes. The right of action, it is said, is thereby ‘given a notional birthday and on that day, like the phoenix of fable, it rises again in renewed youth — and also like the phoenix, it is still itself’.5 A series of cases, going back to at least 1698,6 established that an express promise to pay a debt, or even a simple acknowledgement of the debt — itself implying a promise to pay — sufficed to take the debt out of the statute. The assumption was that ‘[a] promise to pay what you owe (even if the limitation period has run) should be honoured’.7 Also, a promise to pay the debt was implied from a general acknowledgement, unless it was inconsistent with the circumstances or the terms of the acknowledgement. The ‘new’ promise was what triggered the ‘revived’ running of time (accrual date), for which the existing (acknowledged) debt was the consideration.8 Recognition of acknowledgement as a basis to post-date the running of time was reconciled with the strict words of the limitations statute by viewing the original loan and the subsequent promise as ‘one continuing transaction’; so while the creditor made the loan ‘once and for all’, the debtor ‘had not finished promising as long as he went on promising’, so that the debtor’s undertaking (assumpsit) ‘was still in being till within six years of the action’.9 Yet it cannot be denied that this explanation wore ‘an aspect of unreality’,10 not assisted by curial willingness to imply the relevant promise often on ‘highly artificial grounds’, such that [page 337] ‘almost anything short of a denial of liability was held to be capable of

implying a promise to pay’.11

Translation to statute Pre–1939 17.2 The doctrine of acknowledgement did not secure ‘statutory recognition’12 until the enactment of the Statute of Frauds Amendment Act 1828 (UK)13 (known as Lord Tenterden’s Act), which required a promise or acknowledgment to be in writing. The relevant part of its operative provision, s 1, read as follows: In actions of debt or upon the case grounded upon any simple contract no acknowledgement or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactment or either of them, or to deprive any party of the benefit thereof, unless such acknowledgement or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby …

The words ‘acknowledgment or promise’, though expressed in the alternative, continued to be construed, in line with the understanding at general law, to mean an acknowledgment that implied a promise to pay.14 At the same time, the section added that ‘nothing therein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever’, thereby recognising by statute what had already been understood at general law, namely that part payment of a debt, if it could be construed to imply an intention (and thereby a promise) to pay the rest (as opposed to payment for some other reason), spoke of the debtor’s acknowledgement of the debt for limitations purposes.15 17.3 Like statutory formality requirements generally, the requirement that an acknowledgment be in writing and signed, which remains part of modern English and Australian law,16 sought to minimise scope for argument as to whether and when it was made.17 As explained by the Privy Council:18 If an oral acknowledgement were allowed to constitute an interruption litigation would be encouraged and litigants would dispute what was said, by whom and to whom … Once an acknowledgement has been reduced to writing, there is certainty about the words used and the court need only decide whether the words which have been written amount to an acknowledgement. There is no room for fraud, mistake or failure of memory. The written word speaks for itself.

[page 338] 17.4 That the 1828 legislation made no provision for an acknowledgment or promise to be signed by an agent — prompting case authority that an acknowledgment signed by an agent of the debtor was not effective for this purpose19 — was rectified by s 13 of the Mercantile Law Amendment Act 1856 (UK), which admitted an acknowledgment or promise if made by an agent. This translated to modern English law,20 as well as the law in the four Australian jurisdictions that have followed the English model,21 dictating that, say, in the case of a corporate debtor, the agents of the company (its directors, typically)22 can sign on the company’s behalf.

Post–1939 17.5 Section 1 of Lord Tenterden’s Act, extracted above,23 was repealed by the Limitation Act 1939 (UK),24 by reason of discrete provision in the latter Act to address the issue of acknowledgement and part payment. The operative provision in the 1939 Act, s 23(4) (found in practically identical terms in the current Queensland, Tasmanian and Victorian limitations statutes,25 as well as replicated in the current English legislation),26 read as follows: Where any right of action has accrued to recover any debt or other liquidated pecuniary claim … and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement for the last payment.

By omitting the words ‘or promise’, the 1939 Act ostensibly altered the law.27 It obviated any need to search for some new promise to pay, whether express or implied, instead requiring only an acknowledgment of a debt or other liquidated amount.28 Formerly the running of time was ‘revived’ if the creditor could show something in writing to support a ‘new’ (implied) promise to pay,29 wherein the cause of action targeted the promise. So long as that promise was made within the limitation period, the claim was not time-barred. But as the pre-1939 [page 339]

law treated an unconditional acknowledgment as implying a promise to pay,30 the difference may have been more in form than in substance. In eschewing the explicit need for a promise, however, s 23(4) of the 1939 Act avoided the artificiality inherent in implying a promise in these circumstances. 17.6 Be that as it may, the concept of an ‘acknowledgement’ has been interpreted, by both English and Australian judges, as premised on proof of an ‘admission’ that a debt31 or other liquidated (and, in some jurisdictions, an unliquidated)32 amount remains outstanding.33 This aligned with the concept of an ‘acknowledgement’ as understood in pre-1939 law. For instance, in 1884 Fry LJ characterised an ‘acknowledgement’ as follows:34 … an acknowledgment is an admission by the writer that there is a debt owing by him, either to the receiver of the letter or to some other person on whose behalf the letter is received. It is not enough that he refers to a debt as being due from somebody. In order to take the case out of the statute there must upon the fair construction of the letter, read by the light of the surrounding circumstances, be an admission that the writer owes the debt.

17.7 As the law prior to 1939 in England (and prior also to equivalent statutory change in Australia) was premised on a debtor’s express or implied promise to substantiate the admission, which in turn was what the creditor would sue upon within the extending limitation period, it stood to reason that the terms of that promise were germane to the creditor’s entitlement. The debtor’s liability, to this end, revived ‘only according to the tenor of the promise’.35 So if it was expressed, or construed, as conditional or subject to limitations, or as in some other way different from the original obligation, its acknowledgement could operate only in accordance with those conditions, limitations or distinctions. In the words of Dixon J:36 Words clearly acknowledging that the writer is liable suffice to raise that implication but although the promise is implied as an artificial consequence of the written admission of liability and is not the result of a search after the true meaning disclosed by the writing, yet if the document in which the admission occurs expresses an intention inconsistent with the making of such a promise or an intention consistent only with the making of a qualified promise, the implication will be rebutted or qualified accordingly … [I]f the document in which the admission of liability is found contains an expression of some qualification which is inconsistent with an unconditional or unrestricted promise to pay, the promise implied from the acknowledgement of the debt will be qualified by the condition or limitation expressed.

So while a ‘new’ promise could revive the old debt, it did not necessarily revive it in the same terms as the old debt; the revival would take effect

subject to any conditions, qualifications [page 340] or modifications attached to the promise. Lord Wrenbury illustrated the point by way of the following examples:37 Thus if the debtor writes, ‘I acknowledge the debt, but I refuse to pay it’, the refusal negatives any implied promise to pay. Again if he adds to the acknowledgment an express promise, that express promise will modify and exclude the implied promise. Thus if he write, ‘I acknowledge the debt and will pay it you six months hence’ the implied promise which would be a promise to pay forthwith is superseded by the express promise to ‘pay six months hence’, and an action cannot be brought until the six months have expired. Or again, if he writes, ‘I acknowledge the debt and will pay it if I succeed in selling my house’, that express promise excludes the implied promise and an action will not lie unless and until the condition is satisfied and the house is sold.

Hence the need, added his Lordship, to inquire ‘whether there is language which excludes or modifies the promise which, in the absence of anything to the contrary, the law implies from the acknowledgment’.38 The statutory shift away from grounding an acknowledgement in an express or implied promise, but instead in an admission, arguably does not relegate the above cases to merely historical value. As the terms of an admission govern the scope of any underlying acknowledgement, it stands to reason that these can function to modify, for the purposes of an otherwise time-barred claim, the creditor’s entitlements.39

Australian Legislative Schemas 17.8 Consistent with the translation of the doctrine of acknowledgement into statute in England, each Australian jurisdiction has enacted, as part of its limitations law, specific provision directed to acknowledgement. It is termed ‘confirmation’ in some jurisdictions, being a generic term to cover both acknowledgements and part payments. In Australia, as in England, there is accordingly no lingering reason to place a ‘gloss’ on the wording of Limitations Acts so as to accommodate acknowledgement.40 The issue is one of interpreting and applying the statutory language. In line with their English

counterpart, the terms of an acknowledgement must be in writing, and the effect is to restart the running of time for the relevant cause of action. As to the latter, it has been judicially said that ‘[t]he provision is directed towards determining the fair and just point from which the limitation period should run where a party has acknowledged the cause of action before the expiry of a limitation period in respect of that cause of action’.41 The underlying policy of the relevant provisions, it has been opined, is that ‘a creditor should be given more time to negotiate for the payment of an admitted indebtedness without the fear that the claim would become statute barred’.42 Consistent though the policy may be, there is no standard schema across Australia for the acknowledgement provisions. The Territories, New South Wales and Western Australia share a broadly equivalent schema. [page 341] A different one, more closely based on the language of the 1939 English statute, operates in Queensland, Tasmania and Victoria. South Australia’s schema, sufficiently different to justify discrete treatment, nonetheless shares some similarities with that in Queensland, Tasmania and Victoria.

Schema in the Territories, New South Wales and Western Australia Concept of a ‘confirmation’ 17.9 The limitations statutes in the Territories, New South Wales and Western Australia adopt the compendious term ‘confirmation’ to encompass both acknowledgements and part payments.43 In the Territories and New South Wales a person ‘confirms’ a cause of action only if he or she acknowledges to a person having either solely or with other persons the cause of action (A), the right or title of A, or pays A in relation to A’s right or title.44 In Western Australia a person ‘confirms a cause of action’ if the person:45 (a) acknowledges, to a person having the cause of action (‘person A’), person A’s right or title,

even though the acknowledgment does not disclose a promise to pay; (b) makes, to a person having the cause of action (‘person B’), a payment in relation to person B’s right or title and makes the payment in circumstances not inconsistent with an acknowledgment of that right or title; or (c) makes, to a person having a cause of action to foreclose the equity of redemption of mortgaged property or to recover possession of mortgaged property (‘person C’), a payment of principal or interest secured by the mortgage or a payment to person C otherwise in relation to person C’s right or title to the mortgage.

In that the legislation adds, via a discrete provision, that a reference to a person having a cause of action is a reference to the person having the cause of action either solely or with other persons,46 and by stating that an acknowledgment need ‘not disclose a promise to pay’ only makes explicit what is otherwise implicit, it is evident that paragraphs (a) and (b) replicate the substance of the equivalent provision in the Territories and New South Wales. As the substance of paragraph (c) is found in a separate provision in the legislation of the Territories and New South Wales,47 the concept of a ‘confirmation’ is uniform across these jurisdictions. In each jurisdiction, moreover, acknowledgment must be in writing and signed by the maker.48

Effect of a ‘confirmation’ 17.10 The legislation in these jurisdictions states that if, after a limitation period begins to run but before it expires, a person against whom (either solely or with others) the cause of action lies confirms the cause of action, the time during which the limitation period runs ‘before the date of the confirmation’ — being a reference to the date to which the confirmation relates49 — does not count in calculating the limitation period for that cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.50 A person has ‘the benefit of a confirmation’ if the confirmation is made to him or her, or to [page 342] someone through whom he or she claims.51 The Northern Territory provision states that a person is ‘bound by a confirmation’ if he or she is the maker of the confirmation, or ‘the right to bring the action in respect of which the confirmation was made subsequently becomes, by devolution or

succession, a right to bring the action against him’.52 In the remaining jurisdictions, the meaning of the phrase is similar, but elaborated, as appears from the wording of the relevant Australian Capital Territory and New South Wales provision:53 [A] person is bound by a confirmation if, but only if: (a) the person is a maker of the confirmation, (b) the person is, in relation to the cause of action, a successor of a maker under a devolution from the maker occurring after the making of the confirmation, (c) where the maker is, at the time when the person makes the confirmation, (either solely or with other persons) a trustee of the will or of the estate of a deceased person — the firstmentioned person is at the date of the confirmation or afterwards becomes a trustee of the will or of the estate, (d) where the maker is, at the time when the person makes the confirmation (either solely or with other persons) a trustee (other than a trustee of the will or of the estate of a deceased person) — the firstmentioned person is at the date of the confirmation or afterwards becomes a trustee of the trust of which the maker is a trustee, or (e) the person is bound under subsection (7).

The parallel Western Australian provision is essentially identical except that, in place of a ‘trustee of the will or of the estate of a deceased person’, it refers to a ‘personal representative of a deceased person’, and that the reference to subsection (7) above is instead to subsection (2).54 In each of these jurisdictions, the latter states that if a maker of a confirmation of a cause of action in relation to property55 is in possession of the property on the date of the confirmation, the confirmation binds a person subsequently in possession of the property who claims through the maker of the confirmation.56

Scope of confirmation vis-à-vis interest / income recovery 17.11 The Limitations Acts in the Territories, New South Wales and Western Australia declare that a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money.57 It adds that a confirmation of a cause of action to recover income falling due at any time operates also as a confirmation of a cause of action to recover income falling due at a later time on the same account.58 This reflects the view that:59 … the confirmation of one item of income is a recognition that the question of liability for that item is not closed and that, in the ordinary course of affairs, where liabilities arise in succession, the liability of earlier accrual is likely to be discharged before the liability of later accrual; so that it is a fair inference that the question of liability for a subsequent item is also not closed. The same considerations do not, however, apply to items falling due before the item confirmed. Although a

[page 343] confirmation of one item may well be consistent only with the existence, at some time, of liability for earlier items on the same account, it does not support an inference that liability on an earlier item remains undischarged at the date of the confirmation.

The above explains why the legislation does not make a confirmation of income work as a confirmation of earlier income on the same account.60

Schema in Queensland, Tasmania and Victoria Acknowledgement and part payments 17.12 The provisions governing acknowledgements in Queensland, Tasmania and Victoria follow the same basic schema. There are also, as noted below, occasions where the South Australian legislation makes provision to the same general effect.61 The provisions declare that where a right of action has accrued to recover a debt or some other liquidated pecuniary claim, or a claim to some share or interest in the personal estate of a deceased person, and the person liable or accountable acknowledges or makes a payment in respect the claim,62 the right is treated as accrued on the date of the acknowledgment or the last payment.63 17.13 There are also provisions that target acknowledgements and part payments in the arena of mortgages — over either real or personal property — and in line with general law notions provides for the fresh accrual of an action upon an acknowledgement or part payment. The main operative provision states, to this end, that:64 Where there has accrued a right of action (including a foreclosure action) to recover land or a right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and: (a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or (b) in the case of a foreclosure or other action by a mortgagee — the person in possession referred to in paragraph (a) or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest; the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.

Notwithstanding the foregoing, a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the

principal debt.65 If a mortgagee-in-possession of land receives a sum in respect of the principal or interest of the mortgage debt, or acknowledges the mortgagor’s title or equity of redemption,66 the mortgagor may bring an action to redeem the land within 12 (in Victoria, 15) years of the payment or acknowledgment.67 There is an equivalent, although not identical, provision found in South Australia, adopting a 15 year time frame.68 17.14 Every acknowledgment referred to above must be in writing and signed by the person making it.69 There is specific provision allowing an acknowledgment or payment to be made by an agent of the relevant person, in each case (via an agent or not) to the person (or agent [page 344] thereof) whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.70

Application in the context of multiple parties 17.15 An acknowledgment of the title to land or mortgaged personalty by a person in possession thereof binds all other persons in possession during the ensuing period of limitation (that is, the new limitation period that has been triggered by the acknowledgement).71 A payment in respect of a mortgage debt by the mortgagor (or a person in possession of the mortgaged property) similarly binds all others in possession of the mortgaged property during the ensuing period of limitation so far as any right of the mortgagee to foreclose or otherwise to recover the property is concerned.72 17.16 For multiple mortgagees-in-possession of the same land, acknowledgment of the mortgagor’s title or equity of redemption73 by one mortgagee is binding on him or her (and his or her successors)74 but not any other mortgagee (or successors).75 Where the mortgagee by whom the acknowledgment is given is entitled to a part of the mortgaged land and not to an ascertained part of the mortgage debt, the mortgagor is entitled to redeem76 that part of the land on payment, with interest, of the part of the mortgage debt that bears the same proportion to the entire debt as the value

of the part of the land bears to the value of the entire mortgaged land.77 Equivalent provision to the foregoing is made in South Australia.78 17.17 Acknowledgment of the title or right to redemption79 of one of multiple mortgagors is, conversely, deemed to have been made to all the mortgagors.80 Again, equivalent provision appears in South Australia.81 17.18 An acknowledgment by one of the several personal representatives of a claim to a share or interest in the personal estate of a deceased person, or a payment by one of the several personal representatives in respect of such claim, binds the estate of the deceased person.82 The foregoing confirms the application, for the purposes of the law on acknowledgement, of the general law principle that the act of one of several personal representatives serves to bind the others.83 17.19 An acknowledgment of a debt or other liquidated pecuniary claim is declared to bind the acknowledger and his or her successors, but not any other person.84 Notwithstanding this, an acknowledgment made after the expiry of the period of limitation prescribed for the bringing the relevant action does not bind a successor on whom the liability devolves on the [page 345] determination of a preceding estate or interest in property under a settlement that took effect before the date of the acknowledgment.85 17.20 Conversely, a payment made86 in respect of a debt or other liquidated pecuniary claim functions to bind all persons liable in respect thereof.87 However, any such payment made after the expiry of the time bar set for the bringing of the relevant action binds only the person making the payment (and his or her successors), and not a successor on whom the liability devolves on the determination of the preceding estate or interest in property under a settlement taking effect before the date of payment.88

Schema in South Australia 17.21

Beyond the provisions that the South Australian legislation shares,

in substance, with that in Queensland, Tasmania and Victoria noted above, it recognises scope for acknowledgement in the context of actions to recover debts and those to recover land. As the former, the South Australian statute largely replicates s 1 of Lord Tenterden’s Act of 1828, mentioned earlier,89 such that in any action of debt or otherwise founded upon simple contract, no acknowledgment or promise ‘by words only’ is deemed effective unless it is ‘made or contained by or in some writing to be signed by the party to be charged thereby’ (or by his or her agent).90 Again replicating the 1828 Act, it adds that if there are two or more joint contractors (or executors / administrators thereof), no joint contractor will lose the benefit of a time bar so as to be made chargeable by, or in respect only of, any written acknowledgment or promise made and signed by another contractor.91 17.22 Via discrete provisions that set a 15 year limitation period relating to actions on specialty, and to recover money charged upon land and legacies, there is also provision for a written and signed acknowledgement, or part payment, to restart the running of time.92 17.23 Where a person (A) who is in possession of land, or in receipt of the profits or rent therefrom, acknowledges in writing and with signature the title of another person (B) entitled to the land or rent therefrom, A’s possession or receipt is deemed to have been B’s possession or [page 346] receipt, such that B’s right to make an entry or distress or bring an action to recover the land or rent is deemed to have first accrued at the time when the acknowledgment (or the last of these, if more than one) was given.93

Nature of an Acknowledgement Acknowledgement as an ‘admission’ Identifying an ‘admission’

17.24 As noted earlier, the concept of an ‘acknowledgement’ for the purposes of limitations law, whether before or after the Limitation Act 1939 (UK) and ergo in relation to the Australian provisions, has been understood as involving an admission that a debt or other liquidated (and, in some Australian jurisdictions, unliquidated)94 amount remains outstanding. A High Court judge has, for instance, aligned an acknowledgement with an admission or recognition of the present existence of the debt.95 Other judges have, in similar vein, remarked that ‘[t]o acknowledge a claim, as a matter of ordinary English, signifies an admission that it is due’,96 and accepted that there can be no acknowledgment of a debt unless there is ‘an admission that there is a debt … outstanding and unpaid’.97 Indeed, albeit for a different reason, it has been judicially observed that there is no great difference between the natural meanings of the words ‘admission’ and ‘acknowledgment’.98 In these circumstances, a debt remains a ‘present debt’ even though its payment is postponed.99 17.25 An admission sufficient to give rise to an acknowledgement for limitations purposes will struggle to coexist with a challenge to the validity of the debt or a denial of its existence.100 The same may be said to the extent that the defendant pleads a counterclaim or set-off. The document alleged to contain the acknowledgment must be read as a whole, in context, so as to discern whether it truly amounts to an admission. In Re Flynn (No 2),101 for instance, the document admitted the existence of the promissory note in issue and the fact that it had not been paid, but disputed the maker’s liability to pay on a number of grounds. Buckley J ruled that ‘confession and avoidance’ of this kind did not constitute an acknowledgment. Indeed, it was established in the nineteenth century, at a time when the law fixated on an implied promise to support an acknowledgment,102 that a simultaneous assertion of a set-off reducing or extinguishing the debt effectively destroyed the implication of any promise to pay that part, [page 347] or any part, of the debt covered by the alleged set-off.103 As explained by Kerr J in Surrendra Overseas Ltd v Government of Sri Lanka:104

… taking the debtor’s statement as a whole … he can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. If he has denied liability, whether on the ground of what in pleader’s language is called ‘avoidance’, or on the ground of an alleged set-off or cross-claim, then his statement does not amount to an acknowledgment of the creditor’s claim. Alternatively, if he contends that some existing set-off or cross-claim reduces the creditor’s claim in part, then the statement, taken as a whole, can only amount to an acknowledgment of indebtedness for the balance. In effect, ‘acknowledges the claim’ means that the statement in question must be an admission of that indebtedness which the plaintiff seeks to recover notwithstanding the expiry of the period of limitation.

Surrendra involved an attempt to revive an otherwise time-barred cause of action by alleged part payment of a debt.105 The same law applies in this context, Kerr J noting that a part payment, like an acknowledgement, ‘can only revive the cause of action and start time running afresh if it provides evidence in the form of an admission by the debtor that the debt remains due despite the passage of time’.106 As the defendant admitted the plaintiff’s claim subject to a set-off, and paid the admitted balance, his Lordship found no acknowledgment beyond the liability that the defendant had discharged. The substance of his Lordship’s decision has been applied in what has been viewed as an analogous scenario in Australia.107

Without prejudice communications not relevant ‘admissions’ 17.26 The law encourages the settlement of disputes prior to adjudication, for various reasons including time and cost. A vehicle through which settlement is encouraged is what is known as the ‘without prejudice privilege’ (also known as the ‘privilege in aid of settlement’).108 It seeks to achieve this objective by excluding from admissibility into evidence admissions in ‘without prejudice’ correspondence between litigants made bona fide for the purpose of negotiating a settlement of their dispute. Were negotiations able to be converted into admissions prejudicial to the person making them, litigants would, it is feared, be reticent to make attempts to compromise a dispute. 17.27 That the concept of an acknowledgement for limitations purposes aligns with an admission raises an evident confluence between acknowledgements and the without prejudice privilege. In particular, the issue is whether without prejudice communications can be used as an acknowledgment in limitations law. The House of Lords in Ofulue v

Bossert,109 by a four-one majority,110 answered this question in the negative. The case involved a 12 year limitation period on the recovery of land,111 where more than 12 years had elapsed since the defendant entered into adverse possession of the plaintiffs’ land, but less than 12 years had passed since the defendant, in without prejudice correspondence, had offered to buy the land from the plaintiffs. [page 348] In ruling against this correspondence being treated as an effective acknowledgement,112 Lord Neuberger remarked that to hold otherwise would be ‘inconsistent with the protection afforded to such negotiations, and the policy behind it, as invoking such a statement as an admission of the truth of what is stated’.113 Lord Walker, seeing ‘no great difference’ between the natural meaning of the words ‘admission’ and ‘acknowledgment’, likewise concluded that recognising an exception for an acknowledgment ‘would whittle down the protection given to the parties to speak freely’.114 Lord Rodger noted that, while the commonest purpose recognised for the rule relating to without prejudice communications was preventing the use of anything said in negotiations being used as an admission, its rationale was wider:115 … it is that parties and their representatives who are trying to settle a dispute should be able to negotiate openly, without having to worry that what they say may be used against them subsequently, whether in their current dispute or in some different situation. If that is right, then there is no obvious justification for drawing a line between admissions and acknowledgments.

17.28 The foregoing has translated to Australian law, as regards the without prejudice privilege at general law116 and also its statutory replication in the uniform evidence law.117 While the latter recognises an exception in the case where ‘making the communication, or preparing the document, affects a right of a person’,118 this has been interpreted restrictively, for fear that an expansive interpretation could ‘potentially swallow the rule and the very important policy considerations underlying [the rule] would be largely negated’.119 It has been held, for this reason, not to encompass a ‘right’ affected by way of acknowledgement.120

Acknowledgement and its effect a question of construction 17.29 What amounts to an acknowledgment is ultimately a question of construction of the written words in each case; the words may be express, or an intention to acknowledge may be gleaned by way of inference.121 Ultimately, it is a question informed by the context in which it arises.122 So much so that the decided cases are seemingly of little value as precedents, Lord Sumner remarking that ‘everybody agrees that comparison with the words of other debtors is of little use’.123 Illustrations in the case law can accordingly convey no more than a flavour of [page 349] what amounts to an acknowledgement in this context. The simplest scenario is an unqualified IOU, which represents an evident admission of an existing debt and, under the earlier law, was sufficient to support an unconditional promise to pay.124 17.30 Outside of this simple scenario, perhaps the most instructive case illustration is Spencer v Hemmerde,125 in which a debtor, on being pressed for repayment of a loan advanced five years earlier, wrote to the lender, in explanation of a former letter: ‘It is not that I won’t pay you, but that I can’t do so … What I wrote was not that I saw no prospect at present of being able to repay the capital, but that I saw no prospect of being able to repay the capital at present’. The debtor never paid any part of the principal or interest, and sought to plead the Statute of Limitations in answer to an action brought against him four years later for payment of the debt. The House of Lords unanimously found the above written words constituted an acknowledgement, as they admitted the existing liability remained due. As explained by Viscount Cave, in sentiments that surface in the reasons of the other judges:126 The expression, ‘It is not that I won’t pay you’ appears to me to mean that the writer does not refuse to pay his debt, but on the contrary admits the debt and holds himself bound to pay it; and this interpretation is supported by the subsequent repudiation of any suggestion that he

had professed to see no prospect of paying the capital, and by the reference to getting out of debt. The words may not amount to an express promise to pay the principal and interest due, but at least they contain an admission of liability and a profession of the writer’s willingness to discharge it, which, unless qualified by other expressions in the letters, carries with it a promise to pay.

His Lordship did not see the words ‘I can’t do so’, and the statement that the writer saw no prospect of being able to pay the capital at present, as negativing an admission of the obligation or, for the purposes of the pre-1939 law, any implied promise to pay. By those words the debtor did not seek to alter, or make conditional, the existing obligation to pay; the letter simply professed a present inability to pay. Viscount Cave, to this end, envisaged that a debtor could well say, at one and the same time, ‘I admit my obligation and promise to discharge it’ and ‘I do not discharge it now, because I have not the money to do so’, wherein the original promise to pay is admitted and renewed without condition or qualification.127 17.31 Courts have not, generally speaking, shown any great disinclination to construe words as amounting to an admission for limitations purposes. Spencer v Hemmerde highlights that an admission of a present inability to pay is hardly inconsistent with an acknowledgement of an existing debt. Australian case authority supports the same point,128 including in the event that [page 350] the debtor proffers a proposal for repayment129 (though the latter may operate to qualify what obligation the creditor can enforce).130 17.32 The foregoing does not mean, however, that courts will strain the ordinary meaning of words in an effort to find an acknowledgement. In Good v Parry,131 for example, no acknowledgement was found in a letter from a tenants’ agent to the landlord that ‘[t]he question of outstanding rent can be settled as a separate agreement as soon as you present your account’. Accepting that a refusal to pay can amount to an acknowledgement if it does not query the legitimacy of the debt, Lord Denning MR nonetheless found no acknowledgment because the letter made no admission of any rent due.

Nor did his Lordship see it as a promise to pay whatever may be found due on taking an account, as the tenant reserved the right to examine it and not to be bound except by separate agreement.132 A distinction may thus exist between an admission of a possible justified claim and an admission that there is such a debt in fact. The distinction, in this sense, lies in whether the written communication can be construed as an admission of some debt actually due, as opposed to its quantum. It is clear that, in order to constitute an acknowledgment, that communication need not specify the amount of the debt precisely, if it is otherwise ascertainable from extrinsic evidence.133 17.33 Also, a mere promise by a debtor not to plead the statutory time bar, if given without consideration, is not by itself an acknowledgment for limitations purposes. Such a promise is, after all, capable of being construed as an indication to dispute the debt on the merits, which is hardly consistent with an admission of the debt.134 But such a promise could potentially give rise to an estoppel or waiver, which may operate to preclude the debtor from resiling from its terms or otherwise render him or her liable to compensate the creditor for relevant detriment.135

Formalities for acknowledgement Proof going to form 17.34 There is no requirement that an acknowledgement, to be effective for limitations purposes, be in the form of a concluded agreement or contract, notwithstanding the signature requirement. After all, inherent in the legal notions of ‘promises’ and ‘admissions’, which have gone to the core of acknowledgements, is the absence of any need for the mutuality or [page 351] consideration that in law marks a contract.136 (At the same time, though, more is needed than a mere expression of moral obligation).137 There is also no requirement that an acknowledgement be found within the one

document. Consistent with the law on the Statute of Frauds,138 from which the formality requirements for acknowledgements in any case owe their genesis, it is permissible to combine multiple instruments to establish the one acknowledgment.139 Also, the requirement of writing, in this context as in others, can be proved via secondary (extrinsic) evidence,140 including by way of parol; indeed, where the document containing an alleged acknowledgement has been lost, resort to secondary evidence is inevitable.141

Signature 17.35 It was noted earlier that, as a result of the ‘statutory recognition’ of the doctrine of acknowledgement via the Statute of Frauds Amendment Act 1828 (UK), the effectiveness of an acknowledgement became premised on ‘writing to be signed by the party chargeable thereby’. It may be assumed that adding a requirement of a signature to the writing was, in view of its legal consequences, a means to authenticate the acknowledgement or promise. It did not serve to substantiate any agreement or consensus, as an acknowledgement need not be any enforceable contract.142 This does not, however, preclude the potential relevance, as to acknowledgement, of case law on signature requirements for contractual documents,143 albeit by way of analogy.144 17.36 In turn, the foregoing raises the prospect that the signature requirement for an acknowledgement may be met by means other than (the usual) formal handwritten signature at the foot of the relevant document. Indeed, longstanding authority supports the proposition that the signature may appear at the head of the document,145 or be effected by way of initials.146 More recently, in Kation Pty Ltd v Lamru Pty Ltd,147 White J found it arguable that the ‘authenticated signature fiction’ principle — whereby a person’s name or initial is written or printed on a document may be treated as a signature if the person (or his or her agent) expressly or impliedly represented that the name can be treated as a signature — could by analogy substantiate a signature here if the evidence reveals that the writer intended the written document to be an acknowledgement. His Honour was hardly the first judge to so decide.148

[page 352] Similarly, attaching a printed name to an email149 can, in the context of acknowledgements as for contracts, be treated as a relevant signature. This occurred in Stuart v Hishon,150 where Harrison J ruled that the debtor’s printed name (‘Tom’), appearing at the foot of an email containing what was ostensibly an acknowledgement of the debt, was a representation that it be treated as his signature. It could ‘serve no other conceivable purpose’, stated his Honour, than ‘an attestation by him of authorship of a document that acknowledged the debt’ and ‘an implicit endorsement of the contents of the email’.151 Also, such an outcome is consistent with ‘[m]odern business practices’, in that ‘[e]lectronic signatures are a fact of modern commercial life’.152 While his Honour did not refer to provisions in electronic transactions legislation that validate an email signature in support of this conclusion — probably because that legislation is expressed to apply where ‘the signature of a person is required’153 (although the acknowledgement provision in limitations legislation can arguably be so construed) — these provisions do reflect the broader trend to this end.

Acknowledgement via agency 17.37 Ordinarily, the person who makes an acknowledgement, or to whom an acknowledgement is made, is a party to the debt itself. However, where a person legally stands in the shoes of such a party, logic suggests that the acknowledgement can legitimately come from, or be made to, such a person.154 The Queensland, Tasmanian and Victorian legislation, following the English precedent,155 give explicit effect to an acknowledgement (or part payment) being made by or to an agent of a party,156 and the case law evinces multiple illustrations in this context.157 17.38 Whether the same is so elsewhere, independent of explicit provision, by reason of the ordinary principles of agency law remains to be conclusively determined. But there is authority that an acknowledgment made to the liquidator of a company can be treated as an acknowledgment to the company itself, presumably because of the relevant identity between liquidator and company. In General Credits Ltd v Wenham158 the New South

Wales Court of Appeal gave effect to a mortgagee’s acknowledgement, not to the corporate debtor, but to its liquidator. Meagher JA, with whom Kirby P and Mathews AJA agreed, ruled that just because a liquidator is not an agent for the company in every sense, did not deny the proposition that ‘once a winding up order has been made and a liquidator has replaced the directors who formerly controlled the company, that liquidator is the only person who can ascertain what [page 353] debts are owing by the company and is the only person to whom allegations of indebtedness can be addressed’.159

Balance sheet entry as acknowledgement 17.39 A consistent line of case authority supports the proposition that a balance sheet may amount to a sufficient acknowledgment of debts recorded in it. An early case is Re Atlantic and Pacific Fibre Importing and Manufacturing Co Ltd,160 where a company issued debentures at various dates between 1890 and 1902, payable within two years. The company repaid no part of the principal or interest. In 1928 the plaintiff sued the company, on behalf of himself and all other debenture holders, for principal and interest. The company’s published accounts habitually referred to the debenture debt as outstanding, and in 1925 the accounts, which were signed by two directors and the secretary, stated the amount of the arrears of interest. Clauson J held that the statement in the accounts was a written acknowledgment of the debt, so that the action to recover the principal and interest was not barred by the relevant period of limitation.161 17.40 The foregoing does not mean, however, that every debt appearing in the balance sheet should necessarily be construed as an acknowledgement. Within two years of the Atlantic and Pacific Fibre case, Maugham J in Re Coliseum (Barrow) Ltd162 refused to characterise an entry in a company balance sheet that showed that fees were due to its directors, which balance sheet was signed by those directors, as an ‘acknowledgment’ by the company

of the debt. This was because the directors could not, in view of their fiduciary position vis-à-vis the company, legitimately authorise a definite promise to pay to themselves. The promise was, in any event, one to pay to themselves rather than a promise to pay on behalf of the company.163 That Re Coliseum (Barrow) Ltd was later applied by Wynn-Parry J in Re Transplanters (Holding Company) Ltd164 to similar effect, vis-à-vis a loan to a director appearing in the balance sheet, should not be interpreted as an unyielding rule that in every such instance no acknowledgement of the relevant debt can ensue. If the loan is due to the directors in their capacity as trustees, by definition for the benefit of others, the concerns evident in Re Coliseum arguably do not arise, and so a valid acknowledgement may exist.165 The same may ensue where the shareholders confirm the acknowledgment by directors of a debt due to them.166 17.41 In Re Brookers (Aust) Ltd (in liq)167 the Full Court of the South Australian Supreme Court went further in ruling that, in the circumstances, the balance sheets could operate as an acknowledgment of a debt owed to a director and signatory (JPB), who was one of the six directors of the company. JPB’s interest as a creditor was known to his co-directors, which spoke to the validity of the Board’s decision to adopt the balance sheets in which the acknowledgment of debt and promise to pay JPB appeared.168 On this ground alone, beyond the difference between a loan and fees due, the case was distinguishable from Re Coliseum. Also, as King CJ noted, ‘[t] [page 354] here was no question of abuse of his fiduciary position for his own benefit’,169 and by signing the balance sheets JPB did no more than comply with a statutory requirement that gave effect to the valid decisions of the Board. Accordingly, his Honour perceived no reason in principle or in justice why the mere fact that JPB signed the statement accompanying and verifying the balance sheet should invalidate the acknowledgment and promise contained therein. The decision in Transplanters was also distinguishable, his Honour surmised, because the facts there involved only two directors and the report

did not state whether the concurrence of both was required for the adoption of the balance sheet. It is difficult to accept, though, that the issue should rest purely on the number of directors, and so it may be inferred that in Transplanters either the creditor–director had acted beyond authority (and so was personally disqualified from signing the balance sheet) or that the precedent value of the decision is questionable. In also distinguishing Re Coliseum Olsson J focused on the different capacities in which the relevant debt was incurred:170 [I]n carrying forward entries from year to year testifying to the proper indebtedness of the Company to a class of creditors in a capacity which had nothing whatever to do with any office incidentally held by any of its members, neither the Board nor the signatories of the financial statements were in any sense seeking to acknowledge a liability to pay benefits due to the members of the Board in their capacity as directors. It seems to me that this is a vital distinction which distinguishes the case at bar from the circumstances which confronted Maugham J in Re Coliseum (Barrow) Ltd. The true ratio of the last mentioned case is that a Board may not benefit itself in the manner above described without the authority of the members, and any acknowledgment which it purports to sanction in contravention of that principle is ineffective. But there appears to be no good reason why a Board cannot bona fide authorise the signature of statements which acknowledge indebtedness to a general class of creditors of which one happens, co-incidentally, to be a director. In my opinion there is great force in [the] argument that Coliseum case goes not to whether a particular interested director signs financial statements but rather to the issue of the validity of the Board resolution authorising the signing of the statements, regardless of who are the actual signatories.

The case is clearer again where the director–creditor(s) do not sign (and therefore certify) the balance sheet, but other directors do.171

Acknowledgement to be ‘made to’ the creditor 17.42 An acknowledgement, as an admission of the relevant debt,172 must be ‘made to’ the creditor.173 The latter envisages some steps by the debtor that bring the acknowledgement to the creditor’s attention. Indeed, it has been said that a written acknowledgment cannot be said to be ‘made to’ a creditor unless it is delivered to the creditor (or his or her agent) by or with the authority of the debtor (or agent), or it is expressly or implicitly addressed to and is actually received by the creditor (or agent).174 In the former instance, it would not matter that the acknowledgment was not, by its terms, expressly or implicitly addressed to the creditor; in the latter instance, it would not matter that it reached the creditor’s hands otherwise

than with the debtor’s authority. But in each instance it is necessary that the creditor should actually [page 355] receive the acknowledgment before he or she can rely on it.175 In the balance sheet context, the foregoing has been interpreted as follows:176 A company’s balance sheet must … be regarded as implicitly addressed to (among other persons) those creditors whose debts are referred to in it. It follows that … an effective ‘acknowledgment’ of a debt must be said to have been ‘made’ by the company to any creditor who can establish by appropriate evidence that (i) he has actually received, from whatever source, a copy of a balance sheet of the company, signed by directors of the company and referring to ‘sundry creditors’; (ii) he is one of the ‘sundry creditors’ so referred to.

Although Brennan J, in his dissenting judgment in Stage Club Ltd v Miller Hotels Pty Ltd,177 did not accept the correctness of the first sentence above, he did not see it as necessary that an acknowledgment of liability be communicated directly to a creditor.178 It sufficed, said his Honour, if the acknowledgment was intended ‘to be communicated to the particular creditor or to the debtor’s creditors generally by the means adopted, and it is communicated to the particular creditor by those means’.179 Yet even the intention requirement has been diluted, as the majority in Stage Club ruled that ‘the absence of an intention on the part of the debtor to communicate to the creditor … is immaterial so long as the document is actually delivered to him’.180 While some earlier decisions were ostensibly more restrictive in this context,181 the trend of authority accordingly is in favour of a relaxation of the relevant requirements,182 presumably so as to counterbalance the traditional favouring of defendants by limitations legislation.183 17.43 However, there can be no acknowledgement by means of a document that is either not an admission of a debt or otherwise has not been created for, or in any way directed to, the relevant creditors. Merely because those creditors somehow secure access to the document does not, in these circumstances, dictate that its contents are an acknowledgement ‘made to’ them. In VL Finance Pty Ltd v Legudi,184 for example, the issue centred on whether a statement in a company’s annual return recognising outstanding

loans by its directors amounted to an acknowledgement of the debts. Nettle J accepted that an annual return (like a balance sheet) could be an acknowledgment by the company, as it may be supposed to be intended for use by company creditors. But the return could not be an acknowledgment by the directors because it [page 356] could not be supposed that it was made for use by the directors’ creditors; it was not made to the company, but by the company.185

Temporal coincidence between debt and acknowledgement 17.44 The limitations legislation broadly speaks in terms of an acknowledgement (or confirmation) being signed by a person making it and, as noted above, being ‘made to’ the creditor.186 This raises the question of whether an acknowledgement must necessarily relate to a debt temporally coincident with that acknowledgement. In the balance sheet scenario,187 for instance, the issue has typically targeted whether the content of a balance sheet, which is ordinarily signed some months after the end of the accounting period to which its figures relate, can effectively acknowledge a debt existing at the date to which the balance sheet speaks. A way of addressing a lack of temporal coincidence is to assume, if it is not otherwise established, that the liability persists up to date of signature, in which event the written acknowledgment may in its context constitute an acknowledgment of an existing liability as of the time of signature.188 17.45 Yet it has been queried whether such an assumption should be made as a matter of course, at least not merely from the fact that the relevant financial statement(s) make no mention of a change in the position regarding the liabilities shown in the balance sheet.189 At the same time, it may also be queried whether the statutory provisions mentioned above truly require the said temporal coincidence. In Re Gee & Co (Woolwich) Ltd190

Brightman J did not think so, rejecting the argument that an acknowledgment is ineffective unless it purports to relate to a debt that subsists at the date when it is made. Finding no statutory or practical reason to support such a requirement, his Lordship declared that it is not part of English law ‘that an acknowledgment, to be effective, must be of a present and not a past liability’.191 Indeed, there were practical reasons why the law should be otherwise, which Brightman J illustrated by way of example:192 Suppose that a trader, B, buys his goods from a trader, S, and has a running account with S for his purchases. Suppose that on 7 January 1973, S sends B a half-yearly account made up to 31 December 1972, and requests B to confirm that the account is correct, which B does by a letter signed on 14 January 1973. It would seem quite contrary to justice and to common sense that the letter of 14 January should be incapable of being an effective acknowledgment for the purposes of the statute merely because it acknowledges the liability as at 31 December and not the liability as at 14 January.

17.46 In the balance sheet context, signature after the end of the relevant accounting period ‘related back’ to the end of that period. Hence, a company balance sheet, if duly signed by the directors, could effectively acknowledge the state of indebtedness ‘as at the date of the balance sheet’, and in an appropriate case, ‘the cause of action will be deemed to have accrued at the date of the balance sheet, being the date to which the signature of the directors relates’.193 The same has translated to Australian law as a result of High Court’s decision in Stage Club Ltd v Miller Hotels Pty Ltd,194 where a company balance sheet for the year ended 30 December, [page 357] signed by two directors the following March, showed a debt due to a corporate creditor. The latter’s chief executive was also a directorshareholder of the debtor and, in attending the debtor’s annual general meeting, received a copy of the balance sheet. In a three-two decision, the court opted for a practical approach, which largely ignored the time intervening the date and signature of the balance sheet. Aickin J accepted, in accord with the view of Brightman J in Re Gee & Co (Woolwich) Ltd, that an acknowledgment need not refer to the position at the date it was made, but could be effective vis-à-vis a debt owing at an earlier date. Couched by

reference to the New South Wales provision that an acknowledgement be ‘made’ to the creditor, Aickin J saw the following practical impediments to requiring an exact temporal coincidence:195 … obvious practical problems would arise in the operation of the New South Wales section if it were regarded as requiring the acknowledgment to be of a debt in existence at the date of its making. Since the acknowledgment must be in writing, it must be delivered to the creditor or his agent in order that it can be said to have been ‘made’ to him. It would however be absurd to make the effectiveness of the acknowledgment depend on personal delivery. Delivery by post would surely be enough, though some days or weeks might well elapse before delivery. The document however will in the absence of some express provision, speak from the moment of signing and of the position then. Why should it be less effective because it takes a week in transit and on arrival speaks as from a time gone by? Corresponding difficulties arise if the acknowledgment is treated as ‘made’ when it reaches the creditor, for by then the position may have changed by payment or otherwise. The accident of the time it takes for an acknowledgment to reach the creditor is not a likely criterion for the legislature to choose to separate effective from ineffective acknowledgments. A more logical and more probable criterion would be the date to which the document itself refers, whether expressly or impliedly.

In other words, because temporal coincidence would likely prove elusive in many instances, it was inapt, in a practical sense, to mandate it, including for balance sheets. Any ‘requirement’ that an acknowledgment relate to the date to which it expressly or impliedly refers should, his Honour concluded, ‘accommodate ordinary trading and personal arrangements and have an operation which would be certain rather than uncertain’.196 Wilson J, with whom Murphy J concurred, likewise applied the reasoning of Brightman J in Re Gee, stating that ‘[j]ustice and common sense seem to combine in opposition to’ any rule that an acknowledgment must be of a present debt.197 This prompted the conclusion that, on its proper construction, the legislation ‘yields the conclusion that an acknowledgment may refer to a liability which existed on a date prior to the date on which the acknowledgement is signed’.198

Part Payment

Revival of action by part payment 17.47 A cause of action to recover a debt can be revived, and the running of time can start afresh, other than by the debtor making a written acknowledgement of the debt. This outcome may ensue by way of the part payment of the debt — which need not necessarily be in cash but can be made ‘in any mode which the parties agree shall be treated as equivalent to payment in money’199 — although again assuming that this provides evidence in the form of an admission [page 358] by the debtor that the debt remains due despite the passage of time.200 The reason why the Statute of Limitations permitted part payment of a debt to operate as an acknowledgment of its existence at that time is ‘because it is an unequivocal act, and affords prima facie evidence that the party so paying owes the money’.201 This was recognised from early times. In Cottam v Partridge,202 decided in 1842, where the doctrine of part payment was described in argument as ‘an acknowledgment of a debt being due, not in words, but an act done’, Tindal CJ remarked that the ground on which part payment was held to take the case out of the 1623 Limitation Act was ‘that a payment of a part was an admission of the rest by inference, and that, from such payment, a jury might conclude that the rest was due’.203 And preceding the Limitation Act 1939 (UK) it was noted that ‘the common law has always recognised that payment on account of something in respect of which the statute is set up may amount to a fresh promise to pay and found a fresh cause of action’.204 17.48 While, in this context, the 1939 Act (and the relevant Australian equivalent provisions) obviates the need to establish a new promise to pay, and indeed eschews the language of ‘part payment’ for ‘payment in respect of’ an obligation,205 it remains necessary to focus on the act(s) and intention of the debtor to assess whether a payment should have the effect of restarting

the running of time.206 It may also prove necessary to properly characterise the payment; if, properly characterised, it does not constitute the payment of principal or interest in relation to the alleged debt but instead, say, the payment of rent in relation to the property over which the debt is secured, it cannot amount to part payment for the purposes of acknowledgement.207 17.49 Importantly, just as an acknowledgement to a stranger, that is, someone other than the creditor (or his or her agent), cannot serve to restart the running of time,208 nor does payment to a stranger produce this effect. Whereas the money might pass if paid to a stranger, it has been remarked, there is no ‘discharge of the debt unless it was received by the person to whom it was due or by an agent on his behalf’.209

Where more than one debt owed 17.50 Where a debtor owes more than one debt to a creditor, and makes a (part) payment to the creditor in relation to one of those debts, it may prove necessary, for limitations purposes, to identify the debt to which any such payment is attributed. Once this is done, the part payment may be treated as an acknowledgement of the debt so nominated. The case law makes clear that, in the first instance, it is the debtor who may nominate (sometimes termed ‘appropriate’) [page 359] the payment vis-à-vis a particular debt,210 and thereby preclude time being restarted in respect of the other debt. This is apt, as any acknowledgement operates potentially against the interests of the debtor. But should the debtor omit to do so — and, consistent with the foregoing, a mere part payment is insufficient for this purpose unless it targets the particular debt to which it is directed211 — the law allows the nomination (or appropriation) to be made by the creditor,212 who will likely select the older debt so as to enlarge the time within which the debt may be enforced. Any such appropriation must, it seems, be made before the action to enforce the debt.213

17.51 If neither debtor nor creditor makes a nomination, the law, it seems, appropriates the payment to the earlier debt,214 although this proceeds on an understanding that an acknowledgement can be effective even after the expiry of the primary limitation period. The latter is not so in the Territories, New South Wales and Western Australia, where statute requires that a ‘confirmation’ occur within the limitation period.215 Hence, if there is to be an effective confirmation of a debt independently of appropriation by either party in these jurisdictions, the law should target, as a default, the earlier debt that falls within the limitation period. But this may, in any case, not be the position in these jurisdictions, as in Conridge v Schaapveld216 Rein J held that, absent an appropriation before the hearing, the debt to which the payment was to be applied could not be discerned and so nor could the loan to which the applicable time bar had been lifted be identified. Had a default rule been applicable, the dilemma would have been resolved by reference to that rule. 17.52 In any event, the foregoing requires qualification in the case of debts on a running account, where a debtor’s payment is regarded as being made in respect of the entire balance. Buckley J explained the reasoning for this in Re Footman Bower & Co Ltd:217 When … there is an account running between the parties which to the knowledge of both parties is of that kind and kept in that way, then, if the debtor makes a payment ‘generally on account’, it appears to me that he must be taken to be making it on account generally of whatever is owing on the balance of the account. A payment ‘on account’ imports an acknowledgment of a liability for a larger sum … When a payment is merely stated to be ‘on account’ without the liability on account of which it is made being specified, one must first inquire what liabilities on the part of the payer to the recipient exist. If on inquiry it is found that the only liability is in respect of a balance due on current account, the natural conclusion to reach is, in my judgment, that the payment is made on account of that balance generally, not on account of any particular items contributing to that balance … If … the inference that the debtor intended to appropriate the payment to non-statute-barred items to the exclusion of statute-barred items is applicable in the case of a current account … an analysis of the account would be required before the particular

[page 360] item or items on account of which the debtor is to be supposed to have made the payment could be identified. If, on the other hand, that inference would not arise, it would follow that

the debtor would be supposed to have made the payment on account of statute-barred items. Either position would, in my opinion, be very artificial. The much more acceptable view seems to me to be that by making a payment generally on account the debtor makes it on account of the whole of his indebtedness, that is to say, on account of the balance outstanding and due at the date of payment.

Hence, in the early South Australian case of Re Estate of Levi & Co218 the Full Court of the South Australian Supreme Court affirmed the ruling of the Commissioner of Insolvency that amounts due on general balances on a current account were not barred by the Statute of Limitations. The Commissioner reasoned that debtors should not be able to continue to be advanced money over years, make payments to the creditor from time to time on account thereof, but then maintain that the Statute of Limitations bars the recovery of the amount really due.219

Characteristics Shared by Acknowledgement and Part Payment Voluntariness 17.53 An admission or part payment must be voluntary to be effective for limitations purposes. A plaintiff would otherwise forfeit the protection of an applicable time bar as a result of some vitiating factor — such as undue influence, duress or material mistake — which would be inconsistent with broader legal policy to protect the vulnerable. Or an insolvent plaintiff could otherwise be subjected to, say, the acts of an insolvency administrator in paying off the plaintiff’s creditors, which cannot be described as voluntary payments by the plaintiff.220 As this legal policy does not govern statutory duties, however, an admission or part payment made pursuant to a statutory obligation does not prevent it from being an acknowledgement.221

Timing 17.54 At common law, an acknowledgement or part payment could be effective to restart the running of time for limitations purposes whether it was made before or after the expiry of the otherwise applicable time bar. It dictated that an action would lie from the date of valid acknowledgement or part payment. In a leading case, Spencer v Hemmerde,222 Lord Sumner found it difficult to see why an acknowledgement ‘should not be available irrespective of the date of the writ, if it simply goes to the enforcement of the old cause of action, still existing at the date of the writ, though under suspension of the remedy’. As acknowledgement or part payment operates to ‘revive’ a cause of action, its timing should make little difference to its effectiveness. [page 361] The above position remains extant in Queensland, South Australia,

Tasmania and Victoria, where statute does not purport to constrain the timing of the relevant acknowledgement.223 It has been altered, though, in the Territories, New South Wales and Western Australia, prompted by a recommendation by the New South Wales Law Reform Commission in advance of the Limitation Act 1969 (NSW) that the doctrine should only apply if the acknowledgment is made before the expiry of the limitation period.224 The operative provision in these jurisdictions targets acknowledgments or part payments ‘before the end of the limitation period’.225 To be effective, an acknowledgment or part payment must therefore occur during the time when the plaintiff’s entitlement to proceed against the defendant is unaffected by the limitation period. 17.55 In New South Wales, it is arguable that the position would be the same independent of the above provision. This is because the legislation there makes general provision that, on the expiration of a limitation period for a cause of action to recover any debt, damages or other money, the plaintiff’s right and title is, as against the defendant, extinguished.226 It is difficult to conceive how the law could countenance an acknowledgment of, say, a debt after the right and title to that debt is declared by statute to have been extinguished.227 Indeed, the same may be said of targeted provisions in other jurisdictions228 that prescribe the extinguishment of title as a consequence of the expiry of the applicable limitation period.229 It has been reasoned that ‘[t]o let matters drift on indefinitely in case at sometime in the near or distant future an acknowledgment might be given would seem contrary to the whole spirit and intendment of the Limitation Acts, so far as questions of title are concerned’.230

Extension to unliquidated claims Traditionally restricted to liquidated claims 17.56 Historically the doctrine of acknowledgement and part payment applied only to the words or acts of a debtor regarding the debt he or she owed or the existence of a liquidated pecuniary claim, and had no application to unliquidated claims.231 This remained so under the Limitation Act 1939 (UK)232 (and parallel provisions in the Queensland, Tasmanian and Victorian limitations statutes,233 as also under the current English

Act),234 as to which it was said that ‘the debt must be quantified in figures or … it must be liquidated in this sense that it is capable of ascertainment by calculation, or by extrinsic evidence, without [page 362] further agreement of the parties’.235 A claim in debt is, to this end, distinguishable from one in damages. A debtor’s written statement ‘I admit I owe you the sum shown in this rent book’ amounts to an acknowledgment, as it can be calculated. A company balance sheet containing the acknowledgment ‘to sundry creditors [a set lump sum]’, where it was possible by extrinsic evidence to sort out the various items in that lump sum, has likewise been held to be a sufficient acknowledgment.236 17.57 There is also scope for claims on a quantum meruit basis vis-à-vis work done or goods sold and delivered to come within the ‘liquidated’ fold, even though it ‘cannot really be said that if the plaintiff in such a case is to recover at all, the amount of the judgment can be reckoned beforehand, or that there is no element of opinion involved in the assessment’.237 The point saw elaboration by an English judge as follows:238 A quantum meruit claim for ‘a reasonable sum’ … is a liquidated pecuniary claim because ‘a reasonable sum’ (or a ‘reasonable price’ or ‘reasonable remuneration’) is a sufficiently certain contractual description for its amount to be ascertainable [by calculation and circumstantial (or ‘extrinsic’) evidence, in accordance with the terms of the contract and without any further agreement of the parties] … Such a claim is different in kind from its opposite, which is a claim for unliquidated damages. The former is a claim for a specific sum, namely a reasonable sum due under a contract; it is no less specific for being described in words rather than in figures, provided it is sufficiently defined to be ascertainable — which it is … The task of the court, if it has to assess such a sum, is one of translating the words of the contract into figures in order to effectuate the intention of the parties. The nature of a claim for unliquidated damages is wholly different; the function of the court is not one of interpreting the contract but of deciding, in accordance with legal principles, what compensation, if any, should be paid to redress any harm done by its breach. It is for these elemental reasons that a quantum meruit claim is a liquidated pecuniary claim, whilst conversely a claim for unliquidated damages is not, and cannot be such, even though it be claimed at a definite figure …

Conversely, and in line with the foregoing, an acknowledgment of a cause of action for damages for breach of contract, or for a claim in tort, each not being a liquidated claim, is of no effect for limitations purposes.239 So in

Boydell v Drummond240 a cause of action for breach of contract — on the facts involving a refusal to accept and pay for a set of prints from the plays of Shakespeare, according to an undertaking the defendant had allegedly given by subscribing thereto — did not revive by the defendant’s subsequent acknowledgment of breach. And in Hurst v Parker,241 involving a claim in trespass for breaking and entering coalmines and taking away coals, the defendant’s promise to make compensation, made before the action was commenced, did not serve to restart the limitation period. [page 363]

Modern translation to include unliquidated claims 17.58 As a product of the Law Reform Commission report that spawned the Limitation Act 1969 (NSW),242 which perceived no good reason why the doctrine of acknowledgment should not apply to every limitation period fixed by the (proposed) Act, in New South Wales the doctrine of acknowledgment was extended by that Act to include unliquidated claims. In so recommending, the Commission reasoned as follows:243 Probably because of the rules of pleading and procedure of the courts at the time when the doctrines of acknowledgment and part payment were developed, the doctrine has been confined to liquidated claims, as distinct from claims to damages. Thus, if a man breaks his contract to pay the value of a car, there is a claim for a liquidated sum which is susceptible of acknowledgment; but if a man breaks his contract to deliver the car, there is only a claim for damages for which an acknowledgment is inoperative, even though the measure of damages may be the value of the car. We think that distinctions of this kind are mischievous and we recommend a provision covering acknowledgements and part payments relating to all the causes of action to which the Bill applies.

It justified such a recommendation, moreover, by reference to ‘fairness’ and ‘simplicity’,244 which endeared itself to legislators in the Australian Capital Territory,245 the Northern Territory and Western Australia246 in drafting a new limitations statute. No doubt aware of the potential ramifications of extending the doctrine so expansively, the Commission opined that an acknowledgment, ‘likely as it must be to encourage the claimant to defer taking proceedings’, will not ordinarily be given carelessly, but if given carelessly ‘should be the occasion of loss to the person giving the

acknowledgment rather than to the claimant’.247 17.59 The decision in Sessions v Phengsiaroun248 illustrates the application of the legislation to proceedings for personal injury. The plaintiff had been injured as a result of a car accident whilst driving to work, where the defendant was at fault. The defendant’s insurer reimbursed the plaintiff’s employer’s workers compensation insurer, thereby acknowledging the defendant’s liability. Although the plaintiff’s action against the defendant was commenced more than six years after the accident, Higgins CJ held that the above acknowledgement by the defendant’s insurer (as the defendant’s agent) prompted time to restart from that moment. The same was so from the perspective of the payment by way of reimbursement at that time. As the plaintiff commenced proceedings within six years of that acknowledgement and payment, her action was within time.249 Similarly, in Alcock v Casey250 Gray J, in a finding affirmed on appeal,251 treated a letter by an insurer ‘admitting that their insured had breached his duty of care’ as an acknowledgement of the right to the cause of action that the plaintiff sought to maintain. [page 364]

Application vis-à-vis joint debtors 17.60 As a matter of principle, in the case of joint debtors (or where the debt is undertaken jointly and severally) — who by definition each owe the entire debt — an acknowledgement or part payment by one debtor serves to revive the liability of all of the debtors for the debt for limitations purposes.252 The position differs, again as a matter of principle, where the debt has been undertaken only severally, in which event acknowledgement or part payment by one debtor does not have legal effect vis-à-vis the other debtors. 17.61 However, as noted earlier, the Limitations Acts in Queensland, Tasmania and Victoria, following the English lead, treat acknowledgments and part payments discretely for this purpose.253 The former is declared to

bind the acknowledgor (and his or her successors) but not any other person,254 whereas a part payment binds all persons liable in respect of the debt or claim.255 The logic for this distinction was that, as all the co-debtors receive benefit from the part payment, it was right that they should also suffer the burden.256 In England it has been recommended that this distinction, which is not extant in other Australian jurisdictions, be removed in the interests of reducing complexity and increasing uniformity.257 ______________________________ 1.

2. 3. 4.

5. 6. 7. 8.

9. 10. 11. 12.

13. 14.

15.

The relevant provision provided that ‘all actions of debt grounded upon any lending or contract without specialty … shall be commenced or sued … within 6 years next after the cause of such action … and not after’: UK 1623 s 3. Spencer v Hemmerde [1922] 2 AC 507 at 512 per Viscount Cave. Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 487 per Kerr J. Spencer v Hemmerde [1922] 2 AC 507 at 519 per Lord Sumner (who later in his reasons remarked that the cases on acknowledgements in this context ‘seem to be in conflict with the plain words of the statute of James’: at 533). Busch v Stevens [1963] 1 QB 1 at 6 per Lawton J. Hyleing v Hastings (1698) 1 Ld Raym 389; 91 ER 1157. M E Chaplin, ‘Reviving Contract Claims Barred by the Statute of Limitations: An Examination of the Legal and Ethical Foundation for Revival’ (2000) 75 Notre Dame L Rev 1571 at 1592. Tanner v Smart (1827) 6 B & C 603 at 609–10; 108 ER 573 at 576 per Lord Tenterden; Philips v Philips (1844) 3 Hare 281 at 299–300; 67 ER 388 at 396 per Wigram VC; Spencer v Hemmerde [1922] 2 AC 507 at 512–13 per Viscount Cave, at 537 per Lord Wrenbury; Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [89] per Besanko J. Spencer v Hemmerde [1922] 2 AC 507 at 535 per Lord Sumner. Spencer v Hemmerde [1922] 2 AC 507 at 535 per Lord Sumner. Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 488 per Kerr J. Spencer v Hemmerde [1922] 2 AC 507 at 512 per Viscount Cave, at 533 per Lord Sumner (noting that ‘its language must have been framed to give a comprehensive expression to the law as recently laid down’). 9 Geo 4, c 14. It then saw translation to UK 1833 s 14. Spencer v Hemmerde [1922] 2 AC 507 at 513 per Viscount Cave; Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 488 per Kerr J. Tindal CJ in Linsell v Bonsor (1835) 2 Bing NC 241 at 244; 132 ER 95 at 96 opined that, having used two words, the Legislature must have meant two separate things, but Channell B in Lee v Wilmot (1866) LR 1 Ex 364 at 367 saw no real difference between the two things, which Lord Sumner in Spencer v Hemmerde at 533 viewed as ‘practically not far wrong’. Tippets v Heane (1834) 1 Cr M & R 252 at 253; 149 ER 1074 at 1075 per Parke B; Wainman v Kynman (1847) 1 Ex 118; 154 ER 49; Davies v Edwards (1851) 7 Ex 22 at 25; 155 ER 839 at 840 per Parke B; Morgan v Rowlands (1872) LR 7 QB 493 at 498 per Blackburn J; Spencer v Hemmerde [1922] 2 AC 507 at 526 per Lord Sumner.

16.

17.

18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28.

29.

30.

UK 1980 s 30(1) (formerly UK 1939 s 24(1)); ACT s 32(4); NSW s 54(4); NT s 41(2)(a)(i); Qld s 36(1); SA s 42(1); Tas s 30(1); Vic s 25(1); WA s 48. Cf Law Com 270, para 3.149 (which recommended that although an acknowledgement should be in writing, so as to reduce scope for uncertainty, there should be no need for it to be signed, ‘as this would unnecessarily limit the documents which could serve as “acknowledgements”’, suggesting that bank statements should, for instance, be able to serve as acknowledgements). Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 at [80] per Lord Neuberger. So, for example, an oral offer by a person in adverse possession of land to purchase the land from its owner cannot amount to an effective acknowledgement: Shaw v Garbutt (1996) 7 BPR 14,801 at 14,826; BC9603589 per Young J. Browne v Perry [1991] 1 WLR 1297 at 1301–2 per Lord Templeman. Hyde v Johnson (1836) 2 Bing (NC) 776; 132 ER 299; Ley v Peter (1858) 3 H & N 101 at 111; 157 ER 403 at 408 per Watson B. UK 1980 s 30(2)(a) (formerly UK 1939 s 24(2)). Qld s 36(2); SA s 42(1); Tas s 30(2); Vic s 25(2). Cf ACT s 32(4); NSW s 54(4); NT s 41(2)(a) (i); WA s 48 (where signature of the maker is required). Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 542–3; BC8100134 per Gibbs CJ (dissenting but not on this point). Conversely, an auditor of a company is not, apart from any special contract, an agent of the company for this purpose: Re Transplanters (Holding Company) Ltd [1958] 2 All ER 711 at 714 per Wynn-Parry J. See further 17.39–17.41, 17.46. See 17.2. UK 1939 Sch. Qld s 35(3); Tas s 29(4); Vic s 24(3), as to which see 17.12. UK 1980 s 29(5). Indeed, this was the intention, as evidenced by the recommendation that spawned the change: Wright Committee, para 19(e). See also Busch v Stevens [1963] 1 QB 1 at 6–7 per Lawton J. Re Footman Bower & Co Ltd [1961] Ch 443 at 449 per Buckley J; Good v Parry [1963] 2 QB 418 at 423 per Lord Denning MR; Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 544 per Gibbs CJ (dissenting but not on this point), at 564 per Wilson J; BC8100134 (in the context of NSW s 54); Cameron v Murdoch [2003] WASC 264; BC200308107 at [27] per Newnes M (in the context of WA 1935 s 32); Dwr Cymru (Welsh Water) v Carmarthenshire County Council [2004] EWHC 2991 (TCC) at [35], [36] per Jackson J. In Spencer v Hemmerde [1922] 2 AC 507 Lord Sumner opined that the ‘great preponderance’ of authority was against regarding the new promise as a new cause of action (at 524), instead viewing the new promise as reviving the old debt (at 534). Yet earlier in Hepburn v McDonnell (1918) 25 CLR 199 at 207; BC1800021 Isaacs J regarded the debtor’s liability by reason of an acknowledgment a ‘new one’, arising from a new promise to pay the debt. From the perspective of liability, Issacs J must be correct, because absent the acknowledgement the debtor’s liability would have expired with the elapsing of time. When speaking against a new cause of action, Lord Sumner likely wished to indicate that the nature of an acknowledgement via a ‘new’ promise is hardly independent of the original undertaking to repay. It does not seem that his Lordship intended to suggest that the creditor would be enforcing the original promise, which by reason of limitation would no longer be extant. Hepburn v McDonnell (1918) 25 CLR 199 at 209; BC1800021 per Isaacs J; Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155 at 164 per Dixon J, at 172 per McTiernan J;

31.

32. 33. 34.

35. 36.

37.

38.

39.

40. 41. 42. 43.

44. 45. 46. 47.

BC3700031. The term ‘debt’ in this context takes its ordinary meaning: Van Heeren v Cooper [2015] BPIR 953; [2014] EWHC 4797 (Ch) at [9] per Stuart Isaacs QC (thus ruling that it encompassed a debt arising under a judgment). See 17.58, 17.59. See 17.24, 17.25. Green v Humphreys (1884) 26 Ch D 474 at 481. See also Hepburn v McDonnell (1918) 25 CLR 199 at 210; BC1800021 per Isaacs J; Spencer v Hemmerde [1922] 2 AC 507 at 517 per Viscount Cave, at 518 per Lord Atkinson, at 531–2 per Lord Sumner; Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155 at 164; BC3700031 per Dixon J. Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155 at 163; BC3700031 per Dixon J. Bucknell v Commercial Banking Co of Sydney (1937) 58 CLR 155 at 164; BC3700031. See also Chasemore v Turner (1875) LR 10 QB 500 at 507 per Amphlett B (‘if it is a conditional promise to pay, and the condition is not performed, then the mere acknowledgment of the debt will not take the case out of the statute’); Hepburn v McDonnell (1918) 25 CLR 199 at 210; BC1800021 per Isaacs J (‘If the acknowledgment is conditional, then the implied promise is conditional also’); Spencer v Hemmerde [1922] 2 AC 507 at 534 per Lord Sumner, at 537 per Lord Wrenbury; General Credits Ltd v Wenham (1989) 18 NSWLR 570 at 575 per Meagher JA, with whom Kirby P and Mathews AJA concurred; Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [89] per Besanko J. Spencer v Hemmerde [1922] 2 AC 507 at 537–8. See also Tanner v Smart (1827) 6 B & C 603 at 609–10; 108 ER 573 at 576 per Lord Tenterden (‘where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, why shall not the rule “expressum facit cessare tacitum” apply?’); Philips v Philips (1844) 3 Hare 281 at 300; 67 ER 388 at 396 per Wigram VC (‘if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him’; emphasis supplied). Spencer v Hemmerde [1922] 2 AC 507 at 538. See also at 513 Viscount Cave (‘where such an acknowledgement is coupled with other expressions, such as a promise to pay at the future time or on a condition or an absolute refusal to pay, it is for the court to say whether those other expressions are sufficient to qualify or negative the implied promise to pay’). Ostabridge Pty Ltd (in liq) v Stafford [2001] NSWCA 335; BC200105809 at [37] per Hodgson JA, with whom Powell JA concurred (‘where the acknowledgement is of some precise liability or amount which is fully and precisely discharged, I do not think it can be regarded as an acknowledgment of some greater liability or amount’). See 17.1. Alcock v Casey (2007) 215 FLR 59; [2007] ACTSC 87; BC200709088 at [19] per Gray J. Van Heeren v Cooper [2015] BPIR 953; [2014] EWHC 4797 (Ch) at [15] per Stuart Isaacs QC. In Western Australia, this was despite the view expressed by the Western Australian Law Reform Commission that there was ‘no real advantage … to be gained by adopting such terminology’: WALRC 36(II), p 448. ACT s 32(2)(a); NSW s 54(2)(a); NT s 41(2)(a). WA s 46(1). WA s 46(2). ACT s 32(3); NSW s 54(3); NT s 41(3). Equivalent provision also appears in the Queensland,

48. 49.

50. 51.

52. 53. 54. 55.

56.

57. 58. 59. 60. 61. 62.

63. 64. 65. 66. 67. 68. 69.

Tasmanian and Victorian statutes: Qld s 35(1); Tas s 29(1); Vic s 24(1). See 17.13. ACT s 32(4); NSW s 54(4); NT s 41(2)(a)(i); WA s 48. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 566; BC8100134 per Wilson J (remarking that ‘[t]he result not only accords with common sense and justice, but it reflects that flexibility in approach which has characterized the decisions on this area of the law both in the English courts and in this court’). ACT s 32(1); NSW s 54(1); NT s 41(1); WA s 47. ACT s 32(5); NSW s 54(5); NT s 41(4) (under the guise of a person ‘rely[ing] upon a confirmation’, which is expressed to apply ‘notwithstanding that the right of action to which the confirmation relates is enjoyed by him [or her] jointly with other persons’); WA s 49 (see WALRC 36(II), pp 457–8). NT s 41(5). ACT s 32(6); NSW s 54(6). Namely WA s 50(2). New South Wales is unique in making explicit that the provision in question applies to a confirmation of a cause of action: (a) to recover goods; (b) to recover land; (c) to enforce in respect of property an equitable estate or interest in land; (d) to foreclose the equity of redemption of mortgaged property; (e) to redeem mortgaged property; (f) to recover principal money or interest secured by mortgage of property, by way of the appointment of a receiver of mortgaged property or of the income or profits of mortgaged property or by way of sale, lease or other disposition of mortgaged property or by way of other remedy affecting mortgaged property; or (g) to recover trust property or property into which trust property can be traced: NSW s 54(7) (a). ACT s 32(7); NSW s 54(7)(b) (which is phrased in terms of binding a person in possession ‘during the ensuing period of limitation, not being, or claiming through, a person other than the maker who is, on the date of the confirmation, in possession of the property’; see further NSWLRC 3, para 267); WA s 50(2). ACT s 32(2)(b); NSW s 54(2)(b); NT s 41(2)(b); WA s 51(1). ACT s 32(2)(c); NSW s 54(2)(c); NT s 41(2)(c); WA s 51(2). NSWLRC 3, paras 263, 264 (paragraph break omitted). NSWLRC 3, para 265. See 17.13, 17.16, 17.17. In Good v Parry [1963] 2 QB 418 at 423 Lord Denning MR opined that the words ‘the claim’ are ‘not perhaps very happy’, noting that a person may acknowledge that a claim has been made against him without acknowledging any indebtedness. The provision accordingly should be understood to read as ‘acknowledges the debt or other liquidated pecuniary amount’. Danckwerts LJ specifically agreed with this point: at 425. Qld s 35(3); Tas s 29(4); Vic s 24(3). Qld s 35(1); Tas s 29(1); Vic s 24(1). These provisions broadly owe their genesis to UK 1939 s 23. Qld s 35(4); Tas s 29(5); Vic s 24(3) (proviso). In Victoria, ‘or the right to discharge of the mortgage’. Qld s 35(2); Tas s 29(3); Vic s 24(2). SA s 27. Qld s 36(1); Tas s 30(1); Vic s 25(1). The relevant provision follows the language of UK 1939 s

70. 71. 72. 73. 74.

75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

87.

24 (now see UK 1980 s 30). Qld s 36(2); Tas s 30(2); Vic s 25(2). Qld s 37(1); Tas s 31(1); Vic s 26(1). The relevant provision follows the language of UK 1939 s 25 (now see UK 1980 s 31). Qld s 37(2); Tas s 31(2); Vic s 26(2). In Tasmania and Victoria, ‘or right to discharge of the mortgage’. ‘Successor’ in relation to a mortgagee or person liable in respect of a debt or claim, means the mortgagee’s or person’s personal representatives and any other person on whom the rights under the mortgage or, as the case may be, the liability in respect of the debt or claim devolve, whether on death or bankruptcy or the disposition of property or the determination of a limited estate or interest in settled property or otherwise: Qld s 37(8); Tas s 31(10); Vic s 26(8). Qld s 37(3); Tas s 31(3); Vic s 26(3). In Tasmania and Victoria, ‘or to compel discharge of the mortgage of’. Qld s 37(3); Tas s 31(3); Vic s 26(3). SA s 27(4), 27(5). In Tasmania and Victoria, ‘or to discharge of the mortgage’. Qld s 37(4); Tas s 31(4); Vic s 26(4). SA s 27(3). Qld s 37(7); Tas s 31(9); Vic s 26(7). Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 499 per Griffith CJ, at 508 per Barton J, at 522 per Isaacs J, at 527 per Higgins J; BC1000033. Qld s 37(5); Tas s 31(5); Vic s 26(5). Qld s 37(5A); Tas s 31(6); Vic s 26(5). The context and object of the relevant provision dictates that the reference to a ‘payment made’ should be qualified by the words ‘by any person liable’: Harlock v Ashberry (1882) 19 Ch D 539; Chethams v Remington & Co [1999] 3 VR 258; [1999] VSC 150; BC9902665 at [23], [24] per Balmford J. Otherwise, a payment by a third party, not personally liable for the debt (such as a volunteer or an agent of the creditor), could bind all persons who were so liable. Qld s 37(6); Tas s 31(7); Vic s 26(6). See, for example, Re Hollingshead (1888) 37 Ch D 651 (where a life tenant’s payment of a contract debt assumed by the testator was held to amount to an acknowledgement also as against each party interested in the remainder; Chitty J stated that ‘in making such payment [the life tenant] represents the whole estate; that the payment is an admission of the liability to the debt affecting the real estate of which he is in possession: it is sufficient evidence of a continuance of the testator’s contract to pay the debt, or (if it be necessary to have recourse to the somewhat subtle doctrine of a promise to pay) it is a promise to pay out of such real estate, which he, as the person in possession of such real asset, is competent to give on behalf of the real assets generally, and so as to bind those who take in remainder’: at 659–60); Re Frisby (1889) 43 Ch D 106 (where payment of interest by a mortgagor, in relation to a debt jointly assumed with a surety, was held to extend the applicable limitation period as against both the mortgagor and the surety); UCB Corporate Services Ltd v Kohli [2004] 2 All ER (Comm) 422; [2004] EWHC 1126 (Ch) at [37], [38] per Richard Sheldon QC (noting that this language is apt to cover the position of a surety where the payment is made by the principal debtor, as distinct from the language dealing with acknowledgments noted in the preceding paragraph in the text, which binds no other person except a successor to the acknowledgor, which a surety is not).

88.

89. 90. 91. 92. 93. 94. 95.

96. 97. 98. 99.

100.

101. 102. 103.

104. 105. 106. 107. 108. 109. 110.

Qld s 37(6A); Tas s 31(8); Vic s 26(6). See, for example, Becher v Delacour (1881) 11 LR Ir 187 (where it was held that the life tenant’s payment of an interest debt did not bind those who took in remainder because the payment was made after the expiry of the applicable limitation period). See 17.2. SA s 42(1). SA s 42(2). SA ss 33 (money charged on land or legacies: see 9.19), 34 (specialty: see 5.42). SA s 21. See 17.58, 17.59. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 544; BC8100134 per Gibbs CJ (dissenting, but not on this point). See also Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155 at 164; BC3700031 per Dixon J (a ‘distinct admission of the debt’); Cameron v Murdoch [2003] WASC 264; BC200308107 at [27] per Newnes M. Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 487 per Kerr J. See also Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 at 209 per Parker J. Good v Parry [1963] 2 QB 418 at 423 per Lord Denning MR. Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 at [51] per Lord Walker. See also at [43] per Lord Rodger. Bank of Baroda v Mahomed [1999] CLC 463 at 472 per Simon Brown LJ, at 477 per Mummery LJ. See, for example, the case law dealing with debtors who express a present inability to pay: see 17.30. See, for example, Victorian Producers’ Co-operative Co Ltd v Dye [1927] VLR 572 (where a letter by the alleged debtor was construed as meaning that ‘I don’t think I owe you any money at all, but I am prepared to compromise to pay you one-half the supposed amount, if you accept that’, and as a result ‘was not an acknowledgement … because it contains a distinct denial of the existence of any debt’: at 575 per Irvine CJ). [1969] 2 Ch 403. See 17.2–17.7. Swann v Sowell (1819) 2 B & Ald 759 at 761; 106 ER 543 at 543 per Bayley J; Re River Steamer Co (1871) LR 6 Ch App 822 (where an acknowledgment of claims under a contract was coupled with alleged defences or set-offs with an offer to refer the disputes to arbitration; as it transpired that no arbitration took place within six years from the date when the disputes arose, the Court of Appeal in Chancery held that the assertion of defences or set-offs precluded a finding that there had been an acknowledgment). [1977] 2 All ER 481 at 489–90. As to payment as an acknowledgement see 17.47–17.52. Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 490. See Ostabridge Pty Ltd (in liq) v Stafford [2001] NSWCA 335; BC200105809 at [35]–[37] per Hodgson JA, with whom Powell JA concurred. See generally R Desiatnik, Without Prejudice Privilege in Australia, LexisNexis Butterworths, Australia, 2010, Ch 2. [2009] 1 AC 990; [2009] UKHL 16. Per Lords Hope, Rodger, Walker and Neuberger, Lord Scott dissenting (see at [35]).

111. UK 1980 s 15(1). Equivalent Australian provisions are discussed at 8.5. 112. Note that outcome would likely have differed had the offer been made outside without prejudice correspondence, in the face of case authority where a squatter’s offer to purchase the land can amount to an acknowledgement of the owner’s title, and therefore sufficient to interrupt adverse possession: see, for example, Edgington v Clark [1964] 1 QB 367. Cf Cawthorne v Thomas (1993) 6 BPR 13,840 at 13,845 per Bryson J; Shaw v Garbutt (1996) 7 BPR 14,816 at 14,826; BC9603589 per Young J. 113. Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 at [97]. Lord Hope (at [12]) made similar remarks. 114. Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 at [51], [59]. 115. Ofulue v Bossert [2009] 1 AC 990; [2009] UKHL 16 at [43]. 116. Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133; BC201504968 at [17] per Burns J. 117. Evidence Act 1995 (Cth) s 131(1); Evidence Act 2011 (ACT) s 131(1); Evidence Act 1995 (NSW) s 131(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 131(1); Evidence Act 2008 (Vic) s 131(1). See also Evidence Act 1929 (SA) s 67C(1). 118. Evidence Act 1995 (Cth) s 131(2)(i); Evidence Act 2011 (ACT) s 131(2)(i); Evidence Act 1995 (NSW) s 131(2)(i); Evidence (National Uniform Legislation) Act 2011 (NT) s 131(2)(i); Evidence Act 2008 (Vic) s 131(2)(i). See also Evidence Act 1929 (SA) s 67C(2)(g). 119. Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133; BC201504968 at [37] per Burns J. 120. Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133; BC201504968 at [37], [39] per Burns J. 121. See, for example, General Credits Ltd v Wenham (1989) 18 NSWLR 570 (where the New South Wales Court of Appeal held that from a letter from a mortgagee-in-possession to the mortgagor’s liquidator, which enclosed a draft proof of debt, could be inferred an acknowledgement of the mortgagor’s right to redeem the property in question, on the basis that ‘to acknowledge the existence of a mortgage must amount to an acknowledgment of those rights which are necessarily inherent in all mortgages’: at 575 per Meagher JA, with whom Kirby P and Mathews AJA concurred). 122. VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [60] per Nettle J; Stuart v Hishon [2013] NSWSC 766; BC201303109 at [27] per Harrison J. 123. Spencer v Hemmerde [1922] AC 507 at 519. 124. Smith v Thorne (1852) 18 QB 134 at 143; 118 ER 50 at 53 per Parke B. 125. [1922] 2 AC 507. 126. Spencer v Hemmerde [1922] 2 AC 507 at 516. See also at 518 per Lord Atkinson, at 536 per Lord Sumner (noting that the debtor’s language amounts to the statement ‘you affirm my continuing indebtedness, and I do not deny it; be it so. I am now without funds, but I do not exclude the possibility of paying at some time’, and remarking that ‘[t]he first words clearly acknowledge the debt; the latter neither deny it, nor negative the acknowledgment nor impose conditions on the liability’), at 539 per Lord Wrenbury (noting that the words ‘it is not that I won’t pay you but that I cannot do so’ are not words of refusal to pay but only a statement of inability to pay, which is not inconsistent with an implied promise to pay). 127. Spencer v Hemmerde [1922] 2 AC 507 at 516–17. See also Green v Humphreys (1884) 26 Ch D 474 at 479 per Cotton LJ (remarking that had the defendant referred in terms to ‘my debt which I am sorry I cannot at present pay’, probably the words would have been sufficient to constitute an express acknowledgment).

128. See, for example, Hepburn v McDonnell (1918) 25 CLR 199 at 212 per Isaacs J, at 214 per Gavan Duffy J; BC1800021; Stuart v Hishon [2013] NSWSC 766; BC201303109 at [29], [30] per Harrison J (where an email, wherein the debtor indicated that he was currently unable to repay a debt to the creditor, coupled with concluding words ‘I will contact when I can’, was likewise found to constitute an acknowledgement). 129. See, for example, Hepburn v McDonnell (1918) 25 CLR 199; BC1800021 (where a proposal to repay an existing debt by instalments, the debtor describing it as ‘the best offer I can offer at present’, was held to be an acknowledgement of the debt; see at 207 per Barton J (who remarked that an offer of a method of payment ‘does not make [the debtor’s] letter less than a sufficient acknowledgment’), at 211–12 per Isaacs J, at 213–14 per Gavan Duffy J). Earlier English authority supported this proposition: see, for example, Dabbs v Humphries (1834) 10 Bing 446; 131 ER 977. 130. See 17.7, 17.30. 131. [1963] 2 QB 418. 132. Good v Parry [1963] 2 QB 418 at 423–4. See also at 425 per Danckwerts LJ; Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 (where Parker J, having construed a letter from the defendants to the plaintiff as saying that ‘[w]e do not admit that you were entitled to even that which you have already been paid’ and that ‘[b]efore you can have anything more you will have to show that that and more was due’, held that this did not constitute an acknowledgment of a debt: at 208). 133. Re W H Eutrope & Sons Pty Ltd (in liq) [1932] VLR 453 at 460 per Mann J (by reference to an ‘amount standing to your credit in our private [company] ledger’); Dungate v Dungate [1965] 3 All ER 818 at 820 per Diplock LJ; VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [60] per Nettle J. 134. Spencer v Hemmerde [1922] 2 AC 507 at 523 per Lord Sumner. 135. See 4.61. 136. Spencer v Hemmerde [1922] 2 AC 507 at 533 per Lord Sumner; Wright v Pepin [1954] 2 All ER 52 at 55 per Harman J (‘All that is necessary … for an acknowledgment which takes the case out of the statute is that the debtor should recognise the existence of the debt, or that the person who might rely on the statute should recognise the rights against himself’); Kation Pty Ltd v Lamru Pty Ltd [2011] NSWSC 219; BC201102152 at [33] per White J. 137. Ball v Martin (SC(NSW), Bryson J, 6 September 1996, unreported) BC9604094 at 15. 138. See Carter, p 195. 139. VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [60] per Nettle J. 140. Lambeth London Borough Council v Bigden (2001) 33 HLR 43 at [60] per Simon Brown LJ. 141. Read v Price [1909] 2 KB 724 at 730 per Cozens-Hardy MR, at 738 per Kennedy LJ. See, for example, Haydon v Williams (1830) 7 Bing 163; 131 ER 63 (where a written promise to pay a statute-barred debt had been lost, oral evidence of the contents of the writing was allowed). 142. See 17.34. 143. See Carter, p 194. 144. Kation Pty Ltd v Lamru Pty Ltd [2011] NSWSC 219; BC201102152 at [30] per White J (referring to case law for the purposes of the Conveyancing Act 1919 (NSW) s 54A, which renders a contract for the sale or other disposition of an interest in land unenforceable, unless the agreement or memorandum or note thereof ‘is in writing, signed by the party to be charged, or by some other person thereunto lawfully authorised by the party to be charged’).

145. 146. 147. 148.

149.

150. 151. 152. 153.

154.

155. 156. 157.

158. 159. 160. 161.

162. 163. 164. 165.

Holmes v Mackrell (1858) 3 CBNS 789; 140 ER 953. Lord St John v Boughton (1838) 9 Sim 219; 59 ER 342. [2011] NSWSC 219; BC201102152 at [36]. See, for example, Re W H Eutrope & Sons Pty Ltd (in liq) [1932] VLR 453 at 460 per Mann J (involving the signature of merely the first name of the relevant corporate debtor, which was held to be written on behalf of the debtor and in the course of the writer’s duty as manager of the debtor’s business). Or telex: see Good Challenger Navegante SA v Metalexportimport SA [2004] 1 Lloyd’s Rep 67; [2003] EWCA Civ 1668 at [22]–[28] per Clarke LJ, with whom Rimer J and Mantell LJ concurred. [2013] NSWSC 766; BC201303109. Stuart v Hishon [2013] NSWSC 766; BC201303109 at [31], [32]. Stuart v Hishon [2013] NSWSC 766; BC201303109 at [34]. Electronic Transactions Act 1999 (Cth) s 10(1); Electronic Transactions Act 2001 (ACT) s 9(1); Electronic Transactions Act 2000 (NSW) s 9(1); Electronic Transactions (Northern Territory) Act 2000 (NT) s 9(1); Electronic Transactions (Queensland) Act 2001 (Qld) s 14(1); Electronic Transactions Act 2000 (SA) s 9(1); Electronic Transactions Act 2000 (Tas) s 7(1); Electronic Transactions (Victoria) Act 2000 (Vic) s 9(1); Electronic Transactions Act 2011 (WA) s 10(1) (emphasis supplied). Bradshaw v Widdington [1902] 2 Ch 430 at 450 per Collins MR (‘That acknowledgment results just as much when there is an arrangement between the [borrower] and a third person, either by contract or by a mere mandate, that that person shall make the payment for him’), at 455 per Cozens-Hardy LJ; Re Lacey [1907] 1 Ch 330 at 341–2 per Vaughan Williams LJ. UK 1939 s 24(2) (now see UK 1980 s 30(2)). Qld s 36(2); SA s 21; Tas s 30(2); Vic s 25(2), as to which see 17.14. See, for example, Curwen v Milburn (1889) 42 Ch D 424 (acknowledgement by debtor’s solicitor); Bradshaw v Widdington [1902] 2 Ch 430 (payment of interest by the debtor’s solicitor); Wright v Pepin [1954] 2 All ER 52 (acknowledgement by the defendant’s solicitor); Panizza v Commissioner of State Taxation (1981) 11 ATR 624 (part payment by an agent of the debtor). Cf Re Edwards’ Will Trusts [1937] Ch 553 at 559 per Farwell J (ruling that an acknowledgement to the mortgagees by the trustees of a will was not an acknowledgement by the person by whom the debt was payable, namely a beneficiary who had mortgaged his interest under the estate, as the trustees were not agents of the mortgagor for this purpose). (1989) 18 NSWLR 570. General Credits Ltd v Wenham (1989) 18 NSWLR 570 at 576. [1928] 1 Ch 836. Re Atlantic and Pacific Fibre Importing and Manufacturing Co Ltd [1928] 1 Ch 836 at 838–9. See also Re Coliseum (Barrow) Ltd [1930] 2 Ch 44 at 47 per Maugham J; Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704–5 per Lord Goddard CJ, with whom Tucker and Singleton LJJ concurred; Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 395 per Olsson J. [1930] 2 Ch 44. Re Coliseum (Barrow) Ltd [1930] 2 Ch 44 at 47–8. [1958] 2 All ER 711 at 713. See, for example, Ledingham v Bermejo Estancia Co Ltd [1947] 1 All ER 749 at 753 per Atkinson J

166. 167. 168. 169. 170.

171.

172. 173. 174. 175. 176. 177.

178.

179. 180. 181.

(remarking that ‘merely because the acknowledgments … have been made by a board of directors to themselves as trustees of the creditor estate, it is, in my opinion, impossible to say that the board were acting without the authority of the company’). See, for example, Re Gee & Co (Woolwich) Ltd [1975] Ch 52 at 71 per Brightman J. (1986) 41 SASR 380. Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 384 per King CJ. Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 384. Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 396–7 (emphasis in original). Olsson J added that even if, by virtue of his fiduciary relationship qua the company, the signature of JPB effectively debarred him from obtaining any personal benefit from an acknowledgment of the debts due to the deposit account holders generally, ‘nevertheless it remains difficult to see how it can logically be maintained that the statements do not operate as a sufficient acknowledgment of the debts vis-à-vis all other members of the class who are not directors’: at 397. See also at 386 per King CJ. Fischer v Nemeske Pty Ltd [2014] NSWSC 203; BC201401318 at [190], [191] per Stevenson J [affd Fischer v Nemeske Pty Ltd [2015] NSWCA 6; BC201500486 at [111]–[113] per Barrett JA, with whom Beazley P and Ward JA concurred]. See 17.24, 17.25. ACT s 32(5); NSW s 54(5); NT s 41(4); Qld s 36(2); SA s 42(1); Tas s 30(2); Vic s 25(2); WA s 49. Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 193 per Slade J. Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 193 per Slade J. Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 193–4 per Slade J. (1981) 150 CLR 535 at 577; BC8100134. His Honour did not share the view that a balance sheet must be regarded as implicitly addressed to creditors whose debts are referred to in it. He remarked that ‘[w]hen a company refers to its balance sheet in making a statement about its financial position to its creditors, and furnishes them with a copy of it, it is the statement made which gives a character to the balance sheet and the entries therein’, but added that ‘it is a different thing to say that a company intends a balance sheet attached to its directors’ report to come into the hands of the creditors whose debts are reflected in it and to be an acknowledgment of those debts’. See, for example, Hipworth v Maher (1952) 87 CLR 335 at 344; BC5200640 per Dixon CJ, Webb and Fullagar JJ (who held that an admission by a bankrupt in his statement of affairs that a debt is owing to a particular creditor must, if there is no sequestration or the bankruptcy is annulled, be regarded as a sufficient acknowledgment ‘given to’ the creditor concerned; the reason for this was that ‘[t]he admission is not made directly to the creditor, but it is made with the intention that it shall be communicated to the creditor and for the purpose of enabling a compromise of rights as between all creditors’). Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 578; BC8100134. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 566; BC8100134 per Wilson J, with whom Murphy J agreed. See, for example, Batchelor v Middleton (1848) 6 Hare 75; 67 ER 1088 (where the recital of a debt in a deed between debtor and creditor was held not to be an acknowledgment of the debt). Cf Re Flynn (decd) (No 2) [1969] 2 Ch 403 at 411 per Buckley J (who held that facts stated in pleadings and affidavits in previous proceedings between debtor and creditor could constitute an

182. 183. 184. 185. 186. 187. 188.

189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199.

200. 201. 202. 203. 204. 205.

206. 207. 208. 209.

acknowledgment because, although they were made to the court, they were implicitly addressed to the creditor). A point observed by Nettle J in VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [63]. As to the balance in this context see 1.19–1.27. (2003) 54 ATR 221; [2003] VSC 57; BC200303719. VL Finance Pty Ltd v Legudi (2003) 54 ATR 221; [2003] VSC 57; BC200303719 at [67]. ACT s 32(5); NSW s 54(5); NT s 41(4); Qld s 36(2); SA s 42(1); Tas s 30(2); Vic s 25(2); WA s 49. As to a balance sheet entry as an acknowledgement of a debt see 17.39–17.41. Consolidated Agencies Ltd v Bertram Ltd [1965] AC 470 at 485 per Lord Evershed (PC); Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 194 per Slade J; Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 394 per Olsson J. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 545; BC8100134 per Gibbs CJ (dissenting). [1975] Ch 52. Re Gee & Co (Woolwich) Ltd [1975] Ch 52 at 66. Re Gee & Co (Woolwich) Ltd [1975] Ch 52 at 66. Re Gee & Co (Woolwich) Ltd [1975] Ch 52 at 70–1 (emphasis supplied). See also Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 194 per Slade J. (1981) 150 CLR 535; BC8100134. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 551–2; BC8100134. Contra at 547 per Gibbs CJ, at 573 per Brennan J (each dissenting). Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 552; BC8100134. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 563; BC8100134. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 566; BC8100134. See also Re Brookers (Aust) Ltd (in liq) (1986) 41 SASR 380 at 385 per King CJ. Re Wilson [1937] Ch 675 at 683 per Clauson and Luxmoore JJ (where the provision of a house and farm produce for a creditor by the debtors on account of interest was held to amount to a part payment for this purpose). Surrendra Overseas Ltd v Government of Sri Lanka [1977] 2 All ER 481 at 490 per Kerr J; Cameron v Murdoch [2003] WASC 264; BC200400683 at [35] per Newnes M. Nash v Hodgson (1854) 1 Kay 650 at 652; 69 ER 276 at 277 per Page Wood VC. (1842) 4 Man & G 271 at 280; 134 ER 111 at 115. Cottam v Partridge (1842) 4 Man & G 271 at 287; 134 ER 111 at 118. Re Oliver [1927] 2 Ch 323 at 331 per Tomlin J. UK 1939 s 23(1)(b) (now see UK 1980 s 29(3)); ACT s 32(2)(a)(ii) (‘in relation to’); NSW s 54(2)(a)(ii); NT s 41(2)(a)(ii); Qld s 35(1)(b); Tas s 29(1)(b); Vic s 24(1)(b); WA s 46(1)(b) (‘in relation to’). Re Footman Bower & Co Ltd [1961] Ch 443 at 449 per Buckley J. See, for example, Harlock v Ashberry (1882) 19 Ch D 539. See 17.42, 17.43. Stamford, Spalding and Boston Banking Co v Smith [1892] 1 QB 765 at 769 per Lord Herschell

210.

211. 212.

213.

214. 215. 216. 217. 218. 219. 220.

221.

222.

(albeit envisaging that ‘[t]here may be an exception to the rule in the case of a payment to a person filling a representative capacity, or who was believed to fill that capacity’, in which case ‘the payment might enure for the benefit of the persons for whose benefit it was believed to be made’; on this point in relation to acknowledgements see 17.37, 17.38). See also at 771 per Lindley LJ, at 771 per Kay LJ. Mills v Fowkes (1839) 5 Bing NC 455 at 461; 132 ER 1174 at 1177 per Tindal CJ (‘the debtor may, in the first instance, appropriate the payment; solvitur in modum solventis’; the latter means ‘money paid is to be applied according to the wish of the person paying it’); Deane v City Bank of Sydney (1918) 25 CLR 215 at 223; BC1800028 per Barton J (remarking that ‘the debtor was and is entitled to say: “I applied my part payment, as I told you, to debt A, and I adhere to that. You cannot apply it to debt B so as to give yourself an action against me singly, and not only that, to give you fourteen years longer to sleep on your rights”’); Conridge v Schaapveld [2015] NSWSC 663; BC201504464 at [62] per Rein J. Nash v Hodgson (1854) 1 Kay 650 at 652; 69 ER 276 at 277 per Page Wood VC. Goddard v Cox (1742) 2 Str 1194; 93 ER 1122; Peters v Anderson (1814) 5 Taunt 596; 128 ER 823; Bosanquet v Wray (1815) 6 Taunt 597; 128 ER 1167; Mills v Fowkes (1839) 5 Bing NC 455 at 461; 132 ER 1174 at 1177 per Tindal CJ (‘if [the debtor] omit to do so, the creditor may make the appropriation; recipitur in modum recipientis’; the latter means ‘whatever is received is received according to the mode of the receiver’), at 464; 1178 per Coltman J, at 464–5; 1178 per Erskine J; Conridge v Schaapveld [2015] NSWSC 663; BC201504464 at [62] per Rein J. Simson v Ingham (1823) 2 B & C 65; 107 ER 307; Mills v Fowkes (1839) 5 Bing NC 455 at 461; 132 ER 1174 at 1177 per Tindal CJ; Conridge v Schaapveld [2015] NSWSC 663; BC201504464 at [62] per Rein J. Mills v Fowkes (1839) 5 Bing NC 455 at 461; 132 ER 1114 at 1111 per Tindal CJ (rejecting the argument that the law should appropriate the payment to the more burdensome debt). See 17.55. [2015] NSWSC 663; BC201504464 at [63]. [1961] Ch 443 at 451. (1874) 8 SALR 144. Re Estate of Levi & Co (1874) 8 SALR 144 at 166, whose remarks were affirmed by Hanson CJ (at 195) and Wearing J (at 201). Davies v Edwards (1851) 7 Exch 22 at 26; 155 ER 839 at 841 per Parke B (‘it is impossible to contend that a payment by the assignees of the bankrupt or insolvent involves a promise by him to pay the remainder to his creditor, a fortiori it cannot have that effect when not made by the party himself or his agent, but by a third person who is appointed to distribute his assets among his creditors’); Taylor v Hollard [1902] 1 KB 676 at 680 per Jelf J (payment made by the defendant’s curators under a hostile judgment obtained against the defendant held not to have been made voluntarily, and incapable of amounting to an acknowledgement of the underlying debt); Power v Kenny [1977] WAR 87 at 89 per Wallace J (payments made in the course of the defendant’s bankruptcy, not being voluntary, did not effect an acknowledgement). Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [94] per Besanko J (in the context of Civil Law (Wrongs) Act 2002 (ACT) s 61(1)(b), under which a respondent must, within a prescribed period, give the claimant written notice stating, inter alia, ‘whether liability is admitted or denied’). [1922] 2 AC 507 at 522. See also at 537 per Lord Wrenbury; National Bank of Tasmania Ltd (in

223.

224. 225.

226. 227. 228. 229.

230. 231. 232. 233. 234. 235.

236. 237. 238.

liq) v McKenzie [1920] VLR 411 at 420–4 per Cussen J, with whom Schutt and Mann JJ concurred. Nor did the English precedent upon which these provisions rested (UK 1939 s 23(4)). However, the position in England has since changed as a result of UK 1980 s 29(7) (‘a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment’), consequent upon a recommendation of the Orr Committee (see paras 2.68–2.71) that once a debt becomes statute-barred, it should remain irrecoverable despite any subsequent acknowledgement or payment. NSWLRC 3, paras 255–6. ACT s 32(1); NT s 41(1); NSW s 54(1); WA s 47 (cf WALRC 36(II), pp 459–60, which recommended to the contrary, other than where the running of the limitation period extinguishes the plaintiff’s rights). See also Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 565 per Wilson J, at 570, 572 per Brennan J (dissenting but not on this point); BC8100134; NSWLRC 3, para 256 (seeing this as part of the means of achieving the larger object of ensuring that, when the limitation period ultimately expires, ‘time will have really put an end to the disputes which can arise on the facts giving the cause of action’). NSW s 63(1), as to which see 2.29. Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 565; BC8100134 per Wilson J. See, for example, in relation to successive conversions (see 6.28) and actions to recover land (see 8.13–8.21). Sanders v Sanders (1881) 19 Ch D 373 at 379 per Jessel MR, at 382 per Baggallay LJ; Re Forrest Trust [1953] VLR 246 at 262–3 per Herring CJ, at 267 per Gavan Duffy and Dean JJ; Cameron v Blau [1963] Qd R 421 at 428 per Gibbs J, with whom Mansfield CJ and Jeffriess J concurred. Re Forrest Trust [1953] VLR 246 at 263 per Herring CJ. Good v Parry [1963] 2 QB 418 at 424 per Lord Denning MR. UK 1939 s 23(4). Qld s 35(3); Tas s 29(4); Vic s 24(3). UK 1980 s 29(5). Good v Parry [1963] 2 QB 418 at 423 per Lord Denning MR. See also Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142; BC2300033 per Knox CJ and Starke J (aligning the term ‘liquidated’ with where the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges, or other positive data); Barnett v Creggy [2016] WTLR 17; [2014] EWHC 3080 (Ch) at [107] per David Richards J (noting that while a claim for equitable compensation, like one for damages at common law, requires quantification and assessment by reference to the relevant legal principles, and so cannot constitute a ‘liquidated pecuniary claim’, ‘when the claim is for an amount paid out in breach of duty, that amount being known or being capable of straightforward calculation on the evidence, I do not understand why it is not a liquidated pecuniary claim’). Jones v Bellgrove Properties Ltd [1949] 2 KB 700. Alexander v Ajax Insurance Co Ltd [1956] VLR 436 at 440 per Sholl J. Amantilla Ltd v Telefusion plc (1987) 9 Con LR 139 at 145 per John Davies QC. See, for example, Phillips & Co (a firm) v Bath Housing Co-operative Ltd [2013] 2 All ER 475; [2012] EWCA Civ 1591 at [20]–[48] per Lloyd LJ, with whom McFarlane and Longmore LJJ concurred (ruling that a solicitor’s quantum meruit claim for costs billed but not fixed by assessment or agreement amounted to a liquidated claim).

239. Dwr Cymru (Welsh Water) v Carmarthenshire County Council [2004] EWHC 2991 (TCC) at [45]– [49] per Jackson J (and in particular elaborating why a claim in tort cannot be the subject of an acknowledgment by reason of being unliquidated in nature: at [49]). 240. (1808) 2 Camp 157; 170 ER 1114. 241. (1817) 1 B & Ald 92; 106 ER 34. 242. NSWLRC 3, paras 249–254. See also Duncan v Mendes (CA(NSW), Priestley and Beazley JJA and Rolfe AJA, 29 May 1998, unreported) BC9802084 at 7 per Beazley JA, with whom Priestley JA and Rolfe AJA concurred; Law Com 270, paras 3.147, 3.148 (which also recommended that the doctrine should extend to ‘claims for unspecified amounts’). 243. NSWLRC 3, p 9. 244. NSWLRC 3, para 252. 245. See Commonwealth Attorney-General’s Department, Proposals for the Reform and Modernization of the Laws of Limitation in the Australian Capital Territory, Working Paper, Canberra, April 1984, para 195. 246. This was so notwithstanding the Western Australian Law Reform Commission’s recommendation that the doctrines of acknowledgement and part payment should not be extended to unliquidated claims: WALRC 36(II), pp 449–52. 247. NSWLRC 3, para 253. 248. [2008] ACTSC 132; BC200810466. 249. Sessions v Phengsiaroun [2008] ACTSC 132; BC200810466 at [27]–[35]. 250. (2007) 215 FLR 59; [2007] ACTSC 87; BC200709088 at [11]. 251. Casey v Alcock (2009) 3 ACTLR 1; [2009] ACTCA 1; BC200900125 at [6] per Higgins CJ (opining that ‘[a]ny rational person would construe the response of the insurer as an affirmation to the right of the claimant to damages to be assessed’), at [44]–[48] per Refshauge J, at [85] per Besanko J. 252. Roddam v Morley (1856) 1 De G & J 1 at 7, 18; 44 ER 622 at 624, 628 per Lord Cranworth; Brew v Brew [1899] 2 IR 163; Re Lacey [1907] 1 Ch 330 at 348 per Farwell LJ, at 353–4 per Buckley LJ; Read v Price [1909] 2 KB 724 at 732–5 per Cozens-Hardy MR, at 735 per Farwell LJ, at 739 per Kennedy LJ; Cameron v Murdoch [2003] WASC 264; BC200308107. 253. See 17.19, 17.20. 254. Qld s 37(5); Tas s 31(5); Vic s 26(5). The equivalent English provision is UK 1980 s 31(6) (formerly UK 1939 s 25(5)). 255. Qld s 37(6); Tas s 31(7); Vic s 26(6). The equivalent English provision is UK 1980 s 31(7) (formerly UK 1939 s 25(6)). 256. Wright Committee, para 21. 257. Law Com 270, para 3.151.

[page 365]

PART IV

Time Extended Limitations legislation did not historically make provision for the extension of time bars via the exercise of a judicial discretion. The principal concern was that judicial discretion here would sacrifice the certainty, for defendants, that lies to the core of the rationale for time bars. The abbreviation of certain time bars, coupled in the main with the recognition that latent injuries could prejudice a plaintiff, prompted the introduction, both in England and each Australian jurisdiction, of avenues for a curial extension of time. A discussion of these forms the subject matter of this Part. While the primary focus of time extensions has been on personal injury actions, as appears from the content of Chapter 20, the Northern Territory and South Australia have taken the further step of vesting in courts a general discretion to extend time (see Chapter 19). The short time bars that apply to defamation and admiralty actions (one and two years, respectively) have, moreover, in each event prompted a specific extension regime, which is discussed in Chapter 21. It should also be noted that issues of fraud, which are generally addressed by suspending the running of time, are in Western Australia tackled via a judicial extension of time. This explains why the Western Australian regime in this regard is catalogued in Chapter 15, which deals with fraud. Reference is also made to a curial extension of time under motor accidents compensation legislation, discussed by way of an illustration of an alternative limitations regime in Chapter 3.

[page 367]

CHAPTER 18

Introduction to the Extension of Time Backdrop to Provision for Extension of Time Nature of Discretion to Extend Time Discretion to be exercised ‘judicially’ Discretion not premised on exceptional circumstances Factors relevant to exercise of discretion Impact of merits of plaintiff’s case Extending time absent prejudice to defendant Explanation for delay Interplay Between Expiry of Time and Discretion to Extend Costs of Litigation Over Extension of Time Costs at first instance Costs on appeal Appeals Against Exercise of Discretion

18.1 18.4 18.5 18.6 18.7 18.9 18.11 18.13 18.14 18.17 18.17 18.23 18.24

Backdrop to Provision for Extension of

Time 18.1 The seminal limitations statute, the Limitation Act 1623 (UK), adopted what has been described as a ‘certainty’ approach,1 by setting a time limit (generally six years) and providing no means of extending it. This approach persisted when, over 300 years later, the 1623 statute was replaced by the Limitation Act 1939 (UK). The latter was the product of recommendations by the Wright Committee, which had been pressed to give the courts some discretion to extend time. The Committee acknowledged what it termed ‘the obvious advantages’ of such a curial discretion, namely that it would obviate the cases of hardship that may ensue under any rigid system of limitation, and could enable shorter general periods to be prescribed without the danger of increasing those cases of hardship. But it also perceived ‘formidable objections’ to discretion in this context. If the discretion came to be exercised along well-defined principles, the Committee feared, its chief merit — flexibility — would tend to disappear. If, conversely, its exercise from case to case remained practically impossible to predict, the core benefit underscoring statutes of limitation, namely the elimination of uncertainty, would be prejudiced.2 The Committee, accepting the force of these ‘formidable objections’, saw the importance of [page 368] putting a certain end to litigation as outweighing any hardship suffered by plaintiffs, prompting its recommendation that the six year, unextendable, limitation period remain. 18.2 While this view held sway for several decades, by the early 1970s in England it was losing favour, at least as regards causes of action in respect of personal injuries, which were subject to shorter than normal limitation periods.3 Via the Limitation Act 1975 (UK), the 1939 Act was amended to empower the court to override time limits, by reference to specified factors.4 This gave effect to a belief that ‘individual justice has assumed greater importance than ever before’ and that ‘firm rules, however carefully

formulated and however many express exceptions’ will occasionally cause injustice, ‘for firm rules are inflexible and unable to take account of the hard case’.5 Informed by this belief, the same translated to the Limitation Act 1980,6 when it replaced the 1939 Act. Parallel avenues for curial extension of time in the personal injury scenario emergent in the Australian Capital Territory, New South Wales, Queensland, Tasmania, Victoria and Western Australia are the subject of Chapter 20. Northern Territory and South Australia have adopted a more expansive approach to extending time. As explained in Chapter 19, it enshrines into limitations law a curial discretion to extend time confined neither to particular causes of action, nor to time bars imposed by the legislation itself. 18.3 The interrelationship between a shorter limitation period and the need, in justice, to prescribe an avenue for its extension, is not confined to the personal injury scenario. For instance, a dedicated avenue to extend time in defamation actions, discussed in Chapter 21, counterbalances the abbreviated (one year) time bar for those actions.7 There are also instances outside of limitations statutes where a discretion to extend time may serve to palliate an abbreviated time bar.8

Nature of Discretion to Extend Time 18.4 In circumstances where statute confers discretion to extend time, courts must ensure that it is not exercised ‘according to whim and idiosyncratic opinions’.9 At the same time, nor is it legitimate to prescribe criteria for the exercise of the discretion in a manner that serves to fetter it. Each of these two poles denies what has been described as the ‘judicial’ character of the discretion. Courts must accordingly tread the fine line between rigour and consistency while concomitantly assessing each case on its own facts and merits unfettered by ‘rules’.10 The latter recognises that no guideline can substitute the conscientious consideration of the [page 369]

exercise of a discretion in the peculiar circumstances in question.11 In treading this path, the following observations are pertinent.

Discretion to be exercised ‘judicially’ 18.5 A judicial discretion to extend time, like any judicial discretion, must be exercised ‘judicially’. Beyond those characteristics of a ‘judicial’ discretion noted in the preceding paragraph, the discretion must be exercised in a manner that furthers the purposes of the statutory context in which it appears.12 In the limitations context, it must therefore be informed by the rationales informing statutory time bars, including protecting defendants against the injustice of stale claims (although the interests of plaintiffs cannot be overlooked) and promoting forensic diligence.13

Discretion not premised on exceptional circumstances 18.6 Bearing in mind the above statutory purposes, the inquiry is whether, in the circumstances, the applicant for leave to extend time has satisfied the court that it is fair and just that leave be granted.14 As leave to extend time is an exception to time bar imposed by statute, it is the party who seeks an extension of time who must discharge the onus of convincing the court that leave should issue. Importantly, unless the terms of the relevant statute provide otherwise, it is inconsistent with a general curial discretion to fetter it by any need to prove exceptional or extraordinary circumstances,15 namely ‘some additional forensic burden of indeterminate nature and unquantified weight’.16 It is also inconsistent with what has been described as the ‘beneficial’,17 ‘remedial’18 or ‘ameliorative’19 character of extension provisions — designed as they are to ‘eliminate injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which the action was to be commenced’20 — to so confine their operation. It is, after all, the breadth of the court’s discretion to extend time that, in the words of the High Court, ‘provides an ample safeguard against abuse and provides that flexibility which will facilitate the achievement of the legislative purpose, namely, a just result in a wide range of circumstances’.21

[page 370]

Factors relevant to exercise of discretion 18.7 There are various considerations that feed into the statutory purposes of time bars, to which the court may have regard in determining whether it is fair and just to extend time. Prime amongst these are the extent of the delay, coupled with the adequacy of the reasons proffered for the delay. In this regard, the diligence or otherwise shown by a plaintiff (or a plaintiff’s representatives) in ascertaining and asserting his or her rights is ordinarily material. Also material is the nature and extent of any forensic disadvantage — often described in terms of ‘prejudice’ — to the defendant, including in the ability to defend the action, deriving from the delay. 18.8 As the grant of leave to extend time will necessarily cause the defendant some prejudice, in depriving him or her of a defence, that by itself cannot suffice to disentitle the claimant to the leave sought.22 There would otherwise be practically no circumstances in which leave could be granted, and thereby frustrate both the aim and utility of the statutory provision(s) to extend time. It follows that the notion of ‘prejudice’ for the purposes of the exercise of judicial discretion to extend time is more encompassing, informed also by matters such as the period of the time indulgence sought, any difficulties of investigation that the defendant may face and any specific, additional forensic or other disadvantages accruing by reason of the delay.23 It is also one that is necessarily contextualised by reference to broader fairness and justice, an inquiry into which requires, in most instances, an assessment into the respective behaviour of the litigants.

Impact of merits of plaintiff’s case 18.9 In addition to the above factors, it appears that the strength of the plaintiff’s case on the merits may factor into the exercise of a general discretion to extend time. There is little value, it may be reasoned, in granting leave to pursue an action outside of time if there is little or no prospect that it will succeed. Judicial reference can, accordingly, be found to the need for the applicant for extension to mount an ‘arguable case’ for this

purpose,24 independent of this criterion being statutorily listed. At the same time, however, courts are wary of converting an essentially interlocutory application to extend time into one involving a full inquiry into the merits. Interlocutory applications are ill suited for this purpose, prompting some judges to voice considerable caution in approaching any merits inquiry in applications to extend time. A Queensland judge has, for instance, uttered the following remarks:25 [A]pplicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial … The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time.

[page 371] In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration.

18.10 There may well be good sense in exercising caution in this context. After all, if the court refuses to extend time, the plaintiff’s action cannot proceed. In most other instances where a merits inquiry may be pursued on an interlocutory application — a typical example being the prima facie test for an interlocutory injunction26 — failure at an interlocutory stage does not necessarily preclude the applicant from pursuing (and potentially succeeding on) the principal claim. The merits cannot, however, be overlooked where these are listed within the statutory criteria to which a court must have regard in exercising its discretion to extend time. Also, it appears that the caution espoused in the above quote may require qualification, at least to

some degree, in the face of civil procedure reforms directed to the quick and cheap resolution of disputes.27

Extending time absent prejudice to defendant 18.11 As noted earlier, that the defendant may or will suffer prejudice from the exercise of the court’s discretion to extend time is germane to whether or not that discretion will favour the plaintiff.28 As an important rationale underscoring statutory time bars is to protect defendants from stale claims,29 it stands to reason that the law courts should consider, as of paramount significance, the impact on defendants of ousting a time bar. While prejudice taking the form of losing an otherwise available defence cannot by itself preclude an extension of time, the flipside is that the absence of prejudice in other forms — for instance, difficulties surrounding access to the relevant evidence — is not decisive in favour of an extension of time. Essentially, this reflects no more than the core proposition that a determination of what is ‘fair’ and ‘just’, in this context as in others, is a function of more than a single criterion. Again as noted earlier, the extent of delay, and the reason(s) for it, also form part of the relevant contextual inquiry. 18.12 Some forms of delay, to this end, can disentitle a plaintiff who may otherwise have a reasonably arguable claim for an extension of time. This may be so, for instance, where a strategic decision has been made not to pursue proceedings in a timely fashion upon an assessment of risk and likely cost, or if the plaintiff has been derelict in taking the necessary steps to pursue the matter. In circumstances of this kind, the behaviour of the plaintiff itself may speak against an exercise of discretion in his or her favour, and so little by way of actual or potential prejudice to the defendant may be all that is required to support this outcome.30 This highlights that deliberate and/or tactical decisions to allow time to elapse are unlikely to favour a plaintiff, a point that Ipp JA in Itek Graphix Pty Ltd v Elliott elaborated as follows:31 A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the

intent of Parliament.

[page 372] A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.

His Honour added that ‘to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation’.32 For example, in Australian Croatian Cultural and Educational Association ‘Braca Radici’ Blacktown Ltd v Benkovic,33 even absent actual or presumptive prejudice to the defendant,34 the New South Wales Court of Appeal refused to extend time because of evidence that the plaintiffs made a fully informed decision, based on legal advice and not influenced by the defendant, not to proceed against the defendant within the primary limitation period. The foregoing is not to say that a failure to properly explain the delay is conclusive against an extension of time, but that in some circumstances it may be, whether or not the defendant is prejudiced. In the event of prejudice, though, an unexplained delay will prove a significant hurdle to an extension of time, especially where the delay is lengthy, a point elaborated below.

Explanation for delay 18.13 As appears from the above, the plaintiff’s explanation for his or her delay is clearly relevant, together with other factors, to a court’s assessment as to whether or not to extend time. The point arguably has the greatest significance where the limitation period is short; this increases the prospect that the plaintiff may be unaware of the strictures underscoring time, and potentially reduces the prospect that the defendant will suffer undue detriment by reason of a short delay. Extensions of time in the case of defamation actions — to which a one year time bar applies35 — serve as an

illustration.36 Continuing efforts by the plaintiff to negotiate a settlement or resolution of a dispute, ahead of commencing proceedings, may also supply a satisfactory explain for a delay.37 They may also reduce the prospect of delay causing the defendant prejudice; after all, a defendant on notice of an impending claim, and who nonetheless alters his or her position, or otherwise fails to preserve exculpatory evidence, may be an author of his or her own prejudice should the court, as may prove likely in this event, extend time. At the same time, a plaintiff’s attempt to address his or her grievance(s) against the defendant by means that reveal an evident decision not to pursue legal action may well justify the defendant in acting on this assumption. If so, the court may refuse to extend time in the face of detriment to the defendant.38 [page 373]

Interplay Between Expiry of Time and Discretion to Extend 18.14 Only the Queensland limitations statute addresses the interaction between the expiry of the limitation period and the exercise of the court’s discretion to extend time by dedicated provision. It states that where, after the expiration of a set limitation period, the court extends time, the prior expiration of the limitation period has no effect for the purposes of the Act.39 Yet even without a dedicated provision elsewhere, the position is the same as a matter of statutory construction. This is because either the time bar provisions are expressed to be subject to extension provisions, or the extension provisions are clearly expressed to oust the general time bar provisions. 18.15 The issue is accentuated where limitations provisions envisage the extinguishment of a cause of action upon the expiry of time. It may be queried, in this context, how a court could legitimately extend time in

respect of a cause of action that has, due to the elapsing of time, already been extinguished. The point is of especial significance in New South Wales, where the limitations statute contains general extinguishment provisions in this regard.40 There is accordingly a need to address how extinction can coexist with an extension of time. The latter, after all, can only be effective if the extinction has been in some way superseded or nullified. This is addressed by statute in some jurisdictions.41 18.16 Absent clear statutory provision, several members of the High Court in Commonwealth v Mewett42 tackled the issue, regrettably without a broader consensus.43 The court was dealing with the relationship between s 14 of the Limitation Act 1969 (NSW), pursuant to which listed causes of action are ‘not maintainable if brought after the expiration of a limitation period of six years’, and s 63(1), which serves to extinguish ‘the right and title of the person’ to a cause of action to recover a monetary sum once the applicable limitation period expires. Dawson J sought to reconcile ss 14 and 63(1) on the basis that, while s 14 bars the remedy, the remedy should not be treated as ‘extinguished’ until an application for extension of time had been brought and dismissed. The reasoning that underscored this view appears from the following extract from his Honour’s judgment:44 … where [time] is extended after the expiration of the limitation period, the prior expiration of the limitation period has no effect, under s 61, for the purposes of the New South Wales Act. When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statutebarred under s 14(1) but not extinguished under s 63(1).

[page 374] While this interpretation may make practical sense, it arguably pays insufficient regard to the literal words of s 63(1). An alternative approach, which has enjoyed greater judicial support,45 that does less violence to the language of s 63(1), favoured by Toohey J and McHugh J in separate judgments, is that once the initial time for commencing proceedings had

expired, the cause of action is extinguished by reason of s 63(1), but that should, at a later time, an application to extend time succeed, then the earlier extinguishment is ‘annulled’ and treated as if it had not been extinguished.46 While no explicit statutory provision supports the annulment of the extinguishment, it can be inferred from the very existence of a power to extend time. Gaudron J was the only other judge in Mewett to address the point,47 albeit only obliquely in a remark that the action is ‘not finally statute barred merely because the initial limitation period’ has expired; ‘[r]ather, the action is thereafter maintainable if the limitation period is extended … and the action commenced within the extended period’.48 Her Honour envisaged, it seems, that the cause of action could be subject to conditional reenlivenment, although whether much turns on this, as compared with the view of Toohey and McHugh JJ, may be queried. Either way, should the application for extension be dismissed, it accords with the language of s 63(1) to identify the moment of extinction as that set by s 14, not the (later) date of dismissal. It appears implicit, moreover, under s 61 — which states that, in the event of time being extended, ‘the prior expiration of the limitation period has no effect for the purposes of this Act’ — that s 63(1) has continuing effect unless an order to extend time is made.49

Costs of Litigation Over Extension of Time Costs at first instance 18.17 In circumstances where a claim is made out of time, the plaintiff’s prospects of nonetheless pursuing it rest on the court granting an extension of time. If the plaintiff cannot convince the court to exercise its discretion to extend time, the costs of the application to extend are, in line with the ‘costs follow the event’ rule,50 almost invariably ordered against the plaintiff.51 It is where the plaintiff succeeds in having time extended, whether or not this later translates to the merits, that the matter of costs has necessitated a more nuanced approach.

18.18 One way of approaching the issue is to view an application to extend time as seeking the indulgence of the court. Case law supports the general proposition that a party who seeks a court’s indulgence should meet the costs of the application, even if he or she succeeds therein.52 The opponent, it is reasoned, should not be liable for the costs underscoring a court order, made at the applicant’s behest, to which the applicant is not, strictly speaking, entitled. This [page 375] appears to have influenced the remark by Sheller JA in Holt v Wynter53 that ‘ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable’. If correct, what costs order should ensue upon a successful application to extend time rests on whether or not the respondent acted reasonably in opposing the application. Only unreasonable opposition, it may be said, should sound in some order other than against the applicant. For example, in Commonwealth of Australia v Smith54 the New South Wales Court of Appeal, by majority, ruled that, in view of the Commonwealth’s repeated failure in resisting applications to extend time over six years in analogous cases, the trial judge was entitled to view the Commonwealth’s opposition to an extension as unreasonable, and thus amenable to an order that it pay the applicant’s costs. Yet it may be that the court went too far in ordering costs against the Commonwealth, as the High Court, in refusing leave, expressed the provisional view ‘that a party, if it has an arguable basis for defending an application or a claim, is entitled to do so without the penalty of costs’.55 18.19 It should not, in any case, be assumed that the ‘rule’ in Holt v Wynter is inflexible; costs are, after all, in the discretion of the court, and there is no justification for judicially imposed fetters on that discretion. In Holt Sheller JA prefaced his ‘rule’ by the adverb ‘ordinarily’, and Priestley JA remarked that the appropriate costs order in these cases depends ‘very much on the circumstances of the case’.56 Other appellate judges in New South

Wales have queried any ‘ordinary course’ in this context.57 Circumstances can arise where, while the opposition to the application cannot be branded as unreasonable, the applicant has not contributed to the delay.58 The court may respond by ordering that the costs of a successful application to extend time be costs in the cause — that [page 376] is, the costs burden lies ultimately on the party who succeeds on the merits.59 Or it may order that each party pay its own costs.60 Where it is clear that the applicant’s lawyers have been responsible in the delay, the court may order that the lawyers pay the costs of the application to extend time (including if it proves unsuccessful).61 18.20 Nor should it be assumed that all applications to extend time are accurately characterised as applications for an indulgence, and thus fall within the usual approach to costs of indulgences. The language adopted by Sheller JA in Holt, referring to an applicant who has ‘allowed him or herself to get out of time’ may have been apt in the circumstances of that case, where the applicant had formed an intention to make a claim within time but failed to effect that intention before the relevant limitation period expired. It involves stretching that language, however, to apply it to an applicant who was unaware of material facts until after the expiration of the limitation period.62 Indeed, it may be argued that an application is not an indulgence if it seeks no more than the exercise of a statutory discretion in the applicant’s favour.63 Queensland addresses the point, albeit partly, via the limitations legislation. It applies vis-à-vis applications to extend time preceding the expiry of the (extended) limitation period applicable in the case of disability.64 In applications of this kind, ‘where costs may be awarded to the plaintiff’ — presupposing success in the application — the statute requires the court, before awarding costs, to take into consideration whether reasonable diligence has been shown in the circumstances in commencing the action, and whether delay in commencing the action has prejudiced or

may prejudice the defendant. What may be inferred from this provision is that the plaintiff’s lack of reasonable diligence, or the prejudice suffered by the defendant, even if it has not functioned to preclude the success of the application, may serve to deny (whether partly or wholly) a costs order in the plaintiff’s favour. [page 377] 18.21 The New South Wales limitations legislation is unique in making provision for costs arising out of certain applications to extend time. Expressed without affecting the court’s costs discretion, it states that a court hearing an action brought as a result of an extension of time ‘may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period’.65 In other words, this provision countenances that an unsuccessful defendant should not necessarily be liable for the plaintiff’s entire costs, if the defendant has been out of pocket by reason of the defendant’s original delay. 18.22 The court rules in some jurisdictions require a party who applies for a modification (whether in the form of an extension or a shortening) of time under the rules, unless the court otherwise orders, to pay the costs of and occasioned by the application or any order made on or in consequence of the application.66 While this has no application vis-à-vis limitation statutes,67 consistent with the approach to extending time in limitation cases a court may ‘otherwise order’ if the opposition to the application is unreasonable. It has been judicially remarked, in this regard, that the court is ‘desirous of not encouraging litigants to oppose a meritorious claim for an extension of time on a supposed basis that they will get their costs in any event’.68

Costs on appeal 18.23 If an applicant fails in securing an extension of time at first instance, but succeeds on appeal, the costs of the appeal (including the application for leave) are, in the usual case, payable by the respondent

pursuant to the ‘costs follow the event’ principle.69 An applicant who, conversely, fails in appeal against a refusal to extend time, will almost invariably be ordered to pay the costs of the appeal (or leave application).70

Appeals Against Exercise of Discretion 18.24 It is well established that appellate intervention concerning the trial judge’s exercise of discretion can only occur within the principles stated by Dixon, Evatt and McTiernan JJ in House v The King:71 [page 378] It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

Where the House principles apply, an appellate court cannot reverse a discretionary decision merely because of its views as to what is reasonable and just, or whenever it concludes that, say, undue or insufficient weight has been given to a particular factor in the exercise of the discretion.72 The reticence to interfere with an exercise of that discretion stems partly from the trial judge ‘having the advantage of matters of impression of the evidence and the feel of the trial that it is hard if not impossible fully to articulate in reasons for judgment’ and ‘a more acute understanding of the nuances of th[e] factual situation, and thereby have an advantage in evaluating the facts by the legal standard’.73 It also stems from a broader policy of promoting finality in litigation. 18.25 The application of House principles in limitations appeals has witnessed judges engaging in what appear to be overly legal distinctions. The principal scenario where the issue arises is in the context of appeals against decisions relating to extensions of time (most commonly by a plaintiff,

against the trial judge’s refusal to extend time). It is common for limitations statutes to give a court discretion to extend time where it is ‘just and reasonable’ to do so.74 According to the Appeal Division of the Victorian Supreme Court, on an appeal from an exercise of this discretion, the order below can be set aside only upon the House principles.75 Yet its New South Wales counterpart has, for this purpose, branded a decision as to whether it is ‘just and reasonable’ to extend a limitation period as ‘not discretionary’.76 Instead, the court has held, this decision ‘involves the application of a legal standard, albeit one in which evaluation and judgment are important’, such that review on appeal is not confined to the principles found in House.77 Whilst not denying the need for an appellate court to give respect and weight to the conclusion of the trial judge — thereby reflecting the policy underscoring the House principles — on the New South Wales approach, the appellate court, having reached its own conclusion, must give effect to it.78 Perhaps the main proponent of this less restrictive approach to appellate intervention is Campbell JA, which finds expression in Certain Lloyds Underwriters v Giannopoulos.79 In declaring that the inquiry into what is ‘just and reasonable’ in the limitations context should not be viewed as a discretionary decision, his Honour analogised it to judicial assessments of whether or not a deceased person has failed to make adequate provision in family provision [page 379] claims, and whether or not a defendant has failed to take reasonable care in tort cases. In each case the decision is one of fact, not (pure) discretion as such, even though it involves the exercise of an evaluative judgment (and therefore some room for discretion). 18.26 Other provisions in limitations legislation, while evincing some discretionary flavour, have also been viewed as falling outside the House principles by New South Wales judges. The finding of the plaintiff’s awareness of the extent of personal injury,80 which goes to the question of

extending time and necessarily involves a matter of degree and an exercise in judgment, has likewise been treated as not a discretionary exercise. This has meant that, while ‘full regard’ to the trial judge’s view is appropriate, if the appeal court holds a different view, it should give effect to it.81 Yet equivalent provisions have seen Queensland courts, though accepting that while the ultimate decision is discretionary the determination of degrees of injury or knowledge thereof is not, conclude that ‘[u]nless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference’.82 Language of this kind resonates with the House principles. That Campbell JA, in favouring an ostensibly less restrictive approach to appellate intervention as correct in principle, conceded the prospect that adopting that approach ‘does not ever result, or only rarely results, in a different decision being arrived at to that which would be arrived at if the decision was reviewed on a House v R basis’83 may well speak of an over-complication of principle inconsistent with the ideal of certainty and clarity in this context. ______________________________ 1. 2. 3. 4. 5. 6. 7. 8.

9. 10.

Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 202; BC9800341 per Priestley JA. Wright Committee, para 7. See 7.2, 7.3. See UK 1939 s 2D. Firman v Ellis [1978] QB 886 at 911 per Ormrod LJ. See UK 1980 s 33. As to the one year time bar for defamation actions see 6.45, 6.46. See, for example, Motor Accidents Act 1988 (NSW) s 52(4) (repealed) (which set a ‘period considerably shorter than that which formerly existed by successive limitation statutes … to actions of an analogous kind’, and so, to this extent, was ‘a clearly deliberate provision of the legislature which cuts down valuable rights which formerly existed’, but at the same time a ‘very large discretion’ was conferred by which to permit proceedings to be taken outside that time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 536; BC9302336 per Kirby P); Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81–279 at 61,400 per Kearney J. Another illustration is the curial discretion to allow an out-of-time application for family provision (where limitation periods range between three and 12 months): see G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, pp 542–55. Salido v Nominal Defendant (1993) 32 NSWLR 524 at 537; BC9302336 per Kirby P. See Salido v Nominal Defendant (1993) 32 NSWLR 524 at 537; BC9302336 per Kirby P (opining that ‘it is more likely that the rule of law will be secured, consistency attained, and effective review provided against the risk of injustice if the basic guiding principles, at least, are collected

11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23. 24.

25. 26. 27.

28. 29.

for the assistance of decision-makers’). Cf at 541 per Powell JA (cautioning that the more extensive and the more elaborate the guidelines, the greater the risk that a discretion left largely unfettered will, in fact, become fettered by the ‘guidelines’). Salido v Nominal Defendant (1993) 32 NSWLR 524 at 539; BC9302336 per Kirby P. Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 per Gleeson CJ, at 535, 538 per Kirby P; BC9302336. See 1.17–1.28. Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 per Gleeson CJ, at 539 per Kirby P, at 541 per Powell JA; BC9302336. Firman v Ellis [1978] QB 886 at 905 per Lord Denning MR; Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 per Gleeson CJ (who found little assistance in the proposition of the trial judge that leave should not be given lightly, pondering ‘what kind of judicial discretion would be exercised lightly?’), at 539–40 per Kirby P (who envisaged that a reference to leave not being given lightly ‘may be acceptable as a mere reflection of the serious nature of the application before the court’); BC9302336. Chesterman JA’s remark in Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [50] that ‘[i]t is only in special and specified circumstances that a limitation period may be extended’ should not taken as suggesting the contrary to the proposition cited in the text because his Honour, in making this remark, was seeking no more than to place the discretion to extend time against the backdrop that ‘[t]he law ordinarily requires litigants to commence their proceedings within the appropriate limitation period’. In other words, he was seeking to distinguish the ‘ordinary’ position (as per the limitation period) from the ‘exception’ envisaged by the discretion to extend time. Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532; BC9302336 per Gleeson CJ. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635; BC8701820 (FC). Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [150] per Sulan and Layton JJ. Robinson v Craven (1994) 63 SASR 267 at 269; BC9405607 per King CJ. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [150] per Sulan and Layton JJ. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 637; BC8701820 (FC). Salido v Nominal Defendant (1993) 32 NSWLR 524 at 538; BC9302336 per Kirby P. Salido v Nominal Defendant (1993) 32 NSWLR 524 at 538–9; BC9302336 per Kirby P. See, for example, Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 520 per Ackner LJ; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 per Malcolm CJ, with whom Rowland and Franklyn JJ agreed. Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434; BC9302668 per Macrossan CJ. See Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46; BC200607692. See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; Supreme Court Rules 1987 (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7; Supreme Court Rules 1971 (WA) O 1 r 4B. See 18.7, 18.8. See 1.15, 1.16.

30.

31.

32. 33.

34. 35. 36. 37.

38. 39. 40. 41.

42. 43.

44. 45.

46.

Parsons v Doukas (2001) 52 NSWLR 162; [2001] NSWCA 128; BC200104630 at [1] per Sheller JA, at [68] per Powell JA; Whiting v JDS Engineering & Labour Services Pty Ltd [2010] NSWCA 28; BC201001029 at [16] per Basten JA, delivering the reasons of the court. (2002) 54 NSWLR 207; [2002] NSWCA 104; BC200201727 at [90], [91] (paragraph break omitted). See also at [3] per Sheller JA (‘it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff’). Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104; BC200201727 at [98]. [1999] NSWCA 210; BC9906395 at [4], [5] per Mason P, at [18] per Cole AJA (with whom Meagher JA agreed). See also Mason v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308; BC9805974 (where the appellant’s failure to provide a satisfactory explanation for his three year delay in instituting proceedings, during which he had the benefit of legal advice at regular intervals, inclined the court against extending time even though the actual prejudice to the respondent was minimal: see at 321 per Drummond J, at 334–5 per Sackville J); Rodgers v Revenue SA, Dept of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2; BC201400092 at [94]–[104] per Blue J, with whom Vanstone J concurred (extension of time refused because, beyond an eight year delay, the evidence showed a deliberate decision not to lodge a complaint against the respondent employer). As to the concepts of ‘actual’ or ‘presumptive’ prejudice see 19.27, 20.83–20.85. See 6.45, 6.46. See 21.2–21.29. See, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 351–2; BC8400645 per Wilcox J; Purton v Jackson (2013) 22 Tas R 333; [2013] TASSC 46; BC201312114 at [18]–[20], [57] per Tennent J. See 20.18. Qld s 33. NSW ss 63–68A, as to which see 2.28–2.30. See, for example, NSW s 62F(1) (applications and orders for extension may be made under Pt 3 Div 4 (extension of 12 year long-stop limitation period) as if the extinction provisions in Pt 4 Div 1 had never been in force); WA s 75(b) (which declares that extinction in relation to a person’s right and title to land (see 8.13 ) does not occur if a court extends time and the action is commenced before the expiry of the extended period). (1997) 191 CLR 471; BC9703255. Indeed, a reason why the Queensland Law Reform Commission recommended against extending its proposed legislation beyond the procedural (to the substantive) was that the New South Wales legislation (discussed in the text), ‘which requires specific provisions to ensure that a right which has been extinguished by the expiration of the limitation period can be revived so that the limitation period can be extended, is unnecessarily complex’: QLRC 53, p 19. Commonwealth v Mewett (1997) 191 CLR 471 at 509; BC9703255. It was the approach favoured by Hope JA, pre-Mewett, in Commonwealth v Dixon (1988) 13 NSWLR 601 at 610, and endorsed by Wood CJ at CL, post-Mewett, in Hetherington v Mirvac Pty Ltd (1999) Aust Torts Rep ¶81-514; [1999] NSWSC 443; BC9902764 at [236], [237] (who opined that it gives proper effect to NSW s 63(1)). Commonwealth v Mewett (1997) 191 CLR 471 at 516 per Toohey J, at 532–3 per McHugh J; BC9703255.

47. 48. 49. 50. 51. 52. 53.

54.

55. 56. 57.

58.

59.

The judgments of the remaining members of the court, Brennan CJ, Kirby and Gummow JJ, throw no further light on this issue. Commonwealth v Mewett (1997) 191 CLR 471 at 530; BC9703255. Hetherington v Mirvac Pty Ltd (1999) Aust Torts Rep ¶81-514; [1999] NSWSC 443; BC9902764 at [238] per Wood CJ at CL. Which is the core principle that governs costs in most civil litigation: see G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013, Ch 7. See, for example, O’Halloran v Visy Board Pty Ltd [2004] QSC 123; BC200402874 at [23] per Holmes J; Cork v AAL Aviation Ltd [2014] FCA 1085; BC201408357 at [72], [73] per Foster J. See G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013, pp 448–53. (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [121], with whom Meagher and Handley JJA and Brownie AJA agreed. See also Yu v Speirs [2001] NSWCA 373; BC200106751 at [28] per Rolfe AJA, with whom Beazley JA and Ipp AJA concurred; Commonwealth v Lewis [2007] NSWCA 127; BC200704314 at [94] per Beazley JA, with whom Santow and Ipp JJA concurred; Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [38] per Giles JA, with whom Ipp and Macfarlan JJA concurred; Kertz v Kertz [2010] FamCA 975; BC201051094 at [80] per Le Poer Trench J; Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895; BC201005700 at [22] per Studdert AJ; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498; BC201107669 at [31], [32] per Mukhtar AsJ (ordering the plaintiff to pay the costs of his successful application to extend time, but refusing to order those costs on an indemnity basis, even though the applicant had delayed making the application to extend time until the morning of the hearing, notwithstanding being alerted to the issue by the defendant in advance; his Honour was unable to brand the plaintiff’s default as a delinquency sufficient to justify indemnity costs’: at [32]); Cox v Keys [2012] NSWCA 268; BC201206443 at [55] per Marfarlan JA, with whom McColl JA agreed; Afarin v Excelior Pty Ltd (2013) 16 DCLR (NSW) 279; [2013] NSWDC 65; BC201340098 at [26]–[38] per P Taylor SC DCJ. [2005] NSWCA 478; BC200511378 at [160] per Santow JA, with whom Handley JA agreed. See also Williams v Commonwealth of Australia [2007] NSWSC 1342; BC200710956 at [12] per Adams J; Kertz v Kertz [2010] FamCA 975; BC201051094 at [83] per Le Poer Trench J. Commonwealth of Australia v Smith [2006] HCA Trans 242 per Callinan J. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [104], with whom Meagher JA agreed. Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [160] per Santow JA, with whom Handley JA agreed; Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [146] per Basten JA. See also Eastbury v Genea Ltd [2015] NSWSC 198; BC201501410 at [28] per Hall J. While there are judges who have spoken, in this regard, of the applicant not being ‘at fault’ (see, for example, Williams v Commonwealth of Australia [2007] NSWSC 1342; BC200710956 at [5] per Adams J) — construing Sheller JA’s reference in Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [121] to an applicant who has ‘allowed him or herself to get out of time’ as intended to factor into the costs issue an inquiry into ‘fault’ — the tide of case law suggests otherwise: see, for example, Galea v Commonwealth (No 2) [2008] NSWSC 260; BC200802617 at [11] per Johnson J; Dibley v Sydney West Area Health Service [2009] NSWSC 856; BC200907825 at [76] per James J; Eastbury v Genea Ltd [2015] NSWSC 198; BC201501410 at [30] per Hall J. Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at

60.

61.

62. 63. 64. 65.

66.

67.

[148], [149] per Basten JA. See, for example, Crerar v Parkes (No 2) (2005) 15 Tas R 147; [2005] TASSC 93; BC200507170 at [11], [12] per Crawford J; Dibley v Sydney West Area Health Service [2009] NSWSC 856; BC200907825 at [79] per James J; Yousefi v Commonwealth of Australia [2012] NSWSC 967; BC201210505 at [108]–[110] per Davies J (who ordered that the costs be the defendant’s costs in the cause — such that if the defendant succeeded, it would get the costs of the interlocutory proceedings, but would not have to pay the plaintiff’s costs of those proceedings if it failed — to reflect that the plaintiff acted unreasonably in the way the application was run); Eastbury v Genea Ltd [2015] NSWSC 198; BC201501410 at [37], [38] per Hall J. Cf Shoobert v Baptist Community Services NSW & ACT Ltd [2011] ACTSC 152; BC201106922 at [67] per Harper M (who applied the rule that ‘the plaintiff comes to the court seeking an indulgence and must bear the costs of the application’, but having regard to the plaintiff’s position as an unemployed individual, and that of the defendant, a company with the benefit of insurance, ordered that those costs not be recoverable until the making of final orders in the action). See, for example, Michelotti v Roads Corporation (2009) 26 VR 609; [2009] VSC 195; BC200904026 at [39] per Cavanough J (where the resistance to the application could not be described as unreasonable, but as the defendant, in the public interest, felt that it required a ruling on a point of statutory interpretation, this was ‘a reason for departing from the approach that the plaintiff should pay the full costs of the obtaining of the indulgence of an extension of time’); Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895; BC201005700 at [23] per Studdert AJ (where the opposition to the application was not unreasonable, but the delay was slight and the amount involved was not large). See, for example, Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22; BC200901484 at [23] per Harper M (as ‘[t]he application has been made necessary principally by the failure of the plaintiff’s solicitors to provide proper explanation and advice to the plaintiff’, and had an extension of time been refused, ‘the solicitors would … have had no answer to a claim by the plaintiff for the loss of the opportunity to succeed in his action’, the costs of the extension application were ordered against the plaintiff’s solicitors); Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [38] per Rein J (where the solicitor did not oppose this order). Cf Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 (where the applicant was ordered to pay costs even though it was the applicant’s solicitors who were primarily at fault; the courts have, however, since become more proactive against dilatory lawyers). Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [147] per Basten JA. See, for example, Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 534; BC9003401 per Beaumont J. Qld s 39. NSW ss 56C (in the context of defamation: see 6.45–6.48), 60L (in the context of an order extending time under the secondary limitation period: see 20.49–20.55) and for latent injuries (see 20.56–20.70), 62E (in the context of extending the 12 year long-stop limitation period: see 20.73–20.77). Federal Court Rules 1979 (Cth) O 62 r 23 (superseded, with no equivalent in the Federal Court Rules 2011 (Cth)) (limited to extension of time); Court Procedures Rules 2006 (ACT) r 1729; Supreme Court Rules 1987 (NT) r 63.11(5), 63.11(9); Uniform Civil Procedure Rules 1999 (Qld) r 695; Supreme Court Civil Rules 2006 (SA) r 263(2)(b) (limited to extension of time); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.14. Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [158] per Santow JA

68. 69.

70. 71.

72.

73. 74. 75. 76.

77. 78.

79. 80. 81. 82.

(in the context of the former Supreme Court Rules 1970 (NSW) Pt 52A r 17, which read: ‘Where a party applies for an extension of time, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application’; his Honour stated that r 17 ‘applies to procedural matters arising under the Rules (for example, an extension of time to lodge a notice of appeal) and has no application to proceedings under a statute for the extension of a limitation period’); Eastbury v Genea Ltd [2015] NSWSC 198; BC201501410 at [20] per Hall J. Bladel v Russell Allport (FC(Tas), 12 November 1964, unreported) at 1 per Gibson ACJ. See, for example, Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [38]–[40] per Giles JA, with whom Ipp and Macfarlan JJA concurred (but ordered, without giving clear reasons, that the costs at first instance be paid by the applicant). See, for example, Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10; BC200900447. (1936) 55 CLR 499 at 504–5; BC3690121. See also Mace v Murray (1955) 92 CLR 370 at 378; BC5500670 (FC); Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; BC200104963 at [45] per Heydon JA, with whom Sheller JA and Studdert AJA agreed. Essentially the same principles find statutory expression in Tasmania: Supreme Court Civil Procedure Act 1932 (Tas) s 45(1). Norris v McGeachy [2010] TASFC 4; BC201004109 at [29] per Blow J, with whom Evans and Tennent JJ concurred (in the context of the Supreme Court Civil Procedure Act 1932 (Tas) s 45(1)) (though accepting (at [32]) that it is possible for a judge to attach so much weight, or so little weight, to a particular factor that he or she proceeds ‘on a wrong principle’: see, for example, Marr v Green (SC(Tas), Zeeman J, 28 April 1992, unreported), reversed on appeal Marr v Green (1993) 14 Tas R 317; BC9300182, where the trial judge proceeded on a wrong principle by attaching undue weight to the delay on the part of the applicant; but on the facts in Norris no such error had been identified: at [42]). Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [108] per Campbell JA. See, for example, NSW s 60G(2) (see 20.67); Vic s 23A(2) (see 20.2). Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 617; BC9506626 per Phillips JA, with whom Tagdell and Callaway JJA concurred. Gilmore v Waugh [2012] NSWCA 263; BC201206311 at [56] per Macfarlan JA, with whom Campbell and Meagher JJA concurred. Cf Salido v Nominal Defendant (1993) 32 NSWLR 524 at 539; BC9302336 per Kirby P. Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [1] per Giles JA. Following the approach espoused by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 at 551–3; BC7900040 in the context of an appeal trial judge’s findings relating to negligence in a motor vehicle accident. [2009] NSWCA 56; BC200901703 at [91]–[111]. See, for example, NSW s 60I(1)(a)(ii) (discussed at 20.64). Eijkman v Magann [2005] NSWCA 358; BC200509346 at [98] per Giles JA, with whom Hodgson JA and Hunt AJA concurred. Pizer v Ansett Australia Ltd [1998] QCA 298; BC9805248 at [20] per Thomas JA, cited with approval in HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; BC200905088 at [45] per Keane JA (see also at [69] per Fraser JA) and State of Queensland v RAF [2012] 2 Qd R 375; [2010] QCA 332; BC201008860 at [51], [52] per McMeekin J, with whom

83.

Margaret McMurdo P and White JA concurred. See also Salido v Nominal Defendant (1993) 32 NSWLR 524 at 539; BC9302336 per Kirby P; Brisbane Regional South Health Authority v Taylor (1996) 186 CLR 541 at 569; BC9604531 per Kirby J (dissenting, but not on this specific point). Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [111].

[page 380]

CHAPTER 19

General Discretion to Extend Time — Northern Territory and South Australia Operative Provision Scope of discretion Application to time bars imposed by other legislation Constraints on discretion Pleading Extension of Time The ‘Qualifying Condition’ First alternative condition: ascertainment of ‘material facts’ by the plaintiff Breadth of statutory language favouring the plaintiff Constraint on liberality via concept of ‘material’ fact — South Australia ‘Ascertainment’ of a material fact Second alternative condition: delay caused by representations or conduct by the defendant Additional condition: ‘it is just to grant the extension of time’ The Discretionary Stage Factors relevant to exercise of discretion

19.1 19.1 19.3 19.6 19.10 19.12 19.13 19.14 19.15 19.19 19.21 19.22 19.23 19.24

Weight given to prejudice to defendant Delay being attributable to plaintiff’s lawyer

19.26 19.32

Operative Provision Scope of discretion 19.1 The Northern Territory and South Australian limitations statutes confer on the court a power to extend time, which is confined neither to particular causes of action, nor to time bars imposed by limitations legislation itself. Elsewhere, curial discretion to extend time is confined to specific causes of action or scenarios, in particular vis-à-vis personal injury claims, which context dictates a need to address the relevant provisions in a discrete fashion.1 The ‘expansive’ approach adopted in the Northern Territory and South Australia merits its own treatment, notwithstanding the overlap as to factors that may be probative on the issue of [page 381] extending time in other jurisdictions, and is the subject of this chapter. The core sub-section in the South Australian Act, s 48(1), is expressed in the following terms:2 Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for — (a) instituting an action; or (b) doing any act, or taking any step in an action; or (c) doing any act or taking any step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

The parallel Northern Territory provision, s 44(1), is identical except that it refers to ‘this or any other Act, or an instrument of a legislative or administrative character’ and vests the discretion as the court ‘thinks fit’. Neither difference is one of substance. In particular, the exercise of a ‘judicial’ discretion, as found in s 44(1), by definition invites inquiry into the

justice of the case. A distinction of potentially greater substance is that, while the provisions in each jurisdiction use the term ‘action’, they define it differently. In South Australia ‘action’ is defined to include legal proceedings of all kinds,3 which has been interpreted as not confined to court proceedings.4 This interpretation is arguably not open in the Northern Territory, as ‘action’ is for this purpose defined to include ‘any proceeding in a court of competent jurisdiction’.5 19.2 In neither jurisdiction, however, do the terms of the operative provision prescribe or limit who must take the relevant step or institute the action. As the statutory language speaks in the passive voice of taking a step and instituting an action, there is no reason for reading into the section words limiting its operation to where it is the plaintiff who is required to take the step or to institute the action.6

Application to time bars imposed by other legislation 19.3 As foreshadowed above, the operative Northern Territory and South Australian provision that gives a court power to extend time is expressed to apply not only to time bars imposed by the limitations statutes themselves, but to time bars in other statutory instruments. This does not, however, dictate that every time bar imposed in another statutory instrument must yield to the court’s limitations-sourced power to extend time. The latter is rendered inapplicable in circumstances where the other statutory instrument itself makes clear provision for a power to extend time;7 the targeted (extension) provision prevails over the general (extension) provision. For example, in Johnson v Northern Territory of Australia8 the issue was whether the two month time bar specified in s 162(1) of the Police Administration Act 1978 (NT) — which requires that an action against the Territory for vicarious liability in tort or a prosecution against a member for an offence be ‘commenced within two months after the act or omission [page 382]

complained of was committed, and not otherwise’ — could be extended pursuant to s 44(1) of the Limitation Act 1981 (NT). The Supreme Court of the Northern Territory, in a Full Bench decision, ruled that as s 162(1) of the 1978 Act made no provision for extension of time, the general words of s 44(1) of the Limitation Act had application. Their Honours refused to construe the words ‘and not otherwise’ in s 162(1) as a statutory ouster of the s 44(1) discretion, suggesting that something more explicit was necessary for this purpose. The defendant argued that the s 162(1) cause of action was conditional upon compliance with the two month time limit and was extinguished upon its expiry, no doubt in an attempt to deprive the court of jurisdiction for the purposes of s 44.9 The court refused to construe s 162(1) in this manner; in making no reference in its terms to extinguishing the cause of action, it served to bar the remedy but not the right.10 Moreover, their Honours reasoned, it was ‘most unlikely that the legislature intended to create such a tight timeframe with no capacity for such grave injustices to be remedied’.11 19.4 The position differs where, in the particular piece of legislation, there is an evident expression of intent by the legislature that the s 44(1) discretion is inapplicable. A power to extend time found in another statute presents as the most evident illustration in this context. But a legislative intent against the availability of an extension of time, including one that can be necessarily inferred, may produce the same effect. For example, in Drover v Northern Territory of Australia12 the issue before the Northern Territory Court of Appeal was whether the s 44(1) power to extend time could apply to s 19(3) of the Local Court Act 1999 (NT). The latter states that ‘[a] party to a proceeding may, within 14 days after the day on which the order complained of was made, appeal to the Supreme Court from an order of the Court (other than a final order) in that proceeding, with the leave of the Supreme Court’. While s 19(3) made no reference to provision for an extension of time, the court noted that the two preceding sub-sections — dealing with appeals from final orders — envisaged scope for curial extension of time. This differential treatment, in s 19, of appeals from final orders (s 19(1), 19(2)) as compared to appeals from non-final orders (s 19(3)) led the court to conclude that s 19(3) revealed ‘a clear expression of intention’ that s 44(1) should have no application.13

19.5 The above provision for extending time is, moreover, expressed not to affect ‘a rule of law or equity under which a limitation period affecting a right to bring an action may be extended or within which an action may be brought notwithstanding the expiration of the limitation period’.14

Constraints on discretion 19.6 What otherwise appears to be an unfettered discretion in the above operative provision is constrained in four main ways, deriving chiefly from it being expressed to operate ‘[s]ubject to this section’. First, the section adds that a court may exercise this power in respect of an action that it ‘has jurisdiction to entertain’ or ‘would, if the action were not out of time, have jurisdiction to entertain’.15 Although not ostensibly a confining provision — it is, after all, expressed in facultative terms — the foregoing has been interpreted as a reflection of the distinction ‘between a time limitation which is attached to the cause of action so that upon [page 383] expiration of the time the cause of action is extinguished and the time limitations contained in [limitations statutes] which bar the remedy but leave the cause of action intact’.16 Where statute extinguishes a cause of action (or right) as a result of the expiry of time, as opposed to merely barring the remedy, the court lacks jurisdiction to entertain the matter (unless it is retained by statute expressly or by necessary implication). It follows that the above operative provision has no application once the cause of action is extinguished. 19.7 Secondly, the operative provision is expressed not to apply to criminal proceedings.17 Nor does it apply to an action on a cause of action for defamation, a point made explicit in the Northern Territory18 but that is nonetheless implicit in the South Australian statutory scheme.19 19.8 Thirdly, and most importantly, the exercise of the discretion to extend time, so far as it relates to a limitation period prescribed by the limitations

legislation, is premised on the court being satisfied that in all the circumstances of the case it is just to grant the extension of time and that either:20 •

the plaintiff did not ascertain facts material to his or her case until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the plaintiff’s ascertainment of those facts; or

•

the plaintiff’s failure to institute the action within the limitation period resulted from representations or conduct of the defendant (or someone the plaintiff reasonably believed was acting on the defendant’s behalf), and was reasonable given the representations, conduct and other relevant circumstances.

The Northern Territory and South Australian case law focusing on the above constraint (judicially described as ‘the qualifying condition’)21 is addressed below under a separate heading.22 19.9 Fourthly, the South Australian provision was amended, prospectively as to actions arising from 1 May 2004, to prescribe criteria to which the court must have regard in determining whether it is, in all the circumstances of a case, ‘just’ to grant an extension of time.23 The criteria in question are the following: •

the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial;

•

the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums;

•

the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and

•

any other relevant factor. [page 384]

With perhaps the exception of the second of the above criteria, the existing understanding of the factors that inform a court’s discretion to extend time24 are largely reflected in the foregoing, especially given the final catch-all criterion.25 Accordingly, the pre-1 May 2004 cases addressing the exercise of curial discretion to extend time in South Australia (and also the Northern Territory) remain relevant, and are discussed under a dedicated heading below.26 For the same reason, although the facts listed in the above amendment appear to be confined to time bars set by the limitations legislation27 as opposed to other legislation, their substantial confluence with factors identified by courts as influencing the exercise of an otherwise unfettered discretion to extend time suggests no great diversion in the legal position as between these two scenarios.

Pleading Extension of Time 19.10 In the Northern Territory and South Australia statute envisages that where an extension of time is sought, the action may nonetheless be instituted in the normal manner, but adds that the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time.28 To cast on the plaintiff the onus of making this endorsement is anomalous in one sense, because when the process is issued it is not known whether the limitation bar will be pleaded; the latter is, after all, a decision within the domain of the defendant.29 What the endorsement requirement aims to ensure is that the defendant is put on notice that ‘the claim is belated and that the appropriate discretionary dispensation will be sought’.30 This better positions the defendant to prepare a suitable response, after investigating the plaintiff’s assertions, and accordingly serves an ‘ameliorative’ purpose31 by way of a ‘procedural’ requirement.32 19.11 In line with its ‘ameliorative’ purpose and ‘procedural’ nature, a failure to make the endorsement is not fatal to the plaintiff’s application. As a matter of law, it remains necessary for the defendant to plead the time bar,33 and so the plaintiff’s non-compliance with this procedural requirement does not de facto extinguish the cause of action.34 Nor is it a precondition to the jurisdiction of the court, such that absent endorsement, the originating

process is a nullity. It stands to reason, accordingly, the plaintiff may obtain leave to amend the initiating process, which had not borne the endorsement, so as to add it.35 [page 385]

The ‘Qualifying Condition’ 19.12 As noted earlier, the general discretion to extend time found in the Northern Territory and South Australian limitations statutes is, when it comes to time bars in those statutes, subject to a ‘qualifying condition’. Once that condition is met, in South Australia by reference to set criteria,36 the curial discretion to extend time is ‘virtually unrestricted’,37 except that it must be exercised judicially (in South Australia, referring to ‘the justice of the case’). Before inquiring into the exercise of the curial discretion, which is discussed separately below,38 it is thus necessary to probe the content and parameters of the ‘qualifying condition’, which is found in s 44(3) of the Northern Territory Act and s 48(3) of its South Australian counterpart. The substance of these provisions appears from the following judicial catalogue:39 The effect of [the sub-section] is that a court may not exercise the power to extend a limitation period prescribed by the [Act] itself unless [1] it is satisfied that the plaintiff has ascertained some facts material to his or her case within the period of twelve months immediately before the commencement of proceedings or [2] that the plaintiff’s failure to institute proceedings within time resulted from some representations or conduct of the defendant. Even if satisfied of one or other of those matters, [3] the court must still be satisfied that it is just to grant the extension of time.

Hence, the above identifies two alternative conditions, which must then couple with an additional condition as a prerequisite to triggering the court’s broad discretion to extend time. Each of the three elements noted in this quote thus deserves elaboration, as appears below.

First alternative condition: ascertainment of

‘material facts’ by the plaintiff 19.13 The first alternative condition requires that the court be satisfied that the plaintiff did not ascertain facts material to his or her case ‘until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff’.40

Breadth of statutory language favouring the plaintiff 19.14 Beyond the concept of ‘materiality’, which deserves discrete treatment,41 the above statutory language has been interpreted largely in a fashion beneficial to the applicant for an extension of time (the plaintiff). First, there is nothing in that language, it seems, to preclude the satisfaction of the condition by the discovery of a material fact after proceedings are initiated, provided that this occurs before the expiration of the 12 month period.42 Giving effect to the term ‘within’, the wording ‘creates a window that closes a year after facts are ascertained’,43 aimed at preventing undue delay in bringing proceedings after the ascertainment of material facts. Indeed, there may well be occasions in which the initiation of proceedings themselves, and the various succeeding steps, will prove a catalyst for the discovery of one or more material facts. That the alternative view — whereby the material facts must be ascertained [page 386] before proceedings are commenced44 — may create inconvenience or harshness, requiring the plaintiff, on ascertaining the material facts, to discontinue and then commence another action afresh, speaks against such a construction. The latter, in any event, misaligns with the object of civil procedure reforms directed at the quick and cheap resolution of disputes.45 Secondly, the High Court has refused to read into the first alternative condition any further requirement that there be some interaction between

the material fact and the decision to sue. To introduce notions of this kind, it feared, would invite an examination of the subjective workings of the plaintiff’s mind, which would in turn ‘complicate the court’s task and impede rather than advance the purpose of the Act’.46 Instead, the materiality to the plaintiff’s case is capable of satisfaction by objective inquiry. This ‘liberal approach’ to the meaning of the statutory wording, it has been suggested, makes the exercise of ultimate discretion, wherein the plaintiff’s (subjective) reasons for the delay will usually be probative, ‘all the more important’.47 Thirdly, further reflecting a beneficial construction to a (putative) plaintiff is the High Court’s endorsement of the view that the ascertainment of material facts must be by the plaintiff personally.48 Ascertainment by the plaintiff’s agent — say, by the plaintiff’s solicitor or, for a plaintiff under a disability under the care of a parent, by the parent — is not relevantly the ascertainment of facts ‘by the plaintiff’, according to the plain and natural meaning of that phrase. That the second alternative condition does accommodate the concept of agency — via the words ‘or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant’ — also speaks against any agency approach under the first alternative condition. The focus on the plaintiff’s personal ascertainment of material facts derives further support from the omission in the statutory wording of anything capable of invoking notions of constructive knowledge, which would have been open to the legislature to prescribe (and can be found in some other jurisdictions).49 Fourthly, by requiring the ascertainment of a material ‘fact’, the legislation, it seems, excludes as a triggering event the ascertainment of an ‘opinion’. So, it has been suggested, the receipt of advice from counsel that the plaintiff has a good cause of action cannot be regarded as the ascertainment of a material fact; it is counsel’s opinion.50 Yet the distinction between material fact and professional opinion is not ultimately determinative, outside of legal advice. Reports by treating medical practitioners are, after all, often pleaded, and accepted, as material facts in this context, despite expressing an opinion.51 [page 387]

Fifthly, the first alternative condition refers to the ascertainment of facts material to the plaintiff’s ‘case’, not to the plaintiff’s ‘cause of action’. As the word ‘case’ has a wider purview than the phrase ‘cause of action’ — it can comprehend ‘all evidence, law and argument to be relied on in court by the party concerned’52 — it could encompass a correspondingly broader range of matters that a plaintiff may have yet to ascertain, and thereby provide a broader range of triggers to meet the statutory threshold.

Constraint on liberality via concept of ‘material’ fact — South Australia 19.15 Prior to its amendment in 2004, the regime for extension of time in South Australia was amongst the most liberal in Australia (a characterisation that remains extant vis-à-vis the parallel Northern Territory provision, which has seen no similar amendment). This was because, beyond the beneficial construction of the statutory language in favour of an applicant for extension of time discussed above,53 the concept of a ‘material fact’ had been diluted to an extent of providing little by way of a genuine hurdle to such an applicant. In many ways, the courts had little option but to adopt a low hurdle, as the South Australian provision omitted (and the Northern Territory provisions continues to omit) many of the qualifications found in ‘material fact’ provisions elsewhere.54 For instance, unlike the parallel English provision,55 it did not require that the material facts be of a ‘decisive character’, made no reference to constructive knowledge or to seeking appropriate advice, and did not oblige due diligence in seeking to discover at an earlier time the facts in question.56 The latter, in particular, led Bray CJ in Napolitano v Coyle to observe that:57 [a] plaintiff may still be entitled to ask the court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases, may not be of great significance, has left all the rest to the discretion of the court.

19.16 Nor, as noted earlier, did the relevant inquiry involve any consideration of whether it affected the plaintiff’s decision to sue.58 That the

foregoing appeared to frustrate the intent of the relevant provision did not pass unnoticed by members of the judiciary, as appears from the following remarks by Cox J in 1995:59 Everyone now understands that the test for an ascertained material fact … is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and

[page 388] imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways.

19.17 Responding to these concerns, the South Australian Parliament amended s 48 of the Limitation of Actions Act 1936, as from 1 May 2004,60 to restrict extensions of time. In line with the above remarks, the Second Reading Speech noted that extensions were ‘readily available’ and that ‘the necessary new material fact [could] readily be found, often in the form of a new medical report’. The latter occurred in the leading case, Sola Optical Australia Pty Ltd v Mills,61 where the material fact surfaced in a report containing a surgeon’s opinion that, notwithstanding some improvement, the plaintiff continued to suffer an 80 per cent loss of arm function. The High Court held that, while the plaintiff had knowledge of the disabilities she suffered, it was material to her case to learn their effect on her capacity to function expressed in terms of a percentage loss of function. This gave rise to a new material fact, as opposed simply the appreciation of a fact already known to the plaintiff, which the defendants had alleged.62 It was accordingly desirable, the Second Reading Speech responded, ‘to refocus the law so that extensions are not granted just because a new relevant factor has been discovered’. This shortcoming was addressed by inserting s 48(3a), which states that a fact is not to be regarded as ‘material’ to the plaintiff’s case unless ‘(a) it forms an essential element of the plaintiff’s cause of action; or (b) it would have major significance on an assessment of the plaintiff’s loss’. In the sub-section is found an example, involving a personal injury case, in which a fact might qualify as ‘material’ if it

establishes ‘(a) a substantial reduction of the plaintiff’s capacity to work; (b) that the plaintiff will require substantially more medical care than previously expected; or (c) a significant loss of expectation of life’. 19.18 The foregoing, it has been said, ‘quite radically restrict[s]’ the approach to determining ‘whether a fact or facts not ascertained by the plaintiff within the limitation period is or are material to his/her case’.63 The new sub-section represented a shift from the prevailing interpretation of the ‘material fact’ provision, which spoke of a fact ‘relevant to the issues to be proved if the plaintiff is to succeed’ and ‘of sufficient importance to be likely to have a bearing on the case’.64 Relevance has yielded to the need for ‘an essential element’ of the cause of action [page 389] (s 48(3a)(a)), and sufficient importance has now been invigorated by ‘major significance’ (s 48(3a)(b)). As to the latter, Blue J in Ireland v Wightman observed the following:65 The court is required to perform an evaluative exercise to determine whether the fact would have ‘major significance’ on an assessment of the plaintiff’s loss. This does not require that the impact be high (or any other specific level) in both absolute and relative terms. It is simply a matter of weighing holistically the significance of the fact on the assessment considering its relative and absolute impact on the assessment of loss. In construing the words ‘major significance’, it is appropriate to give consideration to the examples which appear below and are part of subsection (3a). The examples may extend, but do not limit, the meaning of the provision and in particular of the words ‘major significance’.

His Honour’s decision was affirmed on appeal, where Parker J, with whom Vanstone and David JJ agreed, identified the clear effect of s 48(3a)(b) as ‘to require a comparison between the assessment of the plaintiff’s loss without the newly discovered facts being known and the assessment after those facts were ascertained’, and considered that the statutory test will be met ‘if there would be a major (ie very important) difference between the two assessments’.66 His Honour did not envisage an inquiry involving ‘a precise mathematical or numerical exercise’, as extension applications are often determined as a preliminary question, when there is likely to be insufficient information available to conduct a reliable mathematically based assessment

of potential damages. He did, however, conceive that a numerical exercise could sometimes be helpful ‘where the available evidence permits’.67

‘Ascertainment’ of a material fact 19.19 The Northern Territory and South Australian provisions premise the extension of time upon, inter alia, the court being satisfied that that material facts were not ‘ascertained’ by the plaintiff within a set time frame. The word ‘ascertained’, it seems, invites an inquiry into whether some fresh circumstance has come to the knowledge of the plaintiff.68 As that fresh circumstance (‘fact’) must be of a ‘material’ kind, the diverging thresholds for materiality in the Northern Territory and South Australia impact upon that which a plaintiff must have ascertained. 19.20 In both jurisdictions, though, the test of ascertainment requires at least some degree of subjectivity,69 gleaned from the statutory reference to material facts being ascertained ‘by him’ (that is, the plaintiff). It also appears from the absence, mentioned earlier, of any due diligence requirement on the plaintiff’s part in ascertaining material facts.70 At the same time, were subjectivity allowed a free reign here, this would not only require a court to embark on the difficult and burdensome exercise of inquiring into the plaintiff’s mind and making a determination solely on that basis, it would give the plaintiff an unjustifiably large avenue — even on the more stringent ‘material fact’ concept in South Australia — to be entirely obtuse. For instance, it could allow a misreading or misunderstanding of facts squarely before the plaintiff and, absent any compelling evidence to the contrary, suffice to enliven the [page 390] discretion.71 A need for some objectivity here is necessary, it has been reasoned, to achieve the balance between plaintiff and defendant interests underscored by limitation legislation,72 a point elaborated as follows:73 The object and purpose of the section must serve the dual purpose of ensuring that plaintiffs are not shut out of a meritorious claim by inflexible time limits, and affording protection to a defendant in relation to stale claims. In applying a subjective test, a plaintiff, no matter how

mistaken on the facts as presented before him, would be eligible to seek relief under the section. This flies in the face of the broad rationales which are said to underlie the enactment of limitation periods. They support the notion that a plaintiff’s interests in seeking an extension of time must be viewed with respect to the protection afforded to a defendant from actions being brought against it out of time. The [section] has regard to the fact that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it occurred and that it is desirable for people to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them after a certain time. It also has regard to the fact that the public interest requires that disputes be settled as quickly as possible and that as time goes by, relevant evidence is likely to be lost.

Second alternative condition: delay caused by representations or conduct by the defendant 19.21 The second alternative condition requires the court to be satisfied, as a prerequisite to the exercise of its discretion vis-à-vis an extension of time, that the failure to institute the action within time resulted from the defendant’s representations or conduct (or those of someone whom the plaintiff reasonably believed to be acting on the defendant’s behalf), ‘and was reasonable in view of those representations or that conduct and other relevant circumstances’.74 The causative link stemming from the phrase ‘resulted from’ does not mandate that the defendant’s conduct be the sole explanation for the failure to proceed within time.75 But at the same time, a weak causative relationship may undermine the reasonableness of the relevant alleged reliance.

Additional condition: ‘it is just to grant the extension of time’ 19.22 Beyond meeting one of the alternative conditions, a court is only empowered, as a matter of jurisdiction, to extend a time bar prescribed by limitations legislation if satisfied that, in all the circumstances of the case, ‘it is just to grant the extension of time’.76 In other words, if the court is satisfied that extending time is ‘just’, it has jurisdiction to exercise discretion to extend time conferred by the main operative provision.77 There is nonetheless an evident confluence between the jurisdictional and discretionary stages, because if the court concludes, at the jurisdictional

stage, that an extension of time is ‘just’, this will invariably translate to the exercise of its judicial discretion to extend time (albeit exercised to an extent, and on terms, that the justice of the case requires; in the Northern Territory, as the court thinks fit).78 [page 391] The very nature of judicial discretion, premised on the justice of the case,79 similarly speaks to a confluence between the jurisdictional and discretionary stages. The focus on being ‘just’, at either stage, suggests that individualised justice is the object,80 balancing the interests of plaintiff and defendant.81 Although the relevant provision speaks in terms of it being ‘just’ to extend time, as opposed to ‘just and reasonable’ to do so,82 a lack of reasonableness by the plaintiff — such as where, in the words of Bray CJ extracted earlier, ‘he has been supinely inactive’83 — may be a factor inclining the court against exercising its discretion.84

The Discretionary Stage 19.23 As noted above, the Northern Territory and South Australian legislation reserves in the court a discretion to determine whether or not to extend time, which as to time bars prescribed by the limitation statutes (but not those imposed by other applicable statutes) is subject to ‘jurisdictional’ prerequisites.85 In South Australia, also, the limitations legislation directs the court to have regard, at the ‘jurisdictional’ stage, to listed factors in determining whether it is, in all the circumstances of a case, ‘just’ to grant an extension of time.86 Given that what is ‘just’ similarly informs the discretionary stage,87 these factors, which largely reflect core factors identified by the courts as relevant to the exercise of an otherwise unfettered discretion to extend time,88 are equally pertinent in that context.

Factors relevant to exercise of discretion 19.24

Northern Territory and South Australian courts have identified

various factors that inform the exercise of an unfettered discretion to extend time, whether or not under limitations legislation, namely:89 •

the length of the delay;

•

the explanation for it;

•

the hardship to the plaintiff were the action dismissed;

•

the prejudice to the defendant were the action allowed to proceed notwithstanding the delay;

•

the conduct of the defendant in the litigation;

•

the conduct of the plaintiff;

•

the nature, importance and circumstances ascertainment of the new material facts; and

surrounding

the

[page 392] •

the extent to which, having regard to the delay, the evidence is likely to be less cogent then if the action had been brought within the time allowed.

Just as the above catalogue is not exhaustive, care is needed, it has been judicially cautioned, ‘not to elevate such lists beyond what is helpful into a judicial straitjacket’.90 The latter reflects the basic tenet that judicial discretion must not to be fettered by absolute or inflexible rules, but instead be governed by the interests of justice in each case — phrased by the High Court in terms of whether there can be a ‘fair’ trial91 — in the particular circumstances of that case.92 Regard to these factors thus informs, to a greater or lesser extent depending on the case, an assessment of the justice or otherwise of extending time. It stands to reason that the weight to be afforded to any particular factor varies from case to case. 19.25 It should also be understood that the listed factors are not necessarily mutually exclusive but may inform one another. For instance, the conduct of the defendant could be one of the reasons for the delay. Also, the

length of delay, in its influence on the exercise of the court’s discretion cannot, in the bulk of cases, be treated as independent of the reasons for the delay or prejudice to the defendant.93 Considerable delay may incline the court against extending time in the face of specific evidence of prejudice to the defendant,94 but may not necessarily have this effect absent actual prejudice.95 The latter explains, in a substantial way, the incidence of cases where the courts have granted relief despite long delays.96

Weight given to prejudice to defendant 19.26 Although judges have repeatedly said that, in the exercise of discretion on the question of extending time, the weight accorded to different factors will vary from case to case, it is evident from perusing the case law that the presence or absence of real prejudice to the defendant is commonly an important consideration. Broadly speaking, ‘prejudice’ for this purpose speaks to whether the defendant can secure a fair trial. In turn, its focus is on, inter alia, whether or not the delay is likely to have deprived the defendant of evidence, probative to the defence, that would have been available had the claim been brought within time. 19.27 Speaking of ‘real’ (sometimes termed ‘actual’) prejudice here distinguishes it from what has been described as ‘presumptive’ prejudice, namely the prejudice a defendant is presumed to suffer merely because of delay in pursuing the action.97 It reflects the common sense notion that, with the expiry of time, memories of relevant events may become less reliable, and there is a risk that relevant evidentiary material may have been lost as may the opportunities [page 393] for inspection and report.98 While ‘real’ prejudice may no doubt overlap substance-wise with ‘presumptive’ prejudice, it is established to the court’s satisfaction on the facts in question, as opposed to simply being presumed. It is thus usually accorded greater weight than presumptive prejudice when it comes to addressing matters of prejudice to the defendant in an extension

application. 19.28 Generally speaking, absence of real prejudice to the defendant may incline the court to extend time, at least if the delay can be adequately explained and was not the result of a deliberate decision. In Pomeroy v Thwaites Witham Pty Ltd99 the plaintiff issued proceedings more than six years after the alleged torts of conversion and negligence,100 and thus sought an extension of time to sue. What ultimately prompted the Full Court of the South Australian Supreme Court to grant the application, albeit in what one judge described as a case ‘very close to the borderline’,101 was that the defendants could not identify any real prejudice that they might suffer were time extended, and could rely only on presumptive prejudice. What spoke against real prejudice was that, inter alia, the defendants had notice of the plaintiff’s wish to pursue a claim well before the expiry of the limitation period, making it reasonable to have taken steps to secure relevant material and to have reflected on the relevant events.102 19.29 That the defendant in A, DC v Prince Alfred College Inc103 was on notice for many years of the events giving rise to the plaintiff’s claim, and of the plaintiff’s claim for assistance, influenced the decision of the same court to extend time, as much of the evidence that had been lost remained within the defendant’s control, or could have been readily obtained or preserved by it over the passage of time. The policy is clear: a defendant who is legitimately on notice of a potential claim (especially a serious one, such as in A, DC involving child sexual abuse allegations) but omits to preserve relevant records (or worse, destroys them) cannot be heard to plead undue prejudice thus caused by its own acts or omissions. 19.30 Conversely, presence of significant actual prejudice may prove an insurmountable hurdle to an application to extend time, as it undermines the prospect of a fair trial.104 Yet there may arise instances, albeit in unusual cases, where (some) evidence of actual prejudice to the defendant, even some significant prejudice, will not necessarily preclude an extension of time. The level of prejudice, as compared to the weight accorded to the private, and indeed sometimes public,105 interest in the matter being heard, factor into the determination. This may be so, say, where by the very nature of the claim, and sometimes also of the defendant, there is a likelihood that a body

of evidence remains in the defendant’s hands, or otherwise accessible to the defendant, sufficient to overcome the prospect of an unfair trial. In Yousefi v Commonwealth of Australia106 the plaintiff made a post-traumatic stress disorder (PTSD) claim in 2010, arising out of the plaintiff’s detention at an immigration detention centre since 2001. [page 394] Facts material to the plaintiff’s case were not ascertained until late 2009. Though conceding that the defendant would suffer actual prejudice — due to the generalised nature of some of the complaints and difficulty in identifying and locating some witnesses — Davies J found it just to extend time, for at least three reasons going to sustaining the fairness of the trial.107 First, the defendant was not being called upon for the first time to investigate events from many years earlier. The plaintiff’s husband had brought proceedings against the defendant in 2005, and many of his complaints in those proceedings mirrored the complaints made by the plaintiff in the current proceedings. Secondly, a number of the matters the subject of the plaintiff’s complaint were investigated by the Australian Human Rights Commission and its predecessor as early as 2003. Thirdly, this was not the first case brought by someone in a similar position to the plaintiff against the defendant in this regard. His Honour, although accepting that ‘the particular incidents complained of will be different from those in other cases’, responded that, to the extent that the claim is a system-failure claim, ‘there is likely to be a reliance on similar documents and witnesses in this case as in other cases’, so that the defendant ‘will not be seeking such evidence for the first time, and to that extent the problems with fading memories of witnesses do not loom so large’.108 19.31 Arguably underscoring a decision such as Yousefi is some expectation that government litigants are subject to a more exacting standard, especially when the matter involves human rights, which itself may attract some broader public dimension to the court’s inquiry. Again highlighting the heavily factually-dependent nature of judicial discretion in

this context, actual prejudice to the defendant may be outweighed, for this purpose, by some greater public interest. This is illustrated by the decision of the South Australian Full Court in State of South Australia v LampardTrevorrow,109 one of the so-called ‘stolen generation’ cases, involving the State’s forced removal of Aboriginal children from their families, on this occasion in 1957. The court accepted that delay in pursuing the action would prejudice the State, as many witnesses and documents were missing, and a number of witnesses could no longer remember relevant events. It found ‘a real risk that the trial was not fair to the State, or to those individuals whose conduct was criticised when they are no longer able to defend themselves’.110 While this type of prejudice would ordinarily have been fatal to the application, their Honours nonetheless extended time, citing the past treatment of Aboriginal children (like the plaintiff), which had proven a matter of national concern and controversy. The public interest dimension, to this end, is evident from the following remarks by the court:111 … there is a definite public interest in persons like [the plaintiff] being able to have their claims decided by a court. The widespread concern about the policies of the past, and about the manner in which they were administered, support the circumstances being exposed to public scrutiny, and the court having the ability to consider what was done, whether it was done validly and properly, and with what consequences. That public interest, in this context, is an interest of justice.

This public interest, held their Honours, tilted the scales in favour of the discretion being exercised to grant an extension of time, the prejudice to the State being outweighed by the interests of justice.

Delay being attributable to plaintiff’s lawyer 19.32 A common explanation for failing to proceed within time is to attribute the responsibility for the delay to the plaintiff’s legal adviser(s). It has been judicially observed that [page 395] ‘there may be a distinction between delay for which the plaintiff is personally

responsible and delay for which his solicitors alone are responsible’, in the sense that the former ‘will operate more severely against him than the latter when the question of hardship is being considered’.112 Although, as a matter of principle, clients are bound by the acts (or omissions) of their lawyers, within the latters’ authority, a reason for delay that ostensibly exculpates the plaintiff should not, in fairness and justice, always be shafted to the plaintiff.113 That, due to the usual knowledge and experience imbalance between lawyer and (plaintiff) client, it is ordinarily entirely reasonable for the plaintiff to rely on the lawyer to proceed with the matter according to law, affords this reason for delay some weight. Hence the statement that ‘if the plaintiff bears no personal responsibility for the delay, or very little, a more favourable view should be taken to exercising the discretion to extend time in his favour’, albeit subject to the findings in relation to the other factors placed in the context of the general purpose of the extension provision.114 This latter qualification is important; while it may be unfair to throw upon a plaintiff the consequences of his or her lawyer’s oversight or negligence, it would be equally unfair to extend time in these circumstances if, in particular, this would expose the defendant to considerable actual prejudice. After all, from the perspective of the defendant, the prejudice caused by delay is the same irrespective of whom was responsible for it. If the delay will sound in no more than minimal actual prejudice to the defendant, the court may well grant an extension of time if the plaintiff was not primarily responsible for the delay. 19.33 But if the actual prejudice to the defendant is more substantial, the court is faced with a difficult exercise in achieving fairness and justice as between the parties, neither of whom have been at fault. Bearing in mind that each case must rest on its facts, it may be said that the greater the likely prejudice to the defendant, the less likely it is that attributing fault to the plaintiff’s lawyer can tip the scales in the plaintiff’s favour.115 This in turn explains the argument, raised on multiple occasions in the cases, that the court, in assessing fairness and justice as between the parties, should take into account the plaintiff’s prospects of securing a monetary remedy against his or her lawyer in tort. If these prospects are good, it may be reasoned, a refusal to extend time will neither prejudice the defendant nor, in view of

the plaintiff’s (likely) recovery in tort against his or her lawyer, ultimately prejudice the plaintiff. Accordingly, neither of the primary protagonists ultimately loses out; the person responsible for the delay is instead made accountable. 19.34 Yet this ‘win-win’ approach knows few judicial supporters. Even those who countenance the relevance of a claim against the plaintiff’s lawyer in this context not only confine it to the exceptional case, but heavily downplay the weight it should receive. And even in exceptional cases — say, where the lawyer has conceded fault and is relevantly insured — it has been branded ‘a very slight and not very persuasive consideration’116 and ‘of very little significance [page 396] in deciding [an extension] application’.117 Others have, in following English authority,118 ostensibly outright rejected the relevance of an alternative claim against the plaintiff’s lawyer to the issue of whether, in fairness and justice, time ought to be extended.119 Taking into account a prospective claim against the plaintiff’s lawyer as a ground to deny an extension of time may, it is feared, prejudice the plaintiff should his or her claim against the lawyer prove unsuccessful. It is not possible, after all, on an application to extend time, for the judge to make any informed finding on the merits of that claim or to identify potential defences.120 One judge has, to this end, described it as:121 … unthinkable for me to leave open the possibility that I might reject the plaintiff’s [extension] application on the ground that he may recover from [his solicitor], only to find later that vis-àvis [his solicitor] some complete answer (not now known to me) is available to [his solicitor], leaving the plaintiff with no remedy at all.

Beyond potential prejudice stemming from an ultimately unsuccessful (or only partially successful) action by the plaintiff against his or her lawyer, there is prejudice in being ‘forced to start another set of proceedings and against a party whom one does not particularly wish to sue and to be deprived of a good cause of action against the original tortfeasor’.122 And potential prejudice to the plaintiff is not entirely ameliorated even in the

face of a cast iron case against the lawyer for the same level of damages, as there remains the inconvenience, time and cost of finding and instructing new lawyers.123 ______________________________ 1. 2.

3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15. 16.

17.

See Ch 20. What prompted the broad ranging extension provision in South Australia (enacted via the Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA), later substituted by the Limitations Amendment Act 1975 (SA)) was a recommendation by the Law Reform Committee of South Australia, Law Relating to Limitation of Time for Bringing Actions, No 12, 1970. The Committee, lamenting the absence of any general statutory provision relating to the extension of time for bringing actions, did not consider that the English amendments (found in the Limitation Act 1963 (UK)), which confined extension to certain classes of action, went far enough: p 3. The Committee, moreover, rejected the requirement that material facts be of ‘decisive character’ and instead chose the phrase material facts ‘relating to the cause of action’. SA s 3(1). See Rodgers v Revenue SA, Department of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2; BC201400092 (where a majority of the court, per Blue J, Vanstone J concurring, held that the Equal Opportunity Tribunal had power under SA s 48(1)(c) to extend the time prescribed by the Equal Opportunity Act 1984 (SA) s 93(2); contra at [163] per Stanley J, dissenting). NT s 4(1). Rodgers v Revenue SA, Department of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2; BC201400092 at [65] per Blue J, with whom Vanstone J concurred. NT s 44(6); SA s 48(6). (2014) 285 FLR 227; [2014] NTSC 18; BC201404084. On the jurisdictional point see 19.12–19.22. Johnson v Northern Territory of Australia (2014) 285 FLR 227; [2014] NTSC 18; BC201404084 at [23] per Riley CJ, Blokland and Barr JJ. As to this distinction see 2.2–2.5. Johnson v Northern Territory of Australia (2014) 285 FLR 227; [2014] NTSC 18; BC201404084 at [22] per Riley CJ, Blokland and Barr JJ. (2004) 14 NTLR 140; [2004] NTCA 11; BC200406997. Drover v Northern Territory of Australia (2004) 14 NTLR 140; [2004] NTCA 11; BC200406997 at [2]–[4] per Angel J, at [25], [26] per Riley J, at [51] per Priestley AJ. See also Patterson v Northern Territory of Australia (2001) 165 FLR 296; [2001] NTSC 93; BC200106706 at [11], [12] per Mildren J. NT s 44(6)(b); SA s 49. NT s 44(2); SA s 48(2). Robinson v Craven (1994) 63 SASR 267 at 269; BC9405607 per King CJ. As to the distinction between barring a right (or cause of action) and barring a remedy for the limitations purposes see 2.2–2.5. NT s 44(3)(a); SA s 48(3)(a). As to the exclusion of criminal proceedings from limitations time bars generally see 3.25.

18. 19.

20. 21. 22. 23.

24. 25.

26. 27.

28. 29. 30. 31. 32. 33. 34. 35.

36. 37.

38. 39. 40. 41.

NT s 44(3)(aa). Extension of time for defamation actions is addressed in NT s 44A, as to which see generally 21.2–21.29. Although SA s 48 makes no specific reference to defamation actions, specific provision in SA s 37(2) (see 21.2) to extend time in actions of that kind (with a three year time bar via extension) necessarily prevails over SA s 48. NT s 44(3)(b); SA s 48(3)(b). Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ; Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125; BC200102442 at [81] per Gray J. See 19.12–19.22. SA s 48(3b) (inserted by the Law Reform (Ipp Recommendations) Act 2004 (SA) s 76). As to the prospective application of this provision see Berriman v Cricket Australia (2007) 17 VR 528; [2007] VSC 365; BC200708253 at [19]–[22] per Forrest J. As to which see 19.23–19.34. As a result, the accuracy of the judicial observation that SA s 48(3b) ‘quite radically restrict[s] the approach to be taken to the determination of … whether it is just to extend the time for commencing proceedings’ (Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443; BC200703301 at [9] per Simpson J [affd Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947]) may be queried. See 19.15, 19.16. The language of SA s 48(3b), in referring to ‘determining whether it is, in all the circumstances of a case, just to grant an extension of time’, necessarily relates back to s 48(3), which contains the ‘jurisdictional’ condition that ‘in all the circumstances of the case it is just to grant the extension of time’ (as to which see 19.22). NT s 44(4); SA s 48(4). See 2.6–2.8. Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48; BC200100590 at [61] per Olsson J. Robinson v Craven (1994) 63 SASR 267 at 269; BC9405607 per King CJ. Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48; BC200100590 at [62] per Olsson J. See 2.6–2.8. Robinson v Craven (1994) 63 SASR 267 at 269; BC9405607 per King CJ. Reid v AGCO Australia Ltd [2000] VSC 363; BC200005635 at [37]–[53] per Ashley J; Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48; BC200100590 at [61]–[63] per Olsson J; Amaca Pty Ltd v Ridgway [2005] NSWCA 417; BC200511061 at [13] per Brownie AJA, with whom Giles and Santow JJA concurred. SA s 48(3b), as to which see 19.9. Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125; BC200102442 at [34] per Doyle CJ. See also at [77]–[82] per Gray J; Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ. See 19.23–19.34. Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [245] per White J (numbers in square brackets supplied). NT s 44(3)(b)(i); SA s 48(3)(b)(i). See 19.15–19.18.

42.

43. 44. 45.

46. 47. 48.

49. 50. 51. 52. 53. 54. 55. 56.

Ward v Walton (1989) 66 NTR 20 at 23 per Asche CJ, at 26 per Gallop J; Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084; BC200004514 at [1346] per O’Loughlin J; Dickin v BHP Billiton Ltd [2004] VSC 215; BC200403717 at [18]–[28] per Ashley J; Jones v Griggs (2007) 251 LSJS 399; [2007] SASC 394; BC200710012 at [30] per Nyland J. Dickin v BHP Billiton Ltd [2004] VSC 215; BC200403717 at [18] per Ashley J (citing from the argument of plaintiff’s counsel, which his Honour accepted). As maintained by White J in Politarhis v Westpac Banking Corporation (2008) 258 LSJS 269; [2008] SASC 296; BC200809716 at [250]. See Federal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; Supreme Court Rules 1987 (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7; Supreme Court Rules 1971 (WA) O 1 r 4B. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; BC8701820 (FC). Finlay v Silicon Industrial Pty Ltd (2003) 229 LSJS 14; [2003] SASC 236; BC200304895 at [73] per Doyle CJ, with whom Nyland and Lander JJ agreed. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 637–8; BC8701820 (FC). This view was established before the High Court’s reasons in this case (see, for example, Smith v Browne [1974] VR 842 at 845–6 per Kaye J (does not apply vis-à-vis knowledge of a parent of the plaintiff); Anisiena v H Crane Haulage Pty Ltd [1974] VR 670 at 673–4 per Starke J (does not apply vis-à-vis knowledge of a solicitor for the plaintiff) (both Victorian cases in the context of the phrase ‘not known to the claimant’ in Vic s 23A(2): see 20.2); Nielson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 (in the context of the equivalent to the current Qld s 30(1)(c)(i): see 20.105–20.108); Lovett v Le Gall (1975) 10 SASR 479 at 484 per Bray CJ, with whom Walters J agreed)) and has witnessed multiple endorsements thereafter (see, for example, Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [186] per Vanstone J; Patten v Lend Lease Funds Management Pty Ltd [2010] NTSC 51; BC201008126 at [22] per Luppino M). See, for example, s 60I(1)(b) (discussed at 20.62, 20.68–20.70). Napolitano v Coyle (1977) 15 SASR 559 at 570 per Bray CJ (in obiter). See 19.17. Lovett v Le Gall (1975) 10 SASR 479 at 486 per Wells J. See also Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ. See 19.14. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; BC8701820 (FC). UK 1963 s 1(3). The relevant South Australian provision did not include the words ‘of a decisive character’ and of ‘constructive knowledge’ by reason of a recommendation of the Law Reform Committee of South Australia: see Law Relating to Limitation of Time for Bringing Actions, Twelfth Report, 1970, p 4. At least so far as the omission of ‘constructive knowledge’ is concerned, the Committee expressed the belief that ‘constructive notice’ (which, incidentally, cannot be assumed to equate in every instance to constructive knowledge) ‘would include the knowledge of the party’s solicitor whereas it is quite frequently the mistake of the solicitor against which the proposed plaintiff wishes to be relieved in making an application for extension of time’. While the latter may be true (see 19.32–19.34), it may be queried whether such knowledge (or notice) is indeed constructive, as

57. 58.

59. 60.

61. 62.

63.

64.

65. 66.

67. 68.

69.

opposed to imputed. (1977) 15 SASR 559 at 569. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; BC8701820 (FC); Wright v Donatelli (1995) 65 SASR 307 at 309 per Cox J (opining that ‘[n]o interaction between the postulated material fact and the plaintiff’s decision to sue need be shown’, and that the words ‘sufficient to justify bringing the action’ are simply a part of a longer description of the ‘issues to be proved’ to which the fact in question must be relevant), at 319–20 per Lander J; BC9502344. Wright v Donatelli (1995) 65 SASR 307 at 310; BC9502344. Being the commencement date of the amending legislation, namely the Law Reform (Ipp Recommendations) Act 2004 (SA) s 76, which only applies to actions arising from that date: see Berriman v Cricket Australia (2007) 17 VR 528; [2007] VSC 365; BC200708253 at [19]–[22] per Forrest J. (1987) 163 CLR 628; BC8701820. See also Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 at 61,399 per Kearney J (ruling that the treating doctor’s opinion was a ‘material fact’ for the purposes of NT s 44(3) (b)(i), and accepting that there is a distinction between ‘a plaintiff’s knowledge of his symptoms and his knowledge of a medical opinion as to what those symptoms indicate’); Wright v Donatelli (1995) 65 SASR 307 at 321; BC9502344 per Lander J, with whom Cox and Perry JJ agreed (noting that ‘[w]hilst it may be that [the doctor’s] opinion is in accord with the appellant’s own knowledge, that does not mean that [the doctor’s] opinion is not a material fact’, so that ‘the learning of [the doctor’s] opinion itself was the ascertainment of a material fact, because his opinion [was] evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it [was] material’); A, DC v Prince Alfred College Inc [2015] SASCFC 161; BC201512914 at [20] per Kourakis CJ, at [143] per Gray J (where a psychiatrist’s opinion that the plaintiff had no meaningful prospect of recovering from his illness, against a longstanding backdrop where the plaintiff believed that his illness was treatable, was held to constitute a ‘material fact’). Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443; BC200703301 at [9] per Simpson J [affd Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947]. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; BC8701820 (FC). See also Lovett v Le Gall (1975) 10 SASR 479 at 483 per Bray CJ, with whom Walters J agreed (‘a fact is material within the meaning of [SA s 48(3)] if it is of such significance as to be able to influence the determination of the case’), at 485–6 per Wells J. [2013] SASC 139; BC201312714 at [82], [83] (paragraph break omitted). Ireland v Wightman (2014) 119 SASR 266; [2014] SASCFC 52; BC201403956 at [53] (having noted that the word ‘major’ in this context means ‘very important or significant’, a usage ‘consistent with the clear legislative purpose of narrowing the circumstances that may warrant the grant of an extension of time’: at [51]). Ireland v Wightman (2014) 119 SASR 266; [2014] SASCFC 52; BC201403956 at [53]. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [84] per Sulan and Layton JJ (citing Healthcorp Ltd v Commissioner of Stamps (Qld) (1991) 22 ATR 220 at 228 per Shepherdson J, whose remarks were, however, made in an entirely different statutory context). Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71;

70.

71. 72. 73. 74. 75.

76. 77. 78. 79. 80.

81. 82. 83. 84. 85. 86. 87. 88. 89.

90. 91.

92.

BC201001700 at [88], [93] per Sulan and Layton JJ. Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ; Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [94], [95] per Sulan and Layton JJ. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [96] per Sulan and Layton JJ. See 1.15, 1.24. Estate of Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; [2010] SASC 71; BC201001700 at [97] per Sulan and Layton JJ. NT s 44(3)(b)(ii); SA s 48(3)(b)(ii). Finlay v Silicon Industrial Pty Ltd (2003) 229 LSJS 14; [2003] SASC 236; BC200304895 at [88] per Doyle CJ, approved in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56; BC201001454 at [439] (FC) and A, DC v Prince Alfred College Inc [2015] SASCFC 161; BC201512914 at [142] per Gray J. NT s 44(3); SA s 48(3). Namely NT s 44(1) and SA s 48(1), as to which see 19.1. As to the judicial discretion to extend time in this context see 19.23–19.34. See 18.5. Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199; BC9800341 per Mason P (dealing with NSW s 60E(1): see 20.50–20.54); Yousefi v Commonwealth of Australia [2012] NSWSC 967; BC201210505 at [73] per Davies J (applying these remarks to SA s 48). Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 at 61,400 per Kearney J. As in NSW s 60C(2): see 20.49–20.54. Napolitano v Coyle (1977) 15 SASR 559 at 569. Lovett v Le Gall (1975) 10 SASR 479 at 494 per Bray CJ, with whom Walters J agreed; Yousefi v Commonwealth of Australia [2012] NSWSC 967; BC201210505 at [64] per Davies J. See 19.12–19.22. SA s 48(3b), discussed at 19.9. See 19.8, 19.9. See 19.24, 19.25 (and see also 18.7–18.13). Ulowski v Miller [1968] SASR 277 at 280 per Bray CJ, with whom Mitchell and Walters JJ concurred (identifying the first five of these factors, described as ‘paramount matters’, though involving the question of whether an action should be dismissed for want of prosecution); Lovett v Le Gall (1975) 10 SASR 479 at 494 per Bray CJ (adding the sixth and seventh factors, involving a limitations case); Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81279 at 61,401 per Kearney J (adding the last factor). Reid v AGCO Australia Ltd [2000] VSC 363; BC200005635 at [64] per Ashley J. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; BC9604531 (discussed at 20.81–20.86), applied to the South Australian scheme by Gray J in Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125; BC200102442 at [76]–[81]. Ulowski v Miller [1968] SASR 277 at 280–1 per Bray CJ, with whom Mitchell and Walters JJ concurred.

93.

94. 95.

96.

97. 98. 99. 100. 101. 102. 103. 104.

105. 106.

107. 108. 109. 110. 111. 112.

Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 at 61,403 per Kearney J (remarking that it is ‘of limited utility to refer to specific cases in which the factor of length of delay has been considered’, though adding that ‘[l]engthy delays of the order of 4 years cannot be viewed as being some kind of tolerable norm’). Braedon v Hynes [1986] NTJ 883 at 902 per Maurice J. Trattonicolas v Schafer (1983) 106 LSJS 50 at 53 per Cox J (who wished to ‘guard against too ready an assumption of prejudice from a mere lapse of time’); Reeves v Leyland Motor Corporation of Australia Ltd (No 2) (1984) 115 LSJS 62 at 65 per Cox J (‘it is only where the delay is a very long one, or there are some special circumstances, that lapse of time should be taken of itself to establish such an obvious prejudice that the delinquent party should be denied the right to pursue his action’). See, for example, Niemann v Electronic Industries Ltd [1978] VR 431 (plaintiff’s action not struck out 15 years after the event, and nine years after it could have been set down for hearing); Mahon v Frankipile (Australia) Pty Ltd (1990) 157 LSJS 52 (accident in 1982, writ issued 2.5 years later, not served for 4.5 years; action not struck out). As to presumptive prejudice see further 20.83–20.85. Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1025 per Lord Oliver; Geraldton Port Authority v Ship ‘Kim Heng 1888’ [2011] FCA 1148; BC201107739 at [29] per McKerracher J. (2001) 79 SASR 489; [2001] SASC 125; BC200102442. The limitation period in South Australia for these torts is six years: see 6.2. Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125; BC200102442 at [43] per Doyle CJ. Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; [2001] SASC 125; BC200102442 at [43] per Doyle CJ, at [85]–[87] per Gray J. [2015] SASCFC 161; BC201512914 at [148] per Gray J. See, for example, Locklier v New South Wales [2009] NSWSC 746; BC200906829 (where Davies J refused an extension of time, albeit under New South Wales legislation, for a claim for damages for physical and psychiatric injuries sustained at State run homes in 1970–1974 in view of the prejudice arising out of the fact that many witnesses were dead or unable to give evidence, coupled with evidence of periods of unexplained delays since the plaintiff’s recovery of memories and the existence of multiple causes for the plaintiff’s psychiatric injuries). See 19.31. [2012] NSWSC 967; BC201210505. Although decided in New South Wales, the South Australian legislation applied because the applicant suffered the alleged damage in South Australia: see generally 2.33–2.40. Yousefi v Commonwealth of Australia [2012] NSWSC 967; BC201210505 at [75]–[82]. Yousefi v Commonwealth of Australia [2012] NSWSC 967; BC201210505 at [83]. (2010) 106 SASR 331; [2010] SASC 56; BC201001454. State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56; BC201001454 at [455]. State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56; BC201001454 at [455]. Ulowski v Miller [1968] SASR 277 at 282–3 per Bray CJ, with whom Mitchell and Walters JJ concurred.

113. Sophron v Nominal Defendant (1957) 96 CLR 469 at 474; BC5700210 per Dixon CJ, McTiernan, Fullagar and Taylor JJ. 114. Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 at 61,404 per Kearney J. 115. See Firman v Ellis [1978] QB 886 at 909 per Lord Denning MR (remarking that the negligence of the plaintiff’s solicitor, and a remedy against the solicitor, ‘may kip the scale where the defendant has been substantially prejudiced by the delay’); Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 at [25] per David Steel J; Whiting v JDS Engineering & Labour Services Pty Ltd [2010] NSWCA 28; BC201001029 at [16] per Basten JA, delivering the reasons of the court (who surmised that where the plaintiff is not personally at fault, ‘greater emphasis will be placed upon the ultimate test, which is the potential unfairness to the defendant if his or her previous state of immunity is revoked’). 116. Reid v AGCO Australia Ltd [2000] VSC 363; BC200005635 at [66] per Ashley J. See also Firman v Ellis [1978] QB 886 at 912 per Ormrod LJ (who, though accepting that an available claim against the plaintiff’s lawyers may be relevant, did not think that it carried much weight), at 916 per Geoffrey Lane LJ (who also queried the weight to be given to this factor, remarking that ‘if there is any real dispute about the solicitor’s liability in negligence, then the chances of the plaintiff being able to recover against him would no doubt be largely disregarded’). 117. Hristofis v Kanellos (1992) 163 LSJS 142 at 147 per Zelling AJ. Cf at 151 per Legoe J (who, though more willing than most other judges to consider whether the plaintiff has an alternative claim against his or her lawyer, at least where the lawyer, as on the facts in question, gave evidence that the fault in causing the delay was entirely his fault, conceded that in other cases it may well be that ‘such alternative remedies should not influence the court to decline to exercise its discretion’). 118. Namely Birkett v James [1978] AC 297 (where, in the context of a defence to an application to strike out proceedings for want of prosecution, the House of Lords held that the ability of a party seeking relief from delay to sue the solicitors who had been responsible for the delay was an irrelevant consideration: see at 324 per Lord Diplock, with whom Lord Russell agreed, at 336 per Lord Edmund-Davies; cf at 330 per Lord Salmon). 119. Mavra v Logan (1980) 24 SASR 567 at 580 per Sangster J; Williams v F S Evans & Sons (1988) 52 SASR 237 at 244 per White J, at 254 per Bollen J; Mahon v Frankipile (Australia) Pty Ltd (1990) 157 LSJS 52 at 55 per White J; Forbes v Davies and Commonwealth of Australia (1994) Aust Torts Rep ¶81-279 at 61,405 per Kearney J. 120. Whiting v JDS Engineering & Labour Services Pty Ltd [2010] NSWCA 28; BC201001029 at [17] per Basten JA, delivering the reasons of the court (remarking that it would be ‘an inappropriate task’ for the court to make some assessment, at least in broad terms, of the likelihood of success against the plaintiff’s lawyers ‘where the claim against the [lawyers] may not be on foot and in any event where they will not be before the court’). 121. Mavra v Logan (1980) 24 SASR 567 at 580 per Sangster J. See also Firman v Ellis [1978] QB 886 at 916 per Geoffrey Lane LJ (‘It is plainly undesirable that there should be any detailed inquiry into the existence of [the lawyer’s] liability’); Williams v F S Evans & Sons (1988) 52 SASR 237 at 254 per Bollen J. 122. Firman v Ellis [1978] QB 886 at 912 per Ormrod LJ. 123. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 301–2 per Lord Diplock.

[page 397]

CHAPTER 20

Extension of Time for Personal Australian Capital Territory (and Earlier Victorian) Regime Operative provisions Scope for application Australian Capital Territory — limited scope for application Victoria — limited temporal application Onus of proof Relevant factors in exercising discretion to extend time Identification of relevant factors Placing the factors in context Paragraph (a) — the length of and reasons for the delay Focus on ‘delay’ and its impact Delay ‘on the part of the plaintiff’ Impact of lawyer negligence Paragraph (b) — prejudice to defendant Identifying the relevant ‘delay’ Delay causative of prejudice Relevance of ‘potential’ prejudice? Relevance of when the defendant notified of the claim Paragraph (d) — duration of any disability

20.2 20.2 20.4 20.4 20.6 20.7 20.8 20.8 20.9 20.13 20.13 20.15 20.20 20.25 20.26 20.27 20.31 20.32 20.34

Paragraph (e) — plaintiff’s acts upon securing knowledge Relevance of merits of plaintiff’s case New South Wales Personal Injury Extension Regime Between 1990 and 2002 Backdrop Pre-1990 causes of action Causes of action between 1990 and 2002 Overview of 1990–2002 regime Factors to be considered by the court Curial approach to factors Effect of order extending time before the 2002 amendments New South Wales Pre-2002 Extension of Time for Latent Injury Provision for extension of time Section 60I — matters to be considered for the purposes of ss 60G, 60H Test of ‘knowledge’ and ‘awareness’

20.37 20.39 20.44 20.44 20.45 20.47 20.49 20.50 20.53 20.55 20.56 20.56 20.61 20.62 [page 398]

‘Nature or extent of personal injury’ (s 60I(1)(a)(ii)) Awareness of the connection between injury and defendant’s act or omission (s 60I(1)(a)(iii)) Temporal awareness criterion (s 60I(1)(b)) Current New South Wales and Victorian Regimes Application of extension of time provisions Discretion to extend time New South Wales provision

20.64 20.66 20.68 20.71 20.72 20.73 20.74

Victorian provision Application to survivor and compensation to relatives actions Extension of time where irrational failure to bring action for minor (NSW) Queensland (and Earlier New South Wales and Victorian) Regimes Provision for extending time Requirements for extension of time Focus on justice of the case Targeting the fairness of the trial Relevance of ‘prejudice’ to defendant Aim(s) of relevant provision(s) Overview of discharging the onus under s 31(2) ‘Material facts’ Identifying material facts Meaning of ‘facts’ ‘A’ material fact as opposed to ‘any of’ the material facts ‘Nature and extent of the personal injury so caused’ ‘Of a decisive character’ Identifying what is ‘of a decisive character’ Discharging the onus relating to ‘decisive character’ Defining ‘appropriate advice’ ‘Means of knowledge’ Imputed knowledge excluded Objective and subjective inquiries When reasonable steps necessary ‘Evidence to establish the right of action’ Residual discretion to extend time — focus on prejudice

20.75 20.76 20.77 20.78 20.78 20.78 20.80 20.82 20.83 20.87 20.89 20.90 20.90 20.91 20.93 20.94 20.95 20.95 20.100 20.104 20.105 20.106 20.107 20.109 20.110 20.112

Impact of plaintiff’s disability Tasmanian Regime As from 1 January 2005 Before 1 January 2005 Concept of ‘date of discoverability’ Western Australian Regime

20.117 20.118 20.118 20.119 20.121 20.122

[page 399] 20.1 The backdrop to the discrete limitations treatment of causes of action relating to damages for personal injury, and in particular the shorter (three year) limitation period,1 has in due course prompted legislatures to supply avenues whereby the court in the exercise of its discretion can extend time. This has proven the trajectory of the law in all Australian jurisdictions (as well as in the United Kingdom) excepting the Northern Territory and South Australia. The standard three year limitation period in the former jurisdiction obviated a discrete time bar for personal injury actions.2 Both the Northern Territory and South Australia, in any case, vest in the court a general power to extend time, one not confined to particular causes of action, nor even to time bars imposed by limitations legislation itself. It is the subject of separate treatment in Chapter 19. Avenues to extend time in the personal injury scenario in the remaining jurisdictions, which unfortunately do not follow a common schema and have in New South Wales and Victoria seen multiple iterations, form the subject of this chapter.

Australian Capital Territory (and Earlier Victorian) Regime Operative provisions 20.2

Section 36 of the Limitation Act 1985 (ACT) empowers the court

to extend time, for a period it determines, for a cause of action consisting of or including damages in relation to personal injuries3 to any person, if it is satisfied that it is ‘just and reasonable’ so to do.4 Similar provision appears in s 23A(2) of the Limitation of Actions Act 1958 (Vic),5 in relation to any action for damages for negligence, nuisance or breach of duty (whether the duty stems from contract, statute or otherwise)6 where the damages claimed likewise consist of or include damages in respect of personal injuries7 to any person. The reference, in each instance, to ‘any’ person indicates that, provided the claim for damages relates to personal injury to someone, it matters not that the person claiming the damages has not suffered the personal injury.8 20.3 The power may be exercised at any time, including most evidently after the relevant limitation period has expired.9 In exercising this power, the court is directed to have regard [page 400] to all the circumstances of the case, including those listed in s 36(3)10 (in the Australian Capital Territory) and s 23A(3) (in Victoria), each based on an English precedent,11 and discussed below.12 Importantly, nothing in these sections explicitly confine the court’s power to extend time to time bars imposed by the limitations legislation; it follows that the power can be exercised vis-à-vis time bars imposed by other legislation too.13 It must, however, be read subject to what appears below regarding scope of application of the relevant provisions.

Scope for application Australian Capital Territory — limited scope for application 20.4 Section 36 of the Limitation Act 1985 (ACT) does not apply to causes of action for wrongful acts or omissions causing death under Pt 3.1 of the Civil Law (Wrongs) Act 2002 (ACT),14 or in relation to the period mentioned in s 30B(2) for injuries to children relating to the provision of a

health service.15 More importantly, nor does it apply vis-à-vis a cause of action to which s 16B applies,16 which, in being expressed to apply to a cause of action for damages for personal injury other than a cause of action to which ss 16 (compensation to relatives under Pt 3.1 of the Civil Law (Wrongs) Act 2002) or 16A (common law compensation for workers compensation)17 applies,18 is the main time bar provision governing causes of action for damages for personal injury.19 It follows that the limitation period set by s 16B cannot be extended by application under s 36. Nor can, it transpires, the time bar set by s 16 be extended under s 36, as s 16 prescribes time bars for causes of action under Pt 3.1 of the Civil Law (Wrongs) Act 2002. Causes of action of this kind may, however, secure extension under s 39, which is expressed in terms similar to those in s 36 (so that s 36 case law may assume relevance). What the foregoing dictates is that it is only the three year limitation period applicable to causes of action for workers compensation at common law, found in s 16A, that remains amenable to extension under s 36. Hence, notwithstanding the breadth in which the earlier sub-sections in s 36 are expressed, the section retains only limited operation as an avenue for extending time. 20.5 A further qualification in this context, found in s 37, is that if an executor or administrator has given proper notice in anticipation of distribution of an estate20 and has then distributed the assets of the estate without notice of a claim against the estate, the court cannot extend the limitation period applicable to that cause of action unless the estate is entitled to be indemnified, in relation to the cause of action, by another person or estate. [page 401]

Victoria — limited temporal application 20.6 Whereas, unlike its Australian Capital Territory equivalent, s 23A of the Limitation of Actions Act 1958 (Vic) is not as severely constrained in its application when it comes to various types of proceedings — the only true

subject-matter constraint, beyond its terms, is that a separate limitations regime applies to actions in respect of the death of a person caused by an injury consisting of a disease or disorder21 — its application is limited temporally. Section 23A (as well as the separate limitations regime relating to death just mentioned) is expressed not to apply to an action to which Pt IIA of the Act applies.22 Nominally the latter operates vis-à-vis causes of action for damages that relate to the death of or personal injury to a person, where the relevant act or omission occurs on or after 21 May 2003,23 albeit subject to the transitional provisions in s 27N.24 It follows that s 23A retains what is an essentially historical significance in Victoria, although to the extent that it shares terminology with provisions elsewhere (and also the current Victorian provisions), which it does,25 the case law on the section remains extant.

Onus of proof 20.7 Judges have repeatedly spoken, in this regard, of the consequent ‘wide discretion’ vested in the court when it comes to determining whether or not to extend time.26 The breadth of the discretion should not be read as an inclination of the court to grant an extension of time.27 To grant an extension ‘is no formality’,28 and the plaintiff, it has been observed, has no presumptive right to an order for an extension of time.29 For this reason, the overall onus — some judges speak of a ‘heavy’ onus30 — is on the plaintiff to demonstrate that it is just and reasonable to extend time.31 While the onus remains with the plaintiff throughout, the defendant may carry an evidential onus to raise any consideration telling against the exercise of the discretion to extend time. Typically the defendant will focus on actual prejudice from the delay, and thus adduce or point [page 402] to evidence directed to this. Kirby J in Brisbane South Regional Health Authority v Taylor,32 by reference to the Queensland provision33 but in words equally relevant to the present context, elaborated on the evidentiary onus

as follows: … because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of [actual] prejudice pertinent to the exercise of the court’s discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of [actual] prejudice lies on the party making any such suggestion. This is what is meant by the ‘evidentiary onus’ resting on a proposed defendant in relation to such an issue.

Relevant factors in exercising discretion to extend time Identification of relevant factors 20.8 For the purposes of claims for damages for personal injury to which s 36 of the Limitation Act 1985 (ACT) and s 23A of the Limitation of Actions Act 1958 (Vic) can apply,34 in making a determination as to whether it is ‘just and reasonable’ to extend time, and presumably also for how long, the court must have regard to all the circumstances of the case, including the following:35 (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.

The only diversion between the jurisdictions is that the Australian Capital Territory provision prefaces the words of paragraph (c) by the enlarging words ‘the conduct of the defendant after the cause of action accrued to the plaintiff, including’. Yet as the above list is inclusive rather than exhaustive, there is nothing to stop a Victorian court taking into account, for these purposes, the defendant’s post-accrual conduct. The above list also parallels that found in the current Victorian provision, s 27L(1), except that in

paragraph (d) the ‘date of the accrual of the cause of action’ is replaced with ‘the date of discoverability’ and the words ‘or legal incapacity’ are added after ‘disability’,36 and there is an insertion of an extra factor, namely the time within which the cause of action was discoverable. These changes reflect notions of discoverability that lie at the core of the current Pt IIA regime,37 but do little to alter the substance of what informs the broader inquiry into what is ‘just and reasonable’ in ‘all the circumstances of the case’. What ensues below therefore has application to both the superseded and current Victorian regimes. [page 403]

Placing the factors in context 20.9 While the above list in based on that found in s 2D(3) of the Limitation Act 1939 (UK) (and now in s 33(3) of the Limitation Act 1980 (UK)), and paragraphs (a), (d), (e) and (f) are essentially identically worded, there exist differences in paragraphs (b) and (c). The English paragraph (b) refers to the extent to which, having regard to the delay, ‘the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within … time’. While this targets only one (albeit critical) aspect of the prejudice a defendant may suffer from the elapsing of time,38 it need not be read restrictively because the English Act, unlike in its Australian counterparts, requires the court, in its main operative provision in this context, to have regard, inter alia, to whether any decision of the court to extend time ‘would prejudice the defendant or any person whom he represents’.39 The English paragraph (c), after making reference to the defendant’s conduct after the cause of action arose, adds the words ‘including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant’. Aside from being expressed inclusively, that this has been legitimately construed as ‘recognis[ing] an obligation on a potential defendant not to be

obstructive in enabling a potential plaintiff to obtain relevant information’40 suggests that it is directed to the same end as its Australian equivalent. But the Australian provision, in being phrased by reference to the defendant taking ‘steps to make available [information] to the plaintiff’, may evince greater proactivity from the defendant; the English provision, it has been observed, imposes no obligation to volunteer the information.41 20.10 Importantly, while the court is directed to have regard to the factors extracted above — which have been said to ‘point reasonably comprehensively to areas of relevance’42 — they are not intended to fetter the court’s discretion, and so do not exhaust the matters it may take into consideration for this purpose. Not only are the factors expressed inclusively, statute requires the court to have regard to ‘all the circumstances of the case’. So, for instance, the case law indicates, as other factors of potential relevance, a possible cause of action vested in the plaintiff for damages for any neglect of default on the part of his or her lawyers in prosecuting the claim,43 the apparent strength (or weakness) of the claim44 and when the defendant was first placed on notice of the plaintiff’s claim.45 The nature of the discretion, moreover, dictates a justifiable reticence by the courts to lay down anything approaching precise guidelines for its exercise.46 [page 404] 20.11 That a defendant may prove financially unable to meet a judgment is not, however, probative against an extension of time.47 Nor is it relevant for a judge to take into account, in deciding (whether) to extend time, that criminal prosecutions for equivalent acts that substantiate the civil claim are frequently conducted after the passage of a lengthy period of time.48 For this purpose (as in most others), any analogy between civil and criminal proceedings is inapt; not only does no time bar ordinarily apply to the latter,49 the proceedings are informed by diverse public interests. The same may be said vis-à-vis alleged analogies to professional disciplinary proceedings, which aim primarily to protect the public.50 20.12

The nature and impact of various relevant factors is elaborated

below.51 That each is addressed separately is not to suggest that they always function independently of one another, or to deny potential for overlap. Also, it should not be understood as suggesting that any one factor (or a number of factors) is necessarily decisive, whether for or against an extension of time, in a given case. This would, after all, undermine the requirement that the court pay regard to all the circumstances of the case. So even a plaintiff who can satisfy the majority of listed factors must still convince the court that it is ‘just and reasonable’ to extend the time.52 The court’s task, which is qualitative rather than quantitative, is one of addressing the relevant factors, and then synthesising the competing considerations in arriving at a conclusion that takes account of them.53 The parallel English provision, in premising an extension of time on it being ‘equitable to allow an action to proceed’,54 seems directed at the same object, as the word ‘equitable’ here has translated to ‘fair and just’;55 those same words have, in any case, been used to express the curial inquiry in the Australian context.56 Omission of the term ‘reasonable’ is hardly consequential, as the nature of a judicial discretion is opposed to its exercise in circumstances that are unreasonable. It stands to reason, accordingly, that English decisions on its exercise are capable of proving useful in the Australian context. [page 405]

Paragraph (a) — the length of and reasons for the delay Focus on ‘delay’ and its impact 20.13 Listed first among the factors to which the court must have regard in assessing an application to extend time, and also relevant in other jurisdictions with equivalent provision,57 is ‘the length of and reasons for the delay on the part of the plaintiff’. In speaking of ‘delay’ for this purpose, the focus is on the delay since the expiry of the limitation period. Indeed, case authority can be found that so limits the relevant delay.58 There appears to

have been a shift in thinking, however, acknowledging that the relevant delay may start from the date the cause of action arose.59 This proceeds on a broad reading of the words ‘the delay’, being ‘concerned simply with the facts of effluxion of time and inaction’,60 and therefore invites an inquiry into, say, why a plaintiff, knowing of the cause of action within time, did not commence proceedings at that time. Yet when dealing with instances where statute provides that time begins to run from the date of discoverability of the cause of action,61 there is logic in identifying the relevant delay as commencing from the moment when the relevant cause of action became discoverable.62 In any event, delay after the expiry of the limitation period remains likely to prove more significant than delay preceding it,63 given that limitation periods reflect a public policy judgment going to what delay, after a cause of action accrues, is legitimate.64 20.14 That the issue is almost invariably raised on an extension application of itself indicates that the plaintiff is out-of-time, and therefore has unduly delayed commencing proceedings. It may be reasoned that the longer a plaintiff delays after the expiry of the limitation period, the greater is the prospect — chiefly by virtue of the loss of probative evidence — of prejudicing the defendant’s assurance of a fair trial.65 Yet it should not be assumed, as a matter of course, that a lengthy delay will always prejudice a defendant, so as to preclude the grant of an extension of [page 406] time.66 Moreover, as an English judge has observed in this regard, ‘you cannot have a calendar which divides the ordinary period of delay from the inordinate’ and ‘[e]ach case depends upon its own facts’, such that a submission founded simply on extreme delay may not suffice.67

Delay ‘on the part of the plaintiff’ 20.15 Beyond considerations of prejudice, the court must have regard to the reasons for delay ‘on the part of the plaintiff’. The addition of the words ‘on the part of the plaintiff’ invites some subjective inquiry, namely an

inquiry into the reasons of the actual plaintiff, not necessarily an ordinary reasonable person, for the delay.68 That those reasons are compelling, and the potential prejudice to the defendant minimal or confined, may sway the court towards extending time. For example, in Halford v Brookes69 the evidence revealed that the plaintiff, who was not versed in the law, was entirely unaware that a civil remedy was open to her until she consulted new solicitors. In the face of minimal prejudice to the defendants from the elapsing of time, the plaintiff’s ignorance of her legal rights, as the sole reason for the delay, for which she was not responsible, proved ‘a very important factor to be placed on her side of the balance’70 inclining the court to extend time. A case closer to the line is Caven v Women’s and Children’s Health,71 where a claim against a hospital for negligence in not identifying a foetal abnormality, so that the plaintiffs’ child (J) was born severely disabled, was lodged more than three years after it was discoverable.72 In extending time Kaye J accepted that it was not until J started school that the full impact of his developmental delay was brought home to the plaintiffs, with the opportunity it presented to compare J’s development with that of other children. This explanation, in providing ‘some palliation’ of the plaintiffs’ delay, did not entirely excuse it. What influenced the decision to extend time was minimal evidence of actual prejudice to the defendant, as the issue of liability relied heavily on expert evidence relating to observations from the video of the ultrasound performed on the mother.73 20.16 In Plowman v Sisters of St John of God Inc,74 another case alleging negligence against a hospital during birth as the cause of a disability, Hoeben J extended time notwithstanding a 21 year delay. What marked the case as relatively exceptional in this regard was that, notwithstanding the delay, there was no indication that the defendant would forfeit the prospect of a fair trial by reason of a lack of contemporaneous evidence. That much of the delay stemmed from the plaintiff’s lawyers being unable to secure from the defendant the clinical notes relating to the birth, without which ‘it would be difficult to factually prove negligent conduct’,75 made it difficult for the defendant to withstand the claim. And the defendant’s case was in no way aided by a finding as to the reasonableness, in the circumstances, of the plaintiff’s parents in relying on legal advice that the initiation of proceedings

should rest upon securing further information.76 20.17 The mental health of the plaintiff can potentially go some way to explaining undue delay, although whether or not it is capable of swaying the court in granting an extension of time ordinarily rests, again, on questions of whether the delay has prejudiced the defendant. [page 407] In Axford v Gray77 the plaintiff sought an extension of time, having issued proceedings some four and one-half years after an accident at the defendant’s premises that caused her injury. Though the court was satisfied that the plaintiff knew or ought to have known at the time of the accident that she had suffered personal injury, by fault of the defendant, sufficiently serious to justify bringing an action,78 it found it just and reasonable to extend time. In so concluding, T Forrest J remarked that ‘the sting to the plaintiff of her inertia is softened somewhat by the undisputed evidence of her mental state post-accident’, in which she ‘dropped her bundle’, and as a result of constant pain became unemployed, reclusive and obese.79 While the reasons for her delay were nonetheless ‘unsatisfactorily explained’, his Honour said, in view of evidence of only modest prejudice to the defendant, who had in any case been on notice of a potential claim, there were grounds to extend time.80 20.18 The outcome may differ where the plaintiff has been responsible for, or in some way complicit in, the delay. ‘If there is culpability on the part of the plaintiff’, said an English judge, ‘this must be an important factor in the balancing exercise’.81 A plaintiff who knows of a cause of action, and the applicable limitation period, but nonetheless delays whether by conscious choice (including on legal advice) or utter apathy, will find it difficult to convince the court to extend time.82 And this may prove so independent of whether or not the defendant would suffer prejudice in the event of an extension, although the presence of prejudice of any substance will likely torpedo the application. For example, in Walters v Cross Country Fuels Pty Ltd83 the plaintiff sought to explain her failure to bring common law proceedings within time by citing her decision, on advice, to pursue her

statutory rights rather than her common law rights. This, Handley AJA described, as ‘to say the least, a most unpromising basis for an extension of time’.84 Coupled with the significant (three year) delay and the unavailability of a key witness as a result, which served to prejudice the prospect of a fair trial for the defendant, this worked against the plaintiff’s application.85 20.19 A plaintiff’s complicity in the delay need not be confined to a conscious choice. Apathy, as noted above, is no friend of a plaintiff in support of an extension of time. Nor is ignorance of relevant facts or rights a good reason in every case for any delay, at least not when the means of knowledge are reasonably available to the plaintiff.86 This may in turn be influenced by the plaintiff’s knowledge and understanding, or that of someone similarly positioned. A plaintiff who, given his or her symptoms, should suspect some (compensable) [page 408] injury caused by a putative defendant, but who takes no steps to investigate the matter via professional advice, may find it difficult to discharge the onus that it is just and reasonable to extend time in his or her favour.87 This in turn explains the mischief underscoring paragraphs (e) and (f).

Impact of lawyer negligence 20.20 Some of the challenges facing the court here, and indeed in other jurisdictions when an extension of time is sought, involve where the defendant has been prejudiced by delay for which the plaintiff has not been responsible, or otherwise complicit in. The most common scenario in the cases is where the delay is the fault of the plaintiff’s lawyer, and the plaintiff has reasonably relied upon the lawyer to proceed with the action. The simplest way of dealing with the issue is to adopt a ‘black and white’ rule. In this vein, it has been said that ‘delays by a solicitor are visited upon the client when those delays are relevant to the limitation periods’.88 Or, adopting a polar opposite approach, ‘[w]e never like a litigant to suffer by the

mistake of his lawyers’.89 In line with the latter approach, there is case authority to the effect that inexcusable delay by the plaintiff’s lawyers could amount to an acceptable explanation for the delay for the plaintiff.90 20.21 As the court must assess relevant factors in making its ultimate determination, that lawyer negligence may adequately explain the delay does not dictate that the court must extend time. The knowledge and conduct of the plaintiff in the circumstances cannot be ignored. Just as there are instances where a plaintiff may, in view of his or her knowledge and understanding, be justified in complete reliance on tardy lawyers,91 there are instances in which plaintiffs, acting reasonably, should have been more proactive in progressing the matter.92 ‘Litigants are [page 409] expected to be diligent in their own interests’,93 it is said, although this does not compel lay litigants to doubt their lawyer’s word.94 20.22 Also, as noted earlier, by reference to prejudice to the defendant, there may be instances where other factors weigh on the flip side. In such circumstances, where a third party (the plaintiff’s lawyer) is responsible for the delay, there may be grounds in policy to cast the loss upon the third party, thereby absolving the ‘innocent’ principal parties. But the only realistic way of securing this result is to deny an extension of time (benefiting the defendant) in the expectation that the plaintiff can obtain relief against his or her lawyer for the lost cause of action. That, in turn, may well prejudice the plaintiff, in at least two ways; first, the plaintiff must suffer the inconvenience and expense of starting proceedings for this purpose, with new representation; and secondly, he or she must essentially prove two cases — the original case against the principal defendant and a further case against the former lawyer — without assurance of success.95 Even if the plaintiff succeeds, damages would be for the lost chance to recover in the primary action, which raises the risk that the sum recovered may be less than that potentially recoverable in the primary action.96 20.23

It has been remarked, in this vein, that ‘difficulties in assessing the

prospects of success of such a secondary action robs it of much force’.97 Even in the face an ostensibly cast-iron case against the lawyers, an English judge has observed that ‘the fact that, if the plaintiff has to change from an action against a tortfeasor, who may know little or nothing of the weak points of his case, to an action against his solicitor, who will know a great deal about them, the prejudice may well be major rather than minor’.98 The point saw elaboration by Ormiston JA in Tsiadis v Patterson as follows:99 Problems may arise in the following way. In some cases … the allegation of negligence would appear incontrovertible, the only possible difficulty being in the assessment of damages. It is, however, in the interest of the applicant to blame the solicitor and to place as little qualification on that as possible, for it makes all the more clear that the applicant cannot be blamed for any delay … But if a right to sue in negligence were an almost complete answer, as was here suggested because of the strength of the respondent’s claim against the solicitor, nobody would be interested in testing the extent to which blame should fairly rest on the solicitor, especially as the solicitor is not represented and rarely gives evidence, at least in the more obvious claims. If an unanswerable claim in negligence were held to be ordinarily a bar to a claim for extension, there would be a temptation to down-play the solicitor’s role, but, artificially, only so far as necessary as to justify the applicant’s delay. The respondent would, equally artificially, be trying to make the negligence claim stronger, but at the risk of making unanswerable the applicant’s allegations justifying delay. At least treating negligence as irrelevant would make it possible for the applicant’s claim in delay to be tested properly.

[page 410] The above reasons speak to why judges, albeit inclined to accept the prospect of a successful cause of action against the plaintiff’s lawyer is one of the ‘circumstances of the case’100 in determining whether or not to exercise the discretion to extend time,101 give it limited (and certainly not decisive) weight in this context.102 Although infrequently articulated in judgments, this may also reflect a policy that the alleged primary wrongdoer (the defendant) should pay, not an alleged secondary wrongdoer (the lawyer).103 20.24 Yet no doubt wary of fettering their discretion, and mindful of retaining the tools to do justice in individual cases, judges remain reticent to discount the potential relevance of a cause of action against the plaintiff’s lawyer;104 its weight (as mentioned above, never decisive) here rests on the circumstances of the case.105 There is thus a prospect that, in the face of significant prejudice to the defendant in extending time, a ‘clear-cut’ case

against the plaintiff’s lawyer for negligent delay can sway, with other circumstances, the court to refuse the application to extend time.106 In view of the courts’ disinclination to allow extensions of time that would cause a defendant significant prejudice,107 it is likely that the court would have reached the same decision independent of the likely merits of the claim against the plaintiff’s lawyer; the [page 411] latter, it seems, may assuage the curial conscience in refusing the plaintiff relief where he or she has not been at fault in the delay.108

Paragraph (b) — prejudice to defendant 20.25 Paragraph (b) requires the court to take into account the extent to which, having regard to the delay, there is, or is likely to be, prejudice to the defendant. As foreshadowed in the context of paragraph (a), the length of the delay, and the reasons for it, cannot be viewed in a vacuum independent of prejudice to the defendant. This latter consideration is critical given that limitations regimes primarily aim to protect defendants from ‘stale’ claims, not merely to avoid oppression and secure ‘repose’, but in recognition that the elapsing of time may cause relevant evidence to be lost or its integrity to be compromised, in turn prejudicing a defendant’s ability to mount an effective defence.109

Identifying the relevant ‘delay’ 20.26 By using the phrase ‘having regard to the delay’, case authority supports the proposition that paragraph (b) is referring back to the ‘delay’ mentioned in paragraph (a).110 (This needs qualification, though, in New South Wales, where paragraph (b) in a parallel catalogue of factors attaches the words ‘by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available’.111 As these words focus paragraph (b) upon the period between the expiry of the limitation period and the date of the application to extend

time,112 whereas paragraph (a) (as noted above)113 examines the period that has elapsed since the cause of action accrued, it stands to reason that in New South Wales there is no necessary confluence between the ‘delays’ in these respective paragraphs.)

Delay causative of prejudice 20.27 While paragraph (b) in the Australian Capital Territory and Victorian Acts contains no explicit requirement that the delay have caused the (likely) prejudice,114 it presupposes a relationship between delay and (the extent of) prejudice. (The point is clearer in New South Wales, as a result of the additional words above.) For this reason, it is arguable that relevant prejudice should not include the financial prejudice to the defendant of having to pay damages should the limitation period be extended. It is reasoned that ‘Parliament cannot have intended that that financial prejudice … should be taken into account … because, in fairness and justice, the defendant ought to pay the damages if, having had a fair opportunity to defend himself, he is found liable’.115 Any such financial prejudice is not, in any case, the product of the delay as such, but of the court’s decision to extend time. There is, in any case, little to stop a court from taking into account financial prejudice, or its absence, as one of ‘the circumstances [page 412] of the case’ in this regard. If so, that the defendant is insured against the relevant loss may serve to reduce what prejudice he or she may suffer were time extended, and judgment entered against him or her. It could, as a result, prove a circumstance, in the overall synthesis, in favour of granting the extension.116 20.28 The plaintiff, it is said, ‘must discharge the onus of satisfying the court that the extension will not result in significant prejudice to the proposed defendant’.117 While financial prejudice of the kind mentioned above may not necessarily be relevant prejudice for this purpose, courts have

identified prejudice that does relate to the delay as either ‘deemed’ (or ‘general’) prejudice or ‘actual’ prejudice. Prescription of a limitation period itself suggests that commencing an action out of time is ‘prima facie prejudicial’ to the defendant.118 What is accordingly termed ‘deemed prejudice’ in this context speaks to how the passage of time is likely to have dimmed witnesses’ memories and reduced the availability of contemporaneous documents or testimony, and with it the difficulty of conducting litigation temporally remote from the actuating events.119 While prejudice of this kind may be presumed or deemed, evidence going to ‘actual’ prejudice — showing that the defendant would indeed suffer what is encompassed within deemed prejudice, as well as potentially other prejudice — is weightier again as a factor against an extension of time. 20.29 For example, in Redmond v J C Hutton Pty Ltd120 the plaintiff, who from 1981 to 1983 was employed as a slicer in the defendant’s abattoir, commenced proceedings in 1999 alleging a medical condition suffered as a consequence of the defendant’s negligence. It transpired that a great deal of evidence had been lost since the cause of action arose; in particular, the building had been demolished; the doctor with direct responsibility for occupational health and safety at the abattoir at the time had died; and various other witnesses had also died. Crispin J branded the prejudice that the defendant ‘would undoubtedly encounter in seeking to address a plethora of allegations of this nature after so many years and without access to contemporaneous records and other relevant evidence’ as both ‘substantial and inescapable’.121 In ruling against an extension of time, his Honour acknowledged that the outcome may have differed had the action been founded on an allegation of some particular act or incident that was reported, and thus properly documented, at the time.122 In such a case, availability of contemporaneous evidence could reduce the extent of detriment to the defendant, even if the elapsing of time has adversely affected the memories of the main actors. In Tucker v Barwon Health and Geelong Hospital,123 the plaintiff’s 12 year delay in a negligence claim against the defendant hospital, even though the relevant doctors deposed that they recalled neither the plaintiff nor the relevant events, did not preclude Kyrou J from extending time because the prejudice to the defendants was ‘diminished by the availability of the records,

the level of detail they contain and the fact that the defendants have admitted nearly all of the plaintiff’s allegations as to the contents of the records’.124 In this context, it has been observed that a ‘delay of many years in commencing a proceeding, the determination of which is likely to turn [page 413] on, say, unrecorded oral advice by a [doctor], is likely to be more prejudicial than a case in which the acts or omissions relied on are recorded in some form’.125 20.30 The same may be so in other contexts. In Murdock v Lipman126 the plaintiff started proceedings out of time for damages resulting from injuries sustained during his employment at a building site as result of collapsed scaffolding. Although the elapsing of time would likely have eroded witnesses’ memories, McCallum J found that WorkCover’s thorough and well-documented contemporaneous investigation of the incident, leading to the successful prosecution of the defendants, served to ameliorate any such prejudice. In so ruling, her Honour accepted that the material and records available to the parties were, in the circumstances, ‘substantially more helpful’ than in many cases commenced within the limitation period.127

Relevance of ‘potential’ prejudice? 20.31 In speaking of prejudice for the purposes of paragraph (b), it should be noted that it also requires the court to consider the extent to which there is ‘likely to be’ prejudice to the defendant, having regard to the delay. The court need not, for this purpose, rule out ‘potential’ prejudice entirely because the fact that it has occurred or will necessarily occur has not been proven. But when coupled with the word ‘extent’, the reference to ‘likely to be’ dictates that the court must have regard to the degree to which prejudice is likely to eventuate.128 As a result, the court’s task involves both an assessment of the nature and extent of prejudice to the defendant, as well as some attribution of the prospect of this prejudice occurring.

Relevance of when the defendant notified of the claim 20.32 If the defendant is placed on notice, at an early stage, of the plaintiff’s intention to make the claim, the law expects the defendant, within reason, to safeguard its position by preserving evidence relevant to its defence should the action proceed. A defendant who does so (and this may include the defendant’s insurer) may not suffer material prejudice by having to address an out-of-time claim.129 But a defendant who fails to do so, and then seeks to defend the application to extend time by reference to insufficient or lost evidence it could have obtained or retained, will likely receive little in the way of judicial sympathy. Its alleged ‘prejudice’ in this context, as the product of its own doing, carries little weight in the overall synthesis, at least if the delay is not extensive.130 Where, conversely, the delay is extensive, there may be grounds to find presumed or actual prejudice, at least to the extent that it lulled the defendant into a belief that the claim would not be pursued. [page 414] On the other hand, a defendant who has no reason to expect a claim from the plaintiff cannot be blamed for omitting to take steps to secure and preserve evidence supporting its defence. The case law elicits multiple instances in which extensions of time have been refused for claims of which the defendant did not, and could not reasonably, have notice, where the elapsing of time prejudiced the availability of evidence relevant to the defence.131 20.33 Reference to ‘notice’ of a (likely) claim in this context does not necessarily require that the plaintiff actually notify the putative defendant, within the limitation period, of the prospective claim. There are circumstances in which a defendant may reasonably expect a claim independent of explicit notification. This may ensue against the backdrop of parallel proceedings, including criminal or administrative proceedings, arising out of the relevant events. So in New South Wales v Judd,132 for example, the New South Wales Court of Appeal extended time for the

plaintiff’s personal injury claim against the defendant police officer, which had been the subject of criminal proceedings against the officer. The court reasoned that, in view of the complaint, the plaintiff’s willingness to give evidence in the criminal proceedings, and the extent and objective nature of his injuries, a civil action ‘would have been expected’ by the defendant.133

Paragraph (d) — duration of any disability 20.34 The ‘duration of any disability of the plaintiff’ that arises on or after the date the cause of action accrues is prescribed under paragraph (d) as a factor to which the court must have regard in making an assessment as to whether or not to exercise its discretion to extend time. What is meant by ‘disability’ in this context remains, however, to be conclusively confirmed by case authority. It seemed initially to have been assumed, without apparent argument, that it meant physical disability,134 as distinct from a ‘legal disability’. The latter focuses on matters of legal incapacity, usually informed by minority or mental incapacity, which is addressed by way of a dedicated provision in the limitations legislation that suspends the running of time.135 Logically, it could therefore be argued that ‘disability’ in paragraph (d) targets other than legal disability.136 20.35 Yet as the Victorian Act defines the term ‘disability’ in terms of legal incapacity,137 and its counterpart in the Australian Capital Territory does so by reference to both legal and physical incapacity,138 it is difficult to say that in either jurisdiction ‘legal disability’ falls outside [page 415] consideration an inquiry directed to extending time. This may have been an unintended consequence of a broad general definition, in its application to a specific provision, but ultimately may not prove problematic. Whatever meaning ‘disability’ takes in paragraph (d), it is evident that both legal and physical disabilities — the latter including the plaintiff’s mental state where it is capable of explaining delay but does not amount to a legal disability — form part of the ‘circumstances of the case’ for the purposes of the judicial

discretion.139 20.36 The revised paragraph (d) in s 27L(1) of the Victorian Act refers to ‘[t]he duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability’. It is fair to say that the addition of the words ‘or legal incapacity’ was intended to clarify the legal position. Prima facie, it invokes a distinction between ‘disability’, on the one hand, and ‘legal incapacity’, on the other. Otherwise, the concepts would be identical, and the statutory alteration accordingly superfluous. On this basis, there is sense in concluding that the term ‘disability’ refers to a disability that does not amount to legal incapacity, which in practical terms confines its application to physical disabilities. Yet various judges have voiced a contrary view;140 one has argued that the reference to ‘duration’ of a disability in paragraph (d) would be odd were this directed only to physical disability since the nature or seriousness of such a disability would seem to be more relevant than its duration.141 Again, though, physical disability may amount to one of the ‘circumstances of the case’ that may impede the timely pursuit of potential rights.142

Paragraph (e) — plaintiff’s acts upon securing knowledge 20.37 Paragraph (e) directs the court, in determining whether it is just and reasonable to extend time, to have regard to the extent to which the plaintiff acted promptly and reasonably once he or she knew that the defendant’s act or omission, to which the plaintiff’s injury was attributable, ‘might be capable at that time of giving rise to an action for damages’. An English judge, interpreting the words ‘at that time’ as directed primarily to the scenario of a plaintiff’s ignorance of a cause of action against the defendant, opined that the knowledge of a cause of action rests on the plaintiff having obtained legal advice (unless he or she is a lawyer).143 Whether paragraph (e) should be quite so confined in its application may be queried, however, as is illustrated by the following questions posed by a Victorian judge:144 What if the prospective plaintiff had just passed his final year law exams? What if he was a law clerk not under articles? What if he was the claims officer of a large insurer with vast

experience of actions for damages for personal injuries? What if he had recently read a student book on the law of torts? What if he had only the other day read a well written and accurate newspaper article on legal liability for accidents, accidents of the kind in question? What if he had recently received information from a highly intelligent person who had himself recently been plaintiff in a personal

[page 416] injuries action that had run its course and who had listened attentively to and understood the charge? What if he had just served as foreman of a jury trying such an action? What if he was an uncommonly well informed person who knew something of the law of torts?

20.38 In any event, even if the requisite knowledge for the purposes of paragraph (e) rests upon legal advice, what the plaintiff actually knew, or should have known, given his or her background and position, remains one of ‘the circumstances of the case’.145 The plaintiff’s conduct must, in each case, be measured according to the information at his or her disposal in this context. The more generalised that information, the less the plaintiff might be expected to engage a lawyer immediately; with greater precision in the information may come an increased expectation to take steps promptly to seek legal advice.146

Relevance of merits of plaintiff’s case 20.39 The merits of the plaintiff’s case against the defendant, were it not barred by the expiry of time, is not listed among the factors to which the court must have regard in determining whether or not to extend time. But this does not preclude its potential relevance in this context, as explained by an English judge:147 Although not one of the matters specifically dealt with in [the relevant provision], [the plaintiff’s prospects of success in the action and the evidence necessary to be adduced to establish those prospects] is one of the circumstances of the case which the court should take into account in considering the balance of hardship. Plainly it is more prejudicial to a plaintiff to be deprived of a cause of action when it is almost bound to succeed, as for example an injured passenger in a motor vehicle, than one that looks highly speculative. Equally, although it is always prejudicial to a defendant to be deprived of a defence under the Limitation Act, it may be less inequitable or unfair where the plaintiff has a strong case and more unfair where he has a weak one.

20.40 These remarks must be placed within their statutory context, which in England explicitly directs the court to have regard to the degree to which the relevant time bar ‘prejudice[s] the plaintiff’ and a decision to extend time ‘would prejudice the defendant’.148 In this context, the prejudice to the defendant appears focused on an assessment of the prospect that the defendant will be liable to pay damages. As noted elsewhere, at least in the Australian context this is not necessarily prejudice that results from the plaintiff’s delay.149 But viewed against the backdrop of prejudice to the plaintiff stemming from being denied an ostensibly strong claim, it is arguably one of ‘the circumstances of the case’ capable of influencing Australian courts in assessing whether it is ‘just and reasonable’ to extend time. 20.41 Indeed, New South Wales authority, dealing with equivalent provisions for the extension of time,150 clearly recognises that, to satisfy the requirement that it is ‘just and reasonable’ to extend time a plaintiff must prove facts evincing ‘a reasonable prospect that [page 417] the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing’.151 While likely influenced by the phrase ‘there is evidence to establish the cause of action’ is an earlier version of the relevant provision152 (also appearing in an earlier version of the Victorian provision),153 which did not translate to its successors, the reasoning is that it is not just and reasonable to subject a defendant to litigation otherwise time-barred lacking evidence available to the plaintiff to establish the cause of action.154 ‘To permit an obviously hopeless case to proceed would’, a judge has said, ‘be to condone the harassment of a defendant otherwise protected by a time bar’.155 It would thus misalign with a core aim of limitations legislation, namely to secure ‘repose’ for defendants.156 20.42 Victorian authority envisages that, where the evidence reveals that the plaintiff had no cause of action, this is one of the circumstances capable

of being taken into account in this context.157 But it concurrently disclaims any inquiry into the plaintiff’s prospects of success, largely because, as noted above, the legislature’s choice not to replicate the phrase ‘there is evidence to establish the cause of action’.158 While this may also reflect an understandable judicial reluctance to pronounce on the merits at a preliminary or interlocutory stage, at a time when the evidence has not been called and evaluated,159 it may be queried whether questions of merit in this regard should be as confined as Victorian judges suggest. Accepting that there is clearly no expectation that a plaintiff establish a case in the detail that would be required at the trial, in what appears a defensible course of action in view of the policy issues at stake New South Wales judges do not wholesale eschew any inquiry into the merits. They instead inquire, ‘in an appropriate preliminary way’, into the apparent viability of the action,160 such that it would not be futile to extend time because, say, an element of the cause of action was [page 418] incapable of being established.161 The relevant threshold, it has been said, is ‘relatively low’,162 and ‘not a demanding one’.163 20.43 Moreover, by being framed by reference to ‘all the circumstances of the case’, what is ‘just and reasonable’ in this context cannot be viewed in a vacuum. For instance, a short and well-explained delay may prompt the court to extend time even if the applicant’s prospects of success on the merits are only limited; the position may be otherwise if the delay is long and its justification weak.164 Conversely, an ostensibly compelling case on the merits may prove of sufficient weight to counter a long delay and limited prejudice to the defendant.

New South Wales Personal Injury Extension Regime Between 1990 and

2002 Backdrop 20.44 In 1986 the New South Wales Law Reform Commission, recognising that injustice and hardship can surface under a system governed by a fixed limitation period, especially a relatively short three year time bar in the case of personal injury claims, recommended the introduction of a discretionary extension. It envisaged that provision to extend time would complement rather than substitute the primary limitation period,165 thereby allowing an ‘individualised justice’166 in cases where that period is exceeded. To this end, it recommended that ‘the limitation of personal injury actions be governed by a primary fixed limitation period running from the date of accrual of the cause of action’ — which it ‘retained as a sanction for those who do not commence their actions promptly’ — coupled ‘with a general discretion conferred on the court to extend the primary period where injustice would otherwise result’.167 The Commission’s report provided the impetus for the Limitation (Amendment) Act 1990, which heralded discrete regimes for causes of action accruing before its commencement date (1 September 1990) and those accruing thereafter.

Pre-1990 causes of action 20.45 For causes of action founded on negligence, nuisance or breach of duty168 for damages for personal injury that accrued before 1 September 1990, the relevant law remained located in ss 57–60 of the Limitation Act 1969 (now forming Subdiv 1 of Div 3 of Pt 3 of the Act). Under s 58(2), the court could extend time if: •

any of the ‘material facts of a decisive character’ relating to the cause of action were not within the applicant’s means of knowledge until a date after the commencement of the year preceding the expiry of the relevant limitation period; and [page 419]

•

there was ‘evidence to establish the cause of action’, apart from any defence founded on the expiry of a limitation period.

The court could order this extension so that it expired at the end of one year after that date. Parallel provision existed for the same cause of action that survived for the benefit of a deceased’s estate (termed a ‘surviving action’),169 and for causes of action for damages arising under compensation for relatives legislation170 by virtue of the death of a person caused by a wrongful act, neglect or default.171 20.46 The 1990 amending Act did, however, alter the pre-1 September 1990 limitations law in one important way. The procedure it introduced for a further discretionary extension of limitation periods in the event of latent injuries, located as Subdiv 3 of Div 3 of Pt 3 of the 1969 Act,172 was not confined in its application to causes of action that accrued after 1 September 1990; it could apply to causes of action accruing earlier.173

Causes of action between 1990 and 2002 20.47 As foreshadowed above, the Limitation (Amendment) Act 1990 initiated a new limitations regime applicable to personal injury causes of action founded on negligence, nuisance or breach of duty that accrued on or after 1 September 1990. It consisted of two parts. The first was an avenue for a five year maximum extension of the three year limitation period (located as Subdiv 2 of Div 3 of Pt 3 of the 1969 Act, namely ss 60A–60E), in the legislation titled ‘secondary limitation period’.174 The second, which as mentioned above also applied to causes of action accruing before 1 September 1990, provided an avenue a further discretionary extension of limitation periods in the event of latent injuries (located as Subdiv 3, namely ss 60F–60J).175 Surviving actions fell under the same statutory provision as ordinary actions,176 but separate provision remained for compensation to relatives actions.177 These initiatives, it has been noted, were designed to ‘avoid injustice and hardship that may arise from the strict application of a three-year limitation period’.178 20.48 Importantly, the regime found in Subdiv 2 above — the five year maximum ‘secondary limitation period’ —is expressed not to apply to a cause of action to which Div 6 of Pt 2 applies.179 The latter, which consists of ss

50A–50F, applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of the legal foundation for the claim,180 and extends to both survivor and compensation to relatives actions181 (though not to causes of action on a claim under the Motor Accidents Compensation Act 1999 (NSW)).182 Division 6 of Pt 2 operates, to the exclusion of Subdiv 2 above, to causes of action where the act or omission alleged to have resulted in the relevant injury or death occurs on or after 6 December 2002.183 The unique regime found in Div 6 of Pt 2, which prescribes a ‘3 year post discoverability limitation period’ and a ‘12 year longstop limitation period’, is therefore [page 420] addressed separately.184 That scope exists for the 12 year long-stop limitation period to be extended by a court (under Div 4 of Pt 3, being ss 62A–62F)185 suggests that the extension regime for latent injuries mentioned above (Subdiv 3) does not apply to causes of action governed by Div 6 of Pt 2, even lacking an explicit provision to this effect.186

Overview of 1990–2002 regime 20.49 Under s 60C of the Limitation Act 1969, operative as between 1990 and 2002 as noted above,187 scope exists for a court to extend time upon an application by a person claiming to have a cause of action for damages for personal injury founded on negligence, nuisance or breach of duty.188 It states that, after hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is ‘just and reasonable’ to do so, order that the limitation period be extended for such period, not exceeding five years, as it determines. Separate provision for extending time, albeit again bookended by a five year maximum, exists in s 60D for causes of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default.189 In exercising the powers conferred on it by ss 60C or 60D, a court must, under s 60E, have regard to ‘all the circumstances of

the case’ and, without affecting the generality of the foregoing, to particular matters listed to the extent that they are relevant.190 Like the parallel provisions in the Australian Capital Territory (and pre2003 Victoria), the curial discretion to extend time is a general one, based on the ‘broad concepts’191 of what is ‘just and reasonable’. It has been branded ‘a discretion to grant, not a discretion to refuse, an extension of the primary limitation period’.192 It is equally the case that although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend time, the ultimate onus of satisfying the court that it is just and reasonable that an order be made remains on the plaintiff.193 While not the subject of explicit mention in the relevant provisions, part of the plaintiff’s onus requires adducing evidence capable of establishing his or her cause of action; after all, it would hardly be ‘just and reasonable’ to extend time for a cause of action broadly unsupported by evidence.194 [page 421]

Factors to be considered by the court 20.50 As noted above, in exercising its power to extend time, the court must have regard to ‘all the circumstances of the case’ and, without affecting the generality of the foregoing, to listed factors to the extent that they are relevant to those circumstances. Those factors are listed in s 60E(1),195 which reads as follows: (a) the length of and reasons for the delay; (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available; (c) the time at which the injury became known to the plaintiff; (d) the time at which the nature and extent of the injury became known to the plaintiff; (e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission; (f) any conduct of the defendant which induced the plaintiff to delay bringing the action; (g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received; (h) the extent of the plaintiff’s injury or loss.

Provision is made to apply the above vis-à-vis compensation to relatives actions196 for the death of a person by modifying what is meant by ‘plaintiff’ and targeting the delay occurring after the person’s death.197 20.51 To the extent that the above list of factors shares similarities with parallel Australian Capital Territory (and earlier Victorian) provisions — paragraphs (a), (b) (with a qualification)198 and (g) are common — the case law spanning jurisdictions assumes relevance.199 Otherwise, there is a need for caution in applying what appear as similar sentiments but phrased in different language,200 though in each case bearing in mind that in no State or Territory are listed factors in this context expressed to be exhaustive. Paragraphs (c), (d) and (e) share a focus on the time when certain matters — the injury, its nature and extent, and its connection with the defendant — became known to, or came to the awareness of, the plaintiff. In this context the plaintiff’s knowledge or awareness has been construed as actual knowledge or awareness without regard to the reasonableness of that awareness or any concept of constructive knowledge.201 But this does not preclude an assessment of the reasonableness of a plaintiff’s conduct from being relevant to the court’s determination of whether it is ‘just and reasonable’ to extend time.202 Certainly, where the evidence reveals that the plaintiff is aware of the nature and extent of the injuries, and the defendant’s responsibility for them, within the limitation period, but makes a deliberate decision not to sue, a court is unlikely to be sympathetic to an application to extend time. And this may remain so even if acceding to the application would cause the defendant little prejudice.203 20.52 By directing the court to have regard to the extent of the plaintiff’s injury or loss, s 60E(1)(h) factors into the court’s consideration the potential prejudice to the plaintiff in [page 422] refusing an extension of time. When coupled with an ostensibly strong case on the merits, which as noted earlier is likewise a relevant consideration,204 an injury or loss that is substantial may incline the court towards granting

the extension,205 although as with any other individual factor, by itself it is insufficient to guarantee this outcome.206 Conversely, that the likely quantum of damages in the proposed action is minimal may go against extending time.207

Curial approach to factors 20.53 That s 60E(1) directs the court, ‘to the extent that they are relevant to the circumstances of the case, to have regard to’ each of the listed factors, a court must consider each factor in turn. Except where one or more of the factors is manifestly irrelevant, or conceded to be so, in which case it is sufficient for the judge to say so without elaboration, it is necessary for a judge to come to a reasoned decision about each factor.208 But this does not exhaust the judicial task; to satisfy the direction to ‘have regard to all the circumstances of the case’, the court must also ‘consider whether there are any additional factors that bear upon whether it is just and reasonable to extend the limitation period, and whether the court should actually extend the limitation period, that do not appear in that list’.209 20.54 Whilst one factor alone is not sufficient to demonstrate that it is just and reasonable to extend the limitation period, situations can arise where one factor alone enables a conclusion that it is not just and reasonable to extend time. Most typically, this may ensue where extending time would result in significant prejudice to the potential defendant.210 But this does not dictate that mere proof of prejudice, even ‘significant’ prejudice, is conclusive in a rejection of the application; prejudice remains one of a list of factors to be taken into account. There are instances, accordingly, where the exercise of the discretion to extend time may result in a trial in which the defendant is placed at some disadvantage in consequence of the plaintiff’s tardiness. Ultimately, in weighing prejudice, its impact upon a fair trial to the defendant is the primary focus.211 As courts are loath to extend time in circumstances that would deny a defendant a fair trial, it is here that prejudice has its greatest impact as a single factor. There may also be instances where a plaintiff’s failure to provide any reasonable explanation for the delay is conclusive against an extension of time.212 Again, however, it cannot be said, as a matter of course, that any

such failure must trigger the application to fail. Other listed factors, and more broadly ‘all the circumstances of the case’, may in totality nonetheless weigh [page 423] in favour of an extension, especially where the claim appears strong on the merits213 and there is little prejudice to the defendant in allowing it to proceed.214

Effect of order extending time before the 2002 amendments 20.55 If a court orders the extension of time for a cause of action relating to the secondary limitation period above, or in the context of latent injury (see immediately below), the limitation period is accordingly extended for the purposes of both an action brought by the plaintiff, and in relation to any associated contribution action215 brought by the person against whom that cause of action lies.216 Also, any such order operates as if the provisions prescribing extinction of right and title217 had never been in force,218 and may be made even though the primary or even secondary limitation period has already expired219 (in which case its prior expiry has no effect for the purposes of the Act).220

New South Wales Pre-2002 Extension of Time for Latent Injury Provision for extension of time 20.56 As foreshadowed earlier,221 for causes of action accruing before 6 December 2002, the Limitation Act 1969 makes provision, via Subdiv 3 of Div 3 of Pt 3 (ss 60F–60J) for what its introductory provision (s 60F)

describes as ‘a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time’.222 As is implied from the words ‘further … extension’, such an order cannot be made unless the time has expired for the making of an order relating to the secondary limitation period.223 20.57 The principal operative provision (s 60G) empowers the court to extend time, if it is ‘just and reasonable’, in respect of a personal injury224 cause of action founded on negligence, [page 424] nuisance or breach of duty. Equivalent provision, via s 60H, is made in relation to compensation to relatives actions, arising by virtue of the death of a person caused by a wrongful act, neglect or default.225 Though the phrase ‘may … order’ in s 60G(2) (and s 60H(2)) suggests that, even when it believes it is just and reasonable to order an extension, the court retains a residual discretion, the latter appears ephemeral. ‘[T]here can be little doubt’, it has been remarked, ‘that an order would be made virtually as of course once it had been determined that it was just and reasonable to do’.226 20.58 Within their terms, neither ss 60G nor 60H confine the permissible period of extension; indeed, they provide that the court may grant an extension ‘for such period as it determines’. But this is qualified by s 60I(1) (b), which proscribes the court from extending time under ss 60G or 60H unless it is satisfied that the application for extension is made within three years after the plaintiff became aware, or ought to have become aware, of each matter listed in s 60I(1)(a).227 20.59 On an application under s 60G (or s 60H), the plaintiff must satisfy the court of the matters listed in s 60I(1) (often termed the ‘gateway provisions’) before convincing the court that it is ‘just and reasonable’ to make the order extending time. While not explicitly listed in any of these provisions, in determining whether it is ‘just and reasonable’ to extend time the court cannot ignore what evidence there is to establish the plaintiff’s

cause of action; absence of such evidence would ordinarily deny the justice and reasonableness of extending time.228 Beyond this, whether it is ‘just and reasonable’ to extend time usually invites inquiry into whether a fair trial — for the defendant — is possible in the circumstances in view of the delay.229 This in turn explains the judicial focus, for this purpose, on the prejudice to the defendant, stemming from the delay, should the application be granted. Indeed, appellate authority indicates that it is not just and reasonable to extend time in the face of significant prejudice.230 [page 425] 20.60 Yet the foregoing does not mean that, absent a finding of significant prejudice, an extension must follow; the applicant must still discharge the persuasive onus.231 Also, prejudice is not the only consideration; it may be that, for instance, although unaware of a matter in s 60I(1)(a), the plaintiff nonetheless had such awareness that it would not be just and reasonable to grant an extension of time. Gleeson CJ, with whom Priestley and Meagher JJA agreed, elaborated this point in Drayton Coal Pty Ltd v Drain:232 It is important to bear in mind … that satisfaction of the requirements of s 60I(a)(iii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s 60G(2) is the extent of a plaintiff’s awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff’s injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s 60I(1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff’s awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff’s awareness of certain acts or omissions connected with the plaintiff’s injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s 60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s 60I.

A ‘fair’ trial in this context should not, however, be construed as a perfect or ideal trial, but by reference to a trial that is ‘acceptably fair’.233 This

invites an element of judgment in each case, and speaks against any brightline test. After all, it has been judicially observed, ‘[t]rials are constantly held in which for a variety of reasons not all relevant evidence is before the court’, and ‘[t]ime and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial’.234

Section 60I — matters to be considered for the purposes of ss 60G, 60H 20.61 A court cannot make an order extending time under ss 60G or 60H unless, as noted above,235 it is satisfied of two core matters found in s 60I(1), the first relating to the plaintiff’s knowledge or awareness, and the second to matters of timing of the application. As to the first, s 60I(1)(a) requires that the court be satisfied that, at the expiry of the relevant limitation period or at a time before its expiry when proceedings might reasonably have been instituted,236 the plaintiff: (i) did not know that personal injury had been [page 426] suffered;237 (ii) was unaware of the nature or extent of that injury; or (iii) was unaware of the connection between the personal injury and the defendant’s act or omission. As appears from the term ‘or’, these three limbs function as alternatives.238 As to the second matter, prescribed by s 60I(1) (b), the plaintiff must satisfy the court that the application is made within three years after he or she became aware, or ought to have become aware, of all three matters listed in (i)–(iii) above.

Test of ‘knowledge’ and ‘awareness’ 20.62 Redolent in the language of s 60I(1) are the concepts of ‘knowledge’ and ‘awareness’ so far as the plaintiff is concerned. It is established that, under s 60I(1)(a), a plaintiff’s knowledge or awareness is his or her actual knowledge or awareness — what has been described as a ‘subjective’ inquiry — without regard to the reasonableness of that awareness (including reasonable foreseeability) or any notion of constructive notice or knowledge.239 This derives from the words ‘did not know’ and ‘was unaware’ in s 60I(1)(a), and the fact that the phrase ‘or ought to have become aware’ in s 60I(1)(b) makes no appearance in s 60I(1)(a).240 As no clear distinction between awareness and knowledge is drawn in s

60I(1)(a), it may be that the concepts reflect the same core notion. Under s 60I(1)(b), mention is made only of awareness, but this is not confined to actual awareness, but invites inquiry into when the plaintiff ‘ought to have become aware’ of the matters listed in s 60I(1)(a). While it therefore invokes notions of constructive awareness (or knowledge) in determining whether a plaintiff has crossed the requisite threshold,241 this does not, according to the case law, dictate a purely objective standard.242 In any case, though, independent of s 60I(1)(b) an assessment of the reasonableness of a plaintiff’s conduct may prove relevant to the court’s determination of whether it is ‘just and reasonable’ to extend time.243 20.63 While s 60I requires the court to be satisfied that the plaintiff was not aware of the stated matters, it does not require proof of those matters as fact. Otherwise, it would effectively [page 427] require the plaintiff, when making the application to extend time, to satisfy the court of the ingredients of the cause of action.244 It is true that the strength of the plaintiff’s case on the merits is relevant to whether it is just and reasonable to extend time, but any merits inquiry at this stage is preliminary at best.245

‘Nature or extent of personal injury’ (s 60l(1)(a)(ii)) 20.64 Section s 60I(1)(a)(ii) is concerned to inquire whether, in a real sense, the plaintiff was aware of the nature of his or her injury and its broad extent. Clarke JA, with whom Priestley and Powell JJA concurred, explained its object and operation in CRA Ltd v Martignago as follows:246 Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences … Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as

to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.

20.65 At the same time, as the concepts of ‘nature’ and ‘extent’ differ in meaning, a finding that a plaintiff was aware of the nature of an injury does not equate to a finding as to awareness of its extent.247 In each case, a close factual inquiry is necessary. So while, say, in one case awareness of a serious neck injury involving spinal damage may constitute awareness of the nature and extent of the injury sustained, in another awareness of a pain in the arm following a blow to the wrist may not constitute awareness of the extent of the injuries should serious complications to the arm arise years later.248 There is a potentially difficult line to draw in this regard, because to construe the words ‘nature’ and ‘extent’ broadly would enable a plaintiff to avoid awareness of the ‘nature and extent’ of an injury pending his or her awareness of its final form and consequences. As few plaintiffs may ever know this, even at the time of trial, it could not have been Parliament’s intention to allow potential plaintiffs to ‘completely disregard limitation periods merely because they are unable to predict their final fate’.249 How the line may be drawn derives some assistance from the following remarks of the High Court of Australia:250 [page 428] [A]n applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological and physiological incidents. If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathology or consequences of the injury.

So, it has been explained, if the plaintiff knows ‘the various signs and symptoms’ of his or her condition, and a reasonable person in that position would know of its potential, that is sufficient.251 But if, though knowing of these ‘signs and symptoms’, a reasonable person so positioned would consider

them as signifying a trivial condition (that in fact proves serious), the plaintiff cannot reasonably be held to know the ‘extent’ of his or her injury.252

Awareness of the connection between injury and defendant’s act or omission (s 60l(1)(a)(iii)) 20.66 In directing inquiry into whether the plaintiff was unaware of the connection between the personal injury and the defendant’s act or omission, s 60I(1)(a)(iii) focuses on the ignorance of the existence of acts or omissions rather than legal conclusions.253 The relevant acts and omissions, being those on which the plaintiff relies to found the cause of action referred to in s 60G,254 are usually found in the plaintiff’s particulars of negligence. This does not mean that merely because a plaintiff’s lawyers can think up some act or omission, upon which they may wish to rely at the trial, that the plaintiff was unaware of at the relevant time, automatically means that the requirements of s 60I(1)(a)(iii) are met.255 Unawareness of a material act or omission that constitutes a ‘substantial ground’ upon which reliance will be placed, conversely, suffices to satisfy its requirements.256 20.67 In any case, satisfaction of the requirements of s 60I(1)(a)(iii) is not an end to the matter. It may be proper, under s 60G(2), to take into account the extent of a plaintiff’s awareness at the critical time of acts or omissions that, by reason of their connection with the plaintiff’s injury, are to be relied upon as constituting actionable negligence. Such questions of [page 429] degree can also bear upon the justice and reasonableness of extending a limitation period under s 60G(2), as Gleeson CJ explained in Drayton Coal Pty Ltd v Drain:257 [T]he state of a plaintiff’s awareness of certain acts or omissions connected with the plaintiff’s injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came from notice at a later time. In other words, s 60G(2) may, depending upon the facts and circumstances of a case, operate as an

important qualification upon the practical effect of s 60I.

The reference in s 60I(1)(a)(iii) to the ‘defendant’s’ act or omission does more than identify the relevant act or omission to which attention is directed. It encompasses not merely a lack of awareness of the connection between an act or omission and the injury, but also of the identity of the relevant defendant(s).258 In focusing on a lack of knowledge or awareness on the part of the plaintiff, s 60I(1)(a) can legitimately be construed to address questions concerning knowledge or awareness of the defendant’s identity.259

Temporal awareness criterion (s 60l(1)(b)) 20.68 Section 60I(1)(b) proscribes the court from making an order under ss 60G or 60H unless it is satisfied that the application is made within three years after the plaintiff became aware, or ought to have become aware, of all three matters listed in s 60I(1)(a). As noted earlier, the phrase ‘or ought to have become aware’ invokes constructive awareness (or knowledge) as a fulcrum for curial intervention,260 the logic being that a secondary three year limitation period imposed after the expiration of the initial period should set a stricter requirement of knowledge (from the plaintiff’s perspective) than that required for the initial period.261 But in this context constructive awareness (or knowledge) as a fulcrum for curial intervention does not proceed on a purely objective (‘reasonable person’) inquiry. It involves some subjective element(s) — and thus constructive knowledge, in the words of one judge, only to a ‘limited extent’262 — making the challenge one of identifying what subjective characteristics of the plaintiff should influence whether he or she ‘ought to have become aware’ of the prescribed matters. The focus, it is said, is on ‘knowledge of which the plaintiff (as a person) ought to have become aware’.263 It follows that whether a plaintiff ‘ought to have become aware’ involves whether the plaintiff took all such action as it was reasonable for him or her to take to find out.264 The relevant knowledge cannot therefore be divorced from knowledge peculiar to the plaintiff. That peculiarity must, to this end, be influenced by certain personal characteristics [page 430]

pertaining to the plaintiff, including his or her level of education, intelligence and resources, which may differ sufficiently from those of a ‘reasonable person’ to impact on what the plaintiff ‘ought to have become aware’ of in the circumstances. One plaintiff may, for instance, possess some degree of expert knowledge that should have prompted a relevant awareness at an earlier stage than another plaintiff lacking that knowledge. In the pithy words of an English judge, ‘[l]ess is expected of a stupid or uneducated man than of a man of intelligence and wide experience’.265 20.69 There remains the question of whether, and if so the extent to which, aspects of a plaintiff’s personality or character should likewise be factored into what he or she ‘ought to have become aware’. In England, dealing with a parallel provision worded by reference to knowledge a plaintiff ‘might reasonably have been expected to acquire’,266 Lord Scott remarked that while a plaintiff’s illiteracy should factor into the inquiry, ‘personal characteristics’ like shyness and embarrassment, which may have inhibited the plaintiff from seeking advice about his or her illiteracy problems but that would not be expected to have inhibited other illiterates, ‘should be left out of the equation’.267 Indeed, to allow matters going to the plaintiff’s personality or character to be probative for this purpose — admittedly assuming that these can be distinguished from other peculiarities of the plaintiff — could deprive the relevant inquiry, in New South Wales too, of any true objectivity. It is this concern that appears to have prompted English judges to side with a ‘more objective’ characterisation in this context,268 and a corresponding ‘heightened degree of curiosity’.269 At least one Australian judge appears to share this view, reasoning that the term ‘ought’ requires ‘more than explanation — it requires justification’, [page 431] namely ‘a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire’.270 20.70 The law distinguishes between actual knowledge, constructive knowledge and imputed knowledge. As its title suggests, ‘imputed

knowledge’ is knowledge of something that is ‘imputed’ (or ‘attributed’) to a person without any need for that person to have had actual or constructive knowledge of that something (without prejudice to the prospect of some overlap depending on the circumstances). It is evident that s 60I(1)(a), as a consequence of being premised on actual knowledge, cannot encompass imputed knowledge except where it is shown that the two overlap. As for s 60I(1)(b), which prescribes constructive knowledge as its trigger, the case authority is likewise clear that imputed knowledge has no role, again except to the extent that it overlaps with actual or constructive knowledge.271 Aside from this outcome being consistent with the language found in s 60I(1) (including the absence of words such as ‘the plaintiff whether by himself or his agent’), there are good practical reasons against any alternative construction, explained by Priestley JA as follows:272 This is illustrated by considering what would happen in the case of a plaintiff advised by a firm of solicitors containing more than one solicitor. It would be arguable that a plaintiff in getting advice from one of two partners in, say, a firm of two solicitors was in law retaining the firm, and it would be further arguable that the knowledge of both partners should be attributed to him. The greater the number of partners in the firm, the more obvious the difficulty would become.

Had the legislation made it plain that the knowledge in issue was both that of the plaintiff and the plaintiff’s agents, his Honour added, courts would no doubt devise common sense methods of dealing with the above situation. But the language in s 60I(1) reveals that its drafters did not have in mind even the possibility of arguments of this kind.

Current New South Wales and Victorian Regimes 20.71 The limitations legislation in New South Wales and Victoria, via Div 6 of the Limitation Act 1969 (NSW) and Pt IIA of the Limitation of Actions Act 1958 (Vic), makes provision for limitation periods applicable to causes of action for damages that relate to personal injury to (or the death of) a person, whether brought in tort, in contract, under statute or otherwise.273 In New South Wales this applies to causes of action where the relevant act or omission occurred on or after 6 December 2002,274 whereas in Victoria it

applies to where the said act or omission occurred on or after 21 May 2003,275 although for proceedings commenced from 1 October 2003 it also applies to causes of action where that act or omission occurred before 21 May 2003.276 Commentary on the nature and incidents of these regimes, which ensued upon certain recommendations in the Ipp Report favouring a postdiscoverability period coupled [page 432] with a long-stop limitation period, is found in Chapter 7.277 What is elaborated below are the avenues for extending time in this context, likewise collapsed in Div 6 and Pt IIA respectively.

Application of extension of time provisions 20.72 There is scope for the court to extend time under Div 6 (in New South Wales) and Pt IIA (in Victoria). Only the 12 year long-stop limitation period can be extended in New South Wales. In Victoria, conversely, the power to extend time applies to ‘a period of limitation applicable to the cause of action under Division 2 [of Pt IIA]’, which encompasses not only the 12 year long-stop limitation period, but also the three year post-discoverability period in s 27D,278 the six year postdiscoverability period in s 27E (disability),279 as well as the special limitation period for minors injured by close relatives or close associates in s 27I.280

Discretion to extend time 20.73 The operative provision states that if it is ‘just and reasonable’ to do so, the court may, after hearing such of the persons likely to be affected by the application as it sees fit, order the extension of the relevant limitation period applicable to the cause of action for such period as the court determines, albeit in New South Wales not beyond three years of the date on which the cause of action is ‘discoverable’281 by the plaintiff.282 If the court orders the extension, the limitation period is accordingly extended for the

relevant cause of action.283

New South Wales provision 20.74 In determining whether or not to extend time, s 62B(1) of the New South Wales legislation requires the court to have regard to all the circumstances of the case, and without affecting the generality of the foregoing, the court is, to the extent that they are relevant to the circumstances of the case, to have regard to: (a) the length of and reasons for the delay; (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available; (c) the nature and extent of the plaintiff’s injury or loss; (d) any conduct of the defendant that induced the plaintiff to delay bringing the action; (e) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received; (f) the time when the cause of action was ‘discoverable’ … by the plaintiff.

These factors are very similar to those listed under s 60E(1) for extending the three year limitation period (to a maximum of five years) under the earlier personal injury limitations regime.284 All but paragraph (f) above has an almost identical analogue in s 60E(1); the ‘discoverability’ notion within paragraph (f), in any event, has parallels with the factors listed [page 433] in s 60E(1)(c)–(e). Accordingly, the curial interpretation of s 60E may be of considerable relevance to an understanding of the factors listed in s 62B(1), bearing in mind, though, that the latter is confined to extensions of only the 12 year long-stop limitation period.

Victorian provision 20.75 The Victorian legislation, via s 27L(1), likewise requires the court to have regard to all the circumstances of the case, including (but not limited to) the following factors:285 (a) the length of and reasons for the delay on the part of the plaintiff;286 (b) the extent to

which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability; (e) the time within which the cause of action was discoverable; (f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

It is apparent that paragraphs (a), (b), (e) and (g) are shared with the parallel New South Wales provision (via paragraphs (a), (b), (f) and (g)). As s 27L(2) of the Victorian Act adds that, to avoid doubt, the circumstances referred to in s 27L(1) include whether the passage of time has prejudiced a fair trial of the claim, the nature and extent of the plaintiff’s loss and the nature of the defendant’s conduct, paragraphs (c) and (d) of the New South Wales also translate to the Victorian environment. Like its New South Wales counterpart, s 27L(1) of the Victorian legislation is very similar to its earlier iteration, namely s 23A(3)287 (which reads in practically identical terms to the present, generally applicable, Australian Capital Territory extension provision).288 The approach to be taken in an application to extend time under Pt IIA, broadly speaking, can legitimately equate to that taken under s 23A, a point confirmed on multiple occasions in Victorian courts.289 There is sense, as a result, to discuss the curial approach to applying the relevant factors compendiously, encompassing each of the above jurisdictions, secure in the knowledge that the few detail divergences between the jurisdictions will rarely dictate different outcomes when placed against the common requirement grounded in what is ‘just and reasonable’ with regard to ‘all of the circumstances of the case’.290

Application to survivor and compensation to relatives actions 20.76 In the application of the foregoing to a cause of action that is a survivor action,291 references to the ‘plaintiff’ include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.292 In its application to a compensation to relatives

[page 434] action,293 the ‘plaintiff’ includes the deceased, the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.294

Extension of time where irrational failure to bring action for minor (NSW) 20.77 The New South Wales legislation provides an avenue for extending time on an application by a person who, at the time of the relevant act or omission alleged to have resulted in the injury or death, was a minor on the ground that his or her parent(s) or guardian(s) should have commenced proceedings within time. What the plaintiff must show is that the failure to bring the action timeously was ‘attributable to an irrational decision’ by a parent or guardian made after the cause of action became ‘discoverable’ by the parent or guardian.295 If the court is convinced of the foregoing, and that the applicable limitation period expired before or within one year of the plaintiff reaching 18 years of age, it may extend the limitation period so that it expires at the end of one year after the making of the court’s order. This order presupposes, however, that there is evidence to establish the cause of action, apart from any defence founded on the expiry of a limitation period.296

Queensland (and Earlier New South Wales and Victorian) Regimes Provision for extending time Requirements for extension of time 20.78 Section 31(1) of the Limitation of Actions Act 1974 (Qld) makes provision for the court to extend time, beyond a three year limitation period,297 for actions for damages for negligence, trespass, nuisance or breach

of duty (whether the duty exists by virtue of contract, statute or otherwise) where the damages claimed consist of or include damages in respect of either personal injury298 to any person or injury resulting from the death of any person. Under s 31(2), where on application by a person claiming to have such a right of action, time may be extended if it appears to the court: (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.

In this event, the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date. A parallel provision, expressed in essentially the same terms but applying in the context of personal injury actions relating to the estate of a deceased person, appears in s 32.299 [page 435] 20.79 Section 31 was the product of a 1972 Queensland Law Reform Commission report, which recommended following the New South Wales lead in this regard.300 Indeed, s 31 is worded almost identically to s 58 of the New South Wales Act,301 which was in turn broadly based on the Limitation Act 1963 (UK).302 While the New South Wales provision has been superseded for actions accruing on or after 1 September 1990 (and again as from 6 December 2002),303 the terms of the Queensland s 31 remain, without material change, to this day. The Queensland schema here thus bears similarities to earlier schemas in England,304 and also in Victoria,305 each also superseded on one or more occasions. It follows that the case law on the (albeit largely lapsed) New South Wales, Victorian and English provisions remains relevant to the interpretation of s 31 in the Queensland Act, at least to the extent that the same (or equivalent) language appears.

Focus on justice of the case 20.80

What appears from the above is that an extension of time, subject

to the conditions precedent found in s 31(2)(a) and 31(2)(b) above, is not, unlike more modern extension of time provisions,306 conditioned upon a finding of the court that it is ‘just and reasonable’ to extend the limitation period, or by reference to any list of factors to which the court must have regard. Subject to those conditions precedent, it has been branded as ‘an unqualified discretionary power’.307 Accordingly, s 31(2) confers no presumptive right to an extension of time upon satisfaction of the foregoing conditions precedent; instead, an applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour.308 As this involves a (residual) judicial discretion — pressing the court to afford ‘an exceptional entitlement’309 — its exercise rests on the justice of the case. [page 436] The absence of the phrase ‘just and reasonable’ therefore makes little difference to the exercise of the curial discretion here.310 20.81 Consistent with the foregoing, the onus rests on the plaintiff to establish that the material fact would not have been discoverable prior to the critical date and that the evidence establishes a right of action,311 and then to convince the court that the justice of the case requires the exercise of the discretion in his or her favour. In what remains the leading Australian judgment on this point, McHugh J in Brisbane South Regional Health Authority v Taylor uttered the following contextual remarks:312 A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case … But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

His Honour explained that ‘justice’ here includes ‘all the relevant

circumstances relating to the application including the various rationales for the enactment of the limitation period involved’.313 The reference to ‘all the circumstances of the case’ in the legislation in several other jurisdictions, in dealing with the inquiry into whether it is just and reasonable to extend time,314 therefore reflects no more than the incidents of a judicial discretion more generally.

Targeting the fairness of the trial 20.82 Of the circumstances that inform the justice of the case, Toohey and Gummow JJ in Brisbane South cited, as ‘the most important consideration in many cases’, whether, by reason of the elapsing of time, a fair trial is possible.315 Their Honours subsequently identified the ‘real question’ as ‘whether the delay has made the chances of a fair trial unlikely’,316 and rejected any suggestion that the court should engage in a weighing process for this purpose.317 A plaintiff who cannot show that a fair trial can occur despite the delay is, as a result, unable to discharge the burden of proving that the justice of the case supports extending time. It must be noted that the term ‘fairness’ in this context (as indeed in others) is a relative one, as between the parties in a case in the circumstances of that case. For a trial to be ‘fair’, it need not be perfect or ideal. The latter is, in any event, an unrealistic object, as trials are constantly held in which for various reasons not all relevant evidence is before the court.318 [page 437]

Relevance of ‘prejudice’ to defendant 20.83 Questions surrounding a fair trial cannot be addressed independently of the extent to which the defendant has or may be prejudiced by the elapsing of time.319 Brisbane South establishes, inter alia, that once a legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the time bar. This form of prejudice, which McHugh J couched in terms of ‘presumptive

prejudice’, is the prejudice a defendant is presumed to suffer merely from delay in pursuing the action. It reflects the common sense notion that, with the passage of time, memories of relevant events will likely become less reliable and there is a risk that relevant evidentiary material may have been lost, as may the opportunities for inspection and report.320 Presumptive prejudice will often intensify with the passage of time, though this may also depend on the nature of the claim, and the importance of unrecorded recollections of events.321 20.84 Like any presumption, it can be diluted or ousted by the facts, or alternatively confirmed by evidence. As to the latter, the defendant ordinarily bears an evidentiary onus, in resisting an extension application, to show ‘actual’ prejudice. Adducing no evidence, or evidence that is unpersuasive or insignificant, of actual prejudice may justify the court concluding that only presumptive prejudice, at best, has ensued.322 But if a defendant can establish that he or she will, by reason of the delay, be unable to properly defend the claim, or that there is a significant chance that this is so, the case translates from ‘presumptive’ prejudice to ‘actual’ (or ‘real’) prejudice. Unless the plaintiff can, in response, satisfy the court that, at the date when the application is made,323 the delay would not result in significant prejudice to the defendant, there is likely to be an impermeable barrier to extending time. As explained by McHugh J:324 When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.

[page 438] Indeed, the effect of the decision in Brisbane South has been judicially described in terms that an application for an extension of time under limitation legislation ‘should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant’.325 The flip

side is that, if the preconditions in s 31(2) have been satisfied, in the absence of significant prejudice there may be no good reason to refuse an extension of time.326 Moreover, that the concept of ‘fairness’ of a trial that triggers inquiry into prejudice does not, as noted earlier,327 mandate a perfect or ideal trial dictates that merely because a defendant may suffer some prejudice stemming from the undue delay does not, by itself, thwart an extension of time. 20.85 McHugh J’s remarks, extracted above, supply some backdrop to why actual prejudice is weightier than mere presumptive prejudice against an extension application. Fairness, in any case, works both ways, as a loss of probative evidence in the course of time may well prejudice each litigant. This has prompted the observation that ‘[t]he court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared’.328 In Brisbane South McHugh J rejected the argument that the words ‘the period of limitation for the action be extended’ in s 31(2) require the court to consider only the additional prejudice suffered by the defendant after the expiry of the limitation period. Such a construction, reasoned his Honour, ‘would make the expiry date a mere reference point setting a provisional limit on the commencement of an action’ as well as overlook ‘the rationales that have persuaded legislatures for more than four centuries that, generally speaking, civil actions should be commenced within fixed periods’.329 This approach does not, however, deny that delay subsequent to expiry of the time bar is likely to prove the most probative in the equation. 20.86 As the question of prejudice to the defendant, or to the fairness of the trial generally, arises as part of the court’s residual discretion only once the plaintiff has satisfied the court of the elements in s 31(2), it is apt to consider those elements in advance of probing the impact of prejudice in this context.

Aim(s) of relevant provision(s) 20.87 Section 31 (and its analogues), it has been said, aim to address the injustice besetting a plaintiff met with a time bar where he or she ‘neither

would nor should have sued in time because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action’.330 The legislative policy underlining the relevant provision, being ‘plain enough’, is that ‘the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings’.331 20.88 One of its peculiarities is that it contemplates permitting proceedings to be brought even though all material facts are known within the limitation period (stemming from the words ‘a date after the commencement of the year last preceding the expiration of the period [page 439] of limitation for the action’ in s 31(2)(a)). The matter nonetheless remains within the court’s discretion, and relief will be refused if the real cause of the default was the failure of the plaintiff (or his or her lawyers) to take proper action after the decisive fact came within their knowledge. As explained by Mahoney JA in Royal North Shore Hospital v Henderson:332 [The legislation] requires a judgment to be formed as to when a reasonable man ought to sue and, consequently, it looks to when such a person, knowing that he has a relevant cause of action, may be excused from not suing … The provision is not directed to excusing inadvertence, or inadvertence as such. It assumes appropriate knowledge and advice as to a plaintiff’s rights and looks to considerations which justify a decision not to exercise them, or not to exercise them at the particular time. And it requires a determination to be made of when the plaintiff is to be expected, for the purposes of his rights under the [legislation], to have taken action.

The foregoing clearly presupposes a degree of proactivity on the part of the (putative) plaintiff. To this end, it draws support from the words ‘within the means of knowledge of the plaintiff’ in s 31(2)(a). A fact that is of a decisive character is within the plaintiff’s ‘means of knowledge’ if it can be ascertained, it has been said, ‘by asking a lawyer or doctor a simple question and it is a question which a reasonable person in the position of the plaintiff would ordinarily ask’.333 But where, that question having been asked, the response remains one punctuated by uncertainty, it is difficult to conclude

that, at that time, the material fact(s) fall within the plaintiff’s knowledge.334

Overview of discharging the onus under s 31(2) 20.89 Fulfilling the terms of s 31(2)(a), and thus one step towards securing an extension of time, requires proof by the plaintiff of three elements: the existence of a material fact or facts unknown before the relevant date; that the fact or those facts are of a decisive character; and that the fact or those facts were not within his or her means of knowledge until after the relevant date.335 It follows that meaning must be given to core concepts of ‘material fact(s)’, ‘decisive character’ and ‘means of knowledge’. Each is addressed in turn below. In addition to proving, under s 31(2)(a), that a material fact of a decisive character was not within his or her means of knowledge, the plaintiff must under s 31(2)(b) adduce ‘evidence to establish the right of action’, a point also addressed below.336 Once the plaintiff has satisfied the court of the above elements, the threshold is attained to request the court to exercise its (residual) discretion to extend time.337 [page 440]

‘Material facts’ Identifying material facts 20.90 A core criterion a plaintiff must establish as a step towards having time extended is that a ‘material fact’ of a decisive character was not within his or her means of knowledge at the relevant time. Discharging this onus does not require a plaintiff to prove the existence of a material fact to the court’s satisfaction on the balance of probabilities; the relevant provision is, after all, concerned with the composite notion of knowledge of a material fact, and accordingly with ‘the quality of the information about the fact available to [a plaintiff] and the [plaintiff’s] state of belief or understanding

generated by that information’.338 The legislation lists ‘material facts’ relating to a right of action as including the following:339 (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.

Importantly, being expressed in inclusive terms, the above catalogue is not exhaustive of ‘material facts’ for this purpose. Stated compendiously, in any case, it has been said that a fact is ‘material’ to an applicant’s case if it is both relevant to the issues to be proved for the applicant to succeed in obtaining an award of damages sufficient to justify bringing the action, and of sufficient importance to be likely to have a bearing on the case.340 For example, as damages are an essential element of a right of action for negligence, facts relevant to the economic effects of the injury are material facts under (iv) above.341 Whatever the material fact(s), their pivotal function behoves the person seeking a time extension to identify them with precision.342

Meaning of ‘facts’ 20.91 Importantly, the choice of terminology ‘material fact’ dictates that what an applicant for an extension of time must show ignorance of must be ‘a factual matter in the ordinary sense’.343 This must be distinguished from an ignorance of the law,344 the legal consequences of material facts or a cause of action, none of which are ‘facts’ for this purpose.345 The legislature, in adopting the ‘material fact’ language, can be assumed to have intended to reflect the recognised (though not always precise) distinction between matters of fact and matters of law, and so [page 441] there is arguably no justification to adopt another construction even in the face of apparent anomalies. Lord Salmon elaborated the point, vis-à-vis the parallel English provision, in Smith v Central Asbestos Co Ltd:346 I recognise that on [this] construction … if a man who takes legal advice is wrongly advised

that there are no further material facts to be ascertained and consequently remains in ignorance of material facts of a decisive character, he will be protected by the statute, whereas, if he is wrongly advised that the facts he has discovered would not in law afford him a remedy, he will lose the protection of the statute. This does not, however, alter my opinion. In my view, the purpose of the legislature was to protect persons against their lack of knowledge of facts which they could not reasonably have ascertained. No doubt as a matter of policy the legislature might have protected ignorance of the law as well as ignorance of fact, but it did not do so. Ignorance of the law as a rule is no excuse. If Parliament had intended to make an exception in this field it would, I think, have done so in far plainer language. It certainly would not have reiterated … that it is legislating only in the relation to the plaintiff’s lack of knowledge of material facts.

So in Ex parte Bolewski,347 for example, that the plaintiff’s solicitors, with full knowledge of his injuries and the circumstances in which they were suffered, failed to advise of a right of action was not a material ‘fact’ of a decisive character relating to the right of action within the meaning of s 31(2)(a). 20.92 This construction is also supported by the statutory definition of ‘material facts of a decisive character’,348 which likewise draws a clear distinction between facts and the legal consequences of those facts, referring as it does to the attitude of a reasonable person to facts in the light of ‘appropriate advice’. The implication is that the advice itself is not a material fact, and thus knowledge of the legal consequences of material facts is not intended to be itself knowledge of a material fact.349

‘A’ material fact as opposed to ‘any of’ the material facts 20.93 Section 31(2)(a) of the Queensland Act refers to ‘a’ material fact of a decisive character was not within the plaintiff’s means of knowledge at the relevant time, whereas the New South Wales provision upon which it was based referred to ‘any of’ the material facts.350 This appears to make the application of the Queensland provision more difficult because, by ostensibly focusing on a single material fact, s 31(2)(a) implies that any one fact might have a decisive character relating to the right of action. Yet the wording in s 30(1)(b), which identifies when ‘material facts relating to a right of action are of a decisive character’ (also found in the New South Wales Act), reflects an assumption that only when the material facts are considered as a whole can the judgments required by s 30(1)(b) be made.

This prompted Jerrard JA in Wrightson v Queensland351 to decide that this unnecessary alteration of the New South Wales provision when being copied into the Queensland Act should not govern the interpretation of s 31(2). His Honour preferred to construe s 31(2) as fixing an inquiry into whether the material facts within the applicant’s means of knowledge were, in combination, of a decisive character by the critical date. A negative response to this inquiry means that the plaintiff has established one of the grounds for an order under s 31(2). On this analysis, he added:352 … it does not matter why the material facts within the applicant’s means of knowledge as at the critical date became of a decisive character after that date, and whether that was because the applicant learnt only later of another fact, which extra fact now made the combination of material

[page 442] facts of a decisive character; or whether it was because the facts already known at the critical date only became of a decisive character; because circumstances later existing were such that the applicant ought (only by then) to bring on an action.

This aligns with the approach adopted in New South Wales: that its counterpart to s 30(1)(b) lays down when the material facts, as a group, qualify as having a decisive character; and once that group so qualifies, each of the material facts that comprise the group is itself a material fact of a decisive character relating to a right of action. It follows that a court considering an application under s 31(2) is bound to ascertain those facts that as a group qualify as a material fact before determining whether any of them were not within the plaintiff’s means of knowledge at the relevant time.353 So, for instance, if any one of facts A, B or C would, with other facts within the plaintiff’s means of knowledge, satisfy the requirements of ‘the material facts of a decisive character’, it does not suffice, for the purpose of s 31(2), that the plaintiff was unaware of fact A while being aware of a worthwhile cause of action by reason of knowing facts B and C.354

‘Nature and extent of the personal injury so caused’ 20.94 It is not necessary that the ‘nature and extent’ of the relevant personal injury, listed in s 30(1)(a)(iv), should be finally, conclusively and

authoritatively determined before ‘facts’ become ‘material facts’. This would be unrealistic in view of the provisional nature of many injuries at the time when litigation is ordinarily commenced. Equally, though, it would be unrealistic, given the context in which facts are determined to be ‘material’ and, if material, ‘of a decisive character’, to overlook the need to consider the way ordinary reasonable people, knowing of their symptoms and of the progressive manifestation and explanation of them in the case of a disease (including with advice of competent persons), act in defence of their own interests.355 For example, a headache or chest pains may have any one of multiple explanations. In Ditchburn v Seltsam Ltd356 the plaintiff’s chest pains were originally attributed to a back injury; even later, when the question of asbestos was first ventilated, the nature and extent of his ‘personal injury’ had not been determined because asbestos exposure was only one of several hypotheses. ‘In the ordinary way of medical diagnosis’, Kirby P remarked, ‘various alternative possibilities had first to be excluded before the nature and extent of the injury was known’.357

‘Of a decisive character’ Identifying what is ‘of a decisive character’ 20.95 Section 30(1)(b) of the Limitation of Actions Act 1974 states that material facts relating to a right of action are of a ‘decisive character’ only if a reasonable person knowing, and having taken appropriate advice358 on, those facts would regard them as showing: (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s circumstances into account to bring an action on the right of action.359

[page 443] In shortened form, the relevant inquiry has been judicially couched in terms of whether ‘the applicant ought, in his own interests taking his circumstances into account, hazard the risks of litigation and the time and

expense involved’.360 Implicit therein is a ‘negative proposition’ that time will not be extended in the event that the requirements of s 30(1)(b) are satisfied.361 20.96 The terms of s 30(1)(b) make clear that not every material fact is ‘of a decisive character’.362 So a plaintiff, though he or she may be ignorant of a ‘material fact’ (say, the precise identity of the putative defendant),363 is not for this reason alone ignorant of a ‘material fact of a decisive character’. The question is not when material facts came within the plaintiff’s means of knowledge, but when ‘material facts of a decisive character relating to the right of action came within his [or her] means of knowledge’.364 After all, a person cannot have the means of knowledge of material facts of a decisive character at a time when those material facts lack that character. Gummow, Hayne and Crennan JJ in State of Queensland v Stephenson explained the upshot of the foregoing in terms that:365 … an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.

20.97 At the same time, the terms of s 30(1)(c) contemplate that occasions may arise where, despite knowledge of material facts of a decisive character, it might nonetheless be reasonable for a person not to sue. This stems from the reference to ‘taking the person’s circumstances into account’, reflecting a notion inconsistent with a policy of the law that ‘persons should sue whenever they have an opportunity of doing so’.366 A flavour of how a court make take into account those circumstances can be found in the New South Wales Law Reform Commission Report that spawned the (then) New South Wales equivalent provision(s):367 [I]t requires consideration of matters peculiar to the person whose means of knowledge is in question. Cases may arise where the prospective damages are sufficient in amount to justify bringing the action but the injured person would be obliged to pay to someone else the whole or a large part of the damages so that what would be left for the injured party would not be enough to outweigh the hazards of litigation. An example is the case where the only known

[page 444] heads of damage are medical expenses and loss of wages for a relatively short period. If the injured person has received workers’ compensation, the bringing of an action might in substance (after allowance for solicitor and client costs) result only in a benefit to the workers’ compensation insurer. The injured person may, acting reasonably in his own interests, refrain from suing in such a case but he should not … be deprived on that account of the possibility of getting an extension of time in case the injuries later turn out to be much more serious.

A person’s circumstances could, the Commission also envisaged, encompass ‘personal reasons for not suing when the apparent injury is small’.368 An injured employee could, say, reasonably reach the view that suing his or her employer may jeopardise the future course of employment to an extent capable of outweighing the prospective damages for the injuries at first apparent. 20.98 This ‘subjective’ aspect of s 30(1)(b) must coexist with what a ‘reasonable person’ would regard the material facts as showing in this context. Accordingly, the test is ‘not wholly a subjective one’, it has been remarked, but ‘requires an objective view of the [plaintiff’s] own circumstances and is to that extent an amalgam of two types of approach’.369 The latter suggests that s 30(1)(b) is not directed, as such, ‘to the mentality, personal idiosyncrasies or behaviour of the particular plaintiff’.370 Against this backdrop, simply pointing to a fact of which the plaintiff might be unaware cannot justify extending time;371 the legislation distinguishes what an applicant may actually know from what he or she is taken to know and at what time.372 This is confirmed by comparing s 30(1)(b) to the focus of s 30(1)(c) (directed to identifying when a fact is not within the means of knowledge of a person), which is phrased by reference to ‘the person’, that is, the particular plaintiff.373 20.99 Although s 30(1)(b) speaks of a plaintiff taking ‘appropriate advice’,374 it does not compel this course if in all the circumstances it would not be reasonable to expect him or her to have done so.375 The reference here to ‘appropriate advice’ must be viewed in the context of the ‘reasonable person’ mentioned in s 30(1)(b).

Discharging the onus relating to ‘decisive character’

20.100 To establish that a newly learned fact exhibits the necessary quality of ‘decisiveness’, it must be shown that, without that fact (or facts collectively), the plaintiff ‘would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it’.376 The onus is not discharged simply [page 445] by showing that the plaintiff has learnt some new fact that bears on the nature or extent of the injury and would prompt a new assessment in a quantitative or qualitative sense to be made of it. 20.101 The very fact that the plaintiff has commenced an action before the putative decisive fact has become known may, if unexplained, in practical terms contradict the assertion that a reasonable person so positioned would not have commenced the action lacking knowledge of that fact.377 Equally, the case law also envisages that a material fact that becomes known after proceedings have been commenced may be of a decisive character.378 20.102 That the consequences of a personal injury are more serious than had previously been known can amount to a material fact of a decisive character, if it renders viable an action that was formerly not worth pursuing.379 To this end, the case law reveals that the receipt of a medical opinion can, in some circumstances, amount to a material fact ‘of a decisive character’. For example, in Payne v Jonkers Enterprises Pty Ltd380 the plaintiff started proceedings, on 6 August 2002, for damages for a back injury sustained in the course of employment with the first defendant, though the action most likely accrued in 1998 when he first experienced symptoms. Holmes J extended time upon a finding that a material fact of a decisive nature — the nature and extent of his injury — came within the plaintiff’s means of knowledge after 6 August 2001. Her Honour found that, as at August 2001, the plaintiff lacked clear medical evidence as to impairment of his earning capacity, and so ‘had no more than a rather risky action from

which he could hope to recover a limited award for pain and suffering; an action not, on balance, worth bringing’.381 But that state of affairs altered significantly when, at the end of 2001, he received medical advice that his earning capacity was permanently impaired, giving him, for the first time, a worthwhile action. And in Honour v Faminco Mining Services Pty Ltd382 a psychiatrist’s opinion that the treatment of choice for the plaintiff’s post-traumatic stress disorder stemming from a mine accident was unlikely to succeed in enabling the plaintiff to maintain his employment, and medical opinion that it would be in his interests to shift employment out of the mining industry entirely, converted an action that was ‘at best marginal into one well worth pursuing’. It therefore amounted to a ‘material fact of a decisive character’ capable of triggering an extension of time to bring the action. 20.103 But a fact that merely serves to enlarge damages in an action that a reasonable person, appropriately advised, would in any event have commenced, will not suffice to substantiate a material fact of a decisive character. In O’Halloran v Visy Board Pty Ltd,383 for example, the plaintiff had been aware since 1984 of a symptomatic back condition, from 1994 that he was suffering degenerative disc disease, and as at October 2000 that there was radiologically demonstrated disc damage requiring surgery. Given the foregoing, Holmes J ruled that the medical opinion the plaintiff received in 2001, to the effect that he was unable to return to manual activities, while material, was not of a decisive character. This was because the plaintiff knew, at least as at late 2000, that he had a condition that produced significant pain and suffering, and was aware, at least, that he suffered from limitations in terms of his capacity [page 446] to perform heavy work.384 The content of the 2001 opinion did little more than enlarge the damages in an already viable action. It therefore did not make the difference between bringing an action and not proceeding with it. Stated another way, prior to receiving the 2001 opinion, ‘there were

sufficient material facts of a decisive character which would have led a reasonable man appropriately advised to regard those facts as showing that there was a good cause of action and that in his own interests [he] ought to have brought proceedings’.385

Defining ‘appropriate advice’ 20.104 For the purposes of identifying when material facts are of a ‘decisive character’ in s 30(1)(b), the legislation defines the phrase ‘appropriate advice’ as the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.386 As appears from this definition, ‘appropriate advice’ is not confined to legal advice; in cases of injury it may often involve medical opinion(s),387 but is in any event not so constrained.388 The necessary qualifications for this purpose include knowledge of matters of general fact that fall within the particular field of expertise. Ordinarily, the assumption that appropriate advice has been taken carries with it a corresponding assumption that the advice has been formulated with due regard to those general matters of fact of which an appropriate adviser would be aware.389 Equally, as the reference to ‘appropriate advice’ in s 30(1)(b) is to advice that the hypothetical ‘reasonable person’ knowing the relevant facts would have taken, not to the advice that was actually received by a particular plaintiff, the provision of objectively inaccurate or inappropriate advice may not operate to satisfy this aspect of the statutory test.390

‘Means of knowledge’ 20.105 Section 31(2)(a) speaks of a ‘material fact’ of a decisive character not being within the plaintiff’s ‘means of knowledge’ at the relevant time as an element going to an extension of time. This in turn explains why, in its statutory context, the phrase ‘means of knowledge’ is defined by reference to what is not within a plaintiff’s means of knowledge. Under s 30(1)(c), a fact is not within a person’s means of knowledge at a particular time only if ‘the person does not know the fact at that time’ and, as far as the fact is able to be found out by the person, he or she has taken ‘all reasonable steps’ to find out the fact before that time.391 The reference to ‘all reasonable steps’ dictates

that a material fact can potentially be within a person’s means of knowledge, even if he or she does not know it.392

Imputed knowledge excluded 20.106 Reference to ‘knowledge’ here, however, does not encompass knowledge imputed to the plaintiff through an agent, say through his or her lawyers or, in the case of a person [page 447] under disability, through a guardian.393 Had the Parliament intended to encompass imputed knowledge in this context, it would have used language that could be so construed.394 In Nielson v Peters Ship Repair Pty Ltd,395 for instance, where the plaintiff’s lawyers were informed on 30 July 1980 of the potential liability of a previously unknown third party, but were unable to contact the plaintiff until December 1980, it was held that knowledge of the lawyers was not to be imputed to the plaintiff for the purposes of s 30(1)(c).

Objective and subjective inquiries 20.107 The use of the word ‘reasonable’, while an instruction to apply an objective test, in its context reveals is not concerned about the actions of the hypothetical reasonable person. It also encompasses a subjective element; namely an inquiry into whether a person, placed in the position of the plaintiff with his or her background, knowledge and experience, complied with the objective test of reasonableness set out in s 30(1)(c).396 As elaborated by Keane JA in NF v State of Queensland:397 [The legislation] speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c).

The case law, to this end, reveals that courts have taken into account various ‘subjective’ characteristics of the individual plaintiff, including a plaintiff’s psychiatric condition,398 post-traumatic stress disorder399 and available personal and financial resources,400 as relevant to the assessment of what ‘reasonable steps’ can be expected of that person. There is, moreover, no expectation, in inquiring into what are reasonable steps in this context, that the plaintiff act with the benefit of hindsight.401 [page 448] 20.108 The inquiry, under s 30(1)(c), as to whether the plaintiff has taken ‘all reasonable steps to find out the fact’ is not to be conflated with the s 30(1)(b) inquiry into whether he or she has ‘taken the appropriate advice on those facts’. There is no requirement under s 30(1)(c) that the plaintiff take ‘appropriate advice’, namely the advice of competent persons qualified in their respective fields to advise on the facts.402 Conversely, there is scope for ‘all reasonable steps’ to include enquiries of relatives, friends, workmates, customers or a lawyer, even if those steps prove unsuccessful.403 The question simply is whether the steps taken were reasonable, as explained above, for the particular plaintiff.

When reasonable steps necessary 20.109 It has been said that ‘[t]he question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights’.404 There is a potentially difficult dividing line in this context. On the one hand, courts do not wish to penalise injured persons who attempt to try to get on with life rather than litigate upon a questionable basis.405 This in turn explains the judicial remark that the test is ‘not one of zealous vigilance to assert and protect legal rights by immediate resort to litigation’.406 At the same time, the law expects a person suffering ongoing pain and disability affecting his or her employability to realise this position of vulnerability and to take reasonable steps to ascertain material

facts. For example, in Pizer v Ansett Australia Ltd407 in 1992 the plaintiff aggravated a pre-existing degenerative spinal condition during the course of employment as a flight attendant, but only issued proceedings in 1996. The evidence revealed that the plaintiff experienced persistent and recurrent pain in performing her duties as an employee, and needed ongoing physiotherapy over a period of years. The Queensland Court of Appeal upheld the trial judge’s refusal to extend time, Byrne J noting that the plaintiff was not aware of the relevant ‘material fact of a decisive nature’ by the expiry of the limitation period ‘only because she had not taken “all reasonable steps” to discover it’.408 Characterising the case as one of ‘patently serious … injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated’, Thomas JA accepted that the outcome would have differed had the case been one of ‘latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition’.409 On the facts, his Honour concluded that:410 [page 449] … the level of pain, its persistence and recurrence following performance of ordinary duties at work and the continuity of need for ongoing physiotherapy, all over a period spanning several years, suggest that it should have been obvious that this plaintiff had a viable action for very significant pain and suffering, and also more than trivial warnings of potentially serious economic loss.

‘Evidence to establish the right of action’ 20.110 As foreshadowed earlier, beyond proving, under s 31(2)(a), that a material fact of a decisive character was not within his or her means of knowledge, s 31(2)(b) requires the plaintiff to adduce ‘evidence to establish the right of action’. This requirement aims to avoid any ‘harassment of a defendant by an action which, for example, due simply to effluxion of time, cannot be proved because the evidence is no longer available’.411 20.111

For this purpose, though, there is no necessity to produce the

actual evidence to be adduced at the trial.412 What the plaintiff must do is point to the existence of evidence that it can reasonably be expected will be available at the trial — whether or not in admissible form at this stage; it may be adduced, say, by way of hearsay — and that will, if unopposed by other evidence, be sufficient to prove the case.413 Pursuant to this ‘screening’414 exercise, plaintiffs must show ‘no more than a prima facie case’, to be distinguished from any need to show on the probabilities a likelihood that they will succeed in their actions.415 There is good reason for this: at the stage of applying for an extension of time, there will be an unavoidable amount of speculation as to the precise nature of the evidence to be called at the trial. Hence the judicial admonition that while a judge may harbour a feeling that there is a strong chance that a plaintiff will fail at trial, he or she ‘should not act on the basis of this impression both because that is a question reserved for another occasion and because he [or she] cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial’.416 Consistent with the tenor of the above, in the case of multiple defendants, it suffices to prove the existence of evidence showing a possibility of connecting each defendant with the events giving rise to the action.417 [page 450]

Residual discretion to extend time — focus on prejudice 20.112 As explained earlier, by satisfying the court of the elements of s 31(2), the plaintiff overcomes the threshold to ask the court to exercise its (residual) discretion to grant the application to extend time.418 The exercise of the court’s discretion in this context rests heavily on whether or not a fair trial can ensue notwithstanding the delay, usually with a focus on fairness to the defendant. It stands to reason, again as explained earlier, that an extension of time will almost invariably be denied should this cause the defendant significant prejudice; were the law otherwise, it would compromise

the entire rationale(s) for limitation bars in the first place. Equally, in the face of an absence of prejudice, the plaintiff’s fulfilment of the s 31(2) elements will likely present as a compelling basis for extending time. 20.113 The challenge for the courts is to identify what nature and level of prejudice should be taken to undermine an extension application that has otherwise met the s 31(2) elements. The following observations aim to assist in facing this challenge. First, when speaking of prejudice in this context, the relevant prejudice must relate to the delay rather than be independent of it. This explains why, for instance, the fact that the defendant may, if he or she proves unsuccessful in defending the claim, be liable in damages is not relevant prejudice; this liability, after all, arguably has nothing to do with the delay.419 It also explains why a loss of evidence that existed prior to the expiry of the limitation period, and was not exacerbated thereby, is likewise not relevant prejudice for this purpose. For example, in Sauer v Allianz Australia Insurance Ltd420 the alleged prejudice in not having the evidence of the deceased, who was one of the parties to the motor vehicle accident that gave rise to the claim, was there from the outset, and thus not caused by any delay. Accordingly, ‘any trial that proceeded would not be on any less evidence than would have been the case at the time that the cause of action arose and the limitation period had not expired’.421 20.114 Secondly, prejudice is not ‘all or nothing’. Just as fairness is a relative concept, and not one that demands perfection, merely because the defendant may suffer some prejudice stemming from delay does not by itself undermine the plaintiff’s chances of securing an extension of time. Thirdly, and related to the second point, some prejudice in the form of dimmed memories or lost witnesses may, depending on the circumstances, be assuaged by the availability of contemporaneous documentation and/or notification of an impending (albeit ultimately late) claim.422 In Newman v State of Queensland423 the plaintiff, who was (allegedly negligently) treated for an injury by two hospitals, commenced proceedings within time against the first hospital, but only discovered a cause of action against the second hospital after obtaining an expert’s report, by which time the limitation period for that action had expired. Peter Lyons J conceded that the passage of time had increased the risk that the second hospital would not receive a fair trial, as the recollections of the relevant doctors may have dimmed. His Honour

nonetheless extended time because, inter alia, extensive hospital records existed for the plaintiff’s treatment and the hospital was notified of the potential claim a little over a month after the expiry of the limitation period. And there was no suggestion that, in that time, the hospital took any action to arrange its affairs or utilise its resources on the basis that the claim could no longer be made.424 [page 451] 20.115 Fourthly, while the passage of time will likely increase or accentuate prejudice, both presumptive and actual, there is no assumption that even a very lengthy delay can never be overcome by way of an extension of time. In VMT v Corporation of the Synod of the Diocese of Brisbane425 the plaintiff sued the defendant, alleging that its giving of a positive reference to a teacher who resigned after allegations of indecent assault, and who subsequently indecently assaulted the plaintiff at another school, had caused the plaintiff psychiatric illnesses and various disorders. Even though 27 years had elapsed since the alleged assaults, Lyons J extended time on the basis that the delay caused no real prejudice to the defendant. The evidence revealed that the headmaster who wrote the reference was still alive, and the reference remained on file (as did other relevant records).426 In other circumstances, excessive delay can manifest itself in significant prejudice to the defendant’s case or, more generally, to the prospect of a fair trial. In another case involving proceedings arising out of a teacher’s sexual abuse of a child over 20 years earlier, HWC v Corporation of the Synod of the Diocese of Brisbane,427 the Queensland Court of Appeal refused an extension of time. This was because the court’s task in resolving the claim would have included deciding what was said in a critically important conversation occurring some 30 years earlier, between persons whose memories had faded, and who gave materially conflicting accounts. It also included identifying reasons for, and reasonably foreseeable consequences of, an important decision, again made some 30 years earlier, when two people who participated therein had died and the memory of the only known surviving

participant had faded. No member of the court was satisfied that, as a result of the loss of evidence, the defendant could obtain a fair trial.428 The outcome in HWC highlights that neither the nature of the impugned acts and the plaintiff’s injury, nor the merit of the plaintiff’s claim, can overcome threats to the fairness of the trial process caused by a loss of probative evidence. From the perspective of the plaintiff, success (or failure) may rest on matters wholly outside his or her control, as the different outcomes in VMT and HWC reveal. 20.116 Fifthly, that the plaintiff’s case is a very simple one may serve to confine the relevant prejudice, as there may be less evidence to lose.429 The converse may be so vis-à-vis a complex case, with multiple layers, although again the matter rests on the circumstances. Also, aspects of a case that can be determined with accuracy even at a time relatively remote from the wrongful conduct are less prone to being prejudiced by a loss of evidence stemming from the elapsing of time. In Vicary v State of Queensland,430 involving an out-of-time claim against the respondent hospital for alleged negligence, beyond evidence that the hospital, by reason of notice of the impending claim, had taken steps to prepare relevant documentation, Peter Lyons J noted that the assessment of damages concerned with the ongoing effects of wrongful conduct did not rest on past documentation, and so was less likely to be prejudiced by delay. This prompted his Honour to voice a need for ‘some caution’ in ‘adopting generalised statements relating to presumptions of prejudice when one is considering issues related to quantum’.431 [page 452]

Impact of plaintiff’s disability 20.117 Queensland case authority supports the proposition that the extension of time provision found in s 31 is not intended to traverse the same path as the provision, in s 29,432 for postponing the running of time in the case of disability. The Act declares a person to be under a ‘disability’ while he or she is an infant or of unsound mind,433 commonly described as

‘legal disability’. Because s 29 deals with legal disability, it has been held that s 31 is directed to ‘persons other than those under a legal disability … whilst otherwise catering for a wide range of [plaintiffs] with various circumstances but who are otherwise not under a legal disability’.434 Another pointer supportive of this conclusion is the expression ‘means of knowledge’ in s 31(2)(a), which via s 30(1)(c) appears to contemplate that a plaintiff has the (mental) means to acquire knowledge but has not for whatever reason — whether ignorance, laziness, lack of education,435 language difficulties or the like — made an attempt to do so. Also, as the reference ‘to a reasonable person’ in s 30(1)(b) is to a person of normal mental capacity, it would encompass someone within the normal but lower range of intelligence. Moreover, that what must be considered under s 30(1) (b)(ii) is the ‘means of knowledge’ of the particular person, in his or her circumstances, and what he or she ought to do in his or her own interests, serves to contemplate someone ‘capable of understanding some facts but who may, for reasons (other than legal incapacity) for which no blame should be attached to him or her, simply not know of other material facts of a decisive character within the relevant time’.436 Section 29 comes into play, alternatively, in the event of mental incapacity indicating a legal disability.

Tasmanian Regime As from 1 January 2005 20.118 As noted elsewhere,437 s 5A(3) of the Limitation Act 1974 (Tas) states that personal injury actions for negligence, nuisance or breach of duty cannot be brought after the expiry of the earlier of three years from the date of discoverability, or 12 years from the date of the act or omission alleged to have resulted in the injury. Section 5A, which was inserted by the Limitation Amendment Act 2004 (Tas), only applies to causes of action that accrue on or after 1 January 2005.438 There is scope, however, for a court to extend the 12 year ‘long-stop’ period up to the expiry of three years commencing on the ‘date of discoverability’. The court’s discretion here must, under s 5A(5), be

exercised with regard to the ‘justice of the case’ and, in particular, to whether the passage of time has prejudiced a fair trial of the action, the nature and extent of the plaintiff’s loss, and the nature of the defendant’s conduct. As the ‘justice of the case’ aligns with the ‘just and reasonable’ threshold in several other jurisdictions, which is in turn informed by (at least) [page 453] the three (but non-exhaustive) criteria listed in s 5A(5),439 the case law from elsewhere can be probative of the curial approach to extending time in Tasmania.440

Before 1 January 2005 20.119 For personal injury causes of action for damages for negligence, nuisance or breach of duty accruing before 1 January 2005, the limitation period is, under s 5(1), three years from the date of the accrual. But under s 5(3) a court may, it thinks that ‘in all the circumstances of the case it is just and reasonable so to do’, extend the limitation period for such period as it thinks necessary, but so that the period within which the action may be brought does not exceed six years from the date of accrual. In following the ‘just and reasonable’ schema found in several other jurisdictions, s 5(3) similarly invites resort to the case law from those jurisdictions in identifying relevant considerations that impact on the court’s discretion.441 Without any fetter on the curial discretion,442 prime amongst these, Tasmanian courts have said, are the length of the delay and the reasons for it, whether the delay caused or will cause the defendant prejudice, and whether the plaintiff demonstrated the apparent viability of the action.443 Like their counterparts elsewhere, Tasmanian courts have also acknowledged that relevant delay commences from the date the cause of action arose, rather than confined to delay once the time bar has elapsed, though accepting that the latter is ordinarily of greater significance.444 The power to extend time is exercisable, s 5(4) adds, notwithstanding that the s 5(1) limitation period has expired. Prima facie s 5(3) appears to confine

the court’s discretion in extending time to an extra (maximum) three year period beyond the original three year limitation period in s 5(1). Yet the tide of authority suggests that the court may entertain an application to extend time even if made more than six years after the accrual of the cause of action,445 an application that the literal words of s 5(3) suggest should be pointless. 20.120 As a transitional measure, s 38A(1) empowers a person whose cause of action accrues before 1 January 2005 to apply to the court for an extension of the s 5(1) limitation period to three years commencing on the date of discoverability (as opposed to the date of accrual). Upon this application, a judge may extend time pursuant to s 38A(2), having regard to the justice of the case and the matters mentioned in s 5A above. There is also scope to apply to the court to extend the s 5(1) limitation period to three years from 1 January 2005 if the applicant suffers from an injury or disease with a date of discoverability both before the said date and six or more years after the cause of action accrued, if the cause of action accrued before that date.446 In this event, the court may extend time, having regard to the matters set out in s 38A(2).447 [page 454]

Concept of ‘date of discoverability’ 20.121 It is evident from the foregoing that, for relevant causes of action accruing from 1 January 2005, the ‘date of discoverability’ influences both the basic three year limitation period and the scope for extending the 12 year long-stop limitation period. The transitional provisions in s 38A, moreover, phrase extensions of time by reference to the ‘date of discoverability’. The legislation identifies the ‘date of discoverability’ as the date when the plaintiff ‘knew or ought to have known’ that personal injury or death had occurred, was attributable to the defendant’s conduct and, in the case of personal injury, was sufficiently significant to warrant bringing proceedings.448 Although not identical to parallel New South Wales and Victorian provisions — these speak of the injury or death being ‘caused by

the fault’ of the defendant and of an injury ‘sufficiently serious’ to justify bringing an action449 — the Tasmanian definition is substantially the same.450 It stands to reason that the case law from New South Wales and Victoria in this context has equal relevance in Tasmania.451

Western Australian Regime 20.122 Section 39 of the Limitation Act 2005 (WA) entitles a plaintiff to apply to a court for leave to commence an action for damages relating to a personal injury452 to a person, or under the Fatal Accidents Act 1959 (WA) for damages relating to the death of a person, even though the relevant limitation period has expired.453 In deciding whether or not to extend time — including here also for reasons of fraud or improper conduct,454 minority455 or other disability,456 or in the context of defamation actions457 — s 44 directs the court to have regard to: (a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and (b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

In identifying the impact of delay upon the fairness of the trial, and in inquiring into the actual prejudice a defendant may suffer were time extended, the above provision ostensibly gives effect to the substance of the High Court’s reasoning, albeit under the different Queensland statutory regime, in Brisbane South Regional Health Authority v Taylor.458 20.123 On the above application, s 39(3) empowers a court to extend time if satisfied that, when the limitation period expired, a person to whom the cause of action accrues: (a) was not aware of the physical cause of the death or injury; (b) was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or (c) was aware of the physical cause of the death or injury and that the death or

[page 455]

injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person’s identity.

The said matters, it has been noted, do not correspond with the material elements of a cause of action for damages for personal injury; no mention is made of whether there is a duty of care, whether the standard of care has been breached, or of issues going to the legal aspects of causation and remoteness of damage.459 The term ‘aware’, in its context, refers to actual rather than constructive awareness,460 and ‘conduct’ is capable of including both acts and omissions.461 The language ‘attributable to’ connotes a connection in fact, albeit not necessarily the sole or dominant one, between the death or injury462 and another’s conduct, even possibly to a non-causal connection.463 ‘Physical cause’ of the death or injury above targets ‘what’ caused the injury, not ‘who’;464 as such, it is not concerned with whether that cause is attributable to the conduct of a person.465 The phrase ‘person to whom the cause of action accrues’ above includes, in the case of a minor or a person suffering a mental disability, either that person or his or her guardian, and in the case of an action under the Fatal Accidents Act 1959 (WA) by a deceased’s personal representative, the personal representative.466 In the case of a survivor action,467 it means either the deceased person or his or her personal representative.468 20.124 If the court decides to accede to the application, s 39(4) states that it may extend time up to three years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware, of the physical cause of the death or injury, that the death or injury was attributable to the conduct of a person (whether or not a defendant) and of the identity of the aforesaid person. By using the phrase ‘ought reasonably to have become aware’, s 39(4) imports the notion that the person, acting reasonably, should have [page 456] taken steps to acquire knowledge of relevant facts or circumstances.469 It focuses on the state of awareness or knowledge that ought reasonably to have

been acquired by the ‘person to whom the cause of action accrues’ mentioned in the preceding paragraph. And, consistent with the judicial approach in analogous provisions in other Australian jurisdictions,470 it has been observed that:471 The court does not assess how a reasonable person in the position of the person to whom the cause of action accrues would have acted and, in making that assessment, disregard aspects of that person’s actual characteristics, qualities and circumstances. The task of the court is to determine whether the person to whom the cause of action accrues ought reasonably to have become aware of the matters enumerated in … s 39(4) by reference to what can reasonably have been expected of that person having regard to the actual subjective factors I have mentioned.

______________________________ 1. 2. 3. 4.

5.

6. 7. 8.

9. 10.

11.

See 7.2, 7.3, 7.12. See 6.2. ‘Personal injury’ includes any disease and any impairment of the physical or mental condition of a person: ACT Dictionary. See further 7.33. An equivalent provision, also phrased in ‘just and reasonable’ terms, exists vis-à-vis extending time in circumstances where the executor or administrator of a deceased estate institutes proceedings in relation to a cause of action for damages for personal injury accruing before the deceased’s death: ACT s 38. This applies whether or not the limitation period applicable to that cause of action has ended, or an action in relation to the personal injury has been begun. Importantly, though, the period for which time may be extended cannot exceed six years, running from the day of the deceased’s death, as the court considers appropriate. Section 23A, in its original form, was introduced by the Limitation of Actions (Personal Injuries) Act 1972 (Vic) s 3, with effect on 1 July 1973. It was replaced, with effect on 11 May 1983, by a new s 23A by the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic), which aimed to address various difficulties that had plagued the construction of its predecessor (see Rees and Chapman, pp 56–70), and thereby simplify the approach to limitations in personal injury actions. As to the meaning of ‘breach of duty’ in this context see 7.72–7.76. ‘Personal injuries’ includes any disease and any impairment of a person’s physical or mental condition: Vic s 3(1). Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [53], [54] per Kaye J (in the context of its successor, Vic s 27B(1), as to which see 7.36–7.57). See, for example, Partridge v Briggs (SC(Vic), Gobbo J, 2 June 1988, unreported) (in the context of claim by a husband out of a negligent sterilisation operation performed on his wife by the defendant surgeon); Petricola v Metropolitan Transit Authority (1989) Aust Torts Rep ¶80-247; BC8800480 (in the context of a claim by a husband for loss of consortium arising out of an injury to his wife). ACT s 36(4); Vic s 23A(4)(a). In the context of extending time where the executor or administrator of a deceased estate institutes proceedings in relation to a cause of action for damages for personal injury accruing before the deceased’s death, the parallel factors listed in ACT s 38(2). Formerly UK 1939 s 2D(3), and now UK 1980 s 33(2).

12. 13. 14. 15. 16. 17.

18. 19.

20. 21.

22. 23. 24. 25. 26.

27.

28. 29.

See 20.8–20.43. See, for example, Baker v Transport Accident Commission [1997] 1 VR 662; BC9602645. ACT s 36(5)(b). As to causes of action for wrongful acts or omissions causing death see Civil Law (Wrongs) Act 2002 (ACT) Pt 3.1. ACT s 36(6). As to ACT s 30B see 7.30. ACT s 36(5)(a). ACT s 16A (with effect from 1 July 2002) applies to a cause of action (other than a cause of action that is a claim for compensation under the Workers Compensation Act 1951 (ACT)) if: (a) the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and (b) a claim could be, or could have been, made in relation to the cause of action under that Act if notice of the injury had been given as required under that Act: ACT s 16A(1). For this cause of action, the action is not maintainable if brought three or more years after the day the injury happened: ACT s 16A(2). See, for example, Driscoll v Iron Mountain Australia Pty Ltd (2010) 245 FLR 132; [2010] ACTSC 127; BC201007744; Davies v Barancewicz (2011) 5 ACTLR 305; [2011] ACTSC 166; BC201107781. ACT s 16B(1). As to ACT s 16B see 7.28. There was provision in ACT s 100(1) to the effect that, inter alia, s 16B did not apply to a cause of action that arose before 9 September 2003, but this provision expired on 23 December 2010: ACT s 100(2). In accordance with Administration and Probate Act 1929 (ACT) s 64. Namely the regime found in the Wrongs Act 1958 (Vic) s 20. That regime imposes a six year limitation period, commencing on the date of death (s 20(1)), albeit subject to deferral pursuant to a ‘discoverability test’ (s 20(1A)), and a curial discretion to extend time (s 20(2)) exercisable by reference to all the circumstances of the case (including factors equivalent to those listed in Vic s 23A(3), as to which see 20.8) (s 20(3)). It follows that authorities on the interpretation of Vic s 23A can provide a useful guide to the meaning of the Wrongs Act 1958 (Vic) s 20: Wintle v Stevedoring Industry Finance Committee [2002] VSC 265; BC200203898 at [18]–[20] per Ashley J; Van Gerven v Amaca Pty Ltd [2012] VSC 131; BC201202106 at [9] per Beach J. Vic s 23A(6); Wrongs Act 1958 (Vic) s 20(7). Vic s 27N(1) (namely the commencement date of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic)). See 20.71. As to the current Victorian provisions see 20.71–20.77. See, for example, Firman v Ellis [1978] QB 886 at 905 Lord Denning MR, at 910–11 per Ormrod LJ, at 915 per Geoffrey Lane LJ; Halford v Brookes [1991] 3 All ER 559 at 566 per Russell LJ; KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] QB 1441; [2003] EWCA Civ 85 at [68]–[70] per the court; Clark v McGuinness [2005] VSCA 108; BC200502962 at [12] per Warren CJ (‘broad’ discretion); Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 at [6] per Smith LJ. This explains the remark of Refshauge J in Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [37] that the provisions for extending time ‘are limited as would be expected having regard to the considerations justifying the imposition of limitation of action provisions themselves’). Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [40] per Refshauge J. Sessions v Phengsiaroun [2008] ACTSC 132; BC200810466 at [42] per Higgins CJ.

30. 31.

32.

33. 34. 35. 36. 37. 38.

39. 40. 41. 42.

43. 44.

45. 46.

47. 48. 49. 50. 51.

KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] QB 1441; [2003] EWCA Civ 85 at [74] per the court. S & B Pty Ltd v Podobnik (1994) 53 FCR 380 at 385; BC9400005 per Gallop J (cf at 395 per Neaves J); Laws v WEB Scaffolding Pty Ltd [2010] ACTCA 3; BC201000706 at [34] per the court; Dudycz v Vager Pty Ltd [2011] ACTSC 7; BC201100180 at [20] per Harper M. (1996) 186 CLR 541 at 566–7; BC9604531. See also at 547 per Toohey and Gummow JJ; Laws v WEB Scaffolding Pty Ltd [2010] ACTCA 3; BC201000706 at [34], [35] per the court; Axford v Gray [2013] VSC 664; BC201315375 at [10] per T Forrest J (in the context of Vic s 27K, as to which see 20.73). Namely Qld s 31, as to which see 20.78, 20.79. As to the application of ACT s 36 see 20.4, 20.5. As to the application of Vic s 23A see 20.6. ACT s 36(3); Vic s 23A(3). On this change see 20.36. See 7.45–7.52. It has been said to ‘require attention to be given to the impact of the passage of time since the expiry of the limitation period on the quality of the evidence available to each of the claimant and the defendants’: Azaz v Denton [2009] EWHC 1759 (QB) at [92] per Richard Seymour QC. UK 1980 s 33(1)(b) (formerly UK 1939 s 2D(1)(b)). Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 302 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 302 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred. Sessions v Phengsiaroun [2008] ACTSC 132; BC200810466 at [42] per Higgins CJ. See also Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1023 per Lord Griffiths (noting that the factors in question are intended ‘to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and which must be taken into consideration by the judge’). See 20.20–20.24. S & B Pty Ltd v Podobnik (1994) 53 FCR 380 at 385 per Gallop J, at 405 per Carr J; BC9400005; Sayers v Lord Chelwood [2013] 2 All ER 232; [2012] EWCA Civ 1715 at [66] per Jackson LJ, with whom Kitchin and Arden LJJ concurred. See further 20.39–20.43. Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1024 per Lord Griffiths. See further 20.32, 20.33. Ramsden v Lee [1992] 2 All ER 204 at 209–10 per Dillon LJ, at 211–12 per Sir John Megaw (where the court refused to lay down a ‘guideline’ that, absent fault in the defendant, the limitation period ought to be applied against the plaintiff unless the delay has been minimal). See further 18.4. Halford v Brookes [1991] 3 All ER 559 at 568 per Russell LJ. Clark v McGuinness [2005] VSCA 108; BC200502962 at [62]–[65] per Winneke P, at [79] per Charles JA, at [88] per Eames JA. See 3.25. A v D (1995) 127 FLR 372 at 378 per Miles CJ. See 20.13–20.43.

52.

53.

54. 55. 56. 57. 58.

59.

Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 14; BC9601006 (FC) (in the context of NSW s 60I, as to which see 20.61–20.70); Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [74] per Hoeben J (in the context of Vic s 27L, as to which see 20.75) (adding that this allows the court to take into account a wide array of matters that might be relevant to the fairness of granting an extension). McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 at 1080–1 per Lawton LJ; Klobucar v Neocoat Pty Ltd [1999] ACTSC 96; BC9906313 at [94] per Higgins J; Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [40] per Refshauge J. Although the aforesaid cases speak of ‘balancing’ the factors in question, not all judges are comfortable with a description of the curial approach as one of balancing. In Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199; BC9800341 Mason P (with whom Powell JA agreed on this point: at 241) branded the notion of ‘balancing’ in NSW s 60E(1) (as to which see 20.50–20.54) as ‘unhelpful and misleading, if it suggests any more than looking at aspects of the respective positions of each party’. On the other hand, Priestley JA (at 221) saw NSW s 60E(1) as contemplating that ‘the court would necessarily be involved in a balancing exercise in deciding whether it would be just and reasonable to extend the limitation period’. Whether there is really much in the way of difference between Priestley JA and Mason P in this regard may well be queried. Even Mason P did not dispute that the relevant factors could point in different directions, and accordingly opened the door to some form of ‘balancing’ or ‘weighing’ of the factors in the court’s overall assessment. In any case, to avoid this debate the term ‘synthesising’ is used in the Text, adopting the language of Buchanan JA in Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [33]. UK 1980 s 33(1) (formerly UK 1939 s 2D(1)). Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 at [63] per Smith LJ. See also Horton v Sadler [2007] 1 AC 307; [2006] UKHL 27 at [32] per Lord Bingham. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [40] (‘whether justice is best served by the extension’), [77] (referring to a ‘fair trial’) per Refshauge J. See 20.50, 20.74, 20.75. See, for example, Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 302 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred (although it has been suggested that this was influenced by the different wording of paragraph (b) in the English provision (as to which see 20.9): Koumorou v State of Victoria [1991] 2 VR 265 at 272 per Brooking J); Walla v State Transport Authority [1985] VR 327 at 329 per Murray J (supporting this by reference to the wording of paragraph (e), namely the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages); Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3 at 17 per Kelly J; Tointon v H W Greenham and Sons Pty Ltd [1986] VR 666 at 668 per Murray J; Bell v SPC Ltd [1989] VR 170 at 176 (FC) (although acknowledging judicial statements to the contrary). Britton v Department of Crown Lands and Survey (SC(Vic), Gobbo J, 13 June 1984, unreported); Ford Motor Co (Australia) Ltd v Kulic [1988] VR 152 at 156–7 per Kaye J; Tavsanli v Philip Morris (Australia) Ltd (SC(Vic), Young CJ, 18 September 1989, unreported) BC8900545; Koumorou v State of Victoria [1991] 2 VR 265 at 271–3 per Brooking J; S & B Pty Ltd v Podobnik (1994) 53 FCR 380 at 395; BC9400005 per Neaves J; Repco Corporation Ltd v Scardamagilia [1996] 1 VR 7 at 11; BC9503222 per Smith J, with whom Brooking and J D Phillips J concurred; Horan v Melbourne College of Hair and Beauty Culture Pty Ltd (CA(Vic), Brooking, Charles and Callaway

60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

83.

JJA, 22 June 1995, unreported) BC9503921 at 5 per Charles JA, with whom Brooking and Callaway JJA concurred; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 616; BC9506626 per Phillips JA, with whom Tadgell and Callaway JJA concurred; Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [77] per Kaye J; Delai v Western District Health Service [2009] VSC 151; BC200902980 at [22] per Beach J; Axford v Gray [2013] VSC 664; BC201315375 at [10] per T Forrest J (the latter three cases in the context of Vic s 27K(2)(a)). This can also be inferred from the remarks of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548–9; BC9604531. Koumorou v State of Victoria [1991] 2 VR 265 at 271 per Brooking J. See, for example, Vic s 27L(1)(a), 27L(1)(b), discussed at 20.75. Delai v Western District Health Service [2009] VSC 151; BC200902980 at [22] per Beach J (albeit not deciding the point). Marr v Green (1993) 14 Tas R 317 at 319 per Green CJ, at 331 per Wright J; BC9300182. See 1.32. KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] QB 1441; [2003] EWCA Civ 85 at [78]– [80] per the court. See 20.115. Buck v English Electric Co Ltd [1917] 1 WLR 806 at 810 per Kilner Brown J. Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189 at 195 per Ward LJ, at 198 per Rose LJ. [1991] 3 All ER 559. Halford v Brookes [1991] 3 All ER 559 at 571 per Nourse LJ. See also at 567 per Russell LJ, at 576 per Lord Donaldson MR; Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22; BC200901484 at [21] per Harper M (where the plaintiff was unaware of the limitation period, and reasonably relied on his solicitors to look after his interests). (2007) 15 VR 447; [2007] VSC 7; BC200700246. Being the limitation period prescribed by Vic s 27D(1), as to which see 7.43. Caven v Women’s and Children’s Health (2007) 15 VR 447; [2007] VSC 7; BC200700246 at [77]. [2012] NSWSC 376; BC201203324. Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [80] per Hoeben J. Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [79], [121] per Hoeben J. [2013] VSC 664; BC201315375. Being the requirements for accrual of a cause of action prescribed by Vic s 27F(1), as to which see 7.45. Axford v Gray [2013] VSC 664; BC201315375 at [19]. Axford v Gray [2013] VSC 664; BC201315375 at [19], [26], [27]. Halford v Brookes [1991] 3 All ER 559 at 567 per Russell LJ. Cf London Strategic Health Authority v Whiston [2010] 3 All ER 452; [2010] EWCA Civ 195 (where the evidence showed that the plaintiff, who suffered cerebral palsy, did not make a conscious decision to eschew proceedings; that decision, to this end, taken by his family was held not to bind the plaintiff for this purpose: at [80] per Dyson LJ, at [86] per Longmore LJ). [2009] NSWCA 10; BC200900447.

84. 85.

86.

87.

88. 89. 90.

91.

92.

Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10; BC200900447 at [40]. Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10; BC200900447 at [35] per Allsop P. See also Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [120] per Campbell JA, with whom Giles and Ipp JJA agreed (‘when a consequence of the delay in commencing the action is that the defendant does not have a statement from the man who may well have been its principal witness, and the risk that he might have died before the matter came on for hearing has now become a certainty, that amounts in my view to a substantial prejudice’). Heffernan v Scafidi (CA(Vic), Winneke P, Tadgell and Hayne JJA, 30 April 1996, unreported) BC9601756 at 10–11 per Winneke P, with whom Tadgell and Hayne JJA concurred (noting that while, in an appropriate case, an applicant’s ignorance of his or her legal right to sue is a relevant consideration when determining whether to exercise the powers under Vic s 23A (see, for example, Ford Motor Co (Australia) Ltd v Kulic [1988] VR 152 at 156 per Kaye J), this did not oust the relevance to the exercise of the court’s discretion on whether it is ‘just and reasonable’ to extend the limitation period that an applicant has ‘buried her head in the sand’, in the sense that ‘she has unreasonably persisted in ignoring the investigation of circumstances of which she was aware and which should have suggested that a cause of action might exist’). Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [184] per Basten JA (adding that ‘the fact that failure to avail oneself of such services is explicable and understandable, does not mean that the failure ought to be ignored when weighing in the balance the interests of the prospective defendant and the public interest in the expeditious administration of justice’). Duff v Freijah (1982) 62 FLR 280 at 287 per Northrop J. Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 per Lord Denning MR. See, for example, Jess v Scott (1986) 12 FCR 187 at 191–3 (FC); Comcare v A’Hearn (1993) 45 FCR 441 at 443; BC9305226 (FC); Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 12; BC9503222 per Smith J, with whom Brooking and J D Phillips JJ agreed; Smith v Grant (2006) 67 NSWLR 735; [2006] NSWCA 244; BC200606979 at [60] per Basten JA, with whom Handley and McColl JJA agreed (dealing with an application to extend time under the Motor Accidents Act 1988 (NSW) s 43A). Anisiena v H Crane Haulage Pty Ltd [1974] VR 670 at 674 per Starke J. See, for example, Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 619; BC9506626 per Phillips JA, with whom Tadgell and Callaway JJA concurred (where the appellant, who consulted competent and reputable solicitors, skilled in the area, and left his claim in their hands, was found to have acted reasonably and diligently in leaving the solicitors to get on with the claim); Millard v Victoria [2006] VSCA 29; BC200600792 at [37] per Mandie AJA, with whom Chernov and Ashley JJA concurred (seeing it as ‘not unreasonable for the plaintiff to leave his legal affairs in this respect to his solicitors, and, even if he was neglectful, it was at least understandable and excusable given his illiteracy and lack of education … especially given the complexity and technicality of the matters with which they were attempting to deal’); Davies v Nilsen [2015] VSC 584; BC201510297 at [62]–[64], [106] per J Forrest J (remarking that ‘it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism’: at [106]). Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 621; BC9506626 per Phillips JA, with whom Tadgell and Callaway JJA concurred (‘Sometimes it may be relevant to consider whether some inquiry ought none the less to have been made’); Millard v Victoria [2006] VSCA 29; BC200600792 at [2] per Chernov JA (envisaging that ‘[t]here may be situations where an unexplained failure by an applicant for an extension of the limitation period to pursue his or her

93.

94.

95.

96.

97. 98. 99. 100. 101.

102.

103.

solicitors, who have obviously failed to prosecute the applicant’s case for a considerable period, may weigh against the success of the application’); Van Gerven v Amaca Pty Ltd [2012] VSC 131; BC201202106 at [53] per Beach J (where the solicitors’ delay was held not to be a complete answer to the plaintiff’s delay, although his Honour ultimately extended time in the face of an absence of significant prejudice to the defendant). New South Wales v Judd [2003] NSWCA 355; BC200307595 at [43] Handley JA, with whom Santow and Ipp JJA concurred (having noted that ‘[i]gnorance of relevant facts will support an extension, ignorance of their legal significance will not’, and that ‘[l]ack of legal knowledge is a misfortune, and not a privilege’). Murdock v Lipman [2012] NSWSC 983; BC201207050 at [22] per McCallum J (who noted that had the plaintiff known more about the law or spoken to a conscientious lawyer during the relevant time, his failure to demand more prompt attention to his case may have operated against him; but the evidence revealed no basis for a person of the plaintiff’s background and education to have done more than to trust his lawyer’s representations: at [23]). Hence the observation that ‘it is very seldom that a remedy against a solicitor can be as satisfactory as a remedy against the original tortfeasor’: Conry v Simpson [1983] 3 All ER 369 at 374 per Stephenson LJ. Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 15; BC9503222 per Smith J, with whom Brooking and J D Phillips JJ agreed; Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [28] per Buchanan JA; Andresakis & Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507; [2006] NSWCA 294; BC200608808 at [82]–[93] per McColl JA, with whom Giles and Hodgson JJA concurred; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; BC200711021 at [86] per Forrest J; Delai v Western District Health Service [2009] VSC 151; BC200902980 at [34] per Beach J; Damman v Peninsula Health [2012] VSC 572; BC201209328 at [27] per T Forrest J. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [116] per Refshauge J. Hartley v Birmingham City District Council [1992] 2 All ER 213 at 224 per Parker LJ. (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [3] (footnote omitted). Reflecting the statutory language underscoring the exercise of the court’s discretion to extend time: see 20.3, 20.8. Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [27] per Buchanan JA (opining that ‘[t]he prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case … that is relevant to the exercise of the court’s discretion’, in that ‘[a]n applicant with the ability to recover compensation from a solicitor responsible for allowing the limitation period to expire is not relevantly in the same position as an applicant who has no such prospect’). See, for example, Woolley v Jensen (1995) 14 Tas R 373 at 380–5; BC9502989 per Underwood J, with whom Cox and Wright JJ concurred; Klobucar v Neocoat Pty Ltd [1999] ACTSC 96; BC9906313 at [92] per Higgins J; Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [2]–[4] per Ormiston JA; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; BC200711021 at [86] per Forrest J; Delai v Western District Health Service [2009] VSC 151; BC200902980 at [34] per Beach J. Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3 at 18 per Kelly J; Hartley v Birmingham City District Council [1992] 2 All ER 213 at 223 per Parker LJ (favouring an extension of time in the face of a delay of only hours due to a slip on the part of the plaintiff’s solicitors, which did not

104.

105.

106.

107. 108.

109. 110.

111. 112.

113. 114.

prejudice the defendants’ ability to defend the case, even if the plaintiff would otherwise have had a cast-iron action against the solicitors; otherwise, his Lordship remarked (at 218), the defendants would secure ‘a wholly fortuitous cast-iron technical defence to a claim, which in justice they ought to meet’; Hartley has been described as ‘a clear case’ for the exercise of the court’s discretion: Horton v Sadler [2007] 1 AC 307; [2006] UKHL 27 at [33] per Lord Bingham). See, for example, Knight v Smith [1975] Tas SR 83 at 92 per Neasey J; Daroczy v B & J Engineering Pty Ltd (1986) 67 ACTR 3 at 18 per Kelly J; Noja v Civil and Civic Pty Ltd (1990) 26 FCR 95 at 110 (FC); Marr v Green (1993) 14 Tas R 317 at 318 per Green CJ, at 330–2 per Wright J; BC9300182; Woolley v Jensen (1995) 14 Tas R 373 at 383–4; BC9502989 per Underwood J, with whom Cox and Wright JJ concurred; Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [116] per Refshauge J. In Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135; BC200502708 at [6] Hodgson JA, in remarks expressly endorsed by Tobias JA, opined that ‘if the court considers that the fault is with a legal adviser of the party and that the party itself is not at fault and should not be penalised, it may be appropriate to require an affidavit from the legal adviser and to order that he or she pay the costs involved in any delay arising from the need to provide that affidavit’. In Doyle v Gillespie at [58] Refshauge J branded this, to some extent, as a ‘counsel of perfection, for a solicitor whose retainer has been terminated, especially over such delay, may be unwilling to make such an affidavit, especially as there may be a risk of negligence proceedings against him or her’. Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [4] per Ormiston JA, at [28] per Buchanan JA; Andresakis & Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507; [2006] NSWCA 294; BC200608808 at [92] per McColl JA, with whom Giles and Hodgson JJA concurred. See, for example, Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; BC200711021 (where J Forrest J refused to extend time in the face of real presumptive prejudice to the defendant and the plaintiff’s potentially strong case against his former lawyers); Damman v Peninsula Health [2012] VSC 572; BC201209328 (where T Forrest J accepted the evidence of the plaintiff, in recounting a conversation with her former solicitor in which he apologised to her, admitted ‘we stuffed up’ and directed her to seek independent legal advice). See 20.27–20.30. Damman v Peninsula Health [2012] VSC 572; BC201209328 at [27] per T Forrest J (‘If the prejudice to the plaintiff is ameliorated by the likely success of an action against her solicitor then the harshness of a refusal to grant the extension is similarly ameliorated’). See 1.18–1.22. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 302 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred; Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1024 per Lord Griffiths; Koumorou v State of Victoria [1991] 2 VR 265 at 271 per Brooking J. NSW ss 60E(1)(b) (up until 6 December 2002), 62B(1)(b) (on or after 6 December 2002). Conray v Scotts Refrigerated Freightways Pty Ltd (2008) Aust Torts Rep ¶81-944; [2008] NSWCA 60; BC200802450 at [144] per Simpson J (with whom Beazley JA concurred), at [91], [110] per McColl JA (dissenting, but not on this point). See 20.13. The legislation, rather than being phrased in terms of causation, speaks of the prejudice having come about by reason of the lapse of time involved in the period of delay: Lord v Australian Safeway Store Pty Ltd [1996] 1 VR 614 at 622–3; BC9506626 per Phillips JA, with whom Tadgell

115. 116.

117. 118. 119. 120. 121.

122. 123. 124. 125.

126. 127.

128. 129.

130.

131.

and Callaway JJA concurred; Delai v Western District Health Service [2009] VSC 151; BC200902980 at [23] per Beach J. Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 at [70] per Smith LJ. Hartley v Birmingham City District Council [1992] 2 All ER 213 at 224 per Parker LJ; Horton v Sadler [2007] 1 AC 307; [2006] UKHL 27 at [32] per Lord Bingham; Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 at [72] per Smith LJ. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC101001503 at [40] per Refshauge J. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC101001503 at [40] per Refshauge J. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC101001503 at [41] per Refshauge J. [2004] ACTSC 101; BC200406410. Redmond v J C Hutton Pty Ltd [2004] ACTSC 102; BC200406410 at [45]. See also Edwards v Kennedy [2009] VSC 74; BC200901404 (refusal to extend time for a claim initiated ten years out of time — alleging a breach of a duty of care in failing to conduct an adequate psychiatric assessment before the plaintiff underwent gender reassignment surgery — by reason of prejudice to the defendants arising out of deteriorated memories and the death of the psychiatrist whose evidence could support diagnoses by the defendants concerning the plaintiff’s suitability for undergoing surgery). Redmond v J C Hutton Pty Ltd [2004] ACTSC 102; BC200406410 at [44]. [2008] VSC 229; BC200804938. Tucker v Barwon Health and Geelong Hospital [2008] VSC 229; BC200804938 at [64]. Hickey v Womens & Childrens Health Care Network (SC(Vic), Hedigan J, 11 June 1998, unreported) BC9802336 at 41 (where the plaintiff’s 24 year delay was held to preclude an extension of time where the perfusion chart, which was critical to the issue, could not be located, and the perfusionist was unable to testify because of mental illness: at 43). [2012] NSWSC 983; BC201207050. Murdock v Lipman [2012] NSWSC 983; BC201207050 at [30]. See also New South Wales v Judd [2003] NSWCA 355; BC200307595 (where the court extended time, notwithstanding a delay exceeding two years, because the facts underscoring the plaintiff’s cause of action had been investigated and aired as part of criminal proceedings against the defendant: see at [42]–[44] per Handley JA, with whom Santow and Ipp JJA concurred). Tsiadis v Patterson (2001) 4 VR 114; [2001] VSCA 138; BC200105209 at [22], [23] per Buchanan JA, with whom Ormiston and Callaway JJA agreed. See, for example, Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22; BC200901484 (where an extension of time was granted, in relation to a personal injury cause of action 15 months out-oftime, in view of, inter alia, an absence of prejudice to the defendant employer, who had been aware of the injuries since the day it happened, and its insurer; indeed, the latter had undertaken investigations into the circumstances of the injury, and had been provided with all material relating to the plaintiff’s treatment, which were directly relevant to the plaintiff’s claim: see at [21] per Harper M). Cain v Francis [2009] QB 754; [2008] EWCA Civ 1451 at [57] per Smith LJ (concluding that if, as on the facts in question, ‘a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect’: at [74]). See, for example, Dudycz v Vager Pty Ltd [2011] ACTSC 7; BC201100180 (where Harper M found that the defendant would be prejudiced if required to respond to the plaintiff’s personal

132. 133. 134.

135. 136.

137. 138.

139.

140.

141. 142. 143. 144. 145.

injury claim seven years after the event, as there was nothing at the time to put it on notice of a possible claim, and actual prejudice consisted in eyewitnesses being unable to be found and, in any case, unlikely to remember relevant details in a reliable fashion: at [26], [27]). [2003] NSWCA 355; BC200307595. New South Wales v Judd [2003] NSWCA 355; BC200307595 at [44] per Handley JA, with whom Santow and Ipp JJA concurred. See, for example, Walla v State Transport Authority [1985] VR 327 at 329 per Murray J; Bell v SPC Ltd [1988] VR 123 at 131 per Brooking J. Contra Goodwin v Smith (SC(ACT), Miles CJ, 10 December 1990, unreported) at 5; Arnold v Commonwealth (SC(ACT), Miles CJ, 30 November 1995, unreported) BC9508241 at 20. ACT s 30 (see 14.9); Vic s 23 (see 14.18). This derives support from Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 20–2 per Lee J, with whom McPherson JA and Williams J concurred (who concluded that the application of the extension of time provisions in Qld ss 30 and 31 (as to which see generally 20.78–20.117), which contain no equivalent list of factors for the court to take into account, can be informed by physical disability but not legal disability, as the latter is separately catered for in Qld s 29: see 14.18). Vic s 3(2) (which deems a person to be under a disability while he or she is a minor or of unsound mind). ACT Dictionary (a person is ‘under a disability’ while he or she: (a) is under 18 years old; or (b) is, for a continuous period of 28 days or longer, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in relation to the limitation period for which the question of disability arises because of: (i) intellectual retardation or disability, mental illness or disorder, brain damage, senility or physical disability; (ii) war or warlike operations; or (iii) circumstances arising out of war or warlike operations). There is certainly a tide of Australian Capital Territory authority that recognises physical disability as relevant in this context: see, for example, Peterson v Dowse Asphalt Pty Ltd (SC(ACT), Higgins J, 30 November 1994, unreported) at [46]; Morris v Fred Pty Ltd (SC(ACT), Higgins J, 4 December 1995, unreported) BC9506478 at 5; Ilovska v Kaycone Pty Ltd (SC(ACT), Higgins J, 19 August 1996, unreported) BC9603714 at 10; Baxter v Calagos [2009] ACTSC 133; BC200909273 at [32] per Gray J. Koumorou v Victoria [1991] 2 VR 265 at 274 per Brooking J; Yates v Thakeham Tiles Ltd [1995] PIQR P135. See also Clark v McGuinness [2005] VSCA 108; BC200502962 at [68] per Winneke P. Delai v Western District Health Service [2009] VSC 151; BC200902980 at [42] per Beach J; Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [90] per Refshauge J (albeit without expressing a concluded view); GGG v YYY [2011] VSC 429; BC201106667 at [211] per Osborn J. Doyle v Gillespie (2010) 4 ACTLR 188; [2010] ACTSC 21; BC201001503 at [89] per Refshauge J. Smith v Department of Defence (SC(NSW), Sperling J, 6 April 1998, unreported) BC9801079 at 32. Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296 at 301 per Lord Diplock, with whom Lords Elwyn-Jones, Fraser, Scarman and Bridge concurred. Koumorou v State of Victoria [1991] VR 265 at 274–5 per Brooking J. Koumorou v State of Victoria [1991] VR 265 at 275 per Brooking J.

146. Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 624; BC9506626 per Phillips JA, with whom Tadgell and Callaway JJA concurred. See, for example, Dudycz v Vager Pty Ltd [2011] ACTSC 7; BC201100180 (where Harper M found that even though the plaintiff was broadly aware that he might have rights beyond his entitlement to workers’ compensation, he nonetheless chose not to seek legal advice; his ‘conscious decision not to pursue any [further] rights’ (at [25]), when coupled with the prejudice to the defendant were time extended, led his Honour to refuse an extension of time). 147. Dale v British Coal Corporation [1992] PIQR P373 at P380–1 per Stuart-Smith LJ. See also Hartley v Birmingham City District Council [1992] 2 All ER 213 at 224 per Parker LJ; Chagos Islanders v Attorney-General [2003] EWHC 2222 (QB) at [700] per Ouseley J (‘there is no prejudice from being unable to pursue an unarguable case’); Davies v Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380 at [39] per Tomlinson LJ, with whom Hallett and Mummery LJJ concurred. 148. UK 1980 s 33(1) (formerly UK 1939 s 2D(1)). It also speaks, as is evident above, of the time bar being ‘disapplied’, as opposed to being extended by the court, but this makes no difference in substance for this purpose vis-à-vis the Australian provisions. 149. See 20.27. 150. Namely NSW ss 60C(2) (as to which see 20.49–20.55), 60G(2) (as to which see 20.67). 151. Yu v Speirs [2001] NSWCA 373; BC200106751 at [17] per Rolfe AJA, with whom Beazley JA and Ipp AJA concurred. See also Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [22], [23] per Giles JA, with whom Ipp and Macfarlan JJA concurred; Gilmore v Waugh [2012] NSWCA 263; BC201206311 at [46] per Macfarlan JA, with whom Campbell and Meagher JJA concurred. 152. NSW s 58(2)(b), applicable to causes of action accruing before 1 September 1990: see 20.45, 20.46. 153. Vic s 23A(2)(b), applicable where the relevant act or omission occurred before 21 May 2003: see 20.6. 154. PD v Australian Red Cross Society (New South Wales Division) (1993) Aust Torts Rep ¶81-205 at 62,019–20 per Badgery-Parker J (in the context of NSW s 60G(2)). See also Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [24] per Giles JA, with whom Ipp and Macfarlan JJA concurred (‘it would not be just and reasonable to extend the limitation period when there would be no utility because the plaintiff’s claim must fail’); Wells v Commonwealth of Australia [2014] NSWSC 148; BC201401070 at [30] per Adamson J. 155. Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 508; BC9403464 per Kirby P. 156. See 1.25–1.27. 157. Tavsanli v Phillips Morris (Australia) Ltd (SC(Vic), Young CJ, 18 September 1989, unreported) BC8900545 at 8 (noting that while the requirement that it appear to the court that there was evidence to establish the cause of action relied upon was removed from the statute, were it clear that there could be no evidence to support the cause of action relied upon, this would be one of the ‘circumstances of the case’ to which the court should have regard). See also Wintle v Stevedoring Industry Finance Committee [2002] VSC 265; BC200203898 at [18]–[20] per Ashley J (reaching a similar conclusion, in the context of a parallel limitations regime, from the words ‘[w]here … it appears to the court’ in the Wrongs Act 1958 (Vic) s 20(2)). 158. Taylor v Western General Hospital [1986] VR 250 at 253 per King J; Bell v SPC Ltd [1988] VR 118

159.

160.

161. 162. 163.

164.

165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178.

at 126, 131 per Brooking J [affd Bell v SPC Ltd [1989] VR 170]. Cf Halford v Brookes [1991] 3 All ER 559 at 568 per Russell LJ (who bore in mind ‘that the plaintiff successfully obtained legal aid, something she would not have achieved had not the legal aid authorities decided that it was reasonable for her to bring the proceedings’). Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 508; BC9403464 per Kirby P. See also Wintle v Stevedoring Industry Finance Committee [2002] VSC 265; BC200203898 at [18]–[20] per Ashley J (speaking of ‘evidence exist[ing] which could support the cause of action’ in the context of in a parallel limitations regime in s 20 of the Wrongs Act 1958 (Vic)); Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [25] per Giles JA, with whom Ipp and Macfarlan JJA concurred (phrased in terms of ‘a reasonable prospect of success on the ultimate hearing’); DC v New South Wales [2012] NSWSC 142; BC201200905 at [129] per Harrison AsJ (speaking in terms of the dilatory plaintiff having ‘a real case to advance’). See also Dale v British Coal Corporation [1992] PIQR P373 at P381 per Stuart-Smith LJ (remarking that while ‘the court cannot and should not attempt to determine the merits on affidavit evidence’ where the limitation issue is tried and determined before the merits of the claim, the judge can ‘take an overall view of the prospects of success’). Rutter v New South Wales [2005] NSWCA 231; BC200504776 at [31] per McColl JA, with whom Handley JA and Hunt AJA concurred. Wells v Commonwealth of Australia [2014] NSWSC 148; BC201401070 at [30] per Adamson J (in the context of NSW s 60G(2), as to which see 20.67). Cavanagh v New South Wales [2008] NSWCA 350; BC200811196 at [24] per Giles JA, with whom Ipp and Macfarlan JJA concurred (in the context of NSW s 60G(2), as to which see 20.67). Gilmore v Waugh [2012] NSWCA 263; BC201206311 at [47] per Macfarlan JA, with whom Campbell and Meagher JJA concurred. See, for example, Locklier v New South Wales [2009] NSWSC 746; BC200906829 (where Davies J, in the face of a lengthy largely unexplained delay, and corresponding prejudice to the defendant, refused an extension of time by reference, inter alia, to the merit-based difficulty of separating the causes of the plaintiff’s ongoing problems: at [114]). NSWLRC 50, para 6.24. NSWLRC 50, para 6.21. NSWLRC 50, paras 6.1, 6.2. As to the meaning of ‘negligence, nuisance or breach of duty’ see 7.34, 7.35. NSW s 59 (referring to Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2). Compensation to Relatives Act 1897 (NSW) s 3. NSW s 60. See 20.56–20.70. NSW s 60F, Sch 5. See 20.49–20.55. See 20.56–20.70. NSW ss 60C, 60G. NSW ss 60D, 60H. Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 220; BC9800341 per Priestley JA (citing the Second Reading Speech).

179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189.

190. 191. 192. 193. 194. 195. 196. 197. 198.

199. 200.

NSW s 60A. NSW s 50A(1). NSW s 50A(4). NSW s 50A(3). A separate limitations regime is established for causes of action on a claim under the Motor Accidents Compensation Act 1999 (NSW): see 3.15–3.21. NSW s 50A(2) (being the date of commencement of the amending legislation, namely the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)). See 7.36–7.57. See 20.71–20.77. This is also supported by the heading to Div 3 of Pt 3, ‘Personal injury cases arising before 2002 amendments’. See 20.47. ‘Personal injury’ includes any disease and any impairment of the physical or mental condition of a person: NSW s 11(1). See further 7.33. In this event, under NSW s 60D(2), the court may, if it decides that it is just and reasonable to do so, order either or both that: (a) a limitation period for the relevant cause of action be extended for such period, not exceeding five years, as it determines; (b) a limitation period for the cause of action that the applicant claims to have be extended for such period, not exceeding five years, as it determines. The court may, if it decides that it is just and reasonable to do so, exclude any beneficiary (or class thereof) from the operation of the order: NSW s 60D(3). This provision was introduced, as part of the amendments found in the Limitation Amendment Act 1990 (NSW) (which also reduced the limitation period from six to three years: NSW s 19), prompted by NSWLRC 50 (see paras 6.32–6.37), to address the absence of a power to extend time in this context identified by Allen M in Bergfels v Port Stephens Shire Council [1983] 2 NSWLR 578 at 584. An equivalent initiative had been pursued in England, via the Law Reform (Miscellaneous Provisions) Act 1971 (UK), following the parallel anomaly identified by the English Court of Appeal in Lucy v W T Henleys Telegraph Works Co Ltd [1970] 1 QB 393. See 20.50. Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10; BC200900447 at [34] per Allsop P. Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197; BC9800341 per Mason P. See also at 240 per Powell JA. Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 240; BC9800341 per Powell JA. McQueen v Savides (SC(NSW), James J, 4 April 1996, unreported) BC9601068 at 12–14 (applying to NSW s 60C the case law to the same effect on s 60G, as to which see 20.57). These owe their genesis, albeit not in identical form, to the recommendations found in NSWLRC 50, para 6.30. Under the Compensation to Relatives Act 1897 (NSW). NSW s 60E(2)-60E(4). The New South Wales paragraph (b) includes the words ‘by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available’, which have no counterpart in ACT s 36(3)(b) or Vic s 23A(3)(b). As to the impact of this difference see 20.26. As to this case law see generally 20.8–20.43. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 569–70; BC9604531 per

201. 202. 203. 204. 205.

206. 207.

208. 209. 210.

211. 212. 213. 214. 215.

216. 217. 218. 219.

Kirby J; Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199; BC9800341 per Mason P. Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9–10; BC9601006 (FC). See further 20.62. Gilmore v Waugh [2012] NSWCA 263; BC201206311 at [45] per Macfarlan JA, with whom Campbell and Meagher JJA concurred. See, for example, Australian Croatian Cultural & Educational Association ‘Braca Radici’ Blacktown Ltd v Benkovic [1999] NSWCA 210; BC9906395. See further 20.18, 20.19. See 20.39–20.43. See, for example, Murdock v Lipman [2012] NSWSC 983; BC201207050 (where, by reference to NSW s 60E(1)(h), McCallum J noted that the plaintiff was a relatively young man who suffered a substantial impairment to his working capacity, meaning that the prejudice to him were the limitation period not extended was ‘manifest’: at [31]; coupled with other factors, including the preservation of the relevant evidence, this led her Honour to extend time). Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 200; BC9800341 per Mason P. See, for example, Allen v Drayton Coal Pty Ltd (CA(NSW), Clarke and Powell JJA, BadgeryParker AJA, 1 December 1995, unreported) BC9501905 (where the fact that the plaintiff, if permitted an extension of time, would have recovered only a modest amount, in the range of $900, was a factor relevant to the court’s decision to refuse an extension). Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [85] per Campbell JA, with whom Giles and Ipp JJA concurred. Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [86] per Campbell JA, with whom Giles and Ipp JJA concurred. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [119] per Sheller JA, with whom Meagher and Handley JJA, and Brownie AJA, agreed); Robinson v Zinc Corporation Pty Ltd [2005] NSWCA 372; BC200509152 at [29]–[31] per Santow JA, with whom Mathews AJA agreed. Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 198–9; BC9800341 per Mason P. See generally 20.13–20.24. See 20.39–20.43. Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; BC200901703 at [112] per Campbell JA, with whom Giles and Ipp JJA concurred. ‘Contribution action’ means an action for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1): NSW s 60K(3). As to the limitations rules applicable to contribution actions see 12.21–12.31. NSW s 60K(1). Namely NSW Pt 4 Div 1, as to which see 2.28–2.30. NSW s 60M(1). NSW s 60M(2). It has been suggested that the order for extension that NSW s 60M empowers the court to make is only an order under NSW s 60C; hence, as the latter restricts the court’s power to make orders for extension to five years beyond the primary (three year) limitation, if proceedings have not actually been commenced within five years of expiry of the primary limitation period, there is no point in the court using its power under NSW s 60M to make orders after expiry of the limitation period: Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120; BC200904485 at [160] per Campbell JA. See also Certain Lloyds Underwriters v

220. 221. 222.

223. 224. 225.

226. 227.

228.

229.

Giannopoulos [2009] NSWCA 56; BC200901703 at [27] per Campbell JA, with whom Giles and Ipp JJA concurred. It may be queried whether NSW s 60M is so confined. It refers, after all, to ‘order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3’. As the latter deals with an application to extend time, subsequent to the expiry of the secondary (five year) limitation period, in the event of latent injury (NSW s 60J), there appears scope for NSW s 60M to apply in that context as well. Hence the reference in the Text to both the primary and secondary limitation periods. NSW s 61. See 20.47. Being an introductory (‘overview’) provision, however, it does not set the precise parameters of the relevant jurisdiction, which must rest on the operative provisions: Dedousis v Water Board (1994) 181 CLR 171 at 177; BC9404661 (FC). NSW s 60J. As to the ‘secondary limitation period’ see 20.49–20.55. ‘Personal injury’ includes any disease and any impairment of the physical or mental condition of a person: NSW s 11(1). See further 7.33. Section 60H must be placed against the backdrop of NSW s 60, which was enacted to overcome the consequence that the statute barring of the cause of action by the deceased would have on a cause of action under the Compensation to Relatives Act 1897 (NSW) s 3. As s 60 relates only to the cause of action of the deceased, s 60H was enacted to overcome difficulties that might arise in relation to the expiration of a cause of action under the 1897 Act itself. In effect, s 60H renders s 60 otiose, since s 60H empowers a court to extend not only the limitation period for the cause of action under the 1897 Act itself, but also the limitation period for the cause of action for the deceased. See Bradford v Commonwealth of Australia [2002] FCA 1489; BC200207508 at [45]–[47] per Emmett J. Cox v Keys [2012] NSWCA 268; BC201206443 at [14] per Macfarlan JA, with whom McColl JA concurred. As to s 60I see 20.61–20.70. For completeness, it should be noted that NSW Sch 5 cl 4(4)(b) prescribed an alternative time frame in this context, namely that the court could make an order under ss 60G or 60H if an application therefor was made within the period of three years commencing on 1 September 1990. This transitional provision was relevant in the group of cases where the plaintiff made application between 1 September 1990 and 1 September 1993 for an extension of time: Dedousis v Water Board (1994) 181 CLR 171 at 179; BC9404661 (FC). It is now, accordingly, an essentially spent provision. PD v Australian Red Cross Society (NSW Division) (1993) Aust Torts Rep ¶81-205 at 62,019 per Badgery-Parker J; Barlow v Homebush Bay Development Corporation (CA(NSW), Clarke and Powell JJA, Badgery-Parker AJA, 6 November 1995, unreported) BC950175 at 2–3 per BadgeryParker AJA, with whom Clarke and Powell JJA concurred. See, for example, CSR Ltd v Rendell (CA(NSW), Handley, Sheller and Cole JJA, 7 August 1996, unreported) BC9603437 (refusal to extend time where the quantification of damages would, for reasons including numerous intervening causes, have been speculative and uncertain: at 11–12 per Handley JA, with whom Sheller and Cole JJA concurred). See further 20.39–20.43. South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; BC200107961 at [33] per Hodgson JA, with whom Beazley JA and Rolfe AJA agreed; Commonwealth of Australia v Smith [2007] NSWCA 168; BC200705467 at [52] per Giles JA (dissenting, but not on this point); Locklier v New South Wales [2009] NSWSC 746; BC200906829 at [43] per Davies J.

230. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [116] per Sheller JA; BHP Steel (AIS) Pty Ltd v Lakovski [2000] NSWCA 334; BC200007381 at [9] per Meagher JA, with whom Fitzgerald and Heydon JJA concurred; Commonwealth v Smith [2005] NSWCA 478; BC200511378 at [127] per Santow JA; Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209; BC200605869 at [36] per Basten JA, with whom Handley and Ipp JJA concurred; Commonwealth v Lewis [2007] NSWCA 127; BC200704314 at [29] per Beazley JA, with whom Santow and Ipp JJA concurred. 231. Parsons v Doukas (2001) 52 NSWLR 162; [2001] NSWCA 128; BC200104630 at [62] per Powell JA; Commonwealth v Smith [2005] NSWCA 478; BC200511378 at [129] per Santow JA. 232. (CA(NSW), Gleeson CJ, Priestley and Meagher JJA, 22 August 1995, unreported) BC9505244 at 7–8. See also Jones v Royal Hospital for Women (CA(NSW), Mason P, Handley and Beazley JJA, 24 July 1998, unreported) BC9805127 at 12 per Mason P, with whom Handley and Beazley JJA concurred (opining that in exceptional cases considerations other than prejudice may prove decisive, ‘such as inordinate delay on the part of the applicant considering the extent of awareness of relevant issues under s 60I as explained by Gleeson CJ in Drayton Coal Pty Ltd v Drain’). 233. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [79] per Priestley JA, with whom Sheller JA and Davies AJA concurred; McLean v Sydney Water Corporation [2001] NSWCA 122; BC200101913 at [27] per Giles JA, with whom Stein JA and Hodgson CJ in Eq concurred; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; BC200107961 at [32] per Hodgson JA, with whom Beazley JA and Rolfe AJA agreed. 234. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [79] per Priestley JA (emphasis in original). 235. See 20.58, 20.59. 236. The phrase ‘or at a time before that expiration when proceedings might reasonably have been instituted’ has been construed to encompass a scenario where ‘awareness dawns upon the plaintiff within the limitation period but so close to its expiry that there is not the time in which the plaintiff could reasonably have instituted proceedings’, in which event the court may make an order under NSW s 60G: Government Insurance Office of New South Wales v Strange (CA(NSW), Clarke and Powell JJA, Young AJA, 28 November 1995, unreported) BC9501850 at 4–5 per Young AJA, with whom Clarke and Powell JJA concurred (accepting, to this end, that ‘there may well be cases where a person might have become aware only a day or two or perhaps a week or so before the expiration of the limitation period and may have disadvantages because of language or poverty where a small window is opened for the Court to make an order extending the limitation period even though awareness was obtained before the limitation period expired’: at 5). 237. Knowledge or awareness of a form of personal injury does not operate to deny a finding that the plaintiff lacked knowledge or awareness of another personal injury: see, for example, Commonwealth of Australia v Dinnison (1995) 56 FCR 389 at 402–3 per Gummow and Cooper JJ (involving knowledge of a physical injury but, at the time, no concurrent awareness of a psychiatric injury). 238. Spadotto & Co Pty Ltd (in liq) v Raber (CA(NSW) Priestley, Clarke and Powell JJA, 27 October 1995, unreported) BC9501698 at 3 per Priestley JA, with whom Clarke and Powell JJA concurred. 239. Spadotto & Co Pty Ltd (in liq) v Raber (CA(NSW) Priestley, Clarke and Powell JJA, 27 October 1995, unreported) BC9501698 at 5 per Priestley JA, with whom Clarke and Powell JJA concurred; Dowell Australia Pty Ltd v Page (CA(NSW), Clarke and Powell JJA, Young AJA, 1

240.

241.

242. 243. 244.

245. 246. 247. 248. 249.

250.

251. 252.

December 1995, unreported) BC9501904 per Young AJA; Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9–10; BC9601006 (FC); Bates v Endrey-Walder (CA(NSW), Handley and Beazley JJA, Sheppard AJA, 30 July 1998, unreported) BC9804812 at 39 per Sheppard AJA; Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [33]–[36] per Foster AJA, Mason P and Einstein J relevantly agreeing. CRA Ltd v Martignago (1996) 39 NSWLR 13 at 19 per Clarke JA (‘Where the alternative tests are found in one subsection of s 60I but not in the other there is a logical difficulty in giving the expression ‘unaware’ in subs (1)(a) the wider meaning embracing a form of constructive knowledge’). Bates v Endrey-Walder (CA(NSW), Handley and Beazley JJA, Sheppard AJA, 30 July 1998, unreported) BC9804812 at 39 per Sheppard AJA; Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [36], [37] per Foster AJA, at [119] per Einstein J; Commonwealth v Smith [2005] NSWCA 478; BC200511378 at [101] per Handley JA. See 20.68, 20.69. Gilmore v Waugh [2012] NSWCA 263; BC201206311 at [45] per Macfarlan JA, with whom Campbell and Meagher JJA concurred. Commonwealth v McLean (1996) 41 NSWLR 389 at 395; BC9606432 per Handley and Beazley JJA. See also the remarks at first instance, which were approved (although the decision reversed) on appeal: McLean v Commonwealth (SC(NSW), Sperling J, 28 June 1996, unreported) BC9602664 at 8–9. See 20.42. (1996) 39 NSWLR 13 at 20–21; BC9600056, cited with approval in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 12–13; BC9601006 (FC). Commonwealth of Australia v Dinnison (1995) 56 FCR 389 at 403 per Gummow and Cooper JJ. New South Wales v Knight [2002] NSWCA 185; BC200203684 at [19] per Ipp AJA, with whom Mason P and Handley JA concurred. F J Walker Ltd v Webber (CA(NSW), Kirby P, Meagher JA and Hope AJA, 16 November 1989, unreported) BC8901440 at 6 per Meagher JA, cited with approval in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 13; BC9601006 (FC). See, for example, BHP Steel (AIS) Pty Ltd v Giudice (CA(NSW), Mason P, Handley and Cole JJA, 7 March 1997, unreported) BC9700625 (where, in a case where the injury was hearing loss, the evidence revealed that the plaintiff first became aware of hearing problems in the 1970s, and thereafter claimed workers compensation for it; in these circumstances, whilst he was not aware of the precise results of audio metric tests, the plaintiff ‘plainly was aware of the nature of personal injury suffered by him, namely hearing loss, and in general terms of its extent’, and so had not satisfied the court of any matter within NSW s 60I(1)(a): at 6 per the court). Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 13; BC9601006 (FC). See also Eijkman v Magann [2005] NSWCA 358; BC200509346 at [97] per Giles JA, with whom Hodgson JA and Hunt AJA concurred. Brunton v D O’Bryan & Co Pty Ltd (CA(NSW), Kirby P, McHugh and Clarke JJA, 4 August 1988, unreported) BC8802267 per McHugh JA. F J Walker Ltd v Webber (CA(NSW), Kirby P, Meagher JA and Hope AJA, 16 November 1989, unreported) BC8901440 at 6 per Meagher JA. See also Hammet v Connor [1980] VR 538 at 543 per Crockett J (remarking that ‘[t]o know only that one has “vascular problems” without knowing either what the “problems” were or their seriousness … is not to have knowledge of the extent of

253.

254. 255.

256. 257. 258.

259. 260. 261. 262. 263.

264.

that injury’, and that ‘even if the person injured is unaware of symptoms that might later result from the injury, if the degree of seriousness of the injury is unappreciated then its extent may not be known’). Dedousis v Water Board (1994) 181 CLR 171 at 181–2; BC9404661 (FC) (though noting that if a plaintiff alleges that his or her employer has failed to provide a safe system of work, and can establish that he or she was unaware that there was a safer alternative system, the proper conclusion is that the plaintiff was ‘unaware of the connection between the personal injury and the defendant’s act or omission’ within the meaning of NSW s 60I(1)(a)(iii); the relevant act or omission in this scenario is the employer’s failure to provide the safer alternative system or to take suitable precautions). As to NSW s 60G see 20.57. McLean v Commonwealth (SC(NSW), Sperling J, 28 June 1996, unreported) BC9602664 at 11 (‘It cannot have been intended that ignorance of a matter which was fanciful would provide the basis for an extension of time’) [revd on appeal but at the same time endorsing Sperling J’s treatment of the limitation issue: Commonwealth v McLean (1996) 41 NSWLR 389; BC9606432]; State Rail Authority v Gaudron (CA(NSW), Priestley and Meagher JJA, Brownie AJA, 12 August 1997, unreported) BC9703533 per Brownie AJA (opining that an applicant’s lack of awareness of the connection between the personal injury in question and the defendant’s act or omission ‘is not established merely by some ingenious pleader drafting a Statement of Claim containing multiple allegations of breach of duty, or describing one breach of duty in a number of different ways, and by the applicant then deposing in general terms to a lack of awareness of the matters covered by the pleading and particulars, as distinct from an awareness of such matters as the happening of the accident in question, and generally how it happened’). Dedousis v Water Board (1994) 181 CLR 171; BC9404661. (CA(NSW), Gleeson CJ, Priestley and Meagher JJA, 22 August 1995, unreported) BC9505244 at 8. Dowell Australia Pty Ltd v Page (CA(NSW), Clarke, Powell JJA and Young AJA, 1 December 1995, unreported) BC9501904 per Young AJA (noting that while NSW s 60I(1)(a)(iii) speaks of the plaintiff’s unawareness of the defendant’s act or omission rather than the defendant’s identity, ‘one cannot know about the connection if one is ignorant of the defendant itself’; on the facts, though, the court found that the evidence did not establish that the plaintiff was unaware of the defendant’s identity before the expiration of the limitation period). See, for example, Hyde v Agar (1998) 45 NSWLR 487; BC9805415 (where the relevant lack of awareness concerned the identity of the appropriate defendants). Kinzett v McCourt (1999) 46 NSWLR 32; [1999] NSWCA 7; BC9900196 at [26]–[28] per Spigelman CJ. See 20.62. Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [119] per Einstein J. Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [37] per Foster AJA. Spadotto & Co Pty Ltd (in liq) v Raber (CA(NSW) Priestley, Clarke and Powell JJA, 27 October 1995, unreported) BC9501698 at 5 per Priestley JA, with whom Clarke and Powell JJA concurred (emphasis supplied). Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [36] per Foster AJA, Mason P and Einstein J relevantly agreeing; Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [103] per Santow JA, Handley JA agreeing; Commonwealth of Australia v Shaw

265.

266. 267.

268.

269.

270. 271.

(2006) 66 NSWLR 325; [2006] NSWCA 209; BC200605869 at [31] per Basten JA, with whom Handley and Ipp JJA concurred. Smith v Central Asbestos Co Ltd [1973] AC 518 at 530 per Lord Reid, described as ‘particularly apt’ in Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [36] per Foster AJA, Mason P and Einstein J relevantly agreeing. UK 1980 s 14(3). Adams v Bracknell Forest Borough Council [2005] 1 AC 76; [2004] UKHL 29 at [71]. See also at [77] per Lord Walker, at [88] per Baroness Hale (‘If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection’). See, for example, Forbes v Wandsworth Health Authority [1997] QB 402 at 414 per Stuart-Smith LJ (‘It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this … undermines any objective approach’), at 423 per Evans LJ; Adams v Bracknell Forest Borough Council [2005] 1 AC 76; [2004] UKHL 29 at [46], [47] per Lord Hoffmann (rejecting a subjective standard), at [58] per Lord Phillips (who ‘objectified’ the relevant inquiry, by identifying the standard of reasonable behaviour as ‘one which does not have regard to aspects of character or intelligence which are peculiar to the claimant’; emphasis supplied), at [76] per Lord Walker (observing that ‘[t]he courts have moved towards a more objective approach, and in my opinion they are right to have done so’), at [88] per Baroness Hale; Young v South Tyneside Metropolitan Borough Council [2007] QB 932; [2006] EWCA Civ 1534 at [45] per Dyson LJ, at [80]–[84] per Buxton LJ; McCoubrey v Ministry of Defence [2007] 1 WLR 1544; [2007] EWCA Civ 17 at [50]–[52] per Neuberger LJ, with whom Tugendhat J and Ward LJ concurred; London Strategic Health Authority v Whiston [2010] 3 All ER 452; [2010] EWCA Civ 195 at [54] per Dyson LJ, with whom Longmore and Smith LJJ concurred (although accepting that the fact that the plaintiff was suffering from the relevant disability from the moment he or she was born could be taken into account for this purpose, as ‘a person who suffers from a disability at birth is more likely to be accepting of his disability (because he has never known anything different) than a person who suffers an injury during adult life’: at [63]; on the facts, however, the plaintiff’s injury had become more serious as he aged, prompting a reasonable person in his position to have made further inquiry); Johnson v Ministry of Defence [2012] EWCA Civ 1505 at [25] per Smith LJ, with whom Etherton and Hallett LJJ concurred; AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [47]–[50] per Lord Walker; Platt v BRB (Residuary) Ltd [2015] PIQR P7; [2014] EWCA Civ 1401 at [28], [29] per Vos LJ, with whom Sharp and Jackson LJJ concurred. Cf A McGee and G Scanlan, ‘Judicial Attitudes to Limitation’ (2005) 24 CJQ 460 at 462–5 (querying the extent of the relevant ‘objectification’). London Strategic Health Authority v Whiston [2010] 3 All ER 452; [2010] EWCA Civ 195 at [59] per Dyson LJ, with whom Longmore and Smith LJJ concurred (expressed in the context of scope to extend time under UK 1980 s 33: see 20.9). Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [187] per Basten JA (dissenting but not on this point). Telstra Corporation Ltd v Rea [2002] NSWCA 49; BC200200737 at [30]–[37] per Foster AJA, Mason P and Einstein J relevantly agreeing (also being influenced by the remarks of Dawson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 259; BC8400527 in the context of NSW s 58(2), that ‘[w]hat is important is the means of knowledge which were reasonably available to the appellant [which] must mean available in a practical and not a theoretical sense’).

272. Spadotto & Co Pty Ltd (in liq) v Raber (CA(NSW) Priestley, Clarke and Powell JJA, 27 October 1995, unreported) BC9501698 at 4–5, with whom Clarke and Powell JJA concurred (speaking by reference to NSW s 60I(1)(a) but in observations equally applicable to s 60I(1)(b)). 273. NSW s 50A(1); Vic s 27B(1). 274. NSW s 50A(2) (namely the commencement date of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)). 275. Vic s 27N(1) (namely the commencement date of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic)). 276. Vic s 27N(2), 27N(3). 277. See 7.36–7.57. 278. See 7.43. 279. See 7.56. 280. See 7.53. 281. As to the meaning of ‘discoverable’ in this context see 7.45–7.52. 282. NSW s 62A(2) (which adds that the limitation period is also extended for the purposes of NSW s 26(1) (b) (see 12.23) in relation to any associated action for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1) brought by the person against whom that cause of action lies); Vic s 27K(2). In New South Wales, if a cause of action arises under the Compensation to Relatives Act 1897 (NSW) (or would arise under that Act but for the expiration as against the deceased of a limitation period) and the cause of action of the deceased was not ‘discoverable’ by the deceased before the death of the deceased, the court may (in addition to an order under NSW s 62A) order that the expiration as against the deceased of a limitation period for the cause of action by the deceased has no effect in relation to an action brought by the applicant in that court on the cause of action claimed by the applicant: NSW s 62C(1)). 283. NSW s 62A(3); Vic s 27K(3). 284. Namely that under NSW Pt 3 Div 3 Subdiv 2 (applicable to causes of action preceding 6 December 2002), as to which see 20.49–20.55. 285. Footnote supplied. 286. The term ‘plaintiff’ in this context is intended to refer to the plaintiff as well as the plaintiff’s capable parent or guardian where the plaintiff is under a legal disability or the plaintiff’s guardian in the event that the plaintiff is incapacitated: Curnow v Roman Catholic Trust Corporation Diocese of Melbourne [2006] VSC 364; BC200607937 at [59] per Hansen J; Tucker v Barwon Health and Geelong Hospital [2008] VSC 229; BC200804938 at [52] per Kyrou J. 287. As to Vic s 23A see generally 20.2–20.43. 288. Namely ACT s 36, as to which see 20.2. 289. Tucker v Barwon Health and Geelong Hospital [2008] VSC 229; BC200804938 at [49] per Kyrou J; Delai v Western District Health Service [2009] VSC 151; BC200902980 at [21] per Beach J; Axford v Gray [2013] VSC 664; BC201315375 at [10] per T Forrest J. 290. See 20.74, 20.75. 291. A ‘survivor action’ is a cause of action that has survived on the death of a person for the benefit of the person’s estate (in New South Wales, under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2; in Victoria, under the Administration and Probate Act 1958 (Vic) s 29(1)). 292. NSW s 62B(2); Vic s 27L(3).

293. In New South Wales, being cause of action arising under the Compensation to Relatives Act 1897 (NSW); in Victoria, a cause of action arising under the Wrongs Act 1958 (Vic) Pt III (‘wrongful act or neglect causing death’). 294. NSW s 62B(3); Vic s 27L(4). 295. NSW s 62D(1). As to the meaning of ‘discoverable’ see 7.45–7.52. 296. NSW s 62D(2). 297. Prescribed by Qld s 11(1): see 7.61. 298. ‘Personal injury’ includes a disease and an impairment of a person’s physical or mental condition: Qld s 5(1). See further 7.33. 299. An equivalent provision applied in New South Wales before 1 September 1990, namely NSW s 59. New South Wales also had a further parallel provision (NSW s 60), again applicable prior to that date, governing compensation to relatives actions. 300. Queensland Law Reform Commission, A Report of the Law Reform Commission on a Bill to Amend and Consolidate the Law Relating to Limitation of Actions, Report No 14, 1972, pp 6–8. 301. The New South Wales provision applied to a cause of action ‘founded on negligence nuisance or breach of duty, for damages for personal injury’, not being a cause of action that survived on the death of a person for the benefit of the person’s estate under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2, or arose under the Compensation to Relatives Act of 1897 (NSW) s 3: NSW s 58(1). Although expressed to apply to a ‘cause of action’ as opposed to a ‘right of action’ in Qld s 31(2), this difference is arguably of little significance: Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 603 per Yeldham J. Cf Re Sihvola [1979] Qd R 458 at 463–4 per Wanstall CJ. Another distinction between the two jurisdictions is that the Queensland provision refers to ‘a material fact’ whereas the New South Wales provision uses the phrase ‘any of the material facts’. As to the potential impact of this difference in wording see 20.93. 302. As to the Limitation Act 1963 (UK) see 7.7. 303. See 20.71. 304. UK 1963 s 1(3) (which spoke in terms of where it is proved that the material facts relating to the cause of action were or included facts of a decisive character that were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which: ‘(a) either was after the end of the three year period relating to that cause of action or was not earlier than 12 months before the end of that period, and (b) in either case, was a date not earlier than 12 months before the date on which the action was brought’). 305. Vic s 23A (with effect from 1 January 1973, but replaced as from 11 May 1983) (which envisaged scope for an extension of time if: (a) any of the ‘material facts’ relating to the cause of action: (i) was not known to the claimant; and (ii) would not have been known to the claimant if he had taken all reasonable steps in the circumstances of the case to ascertain all the material facts; until a date later than two years after the cause of action (is claimed to have) accrued; and (b) there is evidence to establish the cause of action apart from any defence founded on the expiration of the period of three years after the cause of action accrued). 306. See, for instance, the provisions cited at 20.8, 20.50. 307. Cox v Keys [2012] NSWCA 268; BC201206443 at [16] per Macfarlan JA, with whom McColl JA concurred (referring to the equivalent provision in the form of NSW s 58). 308. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J, at 548 per Toohey and Gummow JJ, at 551 per McHugh J; BC9604531; Shaw v Broadbent [2010] QSC

309. 310. 311.

312. 313. 314. 315. 316. 317.

318.

319.

320.

321. 322.

323.

433; BC201008640 at [122] per Atkinson J. Indeed, provision for curial discretion was one of the differences from the equivalent English provision (which mandated an extension of time once the necessary conditions were met) recommended by the New South Wales Law Reform Commission (NSWLRC 3, paras 281–285), which spawned the Limitation Act 1969 (NSW). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 564; BC9604531 per Kirby J (dissenting, but not on this specific point). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 565–6; BC9604531 per Kirby J (dissenting, but not on this specific point). Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262; BC200807827 at [48] per Holmes JA; Gillespie v Swift Australia Pty Ltd [2009] QCA 316; BC200909484 at [20] per Holmes JA. (1996) 186 CLR 541 at 553–4; BC9604531. See also at 544 per Dawson J, at 567 per Kirby J (dissenting, but not on this specific point). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554; BC9604531. See, for instance, the provisions cited at 20.8, 20.50. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548; BC9604531. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550; BC9604531. On the weighing point see, in particular, the remarks of Toohey and Gummow JJ, who had difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent, noting that in one obvious sense the prejudice to the present respondent is absolute if her application is refused (as she can never litigate her claim), ‘[b]ut that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised’: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 549; BC9604531. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [79] per Priestley JA, whose remarks to this end were endorsed in Bradford v Commonwealth of Australia [2002] FCA 1489; BC200207508 at [36] per Emmett J. See also Plowman v Sisters of St John of God Inc [2012] NSWSC 376; BC201203324 at [122] per Hoeben J. Commonwealth of Australia v Smith [2005] NSWCA 478; BC200511378 at [128] per Santow JA, with whom Handley JA agreed; Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; BC200810947 at [96] per McColl JA. Cf Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6; BC200900386 at [83] per Sackville AJA (who opined that this ‘should not be understood as suggesting that the only form of prejudice that is relevant is the unlikelihood of being able to obtain a fair trial’). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; BC9604531 per McHugh J (‘The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose’). Vicary v State of Queensland [2009] QSC 284; BC200908525 at [56] per P Lyons J. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 566; BC9604531 per Kirby J (dissenting, but not on this specific point). Cf Morton v Jools (1992) Aust Torts Rep ¶81164 at 61,303; BC9202047 per Carruthers J (who ruled that in a case where it is clearly open to the defendants to adduce evidence of actual prejudice, it was inappropriate to infer prejudice from the objective facts, especially as, on the facts, the physical evidence remained in existence). See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548; BC9604531 per Toohey and Gummow JJ. See also Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10;

324. 325. 326. 327. 328. 329. 330. 331.

332. 333. 334.

335. 336. 337. 338. 339.

BC200900447 at [26], [27] per Campbell JA, with whom Allsop P and Handley AJA concurred (who saw room for argument over whether the relevant date for this purpose means the time that the application is filed, or the date that it is determined, but inclined to the latter, reasoning that ‘[a]s it is only by the pronouncing of an order granting an extension that [an unanswerable defence] would be taken away, it seems appropriate that the decision whether it is just and reasonable to extend the limitation period should be made as at the date of the judgment’: at [27]). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555; BC9604531. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [119] per Sheller JA. Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; BC200003501 at [116] per Sheller JA. See 20.60. Page v Central Queensland University [2006] QCA 478; BC200609414 at [24] per Keane JA. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556; BC9604531. State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [27] per Gummow, Hayne and Crennan JJ. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 250–1; BC8400527 per Deane J. See also Clarke v Harpier Acoustics Pty Ltd (in liq) (FC(Qld), Derrington, Ambrose and Dowsett JJ, 20 September 1991, unreported) BC9102958 at 10 per Derrington J (‘The purpose of the legislation is to provide relief for parties who through no fault of their own or of their representatives are reasonably disabled or deterred from commencing an action within the statutory period by lack of knowledge of a decisive fact’). (1986) 7 NSWLR 283 at 300. Eustace v Queensland [1999] QCA 502; BC9907941 at [21] per Williams JA. See, for example, Field v Field (CA(NSW), Reynolds, Hope and Glass JJA, 21 October 1981, unreported) (involving what was found to be only a qualified medical opinion, raising a suspicion of a link between the accident and the plaintiff’s personal injury, and accordingly not capable of triggering knowledge of a material fact); Gordon v James Hardie & Co Pty Ltd (No 1) (1987) Aust Torts Rep ¶80-132 at 69,026–8; BC8701348 per McInerney J (who pondered that if the doctor who examined the plaintiff ‘is unsure of the diagnosis how then can it be said that the [plaintiff] was aware of the fact?’ and did not understand how the plaintiff ‘could be seized of such knowledge of a fact that is still uncertain’; in the circumstances, ‘what was in the mind of the [plaintiff] was the possibility in the future of a claim, not that there was a present possibility of a claim’: at 69,027); Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 369 per Clarke JA, with whom Kirby P and Hope JA concurred (concluding that ‘the possibility of the occurrence of negligence or the possibility of a causal nexus is not sufficient of itself to qualify as a material fact relating to a cause of action either as defined or as that phrase would generally be understood’). Randel v Brisbane City Council [1984] 2 Qd R 276 at 277 per McPherson J. See 20.110, 20.111. As to the exercise of this residual discretion see 20.112–20.116. Raschke v Suncorp Metway Insurance Ltd [2005] 2 Qd R 549; [2005] QCA 161; BC200503044 at [21] per Keane JA, with whom McPherson JA and Philippides J concurred. Qld s 30(1)(a). Equivalent provision appeared in NSW s 57B(1)(b). A similarly but not identically worded provision appeared in Vic s 23A(2) as it stood before 11 May 1983 (in

340. 341. 342. 343. 344.

345.

346. 347. 348. 349. 350. 351. 352. 353.

354. 355. 356. 357. 358. 359. 360. 361.

particular, adding ‘the nature of the wrongful act, neglect or default that constituted the negligence, nuisance or breach of duty’). The former UK 1963 s 7(3) exhibited parallels for items (iii), (iv) and (v) in the Queensland provision, but its omission of specific reference to items (i) and (ii) was arguably of no great consequence given that (iii), (iv) and (v) largely presuppose (i) and (ii). Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; BC8701820 (FC). Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51; BC200000642 at [20] per Thomas JA, with whom McPherson JA and Byrne J agreed. Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 708 per Mahoney JA. Payne v Jonkers Enterprises Pty Ltd [2004] QSC 447; BC200408707 at [18] per Holmes J. See, for example, State Transit Authority of New South Wales v Fraser (CA(NSW), Meagher, Handley and Powell JJA, 23 May 1995, unreported) BC9501642 (ignorance of ‘some fairly obscure section of the law’ held not to constitute ignorance of a material fact of a decisive character for the purposes of NSW s 58(2)(a)). Harris v Gas and Fuel Corporation of Victoria [1975] VR 619 at 627–8 (FC); Re Sihvola [1979] Qd R 458 at 464–5 per Wanstall CJ; Ex parte Bolewski [1981] Qd R 54 at 58–9 per W B Campbell J; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 249–50 per Wilson J, at 254 per Dawson J; BC8400527; Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd [1990] 2 Qd R 301 at 302 per Connolly J, with whom Ryan and Cooper JJ concurred; Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 440; BC9302668 per Macrossan CJ; Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 11, 24 per Lee J, with whom McPherson JA and Williams J agreed; Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474; BC9907416 at [18] per Thomas JA. [1913] AC 518 at 555–6. [1981] Qd R 54 at 59 per W B Campbell J. As to the statutory definition of ‘material facts of a decisive character’ see 20.95–20.99. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 246; BC8400527 per Wilson J. NSW s 58(2). [2005] QCA 367; BC200507343 at [43]. Wrightson v Queensland [2005] QCA 367; BC200507343 at [44]. Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 368–9 per Clarke JA, with whom Kirby P and Hope JA concurred. See also Wrightson v Queensland [2005] QCA 367; BC200507343 at [47] per Jerrard JA. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 251; BC8400527 per Deane J. Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 703 per Kirby P, with whom Hope AJA concurred (dealing with the equivalent, then operative, provision NSW s 57(1)(b)). (1989) 17 NSWLR 697. Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 703, with whom Hope AJA concurred. As to the meaning of ‘appropriate advice’ in this context see 20.104. Equivalent provision was made in NSW s 57B(1)(c) (previously NSW s 57(1)(c)) (applicable pre-1 September 1990). Essentially the same concepts also appeared in UK 1963 s 7(4). Sugden v Crawford [1989] 1 Qd R 683 at 686 per Connolly J. See also Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 437; BC9302668 per Macrossan CJ. Sugden v Crawford [1989] 1 Qd R 683 at 685 per Connolly J.

362. State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [21], [22] per Gummow, Hayne and Crennan JJ; Weis Restaurant Toowoomba v Gillogly [2013] QCA 21; BC201300563 at [41] per Daubney J, with whom Margaret McMurdo P and Fraser JA concurred. 363. Cf QLRC 53, pp 81–2 (concluding that ‘few plaintiffs would be significantly disadvantaged if the discovery limitation period were to be triggered by the plaintiff’s knowledge that his or her injury was attributable to some other person’, opining that ‘to require the plaintiff to have knowledge of the defendant’s identity before the discovery limitation period is triggered would make it considerably more difficult to know whether the limitation period had commenced’: p 82). 364. Stephenson v Queensland [2004] QCA 483; BC200408796 at [13] per Davies JA (endorsed on appeal: State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [19] per Gummow, Hayne and Crennan JJ, at [48] per Kirby J). See also Wrightson v Queensland [2005] QCA 367; BC200507343 at [10] per McMurdo P, at [48], [49] per Jerrard JA. 365. (2006) 226 CLR 197; [2006] HCA 20; BC200603311 at [30]. 366. Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 at 287 per Hope JA (seeing ‘no reason to attempt to confine the circumstances which would justify the not bringing of an action to any particular class or category’). 367. NSWLRC 3, para 296. 368. NSWLRC 3, para 297. 369. Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 at 294 per Samuels JA (emphasis supplied). See also Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 258; BC8400527 per Dawson J (‘The test laid down … is an objective one to be applied by reference to the reaction of a reasonable man who has taken appropriate advice’); Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112; BC200602260 at [53] per McMurdo J; Brown v Marine Contracting Pty Ltd [2012] QSC 228; BC201206833 at [65] per Peter Lyons J (remarking that, as the language used in s 30(1)(b) is clear, it would be ‘a remarkable thing if a test expressly formulated in objective terms were to be converted into one, the application of which depends upon the formation of a judgment or an opinion by a particular person’). 370. Randel v Brisbane City Council [1984] 2 Qd R 276 at 278 per McPherson J. 371. Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 12 per Lee J, with whom McPherson JA and Williams J agreed. 372. Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 at 289 per Mahoney JA. 373. Randel v Brisbane City Council [1984] 2 Qd R 276 at 278 per McPherson J (referring to Qld s 30(1) (d)(ii), which now takes the form of s 30(1)(c)(ii)); Brown v Marine Contracting Pty Ltd [2012] QSC 228; BC201206833 at [64] per Peter Lyons J. 374. As to the meaning of ‘appropriate advice’ see 20.104. 375. Healy v Femdale Pty Ltd (FC(Qld), Macrossan CJ, McPherson and Thomas JJ, 9 June 1993, unreported) BC9303277; Macleod v Flight West Airlines Pty Ltd [2001] QCA 96; BC200101223. 376. Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333 per Macrossan J. This statement has been cited with approval on multiple occasions: see, for example, Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 at 309 per Lee J, with whom McPherson and de Jersey JJ concurred; Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd [1990] 1 Qd R 301 at 305 per Connolly J, with whom Ryan and Cooper JJ concurred; Hintz v WorkCover Queensland [2007] QCA 72; BC200701583 at [38], [39] per Keane JA, with whom Williams JA and Helman J concurred; VMT v Corporation of the Synod of the Diocese of Brisbane (2007) Aust Torts Rep ¶81909; [2007] QSC 219; BC200706829 at [13] per Lyons J; Bust v Charles Porter & Sons Pty Ltd

377.

378. 379.

380. 381. 382. 383. 384. 385. 386. 387. 388.

389. 390. 391. 392. 393.

394. 395. 396.

[2010] QSC 317; BC201006815 at [27] per McMeekin J. HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; BC200905088 at [48] per Keane JA. See, for example, Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364; BC200709096 at [40] per Keane JA. Opacic v Patane [1997] 1 Qd R 84 at 87; BC9601300 per Davies JA. Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19; Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325; Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306; Woodhead v Elbourne [2001] 1 Qd R 220; [2000] QSC 42; BC200000927; Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51; BC200000642. [2004] QSC 447; BC200408707. Payne v Jonkers Enterprises Pty Ltd [2004] QSC 447; BC200408707 at [24]. [2008] QSC 330; BC200811298 at [46] per McMeekin J. [2004] QSC 123; BC200402874. O’Ualloran v Visy Board Pty Ltd [2004] QSC 123; BC200402874 at [20]. O’Halloran v Visy Board Pty Ltd [2004] QSC 123; BC200402874 at [22], citing from Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 336 per Derrington J. Qld s 30(2). Equivalent provision was made in NSW s 57B(1)(d) (formerly NSW s 57(1)(d)) (applicable before 1 September 1990). See 20.102, 20.103. See, for example, Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; BC8400527 (where on the facts ‘appropriate advice’ included the advice of a competent person, qualified to advise on matters of industrial safety in relation to excavation work in Sydney, on the particular aspect of the known material facts now under consideration, namely, the absence of any provision to minimise the inhalation of dust during such excavation work). Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 252; BC8400527 per Deane J. Redmond v J C Hutton Pty Ltd [2004] ACTSC 102; BC200406410 at [31] per Crispin J. An equivalent provision appears in NSW s 57B(1)(e) (and formerly NSW s 57(1)(e)) (applicable before 1 September 1990). Brown v Marine Contracting Pty Ltd [2012] QSC 228; BC201206833 at [50] per Peter Lyons J. Randel v Brisbane City Council [1984] 2 Qd R 276 at 280–1 per McPherson J, at 285 per Thomas J; Marshall v Minister for Education of Queensland [2004] QSC 135; BC200402544 at [18], [19] per Jones J; Newman v State of Queensland [2009] QSC 125; BC200904535 at [40] per Peter Lyons J. Smith v Browne [1974] VR 842 at 845–6 per Kaye J (in the context of the former Vic s 23A(2)). [1983] 2 Qd R 419 (see at 431 per McPherson J, at 433–9 per Thomas J). McManamny v Hadley [1975] VR 705 at 714 (FC); Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 472–3 per Connolly J, with whom Wanstall CJ and Kelly J concurred; Brambles Australia Ltd v Hall (CA(NSW), Clarke and Powell JJA, Young AJA, 8 November 1995, unreported) BC9501751 at 5–7 per Clarke JA, with whom Powell JA and Young AJA concurred; Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 at 299 per Mahoney JA; Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 705–6 per Kirby P, with whom Hope AJA concurred; Muir v Franklins Ltd [2001] QCA 173; BC200102277 at [15] per Thomas JA; Morris v BHP Coal Pty Ltd [2014] QSC 96; BC201404407 at [58] per McMeekin J. Cf Pizer v Ansett Australia Ltd [1998] QCA 298; BC9805248 at [15] per Thomas JA (opining that it makes little practical difference whether one approaches ‘the reasonable steps’ issue from the viewpoint of the plaintiff endowed with the

397. 398. 399. 400. 401. 402. 403.

404. 405. 406. 407. 408. 409.

410. 411. 412.

413. 414. 415.

qualities of a reasonable person or of a reasonable person endowed with the knowledge and experience of the plaintiff; his Honour noted that some of the cases deal with the issue in the first-mentioned way (see, for example, Healy v Femdale Pty Ltd (FC(Qld), Macrossan CJ, McPherson and Thomas JJ, 9 June 1993, unreported) BC9303277), but considered that ‘strictly speaking’ the second-mentioned way accords more literally with the statutory language). [2005] QCA 110; BC200502082 at [29]. See, for example, Young v Commissioner of Fire Service (SC(Qld), Williams J, 24 March 1997, unreported) BC9701017. See, for example, Honour v Faminco Mining Services Pty Ltd [2008] QSC 330; BC200811298 at [51] per McMeekin J. See, for example, Brown v Marine Contracting Pty Ltd [2012] QSC 228; BC201206833 at [54] per Peter Lyons J. Castensen v Frankipile Australia [2004] QSC 145; BC200402765 at [35] per Atkinson J. Qld s 30(2), as to which see 20.104. Royal North Shore Hospital v Henderson (1996) 7 NSWLR 283 at 299 per Mahoney JA; Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 23 per Lee J, with whom McPherson JA and Williams J concurred; NF v State of Queensland [2005] QCA 110; BC200502082 at [21] per Keane JA. Healy v Femdale Pty Ltd (FC(Qld), Macrossan CJ, McPherson and Thomas JJ, 9 June 1993, unreported) BC9303277 per the court. HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; BC200905088 at [44] per Keane JA. Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 704 per Kirby P, with whom Hope AJA concurred. [1998] QCA 298; BC9805248. Pizer v Ansett Australia Ltd [1998] QCA 298; BC9805248 at [6]. Pizer v Ansett Australia Ltd [1998] QCA 298; BC9805248 at [20]. See, for example, Knipe v British Railways Board [1972] 1 QB 361 (where at the outset there was only a trivial injury, but ten years later it transpired that the plaintiff had sustained a ruptured tendon, forcing him to wear a calliper perpetually; the worsening of the condition was held to be a material fact of a decisive character). Cf Goodchild v Greatness Timber Co Ltd [1968] 2 QB 373; Miller v London Electrical Manufacturing Co Ltd [1976] 2 Lloyd’s Rep 284 (each cases, like Pizer, where the injury, though it worsened in time, was at a time within the limitation period sufficiently serious to warrant action). Pizer v Ansett Australia Ltd [1998] QCA 298; BC9805248 at [21]. See also Spain v WorkCover Queensland [2009] QCA 323; BC200909559 at [61] per Keane JA. Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 564 per Rogers AJA. Evans v Repco Transmission Co Pty Ltd [1975] VR 150 at 152 per Gowans J; Ex parte Minoque [1980] Qd R 350 at 352 per Kelly J [affd Minoque v Bestobell Industries Pty Ltd [1981] Qd R 356]; Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 602–4 per Yeldham J; Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 at 79 per Hunt J. Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434–5; BC9302668 per Macrossan CJ; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 564–5 per Rogers AJA. Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 564 per Rogers AJA. VMT v Corporation of the Synod of the Diocese of Brisbane (2007) Aust Torts Rep ¶81-909; [2007]

416.

417.

418. 419. 420. 421.

422. 423. 424. 425. 426. 427. 428. 429.

430. 431.

QSC 219; BC200706829 at [28] per Lyons J. See also Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443 per Hunt J (opining that the test is ‘less exact’ than that applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury); Cuthill v State Electricity Commission of Victoria [1981] VR 908 at 913 per Starke J (‘evidence exists to support the plaintiff’s claim’); Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 at 79 per Hunt J; Wintle v Stevedoring Industry Finance Committee (SC(Vic), McGarvie J, 5 April 1989, unreported) BC8900738 at 5 (‘evidence which is available to see whether there is a reasonable prospect of the applicant establishing the cause of action’) (the last two cases in the context of parallel wording in the original version of Vic s 23A); Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 565 per Rogers AJA (‘What is excluded is guesswork’). Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434; BC9302668 per Macrossan CJ (adding that in any situation where proof of a case is difficult and far from straightforward, ‘it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration’). Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 611 per Yeldham J, endorsed in Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372 per Clarke JA, with whom Kirby P and Hope JA concurred. Cf Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 565 per Rogers AJA (speaking of being sufficient to prove the existence of evidence showing the possibility of a case against a particular defendant being made out). See 20.89. See 20.27, 20.28. (2006) 47 MVR 220; [2006] NSWCA 364; BC200610601. Sauer v Allianz Australia Insurance Ltd (2006) 47 MVR 220; [2006] NSWCA 364; BC200610601 at [36] per Beazley JA, with whom Santow and Bryson JJA concurred. See also Hill v Iluka Corp Ltd [2002] TASSC 113; BC200207499 at [37] (FC) (where although the lapse of time had caused prejudice, the bulk of that prejudice occurred well before the limitation period expired and so was not caused by undue delay). See further 20.29, 20.30. [2009] QSC 125; BC200904535. Newman v State of Queensland [2009] QSC 125; BC200904535 at [75]–[77]. (2007) Aust Torts Rep ¶81-909; [2007] QSC 219; BC200706829. VMT v Corporation of the Synod of the Diocese of Brisbane (2007) Aust Torts Rep ¶81-909; [2007] QSC 219; BC200706829 at [36], [39]. [2009] QCA 168; BC200905088. HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; BC200905088 at [62] per Keane JA, at [76] per Fraser JA, at [93] per Chesterman JA. See, for example, Smith v Department of Defence (SC(NSW), Sperling J, 6 April 1998, unreported) BC9801079 at 26 (treating the simplicity of the case, wherein the facts alleged in relation to liability, causation and damage were short and uncomplicated, as a feature against the presence of relevant prejudice; the order extending time, though, was also influenced by a finding that the defendant had been on notice of the accident since it occurred, and the fact that no evidence was led of any actual prejudice to the defendant arising from the loss of documents or witnesses). [2009] QSC 284; BC200908525. Vicary v State of Queensland [2009] QSC 284; BC200908525 at [63].

432. As to Qld s 29 see 14.18. 433. Qld s 5(2). 434. Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 20 per Lee J, with whom McPherson JA and Williams J concurred. 435. See, for example, O’Halloran v Visy Board Pty Ltd [2004] QSC 123; BC200402874 at [16] per Holmes J (noting that although the plaintiff was not a highly educated man, in the circumstances of the case, ‘where the condition clearly was serious and there was a relationship at least between its manifestation and the work performed, he ought, acting reasonably, to have made the enquiry as to whether the work itself had produced or contributed to the condition’). 436. Flemming v Gibson (CA(Qld), McPherson JA, Williams and Lee JJ, 19 December 1997, unreported) BC9707432 at 21 per Lee J, with whom McPherson JA and Williams J concurred. 437. See 7.67. 438. Tas s 5A(1) (and see the definition of ‘commencement day’ in Tas s 2(1)). 439. The list is less comprehensive than that recommended by the Tasmanian Law Reform Commission (TLRC 69, pp 34–6), which favoured the list espoused in NSWLRC 50 (which in any event did not survive unscathed when translated to NSW s 60E: see 20.50). Yet that the list in Tas s 5A(5) is non-exhaustive hardly serves to confine the court in this regard. 440. See 20.8–20.43, 20.50–20.54, 20.61–20.69. 441. See 20.8–20.43, 20.50–20.54, 20.61–20.69. 442. Marr v Green (1993) 14 Tas R 317 at 323; BC9300182 per Underwood J (dissenting, but not on this point). 443. Adams v Elphinstone (SC(Tas), Zeeman J, 22 June 1993, unreported) BC9300066 at 8; Hill v Iluka Corp Ltd [2002] TASSC 113; BC200207499 at [23] (FC) (referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 551; BC9604531, discussed at 20.81–20.85) (where time was extended in the face of a short, adequately and reasonably explained delay, where prejudice to the defendant was limited: at [24], [37]); Guest v West Tamar Council [2013] TASSC 1; BC201300175 at [9] per Holt AsJ. 444. Marr v Green (1993) 14 Tas R 317 at 319 per Green CJ, at 331 per Wright J; BC9300182; Norris v McGeachy [2010] TASFC 4; BC201004109 at [26] per Blow J, with whom Evans and Tennent JJ concurred. See further 20.13. 445. Robertson v Hobart Police & Citizens’ Youth Club [1982] Tas R 102 at 117 per Cox J; Williams v Smith [1984] Tas R 176 at 180–4 per Underwood J; Jacobson v Taylor [1984] Tas R 197 at 207 per Cosgrove J. 446. Tas s 38A(3). 447. Tas s 38A(4). 448. Tas s 2(1). 449. NSW s 50D(1); Vic s 27F(1). See 7.45. 450. A point noted in Guest v West Tamar Council [2013] TASSC 1; BC201300175 at [33] per Holt AsJ. 451. See 20.61–20.70. 452. The term ‘injury’ is not defined, and thus takes its ordinary and natural meaning, which connotes, inter alia, ‘damage or harm to any tissues or other bodily structures and damage or harm to any physiological bodily functions’: AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [165] per Buss JA. ‘Personal injury’ is defined to include ‘a disease,

453. 454. 455. 456. 457. 458. 459. 460.

461. 462.

463.

464.

465. 466. 467.

impairment of a person’s physical condition, and mental disability’: WA s 3(1). ‘Mental disability’, in relation to a person, means ‘a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia) an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person’s property’: WA s 3(1). WA s 39(1), 39(2). WA s 38, as to which see 15.13. WA s 41, as to which see 14.39. WA s 42, as to which see 14.39. WA s 40, as to which see 21.2. (1996) 186 CLR 551; BC9604531, as to which see 20.81–20.85. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [21] per McLure P. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [34] per McLure P (adding that ‘a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts’: at [41]), at [197]–[199] per Buss JA. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [39] per McLure P, at [213] per Buss JA. The relevant ‘injury’, for this purpose, has been held to be synonymous with the relevant ‘personal injury’ in WA s 55(1) (which addresses the accrual of personal injury actions: see 7.83), and concerned with the actual injury itself rather than with the symptoms, clinical signs or other manifestations of the injury: AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [179]–[181] per Buss JA. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [33] per McLure P (on the latter point seeing much to be said for the view of Basten JA, with whom Handley and Ipp JJA concurred, in Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209; BC200605869 at [25] that the requirement in NSW s 60I of a ‘connection between the personal injury and the defendant’s act or omission’ should be understood as involving an element of causal relationship, a case her Honour found ‘more compelling’ when the injury must be ‘attributable’ to a person’s conduct), at [210]–[212] per Buss JA (seeing it as significant that Parliament used the words ‘attributable to’, not ‘caused by’, which are ‘able to accommodate a degree of uncertainty in relation to whether the person to whom the cause of action accrues is aware, or ought reasonably to have become aware, of a connection between the relevant death or injury and the conduct of a person, within s 39(3) or s 39(4), as the case may be’: at [210]); Krogh v Bennett [2015] WADC 147; BC201540428 at [17]–[20] per Birmingham QC DCJ. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [28] per McLure P. See also [188], [189] per Buss JA (remarking that ‘physical cause’ directs attention to the bodily mechanism or circumstances by which, as a matter of fact (rather than law), the death or injury was occasioned or brought about). AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [191], [192] per Buss JA. WA s 39(5)(a)–(c). Under Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4 (under which, with limited

468. 469. 470. 471.

exceptions and subject to the Limitation Act 2005 (WA), on the death of any person all causes of action subsisting against or vested in him or her survive against or, as the case may be, for the benefit of, his estate). WA s 39(5)(d). AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [202] per Buss JA. See 20.68, 20.69, 20.107. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63; BC201502258 at [205] per Buss JA. See also at [42] per McLure P.

[page 457]

CHAPTER 21

Extension of Time for Defamation and Admiralty Actions Defamation Actions Statutory provision for extension Discharging the onus to extend time Strictness of the relevant threshold Temporal inquiry inherent in phrase ‘within one year’ Subjective vs objective inquiry from plaintiff’s perspective Factors going to the issue of extending time Overview Unawareness of publication Lack of funds to pursue action Involvement in non-litigious process Delay necessary to substantiate case Delay pending completion of other proceedings Period of extension Admiralty Actions

21.2 21.2 21.5 21.5 21.10 21.11 21.12 21.12 21.13 21.18 21.19 21.22 21.24 21.28 21.30

21.1 Although actions for defamation and those in admiralty share little, as a matter of substance, in common (except to the extent that they may both reflect tortious damage), they are combined in this chapter as illustrations of dedicated provisions for extending time, beyond the (more extensive) personal injury time extension avenues discussed in Chapter 20, against the backdrop of an abbreviated limitation period.

Defamation Actions Statutory provision for extension 21.2 As explained in Chapter 6, statute in each Australian State and Territory declares that an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of.1 The short limitation has been the outcome of a progressive shortening of time bars in this context over time, which ultimately proved the result of the 2005 national defamation reforms, reflecting a trend that also transpired in the United Kingdom.2 [page 458] Counterbalancing the advent of the one year limitation period for defamatory publications, statute enables a person claiming to have a cause of action for defamation to apply to the court for an order extending the limitation period even though that period has expired.3 It states that a court must, if satisfied that it was ‘not reasonable’ in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication, extend the limitation period to a period of up to three years running from the date of the publication.4 21.3 To remove doubt, the provisions in most jurisdictions add that no extension of time can be granted except as provided above,5 speaking to a

legislative intention to create a sui generis defamation limitations regime. This effectively excises defamation from the remaining provisions in the limitations legislation, such as to preclude plaintiffs in defamation actions relying on other extension provisions (say, those directed to fraud and mistake)6 to prolong the time to file a claim.7 It does not mean, however, that matters analogous to fraud, concealment or mistake, or for that matter a plaintiff’s disability, are always irrelevant in assessing whether it was not reasonable for the proceedings to have been commenced within time; occasions may arise where they justify delayed action.8 21.4 The peculiar manner in which the extension provision is worded should also be noted at the outset. Its literal wording dictates that, if the court is satisfied that it was not reasonable for the plaintiff to have commenced proceedings within the one year, it must grant an extension of time. The case law acknowledges, to this end, that the court has no discretion in this regard,9 although it seems that a discretion remains as to the duration of the extension, subject to a three year ultimate time bar.10

Discharging the onus to extend time Strictness of the relevant threshold 21.5 As in other contexts involving applications to extend time,11 the plaintiff in a defamation action bears the onus of making out a case for an extension of the limitation period.12 However, unlike provisions in those other contexts, in another aspect of the 2005 national defamation [page 459] reforms, the plaintiff must satisfy the court that it was ‘not reasonable’ for him or her to have commenced the action within the one year limitation period. This represented a shift from the former threshold for extending time, namely that it was ‘just and reasonable to do so’. When viewed against the public interest(s) underscoring the abbreviated limitation period, multiple judges have viewed this altered threshold as a more challenging

hurdle than its predecessor. They have spoken of the threshold as ‘a difficult hurdle for a plaintiff to overcome’,13 of ‘relatively unusual strictness’,14 met only in circumstances that are ‘relatively unusual’15 or ‘special and specified’.16 21.6 Though the circumstances that might justify an extension are left at large, they must, opined a Queensland judge, ‘be so compelling as to make it positively unreasonable for a person defamed not to exercise his legal rights to sue within the statutorily designated period’.17 While the reference to ‘positively unreasonable’ may place an illegitimate gloss on the statutory wording,18 it seems designed to highlight the valid point that the case falls outside a more general consideration of what was reasonable in the circumstances.19 As such, it requires more than proving that it would have been reasonable for the plaintiff not to commence an action within one year; the plaintiff must, it is said, ‘go further and establish something rather more difficult: that it would not have been reasonable for him to do so’.20 There is, to this end, a difference between proving that it was not reasonable to have commenced within one year, as opposed to the less onerous test of proving that it was not unreasonable to have not commenced within one year.21 21.7 Perhaps also factoring into why convincing a court that a failure to commence proceedings within one year was ‘not reasonable’ is more difficult than the above alternative(s) is that probative evidence for the purpose of discharging this onus appears confined to what has (not) occurred within the one year time frame (except Western Australia).22 As the statute requires that the plaintiff establish that it was not reasonable to commence proceedings within that time frame, events occurring after its expiry cannot, it may be reasoned, be probative of [page 460] matters going to that question.23 So if, say, a court is not satisfied that it was not reasonable to commence the proceeding within one year, that the plaintiff was quick to commence the proceeding on becoming aware of the limitation period (after it expired) is irrelevant.24 In other words, the

evidence that the plaintiff may adduce for this purpose is more limited than that relevant to whether extending time is reasonable. But this operates both ways, it should be noted; it should likewise constrain the evidence a defendant (typically actual prejudice, as noted below in the context of the Western Australian position) may adduce in response (and yet curiously some courts persist in making reference to prejudice to the defendant in this context).25 21.8 The Western Australian legislation, unlike its counterparts elsewhere, contains a provision that lists ‘further matters’ relevant to the court’s determination as to extension applications,26 which can apply to defamation proceedings.27 That these target whether the delay ‘would unacceptably diminish the prospects of a fair trial of the action’ and whether extending time ‘would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action)’ suggest scope for an examination of the entire period of plaintiff inactivity.28 In focusing on the position of the defendant, these ‘further matters’ present an avenue whereby defendants can point to the adverse effect on them of allowing time to be extended, something that does not appear to factor into the equation elsewhere,29 as it does not go to whether it was not reasonable for the plaintiff to commence proceedings within time. Outside of defamation, it should be noted, prejudice to the defendant often lies at the centre of an inquiry as to extension of time.30 21.9 It is interesting to note, in this regard, that English courts have applied a correspondingly strict approach to applications to extend time,31 but against the backdrop of a statutory discretion phrased in terms of whether it would be ‘equitable to allow the action to proceed’, by reference to how the court’s decision, one way or the other, would prejudice the parties.32 Convincing the court that it would be equitable to extend time is, it seems, an exercise less challenging than similarly convincing the court under the Australian provisions. That English courts have imposed an equally stringent burden on the plaintiff says, therefore, something about the broader curial attitude surrounding the need to prosecute defamation suits timeously.

[page 461] Defamation, it seems, must be approached differently from other causes of action,33 where shortening of the relevant time bars have usually echoed in a broader statutory discretion to extend time.34

Temporal inquiry inherent in phrase ‘within one year’ 21.10 That the court must, in order to extend time, be satisfied that it was not reasonable for the plaintiff to have commenced an action ‘within one year’ is capable of giving rise to an ambiguity: it might mean at any one time during the year, or at all times during the year. Yet this ambiguity has been branded as ‘semantic only’, in that:35 … [a]n interpretation which permitted satisfaction of the subsection by demonstrating that there was a least one time during the year when it was not reasonable to have commenced an action would deprive the section of any scope for meaningful operation. It must require the court to be satisfied that at no time during the year following publication was it reasonable for the [plaintiff] to have commenced an action.

While this should not be construed as requiring a plaintiff to account for every day or week in the limitation year,36 the plaintiff’s evidence should at least in broad terms deal with the entire year, and show why there was no significant period when it would have been reasonable to have commenced an action.37

Subjective vs objective inquiry from plaintiff’s perspective 21.11 The statutory provision for extending time in defamation proceedings requires that the court be satisfied that it was not reasonable ‘in the circumstances for the plaintiff’ to have commenced the action within one year. It is trite, therefore, to observe that the circumstances of the plaintiff, within that one year time frame, form the core inquiry in this regard. This necessarily invites, indeed requires, the plaintiff to place before the court the reasons why he or she did not commence the suit within time. That in so doing the plaintiff will no doubt adduce evidence of his or her

actual reasons does not mean, however, that the court’s determination must be constrained by those reasons. The statutory test requires the court to consider whether, on an objective basis, those reasons point to the conclusion that it was not reasonable to commence the action.38 In particular, in referring to ‘the circumstances’, the extension provision targets the circumstances as they appear objectively to the court, not ‘the circumstances which the plaintiff believed, however unreasonably, to exist’.39 Being an objective test, it is ‘not satisfied by showing that an applicant believed he had good reason not to sue’,40 and precludes reliance on circumstances that an applicant ‘may mistakenly and unreasonably believe to exist but which do not exist as a matter of objective fact’.41 The courts eschew a purely subjective inquiry not [page 462] only because it ostensibly misaligns with the statutory language — with its focus on what is not reasonable ‘in the circumstances’ — but also because it is impossible to ascertain precisely what actuates the mind of a specific individual. There is the attendant concern that the fortunes of a defendant, who otherwise has a complete statutory defence to the suit, should not be subjected wholly to the vagaries of an individual plaintiff’s mind. Moreover, that a plaintiff’s proffered explanation for delay is not one that is ‘reasonable’ in the circumstances may undermine its true actuating force.

Factors going to the issue of extending time Overview 21.12 As noted above, the court’s determination on extending time focuses on whether it was not reasonable ‘in the circumstances’ for the plaintiff to have commenced proceedings within time. The relevant provision gives no hint as to the sorts of cases that might be apt for an extension of time; instead it leaves the circumstances that might justify an extension ‘at large’.42 Nor does it, unlike its English counterpart,43 catalogue

particular factors that inform the court’s inquiry. Accordingly, there is neither scope to attempt an exhaustive list of the kinds of cases that might be amenable to an extension of time, nor to identify exhaustively the factors that may impact here.44 What is involved is an evaluative process, the outcome of which rests on the facts of a particular case.45 So while there is nothing to preclude a court identifying factors relevant to its determination, as courts do in other instances involving extension of time,46 in this context as in others these cannot fetter the court in making that determination.47 The most commonly cited reason in support of it being not reasonable for the plaintiff to have commenced proceedings within time is an unawareness of the fact of publication.48 Other reasons may, in the circumstances of a case, justify an extension of time.49 These include where the time bar expires by reason of the need to secure proper legal advice as to the claim and its prospects,50 or otherwise to make further enquiries, gather evidence or secure funding51 for the claim. A plaintiff who is under a [page 463] disability,52 or a victim of concealment53 or mistake,54 during the one year time bar could explain the delay on those grounds. In other instances, it may prove not reasonable to commence an action because, at least during part of the year, there is a prospect that the dispute will settle without commencing suit or because the latter may impede a likely compromise.55 Conversely, where the delay in pursuing the action is, in the court’s view, better explained by an attempt to secure a collateral or tactical advantage, extension of time is most unlikely to ensue.56 Here, as in perhaps most instances of delay, the court may query whether the plaintiff had truly been damaged by the publication in question57 (as to which questions of proportionality may prove relevant),58 and more generally may be disinclined to extend time in the face of what appears a weak case.59

Unawareness of publication 21.13

It has been judicially remarked that ‘a court might, and probably

would, accept that it was not unreasonable to not bring an action within the 12 month period if the person was unaware there had been a defamatory publication’.60 Of course, there is logic in concluding that a plaintiff who is not aware of the publication in question can hardly be expected to commence defamation proceedings in relation to it. There are accordingly various instances in the authorities where time has been extended by reason of the plaintiff’s unawareness of the relevant defamatory publication until after the expiry of the one year limitation period.61 21.14 But merely pleading a lack of timely awareness of the defamation is not an automatic ticket to an extension of time. That the legislation speaks in terms of it being ‘not reasonable in the circumstances’ for the plaintiff to have commenced proceedings within time invokes, as noted earlier,62 an objectively grounded inquiry. A plaintiff must accordingly not only establish that he or she was not aware of the defamatory publication, but that he or she could not have reasonably known of it, within the one year time bar.63 For publications in a medium to which the plaintiff would not ordinarily resort, and in relation to which he or she was in no way alerted, the plaintiff’s reasons for not commencing suit within time may prove objectively justifiable.64 Similarly, where the defendant is complicit in the [page 464] plaintiff’s lack of awareness as to the nature or scope of an alleged defamatory publication, or even its existence, time may be extended if the plaintiff has otherwise acted reasonably in the matter. For example, in Riske v Oxley Insurance Brokers Pty Ltd (No 2)65 McCallum J extended time to amend the statement of claim to include further defamatory publications that the defendants had sought to shield by ignoring the plaintiffs’ repeated requests for information as to further publications. The evidence revealed that the plaintiffs were not aware, and could not have reasonably have been aware, of those further publications until the defendant provided proper answers to interrogatories. 21.15

In

other

instances,

conversely,

questions

of

(objective)

reasonableness will go against the plaintiff’s case for an extension of time. A reasonable person, knowing or suspecting the existence of a defamatory publication, is ordinarily expected to take prompt steps both to access and investigate the publication, and then to proceed with the action if there are grounds for it.66 In Cassar v Network Ten Pty Ltd,67 for example, the plaintiff, an Independent candidate in the 2010 federal election, claimed that the defendant made a defamatory report of when he was charged with assault (for which he was later acquitted). When the alleged assault occurred, it was also reported by Channel 9, against which the plaintiff commenced suit for defamation within time. He came across the publication by the defendant when ‘Googling’ his name in 2011. Hislop J refused to extend time, reasoning that, as the plaintiff knew that the matter was of considerable interest to the media (including to the defendant) and that the defendant had only one side of the story, there was ample ground to suspect that the defendant may have published material in respect of the assault that was defamatory of the plaintiff.68 Certainly, once the plaintiff knows or ought reasonably have known of the publication, and appreciated or ought reasonably have appreciated its damaging nature, an explained delay thereafter will almost invariably preclude a time extension.69 21.16 There is an important difference, for this purpose, between ignorance of the defamatory publication, on the one hand, and ignorance of the limitation period application to defamation claims, on the other. It is only the former that can potentially support a conclusion that it was not reasonable to commence proceedings within time. Mere ignorance of strict time limits cannot afford a reasonable basis for not complying with them;70 it is a fundamental principle, after all, that ‘ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law’.71 As explained by Sharp LJ, with whom Macur and Lewison LJJ concurred, in the context of defamation:72 [page 465] … ignorance of the limitation period will rarely if ever, be a factor which carries any or any significant weight given the policy reasons underlying the one-year limitation period for libel claims. A claimant is expected to pursue his complaint promptly irrespective of the limitation

period and whether he knows about it, for the simple reason that not to do so is inconsistent with a genuine wish to pursue vindication of his character promptly and vigorously, which is what the law requires.

The law therefore expects a putative plaintiff who becomes aware of an (allegedly) defamatory publication to take professional advice and, should he or she elect, commence proceedings within the one year time bar. An informed choice, in these circumstances, not to explore and pursue legal redress will ordinarily prejudice a subsequent application to extend time.73 21.17 Sharp LJ above did envisage that ignorance could ‘be relevant in the most marginal type of case’, citing as an instance where a plaintiff is actively misled.74 Although her Ladyship did not elaborate the point, she is likely to have had in mind a plaintiff who, in reasonably relying on incorrect legal advice as to the applicable limitation period, allows the one year time bar to expire. It must be borne in mind that these remarks were made against the backdrop of the English statute, which premises an extension of time on whether it ‘would be equitable’ to do so, by reference to the prejudice each party may respectively suffer from the decision.75 As the Australian statutory schema targets whether it was not reasonable to commence proceedings in time, a plaintiff’s reasonable reliance on incorrect legal advice is presumably relevant in more than merely marginal cases.76 In a given case, it may inform the core question to which that schema is directed. That the latter encompasses no apparent inquiry into questions of prejudice to the defendant in extending time, which often surfaces in other extension applications explainable by lawyer negligence,77 bolsters the potential weight to be given to such an explanation in the defamation context.

Lack of funds to pursue action 21.18 A plaintiff who is the victim of an (alleged) defamatory publication may lack the funds to pursue the action within the one year limitation period. It is conceivable that this could supply a reason why it was not reasonable for the proceedings to issue within that time. It has been judicially described, for this purpose, as ‘[a] more contestable circumstance’ than ignorance of the relevant publication.78 Assuming that the plaintiff has otherwise acted promptly in securing legal advice, and is practically barred by reason of impecuniosity from commencing proceedings, at least in the first

year, it is unclear why the latter should be a ‘contestable circumstance’. Impecunious plaintiffs cannot, after all, expect legal aid to pursue defamation actions. Hence, unless courts openly countenance impecuniosity as a ground for extending time, a wrong will go uncompensated, except where lawyers fund the claim at the outset. While this may, in a sense, place defendants at the mercy of impecunious litigants, that the statutory schema for extending time in defamation cases does not allude to consequent prejudice to defendants arguably makes this an irrelevant consideration. [page 466]

Involvement in non-litigious process 21.19 The law encourages persons to resolve their disputes without proceeding to litigation or, assuming litigation is commenced, as early as possible prior to adjudication. In this vein, defamation statutes, via procedures for ‘an offer to make amends’ by a potential defendant in response to a ‘concerns notice’ by a potential plaintiff,79 aim to resolve civil disputes without recourse to litigation. The case law recognises, to this end, that in some circumstances it may be unreasonable to disrupt non-litigious processes and to incur needless expense by commencing proceedings.80 That the introduction of these non-litigious processes largely correlated with amendments to limitations law that spawned the current time bar suggests a confluence between these initiatives. It makes sense, therefore, that pursuit of these non-litigious processes should factor into whether it was not reasonable for the plaintiff to commence proceedings within the one year limitation period, where settlement proves elusive. Indeed, it has been suggested that the limitation period should ‘be taken to allow sufficient time for the operation of so much of [the non-litigious] process as should occur before the commencement of litigation, in the absence of some unusual circumstance’.81 21.20 The foregoing does not mean that pursuit of the above (or other) non-litigious processes to vindicate rights is itself sufficient to meet the statutory test for extending time. Whether it was not reasonable for the

plaintiff to commence proceedings within time is, as noted earlier,82 purely fact-based, resting on the circumstances.83 And reasonableness, for this purpose, is heavily influenced by the plaintiff’s knowledge and conduct, viewed from an objective perspective. As a consequence, a putative plaintiff who allows negotiations to drift without regard to the impending limitation period may find it difficult to convince the court to extend time.84 This is especially so given that the defamation legislation does not require the completion of the non-litigious processes as a precursor to commencing litigation. Conversely, an active pursuit of non-litigious processes, especially where these are ostensibly promising, may not bar an extension of time should that promise prove frustrated.85 The (defamation legislation) policy of resolving disputes without litigation, and the (limitations legislation) policy of requiring plaintiffs to commence litigation in a timely way, otherwise could struggle to comfortably coexist, and instead require some potentially inapt ordering.86 21.21 In assessing whether it was not reasonable for a plaintiff to have commenced suit within time, courts have distinguished a bona fide (but ultimately unsuccessful) effort at settlement from a deliberate choice to pursue an alternative strategy to defamation proceedings. Whereas the former can, in appropriate circumstances, be a ground to justify an extension of time, the latter is most likely fatal to such an application. The point is well illustrated in Lakaev [page 467] v Denny,87 where defamation proceedings driven by comments on a blog, published in 2007 and discovered more than one year later in 2008, were instituted in 2010. The plaintiff’s application to extend time failed, as the evidence revealed not only that she had chosen, with knowledge of the limitation period, not to file pre-trial discovery for two years after becoming aware of the comment, but that she instead chose an alternate strategy of encouraging supporters to pursue an online campaign against the commentator. That the plaintiff ‘deliberately took a non-litigious attitude to the publication of the defamatory material’, Fullerton J reasoned,

‘significantly undermine[d] her ability to discharge the burden’ facing her.88

Delay necessary to substantiate case 21.22 Where a plaintiff is unable to establish the extent of the defamation, or is without the evidence necessary to establish his or her case, during the year after the publication, an action brought in such circumstances could be premature, speculative or even irresponsible. Here the commencement of proceedings and the incurring of costs may prove, a judge has opined, ‘so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable’.89 The foregoing, when coupled with case management reforms directed to ridding the courts of weak or hopeless claims, or claims that are otherwise an abuse of process,90 should translate to the curial attitude to extending time in defamation cases that are delayed in an effort to properly substantiate the claim. At the same time, however, the case management reforms should dictate that a plaintiff whose case remains weak after the evidence has been gathered should not be assured of an extension of time.91 21.23 At the same time, courts have shown little enthusiasm for arguments that it was not reasonable to commence proceedings within time because the alleged defamatory publication was made anonymously. The argument carried no real weight before Fullerton J in Lakaev v Denny, and nor did it endear itself more recently to Zammit AsJ in Clark v Ibrahim.92 Plaintiffs are expected to seek legal advice about how to commence proceedings where the potential defendants cannot, at the time, be identified,93 and not simply wait in anticipation of discovery of the relevant identities. In Clark the plaintiffs had equally made a conscious choice not to pursue litigation, or to take available steps to identify the alleged defendant(s), but instead took other steps aimed at removing the offending internet posts.94 [page 468]

Delay pending completion of other proceedings 21.24 A plaintiff who wishes to claim damages for defamation does not, it has been said, act reasonably — if no more is shown — ‘in delaying the start of proceedings while some investigative or disciplinary proceeding, affecting the parties to, and the subject matter of, the defamation, is undertaken’.95 Yet, as is implicit in the qualification ‘if no more is shown’, instances may arise where, in the face of a direct correlation between the subject matter and focus of the other proceeding and an action for defamation, the viability of the latter or the availability of sufficient evidence in support of it may rest on the completion of the former. In this event, it may well be premature for the plaintiff to institute defamation proceedings ahead of the outcome of the other proceeding.96 An example is found in Bidstrup v Cullen,97 where the plaintiff sought an extension of time to commence an action for defamation, having awaited a coroner’s inquest into, inter alia, whether his acts as a cardiothoracic surgeon had caused a patient’s death, which went to the subject matter of the alleged defamatory statements by the defendants, who were also surgeons. The coroner’s determination on a cause of death was vital to the future conduct of any defamation action, as a determination against the plaintiff would have largely deprived any such action of its substance. As it transpired, the outcome of the inquest was favourable to the plaintiff, which in turn gave him the green light to issue the defamation proceedings. Anderson J extended time, ruling that it was not reasonable for the plaintiff to have commenced his action within time when he had incomplete information and an awareness that a coroner’s inquest may determine the facts of his action.98 21.25 Occasions may also arise where the appropriateness of pursuing an action in defamation may rest on the outcome of a criminal prosecution. In Houda v New South Wales99 police arrested and charged the plaintiff, a solicitor, and issued a statement regarding the arrest that was republished in a newspaper. The charges were ultimately dismissed, upon which the plaintiff sued the State for defamation regarding the statement issued by the police. By then the limitation period had expired, prompting the plaintiff to seek an extension of time. McCallum J granted the extension, as had the plaintiff been convicted, ‘the prospect of then vindicating his reputation in a civil

action would have been derisory’ and ‘a premature decision to commence such action may have compounded the very harm sought to be vindicated’.100 Accordingly, it was not reasonable in the circumstances for the plaintiff to have commenced proceedings for defamation before the conclusion of the criminal proceedings against him; the wisdom of that course, her Honour observed, ‘was inextricably linked with the fate of the criminal charges, which demanded priority as the forum in which he had to vindicate his reputation’.101 The decision in Houda should not be understood to mean that every person facing criminal charges should automatically receive an extension of the limitation period. What influenced the outcome was the ‘complete overlap’ between the issues in the criminal proceedings and the defamation claim, coupled with the fact that the plaintiff, as a solicitor, faced the prospect of professional ramifications if he misjudged the seriousness of the allegations.102 That the [page 469] plaintiff sought to pursue other causes of action concurrently with the defamation claim, which also rested on the fate of the criminal proceedings, further influenced the decision. 21.26 In instances where the connection between the other proceedings — whether civil, criminal, administrative or professional — and the prospective defamation action is looser or more speculative, the plaintiff faces a more challenging task to secure a time extension. In Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia103 via judicial review the plaintiff, which sold teeth whitening products, successfully challenged the defendant’s direction that the plaintiff recall some of its goods. The plaintiff then sought an extension of time to pursue a claim for damages for defamation for publications by the defendant in relation to the matter. Mullins J refused the application, reasoning that the purpose of the judicial review action was to traverse the defendant’s process of decision-making; the purpose of a defamation action was instead to seek damages for the

publication of the alleged defamatory matter. While the plaintiff may have been distracted by waiting for the court to decide the judicial review application, ‘objectively that was not a reason not to start the action for defamation before the expiry of the limitation period’, it being ‘speculative on the plaintiff’s part, as to whether anything would emerge in the [court’s] decision that would assist the defamation action’.104 21.27 For the purposes of completeness, and indeed logic, it should be noted that the commencement of an action for defamation in one Australian jurisdiction, rather than justifying a delay in suing for defamation in another jurisdiction arising out of the same basic facts, instead speaks against it. In Carey v Australian Broadcasting Corporation105 the plaintiff had, within the one year limitation period, commenced proceedings in respect of the offending publications in the Supreme Court of Western Australia. In refusing an extension of time for an equivalent proceeding in New South Wales, McColl JA remarked that ‘[i]t is difficult in those circumstances to see how [the plaintiff] could demonstrate that it was “not reasonable in the circumstances” for him to have done the same in New South Wales’.106

Period of extension 21.28 As noted earlier, once the court is satisfied that it was ‘not reasonable’ in the circumstances for the plaintiff to have commenced proceedings within one year of the publication, it must grant an extension of time; it has no discretion in the matter.107 But other than in Western Australia, the legislation adds that the limitation period can be extended only to a period of ‘up to’ three years running from the date of the publication.108 The bulk of case authority has interpreted the latter as conferring upon the court a discretion as to the period for which the limitation period should be extended, albeit bookended by the three year time frame.109 The use of the language ‘up to’ three years speaks of a discretion to grant an extension of a shorter duration, even if this means that the order granting the extension has no efficacy

[page 470] for the plaintiff.110 While there may be occasions in which the extension ought to apply for the full (additional) two years,111 the discretionary nature of the task facing the court, placed in its statutory context, dictates that the limitation period should not be extended beyond the point at which it ceased to be not reasonable in the circumstances for the plaintiff to have commenced an action.112 Consistent with this construction, the determination of the appropriate term of the extension may be informed by the expectation that a party is ordinarily expected to take prompt steps to obtain access to the information required to commence proceedings.113 An alternative construction — upon which time is automatically extended for the extra two years, irrespective of the reasonableness or otherwise of not taking a proceeding, or seeking information, during any part of that two year period114 — has been rejected by the courts for being, inter alia, inconsistent with the policy that defamation proceedings must be pursued in a timely fashion and without undue delay. 21.29 While the Western Australian legislation, like its counterparts elsewhere, requires a court to extend time if it is satisfied that it was not reasonable for the plaintiff to have commenced an action within time,115 it does not add the words for ‘a period of up to 3 years’ within the same provision. Instead, via a separate provision, it states that ‘[a]n action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication’.116 The former provision, in simply stating the court ‘must extend the time in which the action can be commenced’, suggests an extension sufficient in duration to allow the proceeding to issue unless, via the latter provision, that duration would exceed three years. It is arguable, accordingly, that there is no discretion in Western Australia as to the duration of the extension within the three year period.

Admiralty Actions 21.30

The limitations statutes in the Territories, New South Wales and

Tasmania prescribe a shorter than usual — two year — limitation period for admiralty-related actions.117 They do, however, make specific provision for extension of this time bar,118 empowering the court, [page 471] in an action before it, to extend the two year limitation period to such an extent and on the terms that it considers ‘fit’ (in the Territories, ‘appropriate’).119 But once satisfied that two years has not afforded a reasonable opportunity of arresting the defendant vessel within the court’s jurisdiction, or within the territorial waters of the country to which the plaintiff’s vessel belongs or in which the plaintiff resides or has his or her principal place of business, the court must extend the limitation period to an extent sufficient to give a reasonable opportunity of so arresting the defendant vessel.120 21.31 The above discretion is, given the absence of express terms of reference or specific considerations informing its exercise,121 ‘wide and unfettered’.122 The policy considerations that propelled the abbreviated limitation period nonetheless arguably dictate that, as a starting point, the applicant for an extension of time must show ‘good reason in the interests of justice why the policy of the Act should be displaced’.123 While what is a good reason rests on the facts of the particular case,124 considerations that commonly arise include the applicant’s degree of blameworthiness for the delay in commencing proceedings, the length of that delay, whether the circumstances that caused the delay were beyond the control of the dilatory party, and whether, should the application be granted, justice would be done between the parties.125 Justice, for this purpose, is heavily influenced by the prejudice, likely to be suffered by each party, from a decision to extend or instead refuse extension. These considerations, as foreshadowed, largely mimic those that inform extensions of time in other contexts.126 By way of illustration, in McKinnon v Huxley127 Palmer J refused an extension of time, for an action arising out of injuries the plaintiff allegedly suffered as a result of a collision with the defendant’s vessel three years

earlier, because there was no explanation for inactivity of the plaintiff, whom Palmer J saw as someone who was not particularly anxious to prosecute his rights expeditiously. That the plaintiff was not apprised of the limitation period by his solicitor did not preclude this finding. 21.32 Given the abbreviated limitation period, it is perhaps unsurprising that the omission by the plaintiff’s lawyer to lodge the claim within that period should figure prominently in applications to extend time. The case law in this context reveals that, while courts are not overly keen to ‘penalise’ a plaintiff for the negligence of his or her lawyer by refusing an extension, the prospect of evident prejudice to the defendant should time be extended is a weighty consideration in this regard.128 In Murphy v A Raptis and Sons (a firm),129 for [page 472] example, French J refused an application to extend time in respect of a claim for personal injury by a deckhand, made over five years after the collision alleged to have caused that injury. Although this ‘inordinate and inexplicable delay’ was the fault of the plaintiff’s solicitor, it had unduly prejudiced the prospective defendant, in that even if the witnesses could be traced and interviewed, ‘the cogency of their evidence, particularly in the absence of any early requirement to commit their recollection to written form, would be seriously compromised’.130 21.33 Where, conversely, the delay is not only explained by the solicitors’ negligence, but the facts reveal that the prejudice to the defendant by extending time is minimal or none, the court may well incline in favour of such an order. As appears from Murphy above, the continuing availability (or otherwise) of probative and cogent evidence pertinent to the claim is highly influential in any inquiry into prejudice. In Engert v Sydney Ferries Corporation131 the applicant did not bring her claim for injuries, alleged to stem from a ferry collision, until after the expiry of the two year limitation period, as her solicitor erroneously believed the limitation period to be three years. Rein J, noting that ‘the solicitor’s failure to identify the relevant time

period of limitation is the real cause of the problem’,132 identified several additional ‘significant matters’ favouring an extension of time.133 Aside from the period of delay being short, and the prompt action taken by the plaintiff’s solicitor on learning of his error, what heavily influenced his Honour’s decision to extend time was the lack of prejudice to the defendant should it be joined in the action. The evidence revealed, to this end, that the defendant had already been joined in other claims arising out of the collision, and that there had been both an inquiry and a coronial inquest in which the defendant had been actively involved, from which it followed that this was not a case in which evidence may have disappeared ‘without anybody now “knowing” that it ever existed’.134 ______________________________ 1. 2. 3.

4.

5. 6. 7. 8. 9.

ACT s 21B(1); NSW s 14B; NT s 12(2)(b); Qld s 10AA; SA s 37(1); Defamation Act 2005 (Tas) s 20A(1); Vic s 5(1AAA); WA s 15. See further 6.45, 6.46. UK 1980 s 4A. This is made explicit in NSW ss 56A(1), 56D; NT ss 44A(1), 44C; Qld s 32A(1), 32A(4); Vic s 23B(1), 23B(5); WA s 40(1) and is in any case implicit elsewhere. In some jurisdictions the legislation adds that, if a court makes such an order, the limitation period is accordingly extended for the relevant action (NSW s 56B; NT s 44B; Vic s 23B(4)), but again this is implicit elsewhere. ACT s 21B(2); NSW s 56A(2); NT s 44A(2); Qld s 32A(2); SA s 37(2); Defamation Act 2005 (Tas) s 20A(2); Vic s 23B(2); WA s 40(2), 40(3) (which effects the same outcome via the latter sub-section being phrased in terms that ‘[a]n action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication’). NSW s 56A(3); NT s 44A(3); Qld s 32A(3); SA s 21B(2); Vic s 23B(3). Cf WA s 44, as to which see 21.8. See generally Chs 15 (fraud), 16 (mistake). Levy v Watt (2014) 308 ALR 748; [2014] VSCA 60; BC201404537 at [97]–[100] per Santamaria JA, with whom Warren CJ and Tate JA concurred. See, for example, Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 (de facto concealment, discussed at 21.14). Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; BC201004339 at [28] per Simpson J; Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [47] per Chesterman JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [34] per Fraser JA; Rayney v State of Western Australia (No 3) [2010] WASC 83; BC201002518 at [49] per Martin CJ; Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [27], [48] per Kenneth Martin J; Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [8] per McCallum J; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [55] per Beazley JA; Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [22] per McCallum J; Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161; BC201405686 at [22] per Flanagan J.

10. 11. 12.

13.

14. 15.

16. 17.

18.

19. 20.

21. 22. 23.

24.

See 21.28, 21.29. See 18.6. Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 at [33] per Hale LJ; Carey v Australian Broadcasting Corporation [2010] NSWSC 709; BC201004473 at [44], [45] per McCallum J; Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [15] per Keane JA; Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [15] per Kenneth Martin J. Rayney v State of Western Australia (No 3) [2010] WASC 83; BC201002518 at [41] per Martin CJ. See also Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [50] per Chesterman JA (‘difficult to satisfy’); Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [84] per Kenneth Martin J (‘the threshold … to secure an extension of time is a high one’); Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498; BC201107669 at [3] per Mukhtar AsJ (describing the statutory test as ‘an unusual and difficult one for a plaintiff to satisfy’); Casley v Australian Broadcasting Corporation [2013] VSC 251; BC201302377 at [31] per Beach J [affd Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871] (‘the test … is not an easy one for a plaintiff to establish’). Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [42] per Fraser JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [15] per Keane JA. See also Rayney v State of Western Australia (No 3) [2010] WASC 83; BC201002518 at [41] per Martin CJ (‘unusual circumstances’); Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [14] per McCallum J (‘absent some particular consideration militating against the commencement of proceedings, it would ordinarily be reasonable to commence proceedings during the prescribed period’). Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [50] per Chesterman JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [51] per Chesterman JA (having earlier spoken in terms that an applicant ‘must demonstrate affirmatively that he would have acted unreasonably in suing within time’: at [48]). Jamieson v Chiropractic Board of Australia [2011] QCA 56; BC201101638 at [20] per White JA, with whom Muir JA and Philppides J concurred; Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [14] per McCallum J. Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871 at [51] per Hansen JA, with whom Robson AJA concurred. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [30] per Holmes JA. See also at [48] per Chesterman JA; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [55] per Beazley JA. Rayney v State of Western Australia (No 3) [2010] WASC 83; BC201002518 at [41] per Martin CJ; Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [54] per Kenneth Martin J. As to the Western Australian position see 21.8. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [52] per Fryberg J (‘If supervening events make it difficult or unreasonable to do so at a later time, they will not be sufficient to satisfy the [statutory] requirements’). Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia [2014] QSC 107; BC201404511 at [22] per Mullins J. This also explains why the plaintiff’s unawareness of the limitation period will not ordinarily factor into the court’s assessment as to whether it was not reasonable to

25.

26. 27.

28. 29. 30. 31.

32.

33.

34. 35. 36. 37. 38.

39.

40. 41.

commence proceedings within time: see 21.16, 21.17. See, for example, Bidstrup v Cullen [2013] SASC 136; BC201312105 at [50] per Anderson J; Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [41] per McCallum J; Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161; BC201405686. WA s 44. That the relevant provision (WA s 44) is expressed to apply as regards an ‘extension application’, which is in turn defined to include an application under WA s 40 (dealing with an extension of time for commencing defamation proceedings), speaks to its potential application to the defamation environment. Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [27] per Kenneth Martin J. Carey v Australian Broadcasting Corporation [2010] NSWSC 709; BC201004473 at [45] per McCallum J. See, for instance, 18.7, 18.8, 19.26–19.31. See, for example, Maccaba v Lichtenstein [2003] EWHC 1325 (QB) at [11] per Gray J; Adelson v Associated Newspapers Ltd [2007] EWHC 3028 (QB) at [20] per Eady J; Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [5] per Sharp LJ, with whom Macur and Lewison LJJ concurred; Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) at [19] per Judge Richard Parkes QC. See further McGee, pp 170–4. UK 1980 s 32A(1). As to the balancing of respective prejudices in this context see further Brady v Norman [2011] EMLR 16; [2011] EWCA Civ 107 at [3], [21] per the court; Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [5] per Sharp LJ, with whom Macur and Lewison LJJ concurred. Cf Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [22] per Keane JA (remarking that consideration of the issue of reasonableness ‘must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason’). See, for example, in the context of personal injury actions, discussed at 7.2–7.22. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [51] per Fryberg J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [49] per Chesterman JA. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [52] per Fryberg J. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [115] per Applegarth J; Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [27] per Kenneth Martin J; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498; BC201107669 at [3] per Mukhtar AsJ. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [20] per Keane J. See also Lakaev v Denny [2010] NSWSC 1480; BC201009724 at [18] per Fullerton J; Casley v Australian Broadcasting Corporation [2013] VSC 251; BC201302377 at [29] per Beach J [affd Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871]. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [65] per Chesterman JA. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [115] per Applegarth J.

42.

43.

44. 45. 46. 47.

48. 49.

50. 51. 52. 53. 54. 55. 56. 57. 58.

59.

Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [51] per Chesterman JA. See also at [17] per Keane JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [56] per Fryberg J. UK 1980 s 32A(2) (which directs the court to have regard to all the circumstances of the case, and in particular to: (a) the length of, and reasons for, the delay; (b) where a reason for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the one year time bar — the date on which any such facts did become known to the plaintiff, and the extent to which he or she acted promptly and reasonably once he or she knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely to be unavailable, or to be less cogent than had the action been brought within time). Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [90] per Applegarth J. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [61] per Beazley JA. See, for instance, 18.7, 18.8, 19.24–19.34. Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 at [44] per Brooke LJ (‘It would be quite wrong for this court to be pre-emptive about the circumstances in which a court might properly be willing to exercise its discretion in favour of a claimant’); Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871 at [54] per Hansen JA, with whom Robson AJA concurred. See 21.13–21.17. Catalogued by Fryberg J in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [56] (although his Honour’s suggestion that ‘[s]ometimes it might even be reasonable not to commence an action simply to afford time for the would-be plaintiff to calm down’ does seem an optimistic ground to extending time). See 21.22, 21.23. See 21.18. See generally Ch 14. See, for example, Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703, discussed at 21.14. As to concealment see generally Ch 15. See generally Ch 16. See 21.24–21.27. See, for example, Adelson v Associated Newspapers Ltd [2007] EWHC 3028 (QB) at [15] per Eady J. See, for example, Buckley v Dalziel [2007] 1 WLR 2933; [2007] EWHC 1025 (QB) at [35] per Eady J. See, for example, Zinda v Ark Academies (Schools) [2011] EWHC 3394 (QB) at [35] per Eady J (noting, under the banner of proportionality, that it was difficult to see that the claimant could gain anything worthwhile from pursuing proceedings over the limited publications in question, when compared to the enormous inconvenience and expense to which the defendant would be put (and indeed had already been put) through being sued; this was a factor that inclined his Lordship against disapplying the limitation period). See, for example, Heard v Kemp [2002] EWCA Civ 1506 at [11] per Sedley LJ; Zinda v Ark Academies (Schools) [2011] EWHC 3394 (QB) at [31] per Eady J; Khalil v Barakat [2013] EWHC

60.

61. 62. 63. 64.

65. 66.

67. 68. 69.

70.

71. 72.

73.

85 (QB) at [14]–[17] per Eady J. As to the impact of the merits of the case in applications to extend time in the personal injury (and other) contexts see 18.9, 18.10, 20.39–20.43. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [61] per Beazley JA. See also Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [58] per Kenneth Martin J (‘Where potentially defamatory material has not been seen by a plaintiff until after the expiry of the one-year period of limitation, that fact may be thought, ordinarily, to lend some support to a plaintiff’s application to extend time’). See, for example, Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161; BC201405686; Findley v Morand [2014] QSC 297; BC201410436. See 21.11. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [90] per Applegarth J. See, for example, Findley v Morand [2014] QSC 297; BC201410436 (where the alleged defamatory material had been posted on a tenancy database by the plaintiff’s former landlords, and the plaintiff had no reason or cause to be alerted to it until, as occurred, he sought to enter into a new residential tenancy agreement). [2014] NSWSC 1611; BC201409703 at [40], [41]. Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [77] per Kenneth Martin J (where the plaintiff was found to have been well aware throughout most of the relevant year of the existence of at least one communication that could prove defamatory: at [59]). Cf UK 1980 s 32A(2)(b)(ii) (which requires the court to consider ‘the extent to which [the claimant] acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action’). [2012] NSWSC 680; BC201204500. Cassar v Network Ten Pty Ltd [2012] NSWSC 680; BC201204500 at [21], [22]. See, for example, Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 (where the delay was significant and almost wholly unexplained); Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 (where the first 15 months’ delay were explained by the fact that the claimant did not know about the publication, but an unexplained delay exceeding six months thereafter inclined the court against granting an extension); Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) (where Judge Richard Parkes QC ruled that the plaintiff ought to have appreciated, within time, the ‘exceptionally damaging’ nature of the statements in question, and so was unimpressed by his assertion that he did not realise that he had a cause of action until after the expiry of the limitation period: at [29]). See, for example, Gmitrovic v Commonwealth of Australia [2016] NSWSC 418; BC201602509 (where the plaintiff, knowing of the alleged defamation, took his time to commence proceedings because he failed to appreciate the application time limit; in these circumstances, Adamson J ruled that the plaintiff had not discharged the burden for extending time: at [66], [67]). Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [22] per Keane J. Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [36]. In Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [12] McCallum J expressed the same point in a different way, observing that ‘[c]are must be taken in that context to distinguish between the reasonableness of commencing an action within that year and the reasonableness of allowing the limitation period to expire’, as the legislation ‘focuses on the passage of time rather than on the reasonableness of ignoring the statute’. See, for example, Murphy v Lewis [2009] QDC 37 at [32] per Kingham DCJ (where the plaintiff

74. 75. 76.

77. 78. 79.

80. 81. 82. 83.

84.

85. 86.

87. 88.

89.

made no attempt to obtain advice about or explore his rights of redress within time). Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [36]. UK 1980 s 32A(1). This does not mean that the legislation is concerned with the reasonableness of the conduct of the lawyer acting for the plaintiff (Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [33] per McCallum J); its terms refer to it not being reasonable ‘for the plaintiff’ to have commenced proceedings within time. Yet the latter inquiry can no doubt be influenced, as noted in the text, by the professional advice the plaintiff received and reasonably relied upon. See 19.32–19.34, 20.20–20.24. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [61] per Beazley JA. Civil Law (Wrongs) Act 2002 (ACT) Pt 9.3; Defamation Act 2005 (NSW) Pt 3 Div 1; Defamation Act 2006 (NT) Pt 3 Div 1; Defamation Act 2005 (Qld) Pt 3 Div 1; Defamation Act 2005 (SA) Pt 3 Div 1; Defamation Act 2005 (Tas) Pt 3 Div 1; Defamation Act 2005 (Vic) Pt 3 Div 1; Defamation Act 2005 (WA) Pt 3 Div 1. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [16] per Keane JA. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [42] per Fraser JA. See 21.12. In this context see Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [43] per Fraser JA, at [89] per Applegarth J; Casley v Australian Broadcasting Corporation [2013] VSC 251; BC201302377 at [32] per Beach J [affd Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871 at [68] per Hansen JA, with whom Robson AJA concurred]. Certainly, a plaintiff who does not commence settlement negotiations until after the one year limitation period elapsed cannot make out a legitimate case for extension on this ground: Trkulja v Dobrijevic [2013] VSC 261; BC201302555. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [43] per Fraser JA. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; BC201004962 at [105]–[108] per Applegarth J (concluding that ‘[t]he resolution of competing interests in the non-litigious resolution of disputes and in the timely commencement of proceedings does not turn on the legislation having given a priority to one interest over the other. It depends on the circumstances of the particular case’). [2010] NSWSC 1480; BC201009724. Lakaev v Denny [2010] NSWSC 1480; BC201009724 at [39]. See also Casley v Australian Broadcasting Corporation [2013] VSC 251; BC201302377 at [34]—[37] per Beach J [affd Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871] (where the plaintiff’s choice, instead of pursuing defamation proceedings, to lodge a complaint with the relevant regulatory body, whilst knowing that this route would afford him no avenue to obtain damages, served to undermine his claim that it was not reasonable for him to commence defamation proceedings within time); Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) (where Judge Richard Parkes QC found that, as the plaintiff’s failure to file suit within one year, regarding a defamatory allegation by members of the defendant church, appeared driven by his focus on being readmitted to church membership, this ‘strongly suggest[ed] … that his wish to vindicate his reputation is very much secondary to, and seen by him as a means to achieve, his primary goal of re-joining the [church]’: at [34]). Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [17] per Keane JA.

90. 91.

92. 93. 94. 95.

96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109.

110.

See, for example, Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [47] per McCallum J. See generally Cairns, Ch 2. There is English authority to this effect: see, for example, Steedman v British Broadcasting Corporation [2002] EMLR 17; [2001] EWCA Civ 1534 at [29] per David Steel J; Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [38]—[41] per Sharp LJ, with whom Macur and Lewison LJJ concurred; Otuo v Watchtower Bible and Tract Society of Britain [2015] EWHC 509 (QB) at [34] per Judge Richard Parkes QC. [2014] VSC 30; BC201408026 at [69]—[71]. See Cairns, pp 438–41. Clark v Ibrahim [2014] VSC 30; BC201408026 at [61], [76]. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [61] per Chesterman JA (a case where the plaintiff made a conscious choice to pursue redress through the university’s internal procedures rather than proceedings for defamation; his Honour remarked that the plaintiff ‘understood he had a choice, and he made it’, such that ‘[i]t is not apparent why it would be unreasonable for him to accept the consequences of the choice’: at [59]; see also at [23] per Keane JA). Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565; [2014] EWCA Civ 1411 at [31] per Sharp LJ, with whom Macur and Lewison LJJ concurred. [2013] SASC 136; BC201312105. Bidstrup v Cullen [2013] SASC 136; BC201312105 at [51]. [2012] NSWSC 1040; BC201210305. Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [35]. Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [34]. Houda v New South Wales [2012] NSWSC 1040; BC201210305 at [37] per McCallum J. [2014] QSC 107; BC201404511. Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia [2014] QSC 107; BC201404511 at [20] per Mullins J. (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176; BC201204229 at [95]. See 21.4. ACT s 21B(2); NSW s 56A(2); NT s 44A(2); Qld s 32A(2); SA s 37(2); Defamation Act 2005 (Tas) s 20A(2); Vic s 23B(2); WA s 40(3). Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [47], [66] per Chesterman JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34] per Fraser JA, at [87] per Applegarth J; Lakaev v Denny [2010] NSWSC 1480; BC201009724 at [17]–[19] per Fullerton J; Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483; BC201203278 at [62] per Beech-Jones J; Casley v Australian Broadcasting Corporation [2013] VSC 251; BC201302377 at [38]–[41] per Beach J [affd Casley v Australian Broadcasting Corporation [2013] VSCA 182; BC201311871 at [71]–[73] per Hansen JA]; Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [31]–[37] per McCallum J. See, for example, Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50; BC201001236 at [66] per Chesterman JA.

111. See, for example, Bidstrup v Cullen [2013] SASC 136; BC201312105 at [53] per Anderson J (who extended time for the full (additional) two years, noting that ‘[n]othing would be served by granting an extension for a lesser period’). 112. See, for example, Houda v New South Wales [2012] NSWSC 1040; BC201210305 (discussed at 21.25) (where the plaintiff commenced proceedings for defamation within three months of becoming aware that there would be no appeal against the dismissal of the charges against him, McCallum J did not think that period entailed any unreasonable delay: at [41]). 113. Wookey v Quigley (No 2) [2010] WASC 209; BC201005836 at [77] per Martin J; Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [38] per McCallum J. Cf Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483; BC201203278 at [29] per Beech-Jones J. 114. See, for example, the remarks of Beech-Jones J in Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483; BC201203278 at [25] (countenancing that the so-called discretion in this context may only involve a normative judgment, in which event the three year period may not be the outer limit but the particular point to which the period of extension ‘must’ be granted). Cf Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; BC201409703 at [30] per McCallum J (who suggested another possible construction, namely that, if the precondition is met, an extension of the limitation period is mandated ‘for so long as is required to allow the action to be maintainable’, provided only that the total limitation period can never be extended beyond three years; while opining that this construction ‘makes sense of the mandatory terms of the section’ and avoids the prospect of ‘the making of an order which has no efficacy’, her Honour conceded (at [31]) that the ‘battle is already lost’, referring to the groundswell of case law supporting the discretionary approach). 115. WA s 40(2). 116. WA s 40(3). 117. ACT s 19; NSW s 22; NT s 20; Tas s 8. These provisions are discussed at 12.18. 118. That this functions in place of other potentially applicable extension provisions — which focus on personal injury (see Ch 20) — is made explicit by the New South Wales and Tasmanian statutes: NSW s 22(6); Tas s 8(7). Its omission, in clear terms, from the Territory statutes may speak to the contrary in the Territories (a point of some significance in the Northern Territory in view of its general extension provision, as to which see Ch 19). But the discretion inherent, whether in specific or general extension of time provisions, suggests little difference in practice. 119. ACT s 19(3)(a); NSW s 22(4)(a); NT s 20(5)(a); Tas s 8(4). 120. ACT s 19(3)(b); NSW s 22(4)(b); NT s 20(5)(b); Tas s 8(4). 121. Such as exist, for instance, vis-à-vis the discretion to extend time in NSW ss 60H and 60I: see 20.56–20.70. 122. Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [11] per Rein J. See also McKinnon v Huxley [2003] NSWSC 1221; BC200307820 at [14] per Palmer J. 123. McKinnon v Huxley [2003] NSWSC 1221; BC200307820 at [16] per Palmer J. 124. A point judicially remarked upon on multiple occasions: see, for example, The Kashmir [1923] P 85 at 92 per Lord Sterndale MR; Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 at 622–3 per Lord Brandon; Ling v Owners of the Ship ‘Longevity’ (FCA, Sheppard J, 25 September 1995, unreported) BC9502791 at [11]; Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [22] per Rein J (adding that ‘the court should avoid placing too much emphasis on whether an extension has been given in another case’).

125. The ‘Albany’ and ‘Marie Josaine’ [1983] 2 Lloyd’s Rep 195 at 196–7 per Sheen J (dealing with a similarly worded extension provision found in the former Maritime Conventions Act 1911 (UK) s 8); Ling v Owners of the Ship ‘Longevity’ (FCA, Sheppard J, 25 September 1995, unreported) BC9502791 at [11]; McKinnon v Huxley [2003] NSWSC 1221; BC200307820 at [16], [17] per Palmer J. 126. See 18.7–18.13. 127. [2003] NSWSC 1221; BC200307820 at [19]. 128. As to the concept of ‘prejudice’ in extensions of time generally see 18.7, 18.8, 19.26—19.31, 20.25–20.33, 20.83–20.86, 20.112–20.116. 129. (FCA, French J, 11 April 1991, unreported) BC9103116. 130. Murphy v A Raptis and Sons (a firm) (FCA, French J, 11 April 1991, unreported) BC9103116 at [14]. His Honour did, however, note that the plaintiff had ‘the possibility of remedy against her solicitor for their admitted negligence in the handling of her claim’: at [14]. As to the weight given to this consideration, more generally, in applications to extend time, see 19.32–19.34, 20.20–20.24. 131. [2009] NSWSC 1400; BC200911488. 132. Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [33]. 133. Engert v Sydney Ferries Corporation [2009] NSWSC 1400; BC200911488 at [34]. 134. Citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 565; BC9604531 per McHugh J.

[page 473]

PART V

Time Reformed Within the last eight or so decades in England, and a little over half that time in Australia, limitation law has proven a fertile ground for law reform recommendations. Most of the current Australian Limitations Acts, as well as major amendments thereto, have been a product of law reform commission reports. The same may be said in England. But this hardly means that limitations law has exhausted avenues for reform. As this Part reveals, the form and structure of Australian limitations statutes largely adheres to what can be described as a traditional model. Wholesale reform has, perhaps excepting Western Australia, proven somewhat elusive in the Australian (and English) sphere. New Zealand and several Canadian provinces, on the other hand, have been more welcoming in this regard. What multiple law reform commission reports highlight is a shift in thinking away from the standard accrual approach to setting the running of time for discrete causes of action. The reform recommendations falling in this realm are discussed in Chapter 22. The ensuing chapter recounts the groundswell for ultimate limitation periods — to secure repose for defendants — albeit counteracted by limited discretion to extend time. In the concluding chapter of the book, reform recommendations relating to the removal of time bars are noted, with a particular focus on actions for (sexual) assaults on children. Although grouped within this Part, the reform issues it addresses are not exhaustive of potential avenues for limitations law reform. On multiple occasions throughout the preceding Parts, mention is made in passing of one or more aspects of reform in a specific context, which must be read together with the material in this Part.

[page 475]

CHAPTER 22

Setting Time Bars and Running of Time Calls for Wholesale Reform Focus of Reform Recommendations Setting Time Bars General vs specific time bars Breakdown of common law and equity divide Duration of time bar Setting the Running of Time Accrual-based approach Advantages Drawbacks Discoverability approach Advantages Addressing the drawbacks Onus as to discoverability Discoverability — objective vs subjective approach to knowledge? Knowledge of corporate plaintiffs ‘Act or omission’ approach

22.1 22.6 22.7 22.7 22.9 22.12 22.13 22.13 22.13 22.14 22.16 22.17 22.18 22.19 22.20 22.23 22.26

Calls for Wholesale Reform 22.1 It has been observed that ‘[t]he issue of limitation reform has been a favourite of law reform commissions’.1 While this remark was made in a Canadian context, the same resonates in the Australian experience, not to mention various other common law countries that derive their limitations law from English precedents. The seminal precedent, to this end, was the Limitation Act 1623 (UK),2 which held sway for over 200 years as the primary source of English limitation law. Following several nineteenth century statutory reforms, chiefly in 18333 and 1874,4 the enactment of the Limitation Act 1939 (UK) proved the single most influential step in modernising the law. Its substance infuses most of the existing Australian Limitation Acts, [page 476] particularly those in Queensland, Tasmania and Victoria. Indeed, in this nation only Western Australia (and, to a lesser extent, the Australian Capital Territory) has taken the step, via a new Limitation Act enacted in 2005, to break from the English statutory shackles. Even this hardly proved a rapid process, the issue having been the subject of two extensive law reform commission reports, in 19825 and 1997,6 the core recommendations of which translated in part only to the 2005 Act. 22.2 In line with the remark cited at the outset of the preceding paragraph, it may be noted that law reform bodies in several other Australian jurisdictions have reported, and made recommendations, as to limitations law.7 In New South Wales only, however, did this produce a new Act — the Limitation Act 1969 — closely aligned to the 1967 recommendations of the Law Reform Commission of that State. That New South Wales law had, before this, derived chiefly from the Limitation Act 1623 (UK) and its nineteenth century progeny spoke of a need for wholesale reform. Indeed, the same had been so in Western Australia under its Limitation Act 1935, which had been described as ‘something of a museum piece’,8 reflecting ‘[i]n

essence the old unreformed 19th-century English law of limitation’,9 replete with an archaic drafting style, obsolete concepts and actions10 and a failure to reflect modern distinctions.11 Even in the 1890s, notably, the English law of limitation was perceived as ‘in an unsatisfactory state’, ‘difficult to understand, often couched in archaic language, and sometimes contradictory’.12 At the time an influential commentator pondered: ‘Is it not time that this piecemeal legislation with regard to the limitations of time within which actions may be brought, should come to an end?’13 22.3 As in other common law jurisdictions where limitations law spawned from English legislation spanning 1623 to 1874 (and even to 1939), there was a call for ‘comprehensive reform’ that could not be achieved ‘merely by amending the existing Act’.14 In 2007 a New Zealand judge spoke of the pressing need for ‘a complete legislative overhaul of the Limitation Act’, whereby ‘[a]ll the competing interests can … be fully considered and reconciled’.15 This was hardly unheralded; back in October 1988 the New Zealand Law Commission had recommended a complete repeal of the Limitation Act 1950 (NZ), itself heavily based on the Limitation Act 1939 (UK), and its replacement by a new statute containing different rules and a different vocabulary.16 This did not come to fruition until the enactment of the Limitation Act 2010 (NZ), which curiously eschewed core recommendations of the 1988 report, favouring those of a single authored 2007 Miscellaneous Paper.17 The Law Reform Commission of Ireland, in a 2011 report, also spoke of the need for ‘[f]undamental reform and simplification of the law on limitation of actions’ when referring to its Statute of Limitations 1957, also based on the English Act of 1939.18 The deficiencies it identified included incoherence and lack of clarity, an unnecessary complexity and a consequent inaccessibility even to experienced lawyers, let alone others. The problems in question could not, the Commission believed, be rectified by modestly revising existing law, but needed a fundamental ‘root and branch’ reform with a conceptually different approach to limitations.19 [page 477]

Many of the counterpart law reform commission recommendations from the 1990s onwards have likewise favoured a rethink as to the conceptual foundations of longstanding (English-derived) limitations law, as elaborated in this Part of the book. 22.4 Yet in Australian law, these conceptual foundations largely remain, although in the two jurisdictions with the most recent limitations statutes (the Australian Capital Territory in 1985 and, as mentioned above, Western Australia in 2005) convergence of a range of causes of action under a single limitation regime has occurred.20 The most egregious need for reform, to this end, remains in South Australia, where the limitations legislation has not even entered the ‘modern age’ announced by the Limitation Act 1939 (UK).21 Criticisms levelled at the Western Australian 1935 Act remain almost entirely valid vis-à-vis its South Australian counterpart.22 Yet limitation law elsewhere in Australia, where reform has been piecemeal and reactionary, is hardly above criticism. The same may be said of the trajectory of reform in England, where a Supreme Court judge in 2012 described the law of limitation as ‘complicated and incoherent’23 largely because it ‘has been subjected to a wide range of ad hoc reforms, following the recommendations of reform bodies charged with recommending reforms of particular pockets of law’.24 The English experience, moreover, has revealed the upshot of proposals for reform of the law of limitation as ‘like leaves on the ground in Autumn’.25 22.5 Law reform commission reports across Canada have proven more successful in prompting wholesale reform, with Alberta,26 British Columbia,27 New Brunswick,28 Ontario29 and Saskatchewan30 enacting new limitation statutes in the twenty-first century conceptually divorced from the English influence of their forebears. There are conceptual similarities between these recommendations and those found in late twentieth century reports in Queensland,31 Western Australia32 and New Zealand,33 and into this century in various other common law jurisdictions,34 but with patchy translation into law to date. [page 478]

Focus of Reform Recommendations 22.6 Although dedicated to cataloguing options for the reform of limitation law, what appears in this Part of the book aims to target the core areas of debate rather than any exhaustive survey of reform issues (this bearing in mind that periodic mention of various specific reform issues has seen mention in earlier chapters). What the reform literature reveals, in particular, is a three-fold focus: a push towards a ‘uniform’ basic limitation period; debate over the appropriate trigger for the running of time; and the merits (or otherwise) of what has been described as an ‘ultimate’ (or longstop) time bar. It should be understood at the outset that, although these are discussed and evaluated in turn below, they cannot be viewed in isolation; reform recommendations for one of these may have consequences for another. Were it otherwise, criticism of existing law for lacking a ‘golden thread’ running through the law ‘determining the length, running, postponement and expiry of the limitation periods’35 could remain unaddressed. Debate over each of these aspects of limitation law proceeds on an assumption that the policy(ies) informing the statutory imposition of time bars36 remain compelling. In criminal law, they do not, apparently.37 There are question marks, too, over their defensibility in cases of child or sexual abuse,38 prompting legislatures in New South Wales, Victoria and some Canadian provinces to lift any limitation period in this context.39 There exist dissentients, moreover, who ponder the legitimacy of time bars more generally. For example, Oliver Wendell Holmes, the American legal luminary, in 1897 branded statutes of limitation as containing ‘rules which … never have been explained or theorized about in any adequate way’. He queried the justification for depriving persons of their rights — ‘a pure evil as far as it goes’ — by reason of a lapse of time, viewing a loss of evidence as a ‘secondary matter’, and probed ‘the desirability of peace’, asking ‘why is peace more desirable after twenty years than before?’40 Time has nonetheless revealed sentiments of this kind to carry little weight, whether in the minds of legislators, judges or reformers, who almost invariably support the broader worth of time bars.

Setting Time Bars General vs specific time bars 22.7 Other than in the Australian Capital Territory and Western Australia — which prescribe a single (six year) limitation period for all causes of action (a ‘general’ limitation period), albeit yielding to occasions in which the statute prescribes another time bar for a particular cause of action41 — Australian limitations statutes, like their English progenitor(s) and current counterpart, evince no generally applicable limitation period but rules that apply particular periods to particular categories of causes of action. Sometimes, it has been noted,42 the categories rest on the legal basis of the cause of action;43 in other cases the categories are based on the degree of formality attached to a particular obligation;44 in others still, the subject matter of the action allied with its purpose is the criterion.45 As the fact patterns of individual disputes often vary widely, it is reasoned, ‘it is difficult to determine what is a “reasonable” [page 479] limitation period of general application’,46 thus justifying a longer or shorter limitation period depending on the nature of the dispute.47 The consequence is the division of limitations legislation ‘into many arbitrary or historical pigeonholes’.48 22.8 While the above may dictate that ‘the ideal of a single uniform period applicable to every cause of action is plainly unattainable’49 and, it has been said, ‘[t]he quest for uniformity should not be over-pressed’,50 reform literature appears to favour a collapsing of existing limitation periods into a general one, with exceptions to be specified to reflect different policy considerations.51 The existing approach renders the law complex and inefficient, a point elaborated by the Alberta Institute of Law Research and Reform as follows:52 If the number of limitation rules is small, the system may be easy to understand and efficient to

operate, but the danger is that the mechanical application of its broad rules to cases on the fringe of a category of remedial claims may produce injustice. Increasing the number of rules and the number of categories of claims will tailor the system, but each increase will make the system more complex and less efficient to operate because of the difficulty in determining which cases fall into which statutory categories.

The consequence of greater complexity is confusion for many lawyers, and incomprehensibility for members of the public, which is concerning, as the upshot of a misunderstanding here can eliminate valid claims.53 As foreshadowed in the quote above, moreover, manifold varying limitation periods can generate categorisation difficulties, which can trigger complex ‘satellite’ litigation on issues of whether a claim is time-barred.54 And even if limitation periods for different causes of action are of the same length, that existing law envisages that different causes of action accrue at (and thus run from) different times means that the limitation periods will likewise expire at different times.55 This too can cause litigation over the categorisation of a cause of action, and thereby exacerbate the extant challenges.

Breakdown of common law and equity divide 22.9 The ‘simplicity and fairness’ touted for a step in the direction of a ‘general’ limitation period56 thus has some appeal. Beyond implementation in the Australian Capital Territory and Western Australia, it has translated to law in several Canadian provinces57 and New Zealand,58 [page 480] albeit with varying exceptions. The convergence of causes of action under a general limitation period in these jurisdictions has served, moreover, to break down the longstanding distinction between causes of action at law and in equity as applied to limitations law.59 While some provisions in limitations statutes have traditionally had application to causes of action in equity (typically in relation to land),60 in line with historical precedent most causes of action in equity continue, in England and the remaining Australian jurisdictions, to fall outside of the limitations net.61 This prompted, as is noted elsewhere, equity to respond by applying limitations statutes by

analogy in some instances62 and, in other contexts, to impose its own (discretionary) time bar via the doctrine of laches.63 22.10 Practically every law reform body that has aired the issue in the last 30 years or so has recommended against the division in limitations treatment between common law and equity.64 Indeed, an Australian commentator in 1970 advocated a breakdown of this division, as to both causes of actions and remedies, reasoning that:65 [t]here seems no reason why the ability to obtain specific performance or an injunction should not be as limited by the passing of time as the ability to obtain damages, nor why limitation provisions should apply in some cases to these modes of relief and not in others. There is no relevant fundamental distinction between either the remedies or the types of action calling for such a differentiation. Simply because the earlier statutes of limitation were confined to common law is no reason why some types of relief should now be excluded. Such exclusion should require strong justification. Yet there seems none except historical development.

22.11 To extend the scope of limitations time bars to causes of action in equity, beyond avoiding existing litigation over categorisation and perpetuating arguably obsolete historical divisions in this context, serves to oust any need for the equitable doctrine of analogy, the application of which has not always proven straightforward. Yet notwithstanding the trajectory of law reform recommendation to pierce the common law–equity divide here, several law reform bodies have endorsed the utility of retaining the court’s equitable jurisdiction, in an appropriate case, to refuse relief by reason of laches or acquiescence even if an applicable limitations time bar has yet to expire.66 [page 481]

Duration of time bar 22.12 Support for setting a ‘general’ limitation period has not produced a uniform view as to its duration. The said Canadian provinces set a two year time frame, whereas in the Australian Capital Territory, Western Australia and New Zealand it is six years. Suggestions that the traditional six year limitation period be shortened by reason of improvements in transport and communications, and the increased pace of life generally,67 while possibly of

merit, cannot be properly evaluated without contextualising them vis-à-vis the relevant starting point for the running of time, discussed below, and any curial discretion to extend time and any supervening ‘ultimate limitation period’, which are the subject of Chapter 23.

Setting the Running of Time Accrual-based approach Advantages 22.13 Australian limitations statutes, following the course of English precedents, persist in largely aligning the running of time with the moment when the relevant cause of action ‘accrues’ (hence the ‘accrual-based’ descriptor). The accrual of a cause of action for this purpose rests upon notions understood at general law, unless prescribed otherwise by the terms of the relevant statutory provision.68 As would be expected in view of its pedigree, the accrual-based approach is not without redeeming features. It is said, for instance, to provide certainty to the extent that accrual rules have settled over time, to be logical in targeting the moment when a cause of action becomes complete, to be adaptable69 and to reflect a uniform approach across Australia.70 It is also touted for its ‘immediacy’ in many instances, in being temporally close to the incident giving rise to the claim.71

Drawbacks 22.14 An accrual-based approach nonetheless suffers various drawbacks. At a conceptual level, in being sourced at general law, accrual rules cannot invariably be assumed to reflect the policies and objectives underscoring limitations law.72 They do not always bespeak certainty, and in some circumstances may prove complex. For instance, in cases of tortious conduct causative of latent personal injury, such as AIDS or asbestosis, identifying precisely [page 482]

when the cause of action accrued — that is, when the damage was suffered73 — may not be straightforward. The same may hold true for, say, psychiatric damage,74 in identifying the moment when the initial trauma generates the requisite ‘recognisable psychiatric illness’.75 Overlap between causes of action to which different accrual rules apply presents a further complication. 22.15 Perhaps the most concerning upshot of an accrual-based approach, however, is the risk of unfairness where a plaintiff has suffered an injury, and so time has begun to run, that is not discoverable until after the expiry of the applicable limitation period. A lack of discoverability in this regard may stem not only from the latent nature of an injury, but because of a plaintiff’s ignorance of a causal relationship between the injury and the acts or omissions of a defendant,76 or ignorance more generally of a worthwhile cause of action. The latter may stem from ‘timidity, ignorance, poverty or social attitude’,77 fear of reprisal from a putative defendant, incorrect advice78 or even later changes in the law. Potential unfairness to plaintiffs — exemplified in the House of Lords’ 1963 decision in Cartledge v E Jopling & Sons Ltd79 to shut out, as timebarred, an action by workers who contracted the insidious lung disease pneumoconiosis, even though the disease could not be diagnosed until years after the exposure that triggered it — impelled the ouster of an accrual approach for personal injury claims in England and then also in each Australian jurisdiction.80 But calls for a wholesale ouster of an accruals approach81 have seen no statutory translation in Australia and England; they have, though, taken form in New Zealand,82 Alberta,83 British Columbia,84 New Brunswick,85 Ontario86 and Saskatchewan.87

Discoverability approach 22.16 If it is accepted that an accrual-based approach suffers drawbacks exceeding its advantages, there is a need to proffer a viable alternative to setting when time commences to run in limitations law. That the personal injury initiatives mentioned above opted for what can broadly be described as a ‘discovery-based’ (or ‘discoverability’) approach — where time runs from the moment when the plaintiff knew or should have known of the injury — was unsurprising given the injustice it was designed to alleviate. There is a

legitimate question, then, as to whether a discovery-based approach could validly supplant an accrual-based approach more generally, albeit with qualifications. The Canadian provinces noted above answered [page 483] this question in the affirmative, and the same has been proposed but not yet enacted in Manitoba.88 Law reform bodies in Western Australia, New Zealand and England have likewise advocated;89 only in New Zealand has the accruals approach been ousted but in favour of a start date commencing on the ‘act or omission on which the claim is based’,90 to which a ‘late knowledge period’ grounded in discoverability is attached.91 Elsewhere respective Parliaments have retained the accrual-based approach as the foundation, ostensibly fearing too great a shift in the longstanding basics of limitations law.

Advantages 22.17 Grounding the limitation period in notions of reasonable discoverability avoids debate over when a cause of action accrues as between different causes of action, thus facilitating a broader spread of actions to be addressed by the one principle.92 Its statutory formulation in the above Canadian provinces, moreover, puts pay to piecemeal and arguably flawed93 attempts to introduce a common law discoverability approach in Canada,94 and serves to protect plaintiffs’ interests. It recognises that plaintiffs cannot be expected to sue until they are aware, or ought to have been aware, of the existence of a cause of action.95 Once this awareness (‘discovery’) occurs, however, there is little justification, it may be reasoned, for the plaintiff to unduly delay commencing proceedings, thereby justifying a shorter limitation period. Those Canadian provinces that have trodden the discoverability path have, to this end, concurrently reduced the general limitation period to two years.96 Also, discoverability eases the pressure to invest courts with discretion to extend time,97 as remains common in Australian and English limitations

law.98 And it arguably removes a need to make explicit provision for fraud or fraudulent (or deliberate) concealment to suspend the running of time,99 as likewise is the norm in Australian and English limitations law.100 While identifying the date of knowledge or discovery may be inherently less certain than the date that [page 484] the cause of action accrues,101 and may produce satellite litigation as a result, reform bodies that advocate discoverability see these drawbacks as exaggerated and insufficient to outweigh the above advantages.102

Addressing the drawbacks 22.18 The principal drawback of a discoverability approach, though, is its potential to defer the commencement of time running for years after the events in question, and thereby expose defendants (and their insurers) to a liability of an uncertain duration. As explained by a commentator:103 Even the most ardent supporter of a general reasonable discoverability test would have to concede that it does pose significant practical problems in terms of the cost of record keeping, the availability and cost of insurance, the deterioration of evidence, the unfairness of subjecting an individual indefinitely to the threat of being sued, the inability to plan with certainty for the future, the erosion of individual financial mobility, and the unfairness to a professional adviser who perhaps long after retirement is unexpectedly confronted with a claim dating back many years.

Concerns of this kind, inter alia, explain why the Canadian provinces that have implemented an approach to running of time grounded in discoverability have coupled it with a 15 year (10 years in Alberta) ‘ultimate limitation period’104 to protect the interests of defendant (and their insurers) in securing repose.105 The same is a cornerstone of the Limitation Act 2010 (NZ).106 It likewise explains why law reform bodies that advocate a discoverability approach invariably attach an attendant ultimate limitation period.107 Critical to the efficacy of these recommendations, and the Canadian and New Zealand initiatives, is that the ultimate limitation period not run by reference to discoverability. Otherwise it would compound the above drawback of discoverability. The Canadian and New Zealand

provisions respond by running the ultimate limitation period from the day the act or omission on which the claim is based took place108 (which by definition cannot postdate when the plaintiff discovers the cause [page 485] of action), a course recommended in multiple other jurisdictions as part of ultimate limitation period reforms.109

Onus as to discoverability 22.19 Beyond addressing the extent to which subjectivity should infuse a plaintiff’s knowledge, there is a need, should discoverability form a general foundation for the running of time for limitations purposes, to tackle how this should translate to questions of onus. In Australian law, at least, the usual onus of proving the expiry of a limitation period lies on the defendant, as limitation is pleaded as a defence to the claim.110 Yet it may be problematic to apply the same approach in the event of a general discoverability approach, because ‘[w]hen a claimant first knew something is based on his state of mind, and is a subjective matter peculiarly within his own knowledge’.111 This has prompted reform recommendations that the plaintiff ought to carry the onus when it comes to discoverability, but that the defendant retain the onus of proving that the action fell outside any ultimate limitation period.112 After all, as the tide of law reform recommendations peg the commencement of an ultimate limitation period to the event triggering the claim,113 this falls within the defendant’s domain. Of the Canadian provinces that have implemented a discoverability approach, however, only one has so prescribed the relevant onus.114 It has been similarly prescribed in New Zealand.115

Discoverability — objective vs subjective approach to knowledge? 22.20 Acceptance of the merit of a discoverability approach to the commencement of the running of time, aligned with an ultimate limitation period, nonetheless raises other matters to address. Beyond those surrounding

the appropriate length, starting point and application of the ultimate limitation period, which receive discrete treatment in the ensuing chapter,116 a critical issue surrounds the nature of the plaintiff’s knowledge that should underscore notions of discoverability. No serious suggestion has been proffered that this should be confined to actual knowledge, the logical reason being that plaintiffs should not secure the benefit, at the expense of defendants, of their own wilful ignorance. However, litigation over discoverability under existing personal injury provisions in Australian (and English) limitations statutes reveals that a purely ‘objective’ approach to knowledge in this context has its challenges. Even those courts inclined to a more ‘objective’ line have proven unwilling to shed the relevant inquiry from at least some ‘subjective’ characteristics of an individual plaintiff.117 22.21 The fine line to tread in this regard is evident from the observations of the Law Commission of England and Wales in its 2001 reform Limitation of Actions. To take account of individual circumstances of a particular claimant, it opined, would exacerbate the uncertainty inherent in the ‘date of knowledge’ starting point for discoverability purposes. The concern, that ‘[a] defendant would never be able to know when the limitation period had started in respect of any cause of action without also knowing everything about the claimant’s character, and circumstances’,118 led the Commission to favour an objective test, at least for the purposes [page 486] of governing the issue of whether the cause of action was significant under the umbrella of knowledge. But it added that ignoring any characteristic of the plaintiff, inherent in a wholly objective test, ‘runs counter to the justification for a discoverability test’, namely that the limitation period should only start to run when the plaintiff has ‘had a reasonable opportunity to discover the facts which give rise to the cause of action’.119 It feared that an exclusively objective test could cause the plaintiff considerable injustice, ‘without providing sufficient certainty to compensate for this’, and so envisaged that constructive

knowledge here should take account of a plaintiff’s circumstances and abilities in order to do justice to him or her,120 explained in the following terms:121 The circumstances of the claimant will include the claimant’s financial resources, if information could not reasonably be available to the claimant unless expensive expert or other investigations have been carried out. The abilities of the claimant will also be relevant. ‘Abilities’ for this purpose encompasses any capacity of the claimant which might affect the date on which he or she could be expected to know the relevant facts. Most obviously, the claimant’s intellectual abilities will be relevant.

22.22 This ‘combined approach’ to setting the knowledge parameters of any discoverability test has, for the same reasons, proven a staple of multiple other law reform body recommendations. For instance, in 1988 the New Zealand Law Commission reasoned as follows:122 … an objective ‘hypothetical reasonable man’ test could well work considerable injustice — undermining the essential thrust of the discoverability extension — if not able to be related to the health, intelligence and social competence of a particular claimant. Further, in a society which is becoming increasingly conscious of the distinctions between different cultural groupings, any objective test invites criticism for being based on monocultural assumptions.

More recently, the Manitoba Law Reform Commission recommended that the date of discovery of a claim be aligned with when ‘a reasonable person with the abilities and in the circumstances of the [plaintiff]’ ought to have known of the prescribed matters.123 This reflects the wording of the Ontario limitations statute,124 to date unique in Canada in addressing the subjectivity issue explicitly. The other Canadian provinces that have implemented a general discoverability approach simply refer to the day when the plaintiff ‘knew’ or ‘ought reasonably to have known’ of the prescribed matters.125 As it has proven in English and Australian case law in personal injury matters,126 statutory language of this kind leaves scope for uncertainty over the extent to which the subjective characteristics of a plaintiff should inform the discoverability inquiry.

Knowledge of corporate plaintiffs 22.23 Given that existing Australian (and English) discovery-based regimes are confined to personal injury causes of action,127 they have not triggered the need to inquire into knowledge in the event of a corporate plaintiff. The latter, after all, cannot by definition suffer personal injury. But

the manifold recommendations to extend the discoverability approach to limitations [page 487] law more generally, and thus also as regards corporate plaintiffs, cannot accordingly avoid the question of knowledge in that context (or, as an aside, in other contexts, such as when relevant to the extension of time or the suspension or deferring of time). In the absence of definitive curial or legislative guidance to this end, there is sense in approaching the issue by reference to the principles of agency law,128 which govern the attribution of knowledge by corporate officers to the company itself. A company, as a non-human entity, cannot have real knowledge; this must instead rest in its officers. Agency law, by treating the company as a principal, and its officers as agents, addresses this problem via the rule that knowledge of the agent is to be attributed to his or her principal.129 But this does not mean that agency law always functions seamlessly and with precision in this arena; there may not infrequently arise complicating factors, specifically in identifying which corporate officers can have their knowledge attributed to the company. As explained by a law reform body:130 [T]he question of when a company knows becomes difficult whenever knowledge is partially or unevenly distributed within it. Actual knowledge might be possessed by one director, but not his colleagues; by junior but not senior management; by one junior employee with some decision-making responsibilities; by a trainee; or by a member of the cleaning staff. It is also conceivable that knowledge might be split between several employees of the company.

As the foregoing indicates, there can be no assumption that corporate knowledge is uniformly held by every company officer. Some forms of knowledge may be the province of some but not others. The job title is not necessarily determinative of the distribution of knowledge in any case. And there may be a question over the capacity in which a company officer discovered the information. The way agency law, more broadly, salves issues of this kind is to align company knowledge with knowledge of a company officer, acquired in his or her capacity as an officer, that he or she is under a

duty to communicate to the company. 22.24 Whether general agency law is sufficient for the purposes of determining discoverability for limitations law purposes has proven the subject of debate. The Law Commission of England and Wales, concerned as to the lack of precision underscoring the common law, recommended the enactment of an ostensibly more precise formulation for discovery-based limitations law. A plaintiff should be treated ‘as knowing any fact of which his or her agent has actual knowledge’, it proffered, if the agent in question ‘is under a duty to communicate that fact to the principal’ or ‘has authority to act in relation to the cause of action’.131 In addition, a corporate body should be considered to have actual or constructive knowledge when, first, that knowledge is imputed to the body under the aforesaid recommendation, or second, that knowledge rests in an officer of the body, or a person with authority to take the relevant decisions on its behalf, or in an employee who is under a duty to disclose that information to someone with that authority or to any other employee.132 This proposed formulation was less prescriptive and detailed than what had been provisionally proposed by the Commission four years earlier,133 which found little favour in the Queensland Law Reform Commission. The latter, while noting the merit of an approach that promotes certainty, was not persuaded that formulating a legislative test of corporate knowledge was desirable. It saw the common law tests of corporate knowledge as ‘reasonably well defined’, with the added advantage of ‘flexibility to adapt to meet changing conditions and circumstances’, which ‘a prescriptive legislative approach’ would lack.134 It is difficult to argue against a need for [page 488] flexibility in this context, in view of the breadth of information gathering and sharing scenarios that may arise in the corporate arena. 22.25 But even if the common law attribution rules are ‘reasonably well defined’, their application in practice can be challenging. Beyond what may prove difficulties in identifying the repositories of relevant knowledge and

the boundaries of any duty to communicate in this regard, there are challenges in scenarios where corporate officers seek to conceal their knowledge from the company (often because of their own potential exposure to liability). The common law has spawned what is known as the ‘fraud exception’ for this purpose, the basis and parameters of which nonetheless remain debated.135 There may thus be sense in the recommendation by the Law Commission of England and Wales for statute to prescribe that where the knowledge of a corporate officer would be otherwise attributed to the company, this should not ensue where that officer is a defendant to the claim of the company or ‘has dishonestly concealed information relevant to that claim from someone whose knowledge would be attributed to the [company]’.136 Alternatively, extension of existing limitations law on fraudulent (or deliberate) concealment137 could achieve this result.

‘Act or omission’ approach 22.26 Aside from accrual-based or discovery-based approaches to identifying when time should run in limitations law, perhaps the only other viable candidate is to peg the running from time from the ‘act or omission’ that has given rise to the cause of action. While this has certainly received support in the context of an ultimate limitation period approach,138 only the New Zealand Law Commission has seen fit to recommend vis-à-vis primary (or general) limitation periods. The latter, in a report published in 1988, envisaged a three-pronged scheme, consisting of a standard three year limitation period commencing on the date of the act or omission that is the subject of the claim, scope for extending this period in certain circumstances (in particular where the plaintiff shows absence of knowledge of relevant matters of fact), and an ultimate (‘longstop’) limitation period of 15 years likewise measured from the date of the relevant act or omission.139 The Limitation Act 2010 (NZ) implemented the substance of this recommendation.140 The ‘act or omission’ approach was driven primarily by an effort to make the moment at which the limitation period would begin to run clearer than under the accrual rule. The consequent simplicity could then translate to affording defendants a degree of certainty, because time runs from a certain

point. Even if a formula based on a relevant ‘act or omission’ does clarify the trigger point, the touted certainty for defendants is inversely related to how commonly courts would be called upon to extend time.141 When mooted almost a decade later before the Western Australian Law Reform Commission, the concern was that ‘there would be far too many cases in which it was necessary to rely on the extension provisions in order to give deserving plaintiffs the right to sue’.142 The consequent imbalance, the Commission remarked, would be particularly apparent in the most difficult cases, chiefly those involving latent injury or damage. Conceptually, the Commission also saw it anomalous that in cases where damage is an essential element of the cause of action, the ‘act or omission’ approach would trigger the running of time before the cause of action is complete. For arguably good reason, therefore, there seems little appetite in the Australian landscape to follow the New Zealand lead. ______________________________ 1. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 35. 21 Jac I c 16. Real Property Limitation Act 1833 (UK) (3 & 4 Wm IV c 27); Civil Procedure Act 1833 (UK) (3 & 4 Will IV c 42). Real Property Limitation Act 1874 (UK) (37 & 38 Vict c 57). WALRC 36(I). WALRC 36(II). See, for example, NSWLRC 3; NSWLRC 12; NSWLRC 21; NSWLRC 104; QLRC 53; Law Reform Committee of South Australia, Law Relating to Limitation of Time for Bringing Actions, No 12, 1970; TLRC 69. Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 at 484; BC9304922 per French J. WALRC 36(II), p 50. Such as, for example, actions for menace, and the distinction between trespass and case. Such as, for example, a failure to deal with the law of restitution: see 5.35–5.39. WALRC 36(II), p 51. F Pollock (1893) 9 LQR 107. WALRC 36(II), p 70. Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 at [76] per Tipping J. NZLC 6. NZLC MP16. ILRC, para 1.20. ILRC, para 1.128. ACT s 11(1); WA s 13(1). See 4.2.

21. 22.

23. 24.

25. 26. 27.

28. 29. 30.

31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

Limitation of Actions Act 1936 (SA). Albeit bearing in mind the general provision for extending time (SA s 48, enacted via the Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA), later substituted by the Limitations Amendment Act 1975 (SA)) pursuant to a recommendation by the Law Reform Committee of South Australia, Law Relating to Limitation of Time for Bringing Actions, No 12, 1970: see 19.1. AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [163] per Baroness Hale JSC. Law Com 151, p 10. See also Murray v Morel & Co Ltd [2007] 3 NZLR 721; [2007] NZSC 27 at [76] per Tipping J (‘Piecemeal attempts by the courts to cure the difficulties with the present outdated legislation have already created their own difficulties and have produced a distinct lack of harmony in the area being addressed’). M A Jones, ‘Limitation Periods and Plaintiffs Under a Disability — A Zealous Protection?’ (1995) 14 CJQ 258 at 270. Limitations Act 2000 (Alta), pursuant to the recommendations found in ALRI 55 (which originally spawned the Limitations Act 1996 (Alta), proclaimed into force 1 March 1999). Limitation Act 2012 (BC), proclaimed into force 1 June 2013. It ensued upon Ministry of Attorney General Justice Services, Civil Policy and Legislation Office, White Paper on Limitation Act Reform: Finding the Balance, 2010, which recommended a complete overhaul of the limitation system with the introduction of a core limitation regime similar to that of Alberta, New Brunswick, Ontario and Saskatchewan. Limitation of Actions Act 2009 (NB), proclaimed into force 1 May 2010. Limitations Act 2002 (Ont), proclaimed into force 1 January 2004. Its driver, over a lengthy gestation, was the Ontario Law Reform Commission’s Report on Limitation of Actions, 1969. Limitations Act 2004 (Sask), proclaimed into force 1 May 2005. Its backdrop is found in Law Reform Commission of Saskatchewan, Proposals for a New Limitation of Actions Act, April 1989; Law Reform Commission of Saskatchewan, Comparisons of Proposals for the Reform of Limitations of Actions, January 1998; Saskatchewan Department of Justice, Limitation of Actions Act, Consultation Paper, 2000. QLRC 53. WALRC 36(II). NZLC 6; NZLC 61. ILRC; Law Com 270; MLRC; SLRC. Law Reform Commission (Ireland), Consultation Paper on Limitation of Actions, CP 54, 2009, para 2.251. As to these policies see 1.17–1.28. See 3.25. See 24.3–24.6. See 7.26, 24.13, 24.14. O W Holmes, ‘The Path of the Law’ (1897) 10 Harv L Rev 457 at 476. ACT s 11(2); WA s 13(2), as to which see 4.2. D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 452–3. For example, contract (see generally Ch 5), tort (see generally Ch 6), trust (see generally Ch 10). For example, actions upon a specialty (see 5.41–5.44).

45. 46. 47.

48. 49. 50. 51.

52. 53.

54. 55. 56.

57. 58. 59.

For example, actions to recover land (see generally Ch 8), actions to recover damages for personal injuries (see generally Ch 7). QLRC 53, p 42. Wright Committee, para 5 (‘difficulties of evidence are less likely to arise where the action is upon a contract under seal than where it is upon a simple contract, which may not even be in writing. Again, the desirability of a speedy trial is probably more obvious in cases of actions for personal injuries and actions for slander than in other tort actions’). Bowes v City of Edmonton (2008) 86 Alta LR (4th) 47; [2007] ABCA 347 at [134] per Côté JA. Orr Committee, para 1.10 (emphasis supplied). N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 CLJ 589 at 596. See, for example, D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 452, 474; ALRI DP4, p 77 (‘there is neither a sound theoretical nor practical foundation for the practice of assigning different fixed limitation periods to different categories of claim’); ILRC, para 2.08 (noting that ‘[p]ractically speaking, no jurisdiction has managed to reduce all limitation periods to just one uniform basic limitation period, but a basic limitation period could be applied to a wide range of civil actions which form the bulk of civil litigation’). ALRI DP4, p 48. Law Com 151, p 243 (adding that ‘[w]hile, no doubt, specialist lawyers have got used to the complexity, the “high street” solicitor can be forgiven for approaching the law of limitations with a considerable degree of trepidation’). ILRC, para 1.11. As to the impact of accrual rules, say, in the context of tort see 6.4–6.17. WALRC 36(II), p 178 (which identified the first aim of the new Act as ‘the adoption of a uniform approach to all causes of action, in the interests of simplicity and fairness’, an object that saw translation into the Limitation Act 2005 (WA)). Limitations Act 2000 (Alta) s 3; Limitation Act 2012 (BC) s 6; Limitation of Actions Act 2009 (NB) s 5; Limitations Act 2002 (Ont) s 4; Limitations Act 2004 (Sask) s 5. NZ s 11(1) (application to ‘money claims’, as defined in s 12; as to the backdrop to this initiative see NZLC 6, para 128; NZLC MP16, para 89). ACT s 11(1) (applies to ‘an action on any cause of action’; ‘cause of action’ means ‘the fact or combination of facts that gives rise to a right to bring a civil proceeding’, which clearly encompasses a proceeding in equity); WA s 13(1) (applies to ‘[a]n action on any cause of action’; ‘action’ means, inter alia, ‘any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise’: s 3(1)(a)); NZ s 11 (applies to ‘money claims’, defined to mean ‘a claim for monetary relief at common law, in equity, or under an enactment’: s 12(1)); Limitations Act 2000 (Alta) s 2(1) (‘This Act applies where a claimant seeks a remedial order in a proceeding ...’;‘remedial order’ means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, which encompasses both common law and equitable rights: s 1); Limitation Act 2012 (BC) s 6(1) (‘a court proceeding in respect of a claim’); Limitation of Actions Act 2009 (NB) s 2(1) (‘applies to any claim brought after the commencement of this Act’; ‘claim’ means ‘a claim to remedy the injury, loss or damage that occurred as a result of an act or omission’: s 1(1)); Limitations Act 2002 (Ont) s 2(1) (‘applies to claims pursued in court proceedings’); Limitations Act 2004 (Sask) s 3(1) (‘applies to

60. 61. 62. 63. 64. 65. 66. 67.

68. 69.

70. 71.

72. 73. 74. 75.

claims pursued in court proceedings that: (a) are commenced by statement of claim; or (b) are commenced by originating notice and are not proceedings in the nature of an application’); Limitation Act 1959 (Sing) s 6(7) (which, with limited exceptions, applies the limitation periods to ‘all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity’). See 8.3, 8.4. See 3.26. See 13.32–13.41. See 13.2–13.31. See, for example, NZLC 6, p 112 (see also NZLC 61, p 13); ALRI 55, p 3; Law Com 151, pp 379– 80; QLRC 53, pp 114–15; WALRC 36(II), pp 323–4. D Jackson, ‘The Legal Effects of the Passing of Time’ (Pt II) (1970) 7 MULR 449 at 461. See, for example, ALRI 55, p 36; QLRC 53, p 120; WALRC 36(II), p 330. As to the relationship between laches and limitations time bars see 3.31, 3.32. Orr Committee, paras 2.51–2.53; NZLC 6, paras 132–153; ILRC, para 14 (‘There may have been a good reason why, in the early 1800s … a contract claim need not be initiated for 6 years because, for example, it involved a claim over the contents of cargo on a ship that had gone on a round-the-world trip. In an era of internationally-required GPS requirements for merchant shipping (arising from international conventions on safety at sea) and virtually instantaneous communication, however, a 6 year time limits is very difficult to explain’). Cf N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 CLJ 589 at 597 (who cautions against reducing the limitation period too severely, reasoning that in the wake of an incident, ‘the parties should not be driven pell-mell into the hostile and expensive act of litigation’, and the limitation period ‘must be long enough to allow the parties a good opportunity to collect their wits, review their finances, assess their chances and negotiate a settlement’). See 4.33, 4.34. By way of example, it has been suggested that ‘Australian courts have moved towards the recognition of a rule that in most negligence cases the cause of action accrues when the damage becomes discoverable, a position already adopted in Canada and arguably in New Zealand’, and thereby ‘helped to overcome the problem that arises in latent damage cases: that the plaintiff may lose the right to sue before becoming aware of its existence’: WALRC 36(II), p 108. However, Australian courts’ foray in this regard appears to be confined to building cases involving pure economic loss rather than, as suggested in the preceding quote, as regards ‘most negligence cases’: see 6.37–6.40. As to the Canadian and New Zealand position see 7.23–7.25. WALRC 36(II), pp 107–8. N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 CLJ 589 at 598–9 (who argues that the accrual-based approach is preferable to a ‘discovery-based approach’ on this ground, and also in supplying a clear and more readily ascertainable starting date). ALRI DP4, pp 88–9. See 6.5–6.7. WALRC 36(II), p 109. As per Mount Isa Mines v Pusey (1970) 125 CLR 383; BC7000100.

76. 77. 78.

79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

90. 91. 92.

93.

94. 95.

Edmund Davies Committee, paras 9, 18 (speaking in terms of ‘concealed causation’); NSWLRC 50, paras 3.17, 3.18. NSWLRC 50, para 3.20. See, for example, Smith v Central Asbestos Co Ltd [1973] AC 518, where the plaintiff was informed by his manager that while he could claim a disablement benefit for contracting asbestosis, he could not pursue an action for damages against his employer. As a result, the plaintiff did not seek further legal advice until he discovered that a former fellow employee had commenced just such an action. The House of Lords held that ‘it was reasonable for the plaintiff to rest content with the wrong advice given him by the works manager’, even though it was said to have been ‘obvious that the works manager had no real competence to give the advice’: at 530–1 per Lord Reid. [1963] AC 758. As to the Cartledge decision see further 7.4. See 7.7–7.22. See, for example, QLRC 53 pp 53–4; N J Mullany, ‘Reform of the Law of Latent Damage’ (1991) 54 MLR 349 at 381. NZ ss 11, 14. Limitations Act 2000 (Alta) s 3. Limitation Act 2012 (BC) ss 6, 8. Limitation of Actions Act 2009 (NB) s 5. Limitations Act 2002 (Ont) ss 4, 5. Limitations Act 2004 (Sask) ss 5, 6. See MLRC, p 18. WALRC 36(II), p 186; NZLC 61, pp 5–6; Law Com 151, pp 252–3; Law Com 270, paras 3.5–3.7 (contra the earlier recommendation against a discoverability approach by the Wright Committee, for fear of fostering greater uncertainty in limitations law: para 7). NZ s 11(1) (but see s 16(1), which lists special start dates for various money claims; the backdrop to this is catalogued in NZLC MP 16, paras 50–65). NZ ss 11(2), 11(3), 14 (as to the backdrop see NZLC MP 16, paras 115–138). WALRC 36(II), p 186; Law Com 270, para 3.6; ILRC, para 2.25 (noting that as discoverability does not distinguish between different kinds of damage, ‘it also allows a uniform approach to be taken to the application of the basic limitation period to a wide variety of actions’). In Bowes v City of Edmonton (2008) 86 Alta LR (4th) 47; [2007] ABCA 347 at [135] Côté JA opined that judicially sourced discoverability notions ‘seemed to create the worst of all possible worlds’, in prompting ‘much litigation about a … time of discoverability’, as ‘[p]laintiffs did not know when they had to sue, or had lost their right to sue … [b]ut businesses and professional people were never safe from ancient tort claims’ because ‘[a]lmost any old claim was (at least arguably) not discoverable’. Moreover, his Honour noted, some courts defined ‘discoverability’ very narrowly, thus expanding liability. See 7.23–7.25. Cf the suggestion (Law Reform Commission (Ireland), Consultation Paper on Limitation of Actions, CP 54, 2009, para 8.77; endorsed by ILRC, para 4.136) that the introduction of a general discoverability approach makes it unnecessary to give the plaintiff additional protection in the event of a defendant’s acknowledgment or part payment. It is reasoned that, as the discoverability approach is based on the plaintiff having the requisite knowledge on a particular date to bring proceedings, and so should be required to bring proceedings within a set period after this date, it

96. 97. 98. 99. 100. 101.

102. 103.

104.

105.

106. 107. 108.

would be illogical to suggest that the date of this knowledge should re-occur by reason of an acknowledgment or part payment. Such a recommendation appears unique in the law reform landscape, and may be queried because the law surrounding acknowledgment and part payment is not tied to notions of knowledge or discoverability, but focuses on the actions of the defendant: see generally Ch 17. Cf NZ ss 11, 14 (which retains a six year primary limitation period but provides for its extension on principles grounded in discoverability). See K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 47–8. As to extension of time see generally Chs 18–21. Law Com 151, pp 357–8 (in the context of breach of trust); ILRC, para 4.142. Cf QLRC 53, p 115. As to fraud and concealement in limitation law see generally Ch 15. Cf C French, ‘Time and the Blamelessly Ignorant Plaintiff: A Review of the Reasonable Discoverability Doctrine and Section 4 of the Limitation Act 1950’ (1998) 9 Otago L Rev 255 (who notes that some critics view identifying the commencement date for the running of time as ‘an exercise fraught with uncertainty where discoverability is involved’ (at 267), but responds that this criticism is predicated on the questionable assumption that the alternative accrual test provides a significantly greater degree of certainty (at 270), prompting the conclusion that criticisms about the inherent uncertainty of reasonable discoverability need ‘to be seen in perspective’ (at 272)). See, for example, Law Com 270, para 3.6. C French, ‘Time and the Blamelessly Ignorant Plaintiff: A Review of the Reasonable Discoverability Doctrine and Section 4 of the Limitation Act 1950’ (1998) 9 Otago L Rev 255 at 272–3. See also R Bauman, ‘The Discoverability Principle: A Time Bomb in Alberta Limitation Law’ (1993) 1 Health LJ 65 at 79; N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 CLJ 589 at 601. Limitations Act 2000 (Alta) s 3(1)(b); Limitation Act 2012 (BC) s 21(1); Limitation of Actions Act 2009 (NB) s 5(1)(b); Limitations Act 2002 (Ont) s 15(2); Limitations Act 2004 (Sask) s 7(1). Cf Limitations Act 1995 (NL) s 22 (30 year ultimate limitation period in the absence of a discoverability approach, thus following the New South Wales lead: see 4.62–4.64). As to reform issues surrounding ultimate limitation periods see 23.1–23.12. K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 44 (‘Given the uncertainty and pro-plaintiff orientation of the discoverability cases, this is the only sure way to promote repose’). NZ s 11(3)(b) (‘longstop period’). See, for example, WALRC 36(II) pp 75, 191–2; NZLC 61, p 6; Law Com 151, pp 252–3; Law Com 270, paras 3.99–3.101 (for non-personal injury claims). Limitations Act 2000 (Alta) s 3(1)(b) (‘10 years after the claim arose’; when a claim ‘arises’ is prescribed in s 3(3)); Limitation Act 2012 (BC) s 21(1) (15 years ‘after the day on which the act or omission on which the claim is based took place’); Limitation of Actions Act 2009 (NB) s 5(1) (b) (15 years from ‘the day on which the act or omission on which the claim is based occurred’); Limitations Act 2002 (Ont) s 15(2) (15 years from the ‘day on which the act or omission on which the claim is based took place’); Limitations Act 2004 (Sask) s 7(1) (15 years ‘from the day on which the act or omission on which the claim is based took place’); NZ s 11(3)(b) (‘15 years after the date of the act or omission on which the claim is based’) (see NZLC 61, paras 13, 14).

109. 110. 111. 112. 113. 114.

115. 116. 117. 118. 119. 120. 121. 122.

123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137.

See also Limitations Act 1995 (NL) s 22 (‘30 years from the date on which the event which gave rise to the cause of action last occurred’). See, for example, WALRC 36(II), pp 191–3; QLRC 53, pp 90–1; Law Com 270, paras 3.99– 3.101; MLRC, pp 27–8. See 2.19–2.22. ALRI DP4, pp 136–7. See, for example, NZLC 61, p 6; ALRI 55, pp 63, 74; WALRC 36(II), p 196; QLRC 53, pp 78–9; Law Com 270, paras 5.29–5.32. See 23.5, 23.6. Namely Limitations Act 2000 (Alta) s 3(5). The only other Canadian province that has addressed the onus point has done so by casting the entire onus on the plaintiff: Limitations Act 2004 (Sask) s 18. NZ ss 11(3)(b) (ultimate limitation period onus on defendant), 14(2) (discoverability onus resting on plaintiff). See 23.1–23.12. See, for example, 20.68–20.70, 20.107, 20.108. Law Com 270, para 3.23. Law Com 270, para 3.48. Law Com 270, para 3.48. Law Com 270, para 3.49. NZLC 6, para 204. See also ALRI DP4, p 124 (‘because a discovery rule exists primarily for the benefit of claimants, we believe that the constructive knowledge test should be based on what the actual claimant in a case, in his circumstances and with his abilities, ought reasonably to have discovered’); WALRC 36(II) p 141; QLRC 53, pp 83–4. MLRC, p 25. Limitations Act 2002 (Ont) s 5(1)(b). Limitations Act 2000 (Alta) s 3(1)(a); Limitation Act 2012 (BC) s 8; Limitation of Actions Act 2009 (NB) s 5(2); Limitations Act 2004 (Sask) s 6(1). See 20.68–20.70, 20.107, 20.108. See generally Ch 7. See G E Dal Pont, Law of Agency, 3rd ed, LexisNexis Butterworths, Australia, 2014, pp 557–68. See R P Austin and I M Ramsay, Ford, Austin and Ramsay’s Principles of Corporations Law, 16th ed, LexisNexis Butterworths, Australia, 2015, pp 1017–21. Law Com 151, p 275. Law Com 270, para 3.62. Law Com 270, para 3.78. See Law Com 151, pp 279–81. QLRC 53, p 89. See P Watts, ‘Imputed Knowledge in Agency Law — Excising the Fraud Exception’ (2001) 117 LQR 300. Law Com 270, para 3.80. As to fraudulent (or deliberate) concealment see generally Ch 15.

138. 139. 140. 141. 142.

See 23.5, 23.6. NZLC 6, para 128. NZ s 11 (in relation to what it terms ‘money claims’, defined in s 12). WALRC 36(II), pp 176–7. WALRC 36(II), p 185.

[page 489]

CHAPTER 23

Ultimate Time Bars and Extending Time Ultimate Limitation Periods Duration Commencement Candidates for commencement Impact of fraud or concealment Impact of minority Impact of disability Impact of successive confirmations Residual Discretion to Extend Time

23.1 23.1 23.5 23.5 23.7 23.8 23.9 23.12 23.13

Ultimate Limitation Periods Duration 23.1 The concept of an ultimate limitation period, though resonating in Law Reform Commission reports in the last 40 years or so, is not new.1 The Real Property Limitation Act 1833 (UK) provided that while the limitation period for an action to recover land could be extended in cases of a plaintiff’s

disability,2 no such extension could operate to allow the action to be brought more than 40 years from the date of its accrual3 (a period later reduced to 30 years).4 Similar provisions remain in some Australian statutes,5 but New South Wales is unique in Australia in prescribing a general ultimate limitation period. That period, 30 years, [page 490] runs from the date that the relevant cause of action accrued,6 excepting from its reach only causes of action for which an order has been made to extend time for latent injury.7 The first Canadian province to adopt an ultimate limitation period was British Columbia, pursuant to a Law Reform Commission report8 that spawned the Limitations Act 1975 (BC), which like New South Wales set the period at 30 years from the relevant accrual.9 The 30 year period was chosen in the belief that it would prove sufficient to accommodate latent damage claims, and also because it would not expire until at least a decade after the age of majority was attained (and thus prevent any prejudice to plaintiffs who were minors at the time when the facts giving rise to the cause of action occurred). A parallel recommendation surfaced in South Australia in 1985,10 but did not see implementation. 23.2 As foreshadowed earlier, ultimate limitation periods have since entered the law reform vogue as a means of counterbalancing the potentially open-ended timeframe heralded by recommended (and, in several Canadian provinces, implemented) discovery-based rules to trigger the running of time.11 Independent of a discovery-based approach, however, most law reform bodies appear to have shied from ultimate limitation periods. In 1974, in an interim report the Orr Committee in England considered and rejected this so-called ‘long-stop’ approach. Although said to add certainty to any discretion by making it finite, the Committee viewed any long-stop as either too long to serve a useful purpose or too short to allow for recovery in many cases of latent injury or disease.12 The Law Reform Commission of Western Australia expressed its concurrence with the Orr Committee in this regard in

1982, for the same reason.13 Also in 1982 the Scottish Law Commission called for abolition of the 20 year ultimate limitation period then applicable in Scotland, citing as its major objection the possibility of injustice in cases of latent injury and disease,14 which was effected in 1984.15 23.3 In a more recent report, the Law Reform Commission of Western Australia noted that ‘[t]he justification for an ultimate period, it is suggested, is that it is unfair for the entire class of defendants to remain subject to a tiny minority of claims’.16 It accepted that this argument may have force in cases involving property damage and economic loss, but saw it as less compelling in personal injury cases, ‘where the justification for ruling out a claim for serious injury before the plaintiff has had a chance to discover its existence would need to be considerable’.17 In this context, it opined that although defendants would be at risk of a claim for a very long period, ‘the seriousness of the injury and the inability of the plaintiff to discover it until many years after exposure to the hazard require the law not to close off the possibility of bringing an action [page 491] after some arbitrary period’.18 Concerns of this kind drove the New South Wales Parliament to exempt certain latent injury cases from the full force of the 30 year ultimate time bar.19 They also explain why (15 year) long-stop provisions in the Australian Capital Territory20 and England21 exclude personal injury claims, and why the New Zealand Parliament opted to retain judicial discretion to extend time vis-à-vis ‘a claim in respect of a personal injury … caused by a gradual process, disease, or infection’.22 23.4 British Columbia, despite being an early adopter of a 30 year ultimate limitation period, has since substantially reduced its duration, albeit in tandem with a shift from an accruals to a discoverability approach to the running of the primary limitation period. Experience revealed, said the British Columbia Law Institute that provided an initial catalyst for the change, that a basic ultimate limitation period of 30 years was ‘far too long’.23 This in turn had little practical effect in protecting defendants from

stale claims, the Institute reasoning as follows:24 It allows too much time to pass before proceedings are instituted, making it difficult for defendants to assemble evidence and witnesses. This creates the risk that defendants may be found liable when evidence, which would otherwise have provided protection, is lost or deteriorated due to the passage of time. Defendants who are providers of goods or services are especially susceptible to evidentiary impediments created by stale claims as they will often find it difficult to identify which transactions will give rise to a cause of action.

Moreover, the 30 year ultimate limitation period imposed significant expenses on defendants with regard to maintaining records, evidence and insurance until the period expired. That matters could not be treated as at a close until that moment created ‘an element of uncertainty about potential future financial costs’, as a result of which the Institute feared that defendants could prove unwilling to enter into long-term arrangements and future transactions, to the detriment of the commercial sector as a whole.25 It expressed the further concern that cases of stale claims affect the courts’ ability to determine claims fairly, before concluding that a 30 year ultimate limitation period ‘places an unfair burden on defendants and … denies them peace and repose at a time when it is reasonable to expect the risk of litigation to be at an end’.26 The Institute favoured a ten year ultimate limitation period, reasoning that ‘[f]ew claimants would be affected by the reduction in time as it appears that the vast majority of actions, including latent damage claims, are brought within 10 years of the occurrence that gives rise to the claim’.27 (When implemented by statute years later, 15 years was selected as the ultimate limitation period in British Columbia, in line with a broader Canadian trend to this end).28 In tandem with the running of time being pegged according to discoverability by the plaintiff, there is sense in abbreviating any ultimate limitation period. [page 492]

Commencement Candidates for commencement 23.5 As any ultimate limitation period is directed primarily at providing repose for defendants, it is inapt to align its commencement with the date of

discoverability from a plaintiff’s perspective. After all, an ultimate limitation period aims to counterbalance the potentially open-ended running of time premised on a plaintiff having yet to discover a cause of action against the defendant. In New South Wales, time starts to run for the general ultimate limitation period from the moment of its accrual,29 but this has not proven the model that has thereafter seen most frequent law reform body recommendation30 (and, indeed, subsequent enactment in several of the Canadian provinces and New Zealand).31 That model associates the running of time under an ultimate limitation period with the date an ‘act or omission’ that constitutes a breach of duty occurs. Now in provisions confined to personal injury (and death) actions, New South Wales, Tasmania and Victoria have, under their post-Ipp regimes, introduced a 12 year ultimate limitation period running from the date of the act or omission alleged to have resulted in the personal injury (or death).32 23.6 The ‘act or omission’ approach reflects an underlying concern with an accrual-based approach — which the said Canadian provinces and New Zealand have in any case ousted vis-à-vis the primary limitation period33 (and Australian and English legislators have likewise ousted vis-à-vis personal injury causes of action)34 — that, in this context as in others, has focused on issues arising out of the incidence of damage post-dating the date of breach,35 and difficulties in ascertaining the relevant accrual date.36 An accrual-based approach, in addition, hardly fosters consistency and certainty because different causes of action may accrue at different times. An ‘act or omission’ approach, conversely, offers the following benefits:37 It avoids the difficulties of having to determine when a plaintiff has suffered damage for those causes of action where damage is an essential element. Consequently, the maximum duration of the defendant’s liability is more easily ascertainable than under the accrual system and this creates greater certainty for the parties involved. The defendant is protected from stale claims in cases where the date of accrual occurs many years after the date of the act or omission that constitutes a breach of duty. Moreover, this date provides a common starting point for the [ultimate limitation period] with regard to claims in both tort and contract.

Impact of fraud or concealment 23.7 The above reasoning, while compelling, has not entirely obviated debate over the appropriate timing for the commencement of an ultimate limitation. Questions have arisen, say, as to whether fraud or concealment by

the defendant should delay its commencement date, especially in the event that the ultimate limitation period is shortened. Fraud and concealment raises the prospect that a defendant could secure immunity from suit by engaging in behaviour [page 493] that conceals or misrepresents his or her culpability. One way of address this injustice is to suspend the running of time for a period commensurate with the operative fraud or concealment, which is standard approach in Australia for primary limitation periods,38 and has been adopted in several Canadian provinces39 and New Zealand40 as to ultimate limitation periods. Yet this may serve to indefinitely suspend an ultimate limitation period, which ostensibly counters the aim of prescribing such a period. An alternative avenue, recommended in British Columbia,41 is to retain a lengthier ultimate limitation period in the face of fraud and concealment. While the de facto approach in New South Wales, albeit by prescribing a standard 30 year ultimate limitation period,42 it was not enacted in British Columbia, where the mischief has been addressed by pegging the running of the ultimate limitation period upon discoverability in the event of fraud or concealment.43

Impact of minority 23.8 There is also scope for diverging views over how to address a plaintiff’s minority when it comes to applying an ultimate limitation period. The concern is that an abbreviated ultimate limitation period made to run from a relevant culpable act or omission could prejudice plaintiffs who were minors at the time of that act or omission. Again, this could be addressed by prescribing a longer ultimate limitation period for minors, or by suspending the running of time for the period of a plaintiff’s minority. The 30 year time bar set in New South Wales adopts the former approach, albeit via its general application,44 whereas the latter has been selected in several Canadian provinces45 and New Zealand.46

An alternative approach, suggested by the Law Commission of England and Wales against a backdrop of a recommended ten year ultimate limitation period for non-personal injury actions,47 is for that period to run during a plaintiff’s minority but not so as to bar an action before the plaintiff reaches the age of 21.48 A plaintiff would thereby secure ‘a reasonable chance to bring proceedings on reaching majority’,49 it reasoned, having a three year time frame within which to commence proceedings, between age 18 (majority) and 21, that is quarantined from the application of the ultimate limitation period.

Impact of disability 23.9 Just as a plaintiff’s minority may raise issues over the commencement of any ultimate limitation period, so may other forms of legal disability. In New South Wales the general applicability of a 30 year ultimate time bar dictates that a plaintiff’s disability cannot prevail against the policy underscoring that time bar. Whereas law reform bodies in some other jurisdictions have been sensitive to issues of minority in this context, they have evinced a tendency to treat other legal disability differently for this purpose. Both the British Columbia [page 494] Law Institute and the Law Commission of England and Wales have, in accord with the approach adopted in New South Wales (albeit with a shorter ultimate limitation period), recommended that the ultimate limitation period of general application apply to plaintiffs under a legal disability (other than minority).50 23.10 Disability is treated differently to minority because the latter will come to an end (assuming that death does not intervene) whereas the former could persist indefinitely. Moreover, unlike minority, which is a ‘black and white’ affair, disability can operate along a continuum and vary in time. The British Columbia Law Institute opined, to this end, that excluding any period of disability from the calculation of the ultimate limitation period

could ‘significantly weaken the limitations system as defendants would never know if and when claims might be brought in favour of a person under a disability’.51 The Parliament of the province of British Columbia nonetheless enacted a provision that the ultimate limitation period does not run until the disability ceases or the requisite discoverability is attained (under a notice to proceed procedure).52 23.11 While some other Canadian provinces make like provision for suspending the ultimate limitation period in this context,53 New Brunswick follows its own path by exempting disability only from its primary limitation periods and not its ultimate limitation period.54 An intermediate approach has been adopted in New Zealand, where the court is explicitly granted a discretion to order that the ultimate limitation period be extended if the plaintiff was incapacitated at the commencement of, or became incapacitated, during that period.55

Impact of successive confirmations 23.12 The enactment of an ultimate limitation period may also impact on the efficacy of confirmations. As is noted elsewhere, effective confirmations — whether by acknowledgement or part payment — operate to restart the primary limitation period,56 but if subject to an ultimate limitation period cannot have this effect once the latter period has expired. The attendant scope for a neutering of successive confirmations over an extended period of time could, the British Columbia Law Institute has suggested, threaten the efficacy of commercial arrangements involving long-term financing.57 This prompted its recommendation, which later translated to statute,58 that confirmations should function to restart time running under the ultimate limitation period, just as they do under the primary limitation period. But this must be understood against a backdrop of a proposed ten year ultimate limitation period (later [page 495] enacted as 15 years). It may well be that had the ultimate limitation period

remained (as before) at 30 years,59 as it is in New South Wales,60 pressure to exclude confirmations from that period for commercial reasons would have abated.

Residual Discretion to Extend Time 23.13 Judicial discretion to extend time is a staple feature of the Australian limitations landscape, albeit confined to some causes of action (primarily personal injury claims) in most jurisdictions, but by way of a general power in the Northern Territory and South Australia.61 This was not a feature of seminal limitations statutes in the United Kingdom, and indeed awaited the second half of the twentieth century before surfacing in English and Australian law. When ventilated before the Wright Committee in 1936, it faced ‘formidable objections’, explained as follows:62 The exercise of such a discretion would no doubt present difficult problems to the court, and it is not easy to foresee how it would operate. In so far as it came to be exercised along welldefined principles, its chief merit — flexibility — would tend to disappear. On the other hand if it remained more or less impossible to predict from one case to another how the discretion of the court was going to be exercised, the fundamental benefit conferred by statutes of limitation, namely the elimination of uncertainty, would be prejudiced.

This fear of uncertainty inclined the Committee against a curial discretion to extend time, and so no such provision appeared in the Limitation Act 1939 (UK). Law reform bodies have reiterated uncertainty as the principal drawback of judicial discretion here, exposing defendants (and their insurers) to potentially open-ended liability, compounded by divergent approaches among judges in exercising the discretion.63 Beyond denying defendants the ‘repose’ that limitations law aims to foster,64 a further concern is that any judicial discretion in this context could ‘undermine the effectiveness of a fixed limitation period as a means of encouraging plaintiffs not to sleep on their rights, and cause a general slowing down of the process of proceeding with claims’.65 23.14 Even though recommending against a residual judicial discretion to extend time, the Wright Committee was not oblivious to its ‘obvious advantages’, which it saw in terms of eliminating cases of hardship and enabling shorter limitation periods to be prescribed.66 Others have similarly

envisaged judicial discretion as a vehicle to balance of relative hardships to the litigants to achieve a just result, but remain unconvinced that it should necessarily sacrifice consistency, especially where statute lists factors to inform its exercise.67 And the fears that judicial discretion may promote excessive delay may, it is said, pay insufficient regard to [page 496] plaintiffs’ own interest to pursue their claims expeditiously.68 In any event, merely to extend time is no assurance of success in the action, and so, as a matter of the merits, is no necessary cause of injustice to a defendant. The Tasmanian Law Reform Commission explained this latter point as follows:69 A decision by a court not to treat a claim as statute-barred does nothing more than allow the claim to be pursued in court. A plaintiff must prove all the elements of the claim usually in negligence. The case must be won. The extension is discretionary only, therefore it will remain open to a defendant to submit against the exercise of the court’s discretion to prevent a plaintiff bringing an old action before the courts on the basis that it would be unfair or otherwise prejudicial to the defendant.

23.15 Issues over the legitimacy or otherwise of conferring a residuary judicial discretion to extend time cannot be assessed independently of those going to the date from which time is to run for limitations purposes. If time is pegged from the date a cause of action ‘accrues’, there is a prospect, as revealed in the cases chiefly in the latent injury and damage sphere, that time could expire before the plaintiff knows of the cause of action.70 It is evident that giving courts discretion to extend time could rectify the unfairness of such an outcome.71 It may also dovetail into a shorter primary limitation period, a point explained as follows:72 There is an interaction between the length of the limitation period and the existence of provisions for extension of that period. The main argument for the lengthening of the limitation period is to prevent the exclusion of worthwhile cases, such as those involving latent injury and disease. However, all such cases will never be fairly accommodated under a rigid system of limitations running from the date of accrual of the cause of action; unless the period is so long as to be meaningless in terms of the rationale for limitations. There is always the risk that time will run, and even expire before the injury is discovered or reasonably discoverable. If, however, a satisfactory extension formula is found for such cases, there is no need for a lengthy primary limitation period.

Curial discretion, to this end, functions as a means of fostering ‘individualised justice’,73 taking into account the actual relative merits of plaintiff and defendant in each case. 23.16 The unfairness noted above could alternatively be confronted by altering the date from when time is to run, not from when the cause of action accrues, but from when the damage in question is reasonably discoverable. In England, and then in Australia, the potential for injustice in the latent personal injury context was originally addressed via a statutory ‘discoverability’ rule.74 Prima facie, if time does not run until the cause of action is reasonably discoverable by the plaintiff, prescribing a residual judicial discretion to extend time is ostensibly superfluous.75 [page 497] After all, the object of that discretion, namely to avoid injustice by reason of a cause of action becoming time-barred before it is discoverable, is fulfilled by discoverability principles.76 23.17 Yet in the (latent) personal injury sphere, both English and several Australian legislatures have succumbed to coupling discoverability with a judicial discretion to extend time,77 usually with regard to listed factors, in an effort to reduce any prospect of unfairness to a plaintiff who suffers latent injury.78 This ‘safety net’, it is said, ‘assumes that there may nevertheless be some rare but meritorious cases which may be unjustly statute-barred, according to the fixed period of the date of knowledge test’.79 It may, moreover, add flexibility in the discovery rule’s ‘predetermined and abstract balancing of interests’, where ‘every plaintiff who satisfies the statutory criteria is entitled to an extension regardless of the consequent hardship to a particular defendant’, and ‘[a]ny plaintiff who cannot satisfy the criteria is statute barred, regardless of the consequent hardship suffered by that plaintiff’.80 23.18 Also, to the extent that reasonable discoverability is prejudiced by any ultimate limitation period, there may be a more compelling justification to address latent injury via judicial discretion to extend time.81 The shorter

an ultimate limitation period, the greater the prospect that a victim of latent injury could be barred unless the court enjoys a discretion to lift that bar.82 Even so, this mischief may be alleviated by removing latent injury from the scope of any ultimate limitation period, as has transpired in New South Wales vis-à-vis the court’s discretionary extension of time in this context.83 ______________________________ 1.

2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13.

14. 15.

In a sense, the equitable doctrine of laches, within its parameters (as to which see 13.13–13.16), serves as an ultimate time bar. It has been suggested that laches ‘may provide a solution to the longstop date problem without the need for legislative intervention’: W S Schlosser, ‘Some Recent Developments in the Law of Limitation of Actions’ (1987) 25 Alberta L Rev 388 at 397. However, the author accepted that laches is not precise in its time frame, another commentator branding laches as ‘a rather unsatisfactory substitute for a long stop from the point of view of certainty’, as it works on a case-by-case basis, requiring the circumstances of each particular case to be considered: C French, ‘Time and the Blamelessly Ignorant Plaintiff: A Review of the Reasonable Discoverability Doctrine and Section 4 of the Limitation Act 1950’ (1998) 9 Otago L Rev 255 at 274. In any event, as French notes, translating laches into a more general doctrine in this regard would require its application to common law actions (which Australian law is against: see 13.2, 13.3) and to override an existing statutory bar (which remains unclear in Australian law: see 3.31, 3.32). UK 1833 s 16. UK 1833 s 17. UK 1874 s 5. NT s 36(4); Qld s 29(2)(b); SA s 45(3); Tas s 26(4); Vic s 23(1)(c). NSW s 51(1), as to which see 4.62–4.64. NSW ss 51(2), 60F–60J, discussed at 20.56–20.70. BCLRC 6. Limitation Act 1975 (BC) s 8, subsequently reiterated in Limitation Act 1996 (BC) s 8. See Law Reform Committee of South Australia, Claims for Injuries from Toxic Substances and Radiation Effects, No 87, 1985, p 27 (recommending the introduction of an ‘outside limit’ for the bringing of actions, to override both the discovery rule and discretionary extensions it also proposed, arguing that the 30 year period was the ‘usual limit of latency’ according to current scientific knowledge, though conceding that it might ‘not catch all latent injury’). As to reforms directed to discovery based rules see 22.16–22.25. Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, para 37. WALRC 36(I), p 68. See also WALRC 36(II), pp 145 (remarking that even a 30 year long stop period ‘might be too short to safeguard the interests of plaintiffs, especially in cases involving such diseases as asbestosis or mesothelioma, because such diseases have a very long latency period’), 166 (‘Virtually any period that may be chosen could be too short for some plaintiffs, and even a ten year period might be regarded as too long by some defendants’). Scottish Law Commission, Time Limits in Actions for Personal Injuries, Memo No 45, 1980, pp 8–9. Via the Prescription and Limitation (Scotland) Act 1984 (UK) s 2.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

28. 29. 30. 31.

32. 33. 34. 35. 36. 37.

38. 39.

WALRC 36(II), p 167. See also ALRI DP4, para 2.195 (identifying the objective of an ultimate limitation period as ‘to benefit the entire society of potential defendants by cleansing the slate as to any alleged breach of duty at some fixed point in time after it occurred’). WALRC 36(II), p 167. WALRC 36(II), p 145. NSWLRC 50, para 6.44. ACT s 40, as to which see 6.34. UK 1980 s 14B. NZ s 17(4), 17(6). In determining whether to make an order extending time, the court must take into account the factors listed in s 18. BCLI 19, p 6. BCLI 19, p 6. BCLI 19, p 7. See also ALRI DP4, p 156. BCLI 19, p 7. BCLI 19, p 8. Similar sentiments had been expressed a decade and a half earlier in ALRI DP4, p 156 (reasoning that ‘without an ultimate period, the entire society of potential defendants will remain subject to a tiny group of claims’, and that ‘[i]nsofar as alleged human transgressions are concerned, the slate should be cleaned at this time for the peace and repose of the collective society and its individual members’). See also Bowes v City of Edmonton (2008) 86 Alta LR (4th) 47; [2007] ABCA 347 at [158] per Côté JA (‘After 10 years, witnesses and records often become hard to locate in our fast-moving society. And memories certainly fade very badly’). Limitation Act 2012 (BC) s 21(1). NSW s 51(1), as to which see 4.62–4.64. See, for example, BCLI 19, pp 16–18; ILRC paras 3.32–3.63. See Limitations Act 2000 (Alta) s 3(1)(b) (‘10 years after the claim arose’; when a claim ‘arises’ is prescribed in s 3(3)); Limitation Act 2012 (BC) s 21(1) (15 years ‘after the day on which the act or omission on which the claim is based took place’); Limitation of Actions Act 2009 (NB) s 5(1) (b) (15 years from ‘the day on which the act or omission on which the claim is based occurred’); Limitations Act 2002 (Ont) s 15(2) (15 years from the ‘day on which the act or omission on which the claim is based took place’); Limitations Act 2004 (Sask) s 7(1) (15 years ‘from the day on which the act or omission on which the claim is based took place’); NZ s 11(3)(b) (‘15 years after the date of the act or omission on which the claim is based’). NSW s 50C(1) (see 7.43, 7.44); Tas s 5A(3) (see 7.67); Vic s 27D(1) (see 7.43, 7.44). See 22.15, 22.16. See 7.13. See 7.4–7.6. See 6.5–6.29. BCLI 19, p 18. The Ministry of Attorney General of British Columbia, in 2010 paper, likewise favoured the ‘act or omission model of commencement’ rather than the date of accrual: British Columbia Ministry of Attorney, General Justice Services Branch, Civil Policy and Legislation Office, White Paper on Limitation Act Reform: Finding the Balance, September 2010, p 32. See generally Ch 15. Limitations Act 2000 (Alta) s 4(1) (cf ALRI DP4, pp 294–5); Limitation of Actions Act 2009

40. 41. 42. 43. 44. 45.

46. 47. 48. 49. 50. 51. 52. 53.

54.

55.

56. 57. 58.

59. 60.

(NB) s 16; Limitations Act 2002 (Ont) s 15(4)(c); Limitations Act 2004 (Sask) s 17. NZ s 48(1) (see NZLC 6, para 303). BCLI 19, pp 8–9. NSW s 51(1), as to which see 4.62–4.64. Limitation Act 2012 (BC) s 21(3). NSW s 51(1), as to which see 4.62–4.64. Limitations Act 2000 (Alta) s 5(2) (subject to a notice to proceed procedure); Limitation Act 2012 (BC) s 21(2)(d) (subject to discoverability pursuant to a notice to proceed) (pursuant to BCLI 19, pp 21–4, which rejected a longer ultimate limitation period for minors as inconsistent with a policy of keeping the number of different ultimate limitation periods to a minimum: p 21); Limitation of Actions Act 2009 (NB) s 17; Limitations Act 2002 (Ont) s 15(4)(b); Limitations Act 2004 (Sask) s 8(1)(a). As to the operation of notice to proceed procedures in this context see 14.49–14.53. NZ s 44. See Law Com 270, paras 3.99–3.107. Law Com 270, paras 3.115–3.121. Law Com 270, paras 3.120. BCLI 19, pp 24–6; Law 270, paras 3.122–3.133 (albeit confined to non-personal injury cases). BCLI 19, p 25. Limitation Act 2012 (BC) s 21(2)(e). As to the operation of notice to proceed procedures in this context see 14.49–14.53. Limitations Act 2000 (Alta) s 5(1) (subject to a notice to proceed procedure) (see ALRI 55, p 78, reasoning that ‘the situation of a person under disability is significantly different from that of a person not under disability: while the person not under disability is able to make investigations and reasonable decisions, a person under disability is deemed not to have this capacity, no matter how much knowledge he may have obtained’); Limitations Act 2002 (Ont) s 15(4)(a); Limitations Act 2004 (Sask) s 8(1)(b). A similar recommendation has surfaced in Queensland, but has not been enacted: QLRC 53, p 134. Limitation of Actions Act 2009 (NB) s 18(1) (see New Brunswick, Office of the Attorney General, Commentary on Bill 28: Limitation of Actions Act, Office of the Attorney General, 2009, pp 12–13). Similar recommendations have issued in England and Singapore, but without statutory implementation: Law Com 151, p 302; SLRC, pp 64–5. NZ s 45(1), 45(2) (which apply also to the relevant primary limitation period). In determining whether to make an order extending time, the court is directed to take into account the factors listed in s 45(3). The same had been recommended (but not enacted) in Western Australia: WALRC 36(II), pp 430–2. See 17.8. BCLI 19, p 19. Limitation Act 2012 (BC) s 24. The same is clearly the position in New Zealand (NZ s 47(1), 47(2)) and appears to be the position in New Brunswick and Saskatchewan (Limitation of Actions Act 2009 (NB) s 19(1); Limitations Act 2004 (Sask) s 11(1)) but not in Alberta and Ontario (Limitations Act 2000 (Alta) s 8(2); Limitations Act 2002 (Ont) s 13(1)). See 23.1. NSW s 51(1), as to which see 4.62–4.64.

61.

62. 63.

64. 65. 66. 67. 68. 69. 70. 71.

72. 73.

74. 75.

76. 77. 78.

See Ch 19. A general discretion to extend time has been recommended, but not implemented, in Queensland: see QLRC 53, p 104. As to provisions for the judicial extension of time elsewhere see generally Chs 20, 21. Wright Committee, para 7. See, for example, WALRC 36(II), p 136; Law Com 151, pp 318–19; Law Com 270, para 3.158. See also N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 CLJ 589 at 596 (‘discretionary lifting of the limitation bar is bound to reduce the law’s predictability and consistency’, and a ‘hard-luck’ jurisdiction ‘encourages the bringing of dilatory claims which are made in the hope that the plaintiff can be admitted out-of-time’); K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 48 (‘a residual discretion would create even more uncertainty not only concerning when the discretion would be exercised, but the degree to which appellate courts would review a trial judge’s discretionary decision’). See 1.25–1.27. See, for example, WALRC 36(II), p 136. Wright Committee, para 7. Law Com 151, p 318; WALRC 36(II), p 137. WALRC 36(II), p 137. TLRC 69, p 32. See 7.4–7.6. As recommended in WALRC 36(I), paras 4.8–4.35 (namely a fixed primary limitation period running from the date of accrual of the cause of action, coupled with a general discretion, informed by prescribed factors, in the court to direct that the primary limitation period will not apply to a particular individual where the court considers it equitable so to do) and NSWLRC 50, paras 6.1–6.31 (implemented via the Limitation (Amendment) Act 1990 (NSW), which introduced ss 18A, 60A–60M into the Limitation Act 1969 (NSW), which were operative until 6 December 2002: see 20.47–20.70). See also TLRC 69, p 31. NSWLRC 50, para 6.8 (footnote omitted). NSWLRC 50, para 6.21. See also Firman v Ellis [1978] QB 886 at 911 per Ormrod LJ (who in the context of the discretion to extend time introduced by the Limitation Act 1975 (UK), observed that ‘individual justice has assumed greater importance than ever before’ and that ‘[o]ur legislature has realised that if it lays down firm rules, however carefully formulated and however many express exceptions, injustice will occasionally be done, for firm rules are inflexible and unable to take account of the hard case’). See 7.7–7.13. This explains why none of the Canadian provinces that have modernised their limitations statutes (namely Alberta, British Columbia, New Brunswick, Ontario and Saskatchewan) include a residual discretion. The same has been recommended in Manitoba, on the basis that ‘[p]ermitting any discretion simply invites applications to extend, unnecessarily increasing both the burden on the courts and the cost and unpredictability of litigation’: MLRC, p 41. K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 47–8. See generally Ch 20. NSWLRC 50, paras 6.24–6.27; WALRC 36(II), pp 181–2, 196–7 (speaking in terms of ‘a very narrow discretionary power’ to extend time ‘where the prejudice to the defendant in having to defend an action after the normal limitation period has expired, and the general public interest in

79.

80. 81.

82.

83.

finality of litigation, are outweighed by other factors’: p 196); Law Com 151, p 318 (‘Though the plaintiff may have had full knowledge of the facts giving rise to the proceedings, there may, perhaps, be circumstances where the plaintiff’s conduct in not bringing proceedings before the end of the limitation period was excusable. The existence of a judicial discretion enables the court to prevent injustice to plaintiffs in such a position’). TLRC 69, p 31 (but concludes that ‘[s]ince a discretion will always be necessary as a safety net, an effective overriding discretion is the best approach’ and ‘the discovery rule is an unnecessary intermediate stage’). NSWLRC 50, para 6.21. WALRC 36(II), pp 177–9; K Roach, ‘Reforming Statutes of Limitations’ (2001) 50 UNBLJ 25 at 48 (so as to ‘allow the legislature to select a shorter ultimate limitation period without precluding meritorious claims or exempting category of claims’). Cf WALRC 36(II), p 202 (where a reason why the Commission did not favour a 30 year ultimate limitation period, as in New South Wales, was its recommended curial discretion to extend time in certain exceptional cases). NSW ss 51(2), 60F–60J (as to which see 20.56–20.70).

[page 498]

CHAPTER 24

Challenging Time Bars Questioning the Rationales for Time Bars Sexual Abuse Claims Inaptness of rationales Alternatives to addressing the issues By reference to disability provisions Specific provision whereby time does not run Collapsing within a broader discoverability rule Resort to curial discretion Removal of time bar altogether

24.1 24.3 24.3 24.7 24.8 24.9 24.10 24.12 24.13

Questioning the Rationales for Time Bars 24.1 While there are those who speak ill of limitation periods altogether,1 whose views if taken to their logical conclusion would uproot any law of limitation, Parliaments and judges spanning the common law world continue to reflect and recognise the important rationales that underscore that law.2 This is not to say that those rationales are uniformly compelling in every instance, or that they should be approached with a veneration that precludes

any constructive criticism. Three rationales, in particular, have traditionally informed limitation periods. There is what is known as the ‘evidentiary’ rationale, which maintains that time bars prevent actions being brought at a time when evidence has become unreliable or non-existent. There is the ‘certainty’ (or ‘repose’) rationale, whereby defendants can achieve a certainty with respect to their potential liability, in turn encouraging the productive and efficient use of resources. Under the third rationale, often expressed in terms of ‘diligence’, time bars serve to discourage plaintiffs from ‘sleeping on their rights’. 24.2 None of these rationales have escaped query. As to the evidentiary rationale, it has been noted that a plaintiff who does not pursue an action promptly runs the risk of being unable to amass sufficient relevant evidence to prove his or her case.3 Whether for evidentiary reasons or otherwise, the plaintiff’s self interest in having an action heard promptly has moreover been branded as sufficient to prompt action, without a corresponding need for a limitation statute.4 [page 499] And, to the extent that questions over evidence are germane, the argument has been proffered that these are better addressed by the development of stricter rules of evidence.5 Particularly in relation to personal injury claims stemming from a defendant’s negligence, there have been various attacks on the certainty rationale. At a fundamental level, its inconsistency with the general principle of the law ‘against limiting the right of a person to seek redress for injury due to the negligence of another person’ has been noted.6 As has its inconsistency with litigation being in modern times understood as a positive vehicle for compensation, discouragement of negligence and the shifting of losses associated with personal injury.7 Moreover, to the extent that the availability of insurance has released potential defendants from the uncertainty associated with personal injury actions, questions over certainty

may abate8 (although this may overlook the need for defendants’ insurers to quantify risk, and that risks that cannot be quantified with at least some semblance of probability may prove uninsurable;9 the latter may, in any event, be an upshot of an unfettered curial discretion to extend time).10 Nor can it be assumed that the diligence rationale is unwaveringly convincing in every instance. The impact of limitations legislation on victims of latent injury and disease, in particular, cannot sensibly be justified by reference to the diligence rationale, as delay here is due to the imperceptibility of the injury, or its causation, not to any lack of diligence on their part.11 It is also not uncommon that lack of diligence in the prosecution of tort claims is the product of dilatory lawyers rather than their clients.12

Sexual Abuse Claims Inaptness of rationales 24.3 A scenario that has challenged the rationales for limitation periods perhaps more than any other involves delayed claims arising out of sexual abuse, often (allegedly) committed when the plaintiff was a child. Both commentators and law reform bodies have voiced concern as to the inaptness of the policies underscoring limitations time bars in this context. 24.4 The commercial dispute context in which the certainty or repose rationale for defendants derives its primary justification has been branded as ‘so greatly removed from the context of the incest case that it is inappropriate to extend, without inquiry, the logic of repose from one context to the other’.13 In instances of intentional conduct with grave and harmful consequences, ‘it is hard to see how the perpetrator ought to be entitled to repose; to know that if his conduct has gone undetected for a period of time … he is entitled to live his life thereafter [page 500]

with the comfort that his past conduct can no longer ground a legal claim’.14 To give repose here could encourage a perpetrator to threaten and terrify a victim into silence. To this end, a judge has remarked that ‘while there may be a public interest in granting certain classes of defendant statutory immunity from being sued after a defined time, there cannot be any public interest in protecting the perpetrators of sexual abuse from the consequences of their actions’.15 24.5 The concerns underscoring the evidentiary rationale are mollified because in cases of sexual abuse there is frequently no corroborative evidence, but just one person’s word against another. This in turn may work just as much against a plaintiff as it may a defendant. Queries over stale evidence ‘lacks convincing force when applied to the victims of sexual abuse’, it is said, partly because ‘the delay between the childhood abuse and the commencement of a proceeding may already run into many years in that the victim will lack capacity to sue in her own name until she turns [18] years of age’.16 The rules of evidence, moreover, aim to exclude unreliable or prejudicial evidence;17 sexual abuse cases are, in any event, unlikely to raise issues as to the preservation of documents or records.18 That the fairness of a criminal trial, which could likewise stem from acts of the kind in question and is not time-barred,19 is not necessarily prejudiced merely from the passage of time presents as a useful parallel here.20 24.6 Nor are questions of diligence, or ‘sleeping on one’s rights’, germane in this context, at least in cases where, as is not uncommon according to the research, there is a psychological disconnect in the plaintiff caused by the abuse. The point was explained by an Ontario Consultative Group back in 1991:21 [I]t is now recognized that in some circumstances the sexual assault will render the victim incapable of considering legal proceedings until many years after the event. These circumstances typically involve victims who were in a relationship of trust and dependency. Incest is a prime example, but recent experience reveals that other sexual abuses in relationships of trust have similar effects. A number of factors combine in these situations to render the victim incapable of initiating legal proceedings against the perpetrator: the nature of the act (personal violation), the perpetrator’s position of power over the victim and the abuse of that position act effectively to silence the victim. Moreover, until recently, many victims of sexual assault were subject to social disapproval based on the perception that they were somehow to blame. In these circumstances, it is not uncommon for such a victim to cope with the violation by dissociating from the assaultive events, so that they are forgotten altogether or

their emotional significance is denied. Many years of therapy may be required before the victim is able to confront the assailant. Where a victim was also physically, mentally or psychologically disabled at the time of the assault, another incapacitating factor is added to those above.

The literature reveals, to this end, a high probability that an adult survivor of childhood sexual abuse may not experience symptoms of the abuse for many years, experience symptoms but fail to recall the abuse, recall the conduct but not make the connection with any current suffering (whether by reason of denial, self-blame or a failure to name the conduct as wrongful), or otherwise remain unable, because of the pain and suffering it entails or a continuing [page 501] emotional or financial dependence on the perpetrator, to pursue proceedings.22 The foregoing combine to make it inaccurate to describe a putative plaintiff as lacking diligence.23

Alternatives to addressing the issues 24.7 Notwithstanding a general consensus within commentators that historic (child) sexual abuse should not fall within the standard limitations regime, there is no equivalent consensus as to the mechanics of how it should otherwise be accommodated. The main options are catalogued below.

By reference to disability provisions 24.8 It has been suggested that plaintiffs in sexual abuse cases, like plaintiffs in ‘mental incompetency cases’, are ‘persons for whom the controlling device of a limitation period makes little sense’, whose delay stems from ‘lack of knowledge and/or capacity and not to a wilful strategy to upstage defendants’.24 One solution, therefore, is to expand the concept of ‘disability’ for limitations purposes to make clear that sexual abuse, or at least certain forms of that abuse, fall within it. As time for limitation purposes does not ordinarily run for a plaintiff who is under a legal disability vis-à-vis

the relevant cause of action,25 on this approach only once the ‘disability’ has passed will time start running against the plaintiff. The sole law reform body to date that has so recommended proposed a ‘disability’ definition by reference to a person who is ‘unable, by reason of some or all of the matters on which an action is founded, to make reasonable judgments in respect of matters relating to the bringing of such action’.26 This definition parallels that adopted in the Limitation Act 2005 (WA),27 resting upon an Alberta precedent,28 but curiously without any overt intention to encompass victims of sexual abuse. It has not received support elsewhere, at least not for the purposes of encompassing sexual abuse cases, perhaps because of its capacity to stigmatise sufferers of sexual abuse as being disabled.

Specific provision whereby time does not run 24.9 A second option is found in Ontario’s 2002 Limitations Act. It involves a dedicated provision for assault, to the effect that the basic limitation period ‘does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition’.29 In one sense, the reference to incapacity resembles the disability option noted above, but this appears in a provision dedicated to assaults, and not only those of a sexual nature. It goes further in another way, too, by prescribing that in the event of sexual assault a plaintiff is presumed to have been incapable of commencing the proceeding earlier than it was commenced.30 The same is so for other assaults if a party thereto, when it was committed, had an intimate relationship with the plaintiff (or someone on whom the plaintiff was dependent, financially or otherwise).31 It follows that unless the defendant succeeds in [page 502] ousting this (seemingly weighty) presumption by admissible evidence, the claims in questions are essentially limitation-free.

Collapsing within a broader discoverability rule 24.10 A third option is to eschew any provision specific to sexual assault, and simply address the relevant concerns via a general discoverability rule. As noted elsewhere, discoverability rules entered in vogue as an avenue to address instances where a cause of action would have accrued, and thus time commenced to run according to ordinary limitations principles, without the knowledge of the plaintiff. This was so typically where the cause or occurrence of the injury or damage suffered was in some way latent. As the literature on adverse effects of sexual abuse speaks to a temporal or causative disconnect between the accrual of the cause of action and the moment it relevantly comes to the plaintiff’s knowledge,32 there may be sense in addressing the issue under a broader discoverability principle.33 Time would thus not commence to run until the injury in question is, in the circumstances, reasonably discoverable by the plaintiff.34 Sexual assault survivors, it has been suggested, ‘may have even stronger arguments for application of the discovery rule to their cases than do other tort plaintiffs’, because unlike the classic latent tort situation, for them ‘the psychological injury complained of is exactly what caused [their] delay in filing suit’.35 24.11 This is not to say that discoverability is a panacea in the sexual abuse arena. Case law from the United States, where courts have been willing to adopt a discoverability approach without any statutory foundation,36 has revealed inconsistencies in identifying the precise moment of discoverability.37 In this context, perhaps more so than others in which the discoverability rule has been applied or recommended, there are pressing issues when it comes to the balance between objective and subjective elements going to discoverability. It is clear that a purely objective approach here is unsuitable. Thomas J in W v Attorney-General38 [page 503] asked: ‘how sensible is the notion of a reasonable sexually-abused person?’, before elaborating as follows:39 It seems to me that the notion is incongruous. To postulate a woman who has been sexually

abused as a child and then suppose her to be reasonable in respect of matters relating to that abuse is almost a contradiction in terms. The contradiction would be plain if one were to speak of a ‘reasonable abnormal person’ or an ‘abnormal person acting reasonably’. Yet, the sexuallyabused woman will not behave ‘normally’. The vice in the construction of a hypothetical reasonable sexually-abused person lies in the tension between the way in which the Courts assume such a person will behave and the way in which a real victim, psychologically damaged and disadvantaged, will actually behave.

If, as a result, the application of the reasonable discoverability test to a sexual abuse victim means that his or her behaviour is to be assessed against the standard of a sexually abused person in his or her situation, ‘true objectivity is diminished if not abandoned’, remarked his Honour, as the victim is, in effect, being assessed against himself or herself.40 If so, there may be little scope for a defendant to counter the plaintiff so far as discoverability is concerned, at least not without compelling (and likely difficult to secure) medical evidence as to the plaintiff’s psychiatric state. And if this is the upshot of discoverability, it may in this environment be so little a hurdle as to practically deny a time bar.

Resort to curial discretion 24.12 Curial discretion to extend time has been, and remains, a common feature of Australian limitations law, with particular resonance in the personal injury sphere. Often seen as an alternative to a discoverability rule, it is no surprise that it should surface as a vehicle for addressing the specific problem of sexual abuse. Pursuant to law reform recommendations to this effect,41 this has proven the statutory path in New Zealand, where the Limitation Act 2010 contains a dedicated provision governing claims in respect of abuse of persons under 18 years of age. It applies to wholly or partly sexual abuse, or wholly non-sexual abuse, by one or more persons who are or include a (former) parent, step-parent or legal guardian, or a (former) close relative or associate of any such person.42 In each instance, ‘abuse’ means physical abuse, psychological abuse, or a combination of both.43 In these circumstances, the court may, if it thinks it just to do so upon an application for the purpose, order that monetary relief be granted in respect of the claim as if no limitation defence applies.44 In making this determination, the court must take into account statutorily prescribed factors.45 While the latter assists in giving greater certainty to the task, and thus the outcome, curial

discretion here, as in other contexts,46 suffers the unavoidable drawback of uncertainty. It may be queried whether victims [page 504] of abuse should, in addition to other hurdles in securing relief, be placed at the mercy of judicial discretion at the threshold.47

Removal of time bar altogether 24.13 While various jurisdictions have sought to address limitations difficulties in sexual abuse cases by tinkering with existing limitations law principles, the foregoing reveals that each has its drawbacks. As the traditional rationales for limitation periods appear to have little carriage when it comes to sexual abuse claims,48 it is not surprising that calls for abolition of time bars in this context49 have been heeded in some jurisdictions. In Australia this has to date ensued by way of dedicated provision in New South Wales and Victoria, via the Limitation Amendment (Child Abuse) Act 2016 (NSW) and the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic), respectively. In New South Wales it applies vis-à-vis sexual abuse, serious physical abuse and ‘connected abuse’50 perpetrated against a minor.51 In Victoria it is expressed to apply to an action founded on the death or personal injury of a person resulting from ‘an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse’ and ‘psychological abuse (if any) that arises out of that act or omission’.52 Actions of these kinds53 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury occurred, thus removing limitation bars entirely, including retrospectively.54 24.14 New South Wales and Victoria were hardly the first common law jurisdictions to oust limitation periods in the sexual abuse context. At least five Canadian provinces had already done so, albeit not by way of any uniform scheme. The simplest provision, found in New Brunswick, reads: ‘[t]here is no limitation period in respect of a claim for damages for trespass

to the person, assault or battery if the act complained of is of a sexual nature’.55 British Columbia removed the time bar for causes of action based on ‘misconduct of a sexual nature’ that ‘occurred while the person was a minor’ or on ‘sexual assault’ via its 1996 Act,56 which provisions were replicated in its 2012 successor.57 The Newfoundland and Labrador Limitations Act 1995 removes any limitation period for ‘misconduct of a sexual nature’ [page 505] committed against A while A was (i) under the care or authority of B,58 (ii) financially, emotionally, physically or otherwise dependent upon B, or (iii) a beneficiary of a fiduciary relationship with B.59 Beyond targeting assaults or misconduct of a sexual nature, the Saskatchewan and Manitoba statutes, as well as their current British Columbia counterpart, extend limitation-free status to assaults on a plaintiff while he or she is living in an intimate and personal relationship with the perpetrator, or is otherwise in a relationship of financial, emotional, physical or other dependency with that person (in British Columbia here extending to a person who contributed to, consented to or acquiesced in the assaults).60 ______________________________ 1. 2. 3. 4. 5. 6. 7. 8. 9.

See 22.6. These rationales are discussed at 1.15–1.28. TLRC 69, p 32. P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1670. Note, ‘Developments in the Law: Statutes of Limitations’ (1949-50) 63 Harv L Rev 1177 at 1186. Scottish Law Commission, Prescription and Limitation of Actions, Memo No 9, 1969, p 48. P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1646–7. P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1646. Law Reform Committee, Interim Report on Limitation of Actions, Personal Injury Claims, Cmnd 5630, May 1974, para 27; P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1672; NSWLRC 50, para 5.24.

10.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

21.

22.

23. 24.

25. 26. 27. 28. 29. 30. 31. 32. 33.

P J Kelley, ‘The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience’ (1978) 24 Wayne L Rev 1641 at 1675; NSWLRC 50, para 5.25. An alternative approach, whereby no limitation periods apply but the courts would have a discretion, upon application by a defendant, to preclude a matter proceeding for reasons of delay, suffers the same drawback (which explains why it did not find favour in NSWLRC 50, para 5.26). NSWLRC 50, para 5.22. TLRC 69, p 32. As to how the limitations law approaches this issue see 19.32–19.34, 20.20–20.24. J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 188. J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 188. W v Attorney-General [1999] 2 NZLR 709 at [79] per Thomas J. See also NZLC PP39, p 19. W v Attorney-General [1999] 2 NZLR 709 at [80] per Thomas J. W v Attorney-General [1999] 2 NZLR 709 at [81] per Thomas J. NZLC PP39, p 19. See 3.25. J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 189–96 (but at the same time viewing criminal law avenues of address as insufficient because a civil claim has a beneficial therapeutic impact, a civil action ‘quite literally brings home the broader message that family members are accountable directly to each other’ and, for many survivors, an award of damages is important because abuse manifests itself not only in psychological scars, but in financial loss (including need for therapy): at 183–4). Ontario Limitations Act Consultation Group, Recommendations for a New Limitations Act, 1991, p 20. See also B Matthews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 Torts LJ 239 at 243–4. J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 181. See also A C L Mullis, Compounding the Abuse? The House of Lords, Childhood Sexual Abuse and Limitation Periods’ (1997) 5 Med L Rev 22 at 24–9. A Marfording, ‘Access to Justice for Survivors of Child Sexual Abuse’ (1997) 5 Torts LJ 221 at 252; W v Attorney-General [1999] 2 NZLR 709 at [82] per Thomas J. J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 216 (who nonetheless called for exemption of incest claims from limitations bars: at 218–22). See generally Ch 14. NZLC PP39, p 29. WA s 3(1) (see WALRC 36(II), pp 412–13). Limitations Act 2000 (Alta) s 1(h)(ii) (and see ALRI 55, p 41). Limitations Act 2002 (Ont) s 10(1) (emphasis supplied). Limitations Act 2002 (Ont) s 10(3). Limitations Act 2002 (Ont) s 10(2). See 24.6. Indeed, the comprehensive statutory scheme introduced into New South Wales and Victoria

34.

35. 36.

37.

38. 39.

40.

41. 42. 43. 44.

found in the Limitation Act 1969 (NSW) Pt 2 Div 6 and the Limitation of Actions Act 1958 (Vic) Pt IIA (see generally 7.36–7.57), being phrased in terms of the discoverability of personal injury, ‘regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise’ (NSW s 50A(1); Vic s 27B(1)) seems particularly amenable to application in the event of (child) sexual abuse: see B Matthews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 Torts LJ 239 (who ultimately recommends the enactment of equivalent legislation in the remaining Australian jurisdictions so as to avoid injustices and forum shopping: at 253–6). See also Law Com 270, paras 4.31, 4.32 (which endorsed its provisional recommendation, in Law Com 151, pp 333–6, that the general scheme there proposed — three years from discoverability with a longstop of 30 years from the date of abuse, with postponement for minority or adult disability — could adequately address claims by victims of child sexual abuse). Nova Scotia is unusual, to this end, in prescribing what is essentially a discoverability rule specific to ‘actions for assault, menace, battery or wounding based on sexual abuse of a person’: Limitation of Actions Act 1989 (NS) s 2(5). In this sphere, the legislation states that ‘the cause of action does not arise until the person becomes aware of the injury or harm resulting from the sexual abuse and discovers the causal relationship between the injury or harm and the sexual abuse’ and the limitation period ‘does not begin to run while that person is not reasonably capable of commencing a proceeding because of that person’s physical, mental or psychological condition resulting from the sexual abuse’. J B Lamm, ‘Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule’ (1991) 100 Yale LJ 2189 at 2198. Unlike courts in England and Australia on the whole: see 7.4–7.6. In many States now, discoverability has received a statutory foundation, following the lead of Washington in 1989: see generally M Frasca, ‘Tolling the Statute of Limitations in Childhood Sexual Abuse Civil Cases’ (2000) 11 J Contemp Legal Issues 45. See J B Lamm, ‘Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule’ (1991) 100 Yale LJ 2189 at 2191 (noting that some courts allowed application of the discovery rule regardless of whether the plaintiff completely repressed the memory of the abuse whereas others took a more restrictive approach, limiting discovery rule application to those cases in which the plaintiff blocked out all memory of the incestuous experience, recalling it only as an adult). [1999] 2 NZLR 709 at [60]. W v Attorney-General [1999] 2 NZLR 709 at [61]. See also at [127] per Salmon J (remarking that a judge ‘must not replace the victim with a construct of his or her own and then apply the objective test to that construct’ because ‘[w]hen dealing with psychological damage one is necessarily dealing with a state of mind which must differ from that of the reasonable person who is so often the focus of assessment in arguments of this nature’). W v Attorney-General [1999] 2 NZLR 709 at [65]. Cf at [109] per Tipping J (nonetheless espousing an ‘external standard of reasonableness’ to the individual intending plaintiff, ‘but in the light of such characteristics, problems and difficulties which affect that plaintiff’). See NZLC MP16, paras 33–7. The same has been recommended, but not implemented, in Queensland: QLRC 53, p 170. NZ s 17(2). NZ s 17(3). NZ s 17(6).

45. 46. 47.

48. 49.

50.

51. 52. 53.

54. 55. 56. 57. 58. 59. 60.

These are listed in NZ s 18. See 23.13. Cf WALRC 36(II), pp 255–7 (which recommended against any dedicated provision relating to (child) sexual assaults, in the belief that a discovery rule coupled with a curial discretion to extend time would be sufficient to address the issues; the judicial discretion, it surmised, ‘avoids the need to create a rule special to a particular class of plaintiffs’ and allows the court to retain ‘the flexibility to deal with cases which do not fit the paradigm, for example where the plaintiff has unreasonably delayed, or the defendant has been significantly prejudiced by loss of evidence’: p 257). See 24.3–24.6. See, for example, J Mosher, ‘Challenging Limitation Periods: Civil Claims by Adult Survivors of Incest’ (1994) 44 UTLJ 169 at 218–22; A Marfording, ‘Access to Justice for Survivors of Child Sexual Abuse’ (1997) 5 Torts LJ 221 at 250–3; L Sarmas, ‘Mixed Messages on Sexual Assault and the Statute of Limitations: Stingel v Clark, The Ipp “Reforms” and an Argument for Change’ (2008) 32 MULR 609 at 636–7. ‘Connected abuse’ refers to ‘any other abuse perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse)’: NSW s 6A(2)(c). To remove doubt, s 6A(3) states that connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. NSW s 6A(2). Vic s 27O(1). Other than, in Victoria, compensation to relatives actions (under Pt III of the Wrongs Act 1958 (Vic)). For compensation to relatives actions relating to the abuse of minors, a three year limitation period applies, running from the date on which the cause of action is discoverable (as determined under Vic s 27F: see 7.45) by the plaintiff: Vic s 27Q(1). This period can, however, be extended: Vic s 27O(4) (the extension being effected by application to the court under Vic Pt IIA Div 3: see 20.75). The New South Wales provision is, conversely, expressed to extend to a cause of action arising under the Compensation to Relatives Act 1897 (NSW): NSW s 6A(5)(a). NSW s 6A(1), Sch 5 Pt 3; Vic ss 27P(1), 27P(2), 27Q(2). Limitation of Actions Act 2009 (NB) s 14.1. Limitation Act 1996 (BC) s 3(4)(k), 3(4)(l). Limitations Act 2012 (BC) s 3(1)(i), 3(1)(j), operative from 1 June 2013. Whether a person, organisation or agency. Limitations Act 1995 (NL) s 8(2). Limitations Act 2012 (BC) s 3(1)(k); Limitation of Actions Act (Man) s 2.1(2) (being a response to the decision of the Manitoba Court of Appeal in MM v Roman Catholic Church of Canada (2001) 205 DLR (4th) 253; [2001] MBCA 148, which applied the 30 year ultimate time bar, which started on the day of the relevant act or omission (including sexual assaults), to the claim in question); Limitations Act 2004 (Sask) s 16(1) (replicating an equivalent provision inserted into the former Limitation of Actions Act 1978 (Sask) s 3(3.1) via a 1993 amendment).

Index References are to paragraph numbers A Accounts accrual …. 12.7 definition …. 12.4–12.6 time bar …. 12.2, 12.3 Acknowledgement of debt balance sheet entry …. 17.39–17.41 common law …. 17.1 formalities agency, via …. 17.37, 17.38 joint debtors, application to …. 17.60, 17.61 proof going to form …. 17.34 signature …. 17.35, 17.36 creditor made to…. 17.42, 17.43 liquidated claims, traditional restriction to …. 17.56, 17.57 nature of admission, meaning …. 17.24, 17.25 question of construction …. 17.29–17.33 without prejudice privilege …. 17.26–17.28 Queensland, Tasmania and Victoria multiple parties …. 17.15–17.20 part payments …. 17.12–17.14 South Australia …. 17.21–17.23

statutory development post-1939 …. 17.5–17.7 pre-1939 …. 17.2–17.4 temporal coincidence between …. 17.44–17.46 Territories, New South Wales and Western Australia confirmation, effect …. 17.10 confirmation, meaning …. 17.9 confirmation, vis-à-vis interest and income recovery …. 17.11 timing …. 17.54, 17.55 unliquidated claims, extension to …. 17.58, 17.59 voluntariness …. 17.53 Acquiescence …. 13.7–13.10 Admiralty actions extension of time …. 21.30–21.33 time bar …. 12.17–12.20 Adverse possession …. 8.25 actual, open, manifest and exclusive …. 8.26–8.29 commencement …. 8.30–8.33 joint owners …. 8.34 Animus possidendi …. 8.24 Anticipatory breach of contract …. 5.15 Arbitral award accrual …. 12.16 time bar …. 12.15 Arbitration …. 3.12 Arbitration proceedings cause of …. 12.12 commencement …. 12.11 ouster …. 12.14 time bar …. 12.10 time suspended …. 12.13

Arrears of income …. 5.10 Arrears of interest …. 5.7–5.9 B Balance sheet entry acknowledgement of debt …. 17.39–17.41 Banker-customer relationship recovery of moneys …. 5.33, 5.34 Breach of condition recovery of land …. 8.43–8.45 Breach of contract …. 5.11 anticipatory …. 5.15 indemnities …. 5.12 sale of goods …. 5.13 single promise …. 5.14 Building actions …. 6.33–6.44 C Cause of action accounts see Accounts accrual contract, impact of …. 4.37–4.41 death, impact of …. 4.42–4.44 limitation periods …. 4.33, 4.34 time runs from day after …. 4.35, 4.36 acknowledgement of debt see Acknowledgement of debt admiralty action see Admiralty action arbitral award see Arbitral award arbitration proceedings see Arbitration proceedings contractual see Contractual causes of action contribution see Contribution

defamation see Defamation causes of action disability see Disability equity see Equity judgments see Judgments land see Land money under statute see Money under statute mortgages see Mortgages no interruption once time runs general rule …. 4.45, 4.46 general rule, qualifications …. 4.47, 4.48 part payment of debt see Part payment of debt personal injury see Personal injury public authorities see Public authorities tortious see Torts trusts see Trusts when running of time ends …. 4.49 commencement of proceedings …. 4.50–4.55 estoppel or waiver …. 4.61 expiry in New South Wales …. 4.62 external event …. 4.56 subject to default in South Australia …. 4.65, 4.66 terms of contract …. 4.57 Causes of action accrued to plaintiff …. 4.3 action, meaning …. 4.11–4.13 counterclaim and set-off …. 4.18–4.23 focus on facts material to be proven …. 4.4–4.6 fraud see Fraud impact of unfulfilled procedural steps …. 4.7–4.9 joint …. 4.16, 4.17 mistake see Mistake

multiple …. 4.14, 4.15 need for plaintiff …. 4.10 single period …. 4.2 tied to particular types …. 4.1 Challenging time bars questioning rationales …. 24.1, 24.2 sexual abuse claims alternatives to addressing issues …. 24.7–24.14 inaptness of rationales …. 24.3–24.6 Child abuse sexual abuse see Sexual abuse claims time bars alternative approach …. 7.27 discoverability …. 7.23–7.25 ouster …. 7.26 Childbirth Western Australian regime …. 7.90, 7.91 Commencement of proceedings ending of running of time …. 4.50 by agent …. 4.52, 4.53 only for purposes of action in question …. 4.51 ending of running of time identifying date …. 4.54, 4.55 Common law acknowledgement and part payment of debt …. 17.1 statute of limitation …. 1.5 Commonwealth statute of limitations, application to identifying statute to be applied …. 3.7–3.10 interaction between Commonwealth and State law …. 3.4–3.6 Concealment see Fraudulent concealment Constructive trusts …. 10.33–10.37

Contract breach see Breach of contract Contractual causes of action …. 5.1 Australian Capital Territory …. 5.4 arrears of interest …. 5.9 seaman’s wages …. 5.5 breach of contract …. 5.11 anticipatory …. 5.15 indemnities …. 5.12 sale of goods …. 5.13 single promise …. 5.14 New South Wales …. 5.2 arrears of income …. 5.10 arrears of interest …. 5.7 frustrated contracts …. 5.6 seaman’s wages …. 5.5 Northern Territory …. 5.2 arrears of income …. 5.10 seaman’s wages …. 5.5 quasi-contractual claims …. 5.35 accrual …. 5.40 current usage …. 5.37 implied contract foundation rejected …. 5.36 money paid under mistake …. 5.38, 5.39 Queensland …. 5.2 seaman’s wages …. 5.5 recognisance accrual at date of breach …. 5.47 Australian jurisdictions …. 5.46 definition …. 5.45 recovery of moneys …. 5.16 accrues when work completed …. 5.17

on demand …. 5.19–5.24 ouster …. 5.25 ouster, banker-customer relationship …. 5.34 ouster, contractual expression …. 5.26–5.29 ouster, contractual implication …. 5.30–5.32 terms important …. 5.18 South Australia …. 5.2 arrears of interest …. 5.8 seaman’s wages …. 5.5 specialty accrual at date of breach …. 5.44 Australian jurisdictions …. 5.42 definition …. 5.41 no special regime required …. 5.43 Tasmania …. 5.2 arrears of interest …. 5.8 seaman’s wages …. 5.5 Victoria …. 5.2 arrears of interest …. 5.8 seaman’s wages …. 5.5 Western Australia …. 5.4 arrears of interest …. 5.9 seaman’s wages …. 5.5 Contribution …. 12.21 South Australia …. 12.29 sui generis action …. 12.22 Tasmania …. 12.30 Territories, New South Wales, Queensland and Western Australia accrual …. 12.24 limitation period …. 12.23

extension of time …. 12.27, 12.28 principal cause of action, meaning …. 12.26 Victoria …. 12.31 Counterclaim and set-off causes of action …. 4.18–4.23 Criminal prosecutions excluded from limitations legislation …. 3.25 Crown defence of laches …. 13.13 protection when performing duties …. 12.32 recovery of land …. 8.9–8.11 statute of limitations, application to no exclusions …. 3.2 yielding to contrary provision …. 3.3 D Damages actions in tort, accrual actual compared with prospective/contingent damage …. 6.8–6.13 overlap between contract and tort …. 6.16, 6.17 prospective damage stemming from actual damage …. 6.14, 6.15 tied to proof of damage …. 6.5–6.7 Decisive character personal injury actions, Queensland and earlier New South Wales and Victorian regimes appropriate advice, definition …. 20.104 of a decisive character, meaning …. 20.95–20.99 discharging onus …. 20.100–20.103 Defamation accrual date of publication …. 6.47

multiple publication rule …. 6.48 Extension of time onus …. 21.5–21.10 period of …. 21.28, 21.29 statutory provisions …. 21.2–21.4 subjective versus objective inquiry from plaintiff’s perspective …. 21.11 extension of time, factors going to issue of …. 21.12 delay necessary to substantiate case …. 21.22, 21.23 delay pending completion of other proceedings …. 21.24–21.27 involvement in non-litigious process …. 21.19–21.21 lack of funds to pursue action …. 21.18 unawareness of publication …. 21.13–21.17 limitation period extension of time …. 6.46 one year standard …. 6.45 Defence of laches see Laches…. 1.3, 1.5 Defendants counterclaims and set-offs …. 4.18–4.23 oppression to …. 1.23, 1.24 peace or repose …. 1.25–1.27 pleading statute …. 2.6, 2.9, 2.16 appeal on interlocutory issue …. 2.17 impact of failure …. 2.7 insolvency administrator …. 2.14 personal representative …. 2.10–2.12 purpose …. 2.15 timing …. 2.18 trustee …. 2.13 waiver …. 2.8 pleading, onus of proof …. 2.19–2.22 Definitions

account …. 12.4–12.6 acknowledgment of debt …. 17.6 action …. 4.11 appropriate advice …. 20.104 awareness …. 20.62 based on fraud …. 15.15 benefit of a confirmation …. 17.10 beyond the seas …. 14.30 breach of duty …. 7.34, 7.73 cause of action …. 4.4 cause of action to recover land …. 8.7 causes of action …. 3.25 confirmation …. 17.9 confirms a cause of action …. 17.9 constructive trust …. 10.33 custody …. 14.20 date of discoverability …. 7.67, 20.121 deceit …. 15.16 delay …. 20.13 deliberate concealment …. 15.36 disabled person …. 14.12 discontinuance …. 8.24 dispossession …. 8.24 equitable action …. 3.27 express trust …. 10.32 fault …. 7.51 fraud …. 10.22, 10.23, 15.27–15.31 future interest …. 10.27 imputed knowledge …. 20.70 knowledge …. 20.62 land …. 8.7

limitation period for the principal action …. 12.23 mental condition …. 14.14 mental disability …. 7.83, 14.32 nature or extent of personal injury …. 20.64, 20.65 other equitable relief …. 3.26 penalties and forfeitures …. 11.12 person through whom another person claims …. 3.11 personal injury …. 7.33, 7.70, 7.83 possession …. 9.4 principal cause of action …. 12.25 quasi contract …. 5.35 reasonable diligence …. 16.13 recognisance …. 5.45 recoverable by virtue of an enactment …. 11.14 for relief from the consequences of a mistake …. 16.9 resulting trust …. 10.32 revenue amount …. 11.18 simple contract …. 5.3 specialty …. 5.41 statute of limitation …. 1.4 substantially impeded …. 14.15 toll …. 1.6 torts actionable …. 6.4 trust …. 10.30 under a disability …. 7.55, 14.12, 14.17, 14.23, 14.29 unsound mind …. 14.23, 14.25 Deliberate concealment …. 15.36–15.40 Derived rights …. 3.11 Disability …. 14.1 extension of time, distinguished …. 14.4

impact on limitation …. 14.2, 14.3 mental incapacity, distinguishing capacity and incapacity …. 14.43–14.45 intermittent (in)capacity …. 14.46–14.48 New South Wales and Victoria post-Ipp regime …. 7.54–7.57 notice to proceed triggering time …. 14.49 Australian Capital Territory …. 14.50 New South Wales …. 14.51 Northern Territory …. 14.52 Tasmania …. 14.53 onus of proof …. 14.7 Queensland, Tasmania and Victoria under a disability and unsound mind, meaning …. 14.23–14.26 exceptions and qualifications …. 14.19 impact of war …. 14.27 suspension of the running of time …. 14.18 Tasmania, custody of parent …. 14.20–14.22 South Australia absence beyond the seas …. 14.30 under a legal disability, meaning …. 14.29 suspension of the running of time …. 14.28 supervening, application …. 14.5, 14.6 Territories and New South Wales under a disability, meaning …. 14.12–14.16 disability, meaning …. 14.13 exceptions and qualifications …. 14.11 incarceration of plaintiff …. 14.17 suspension of the running of time …. 14.9, 14.10 ultimate time bar, commencement …. 23.9–23.11 Western Australia …. 14.31 defendant in close relationship with minor or person with mental disability …. 14.38

extension of time for minor or person under mental disability with guardian …. 14.39–14.42 mental disability, meaning …. 14.32 persons under 18 when cause of action accrues …. 14.33 suspension of running of time, minority or disability without a guardian …. 14.34–14.37 Discoverability advantages and drawbacks …. 22.16–22.25 child abuse …. 7.23–7.25 personal injury, New South Wales and Victoria post-Ipp regime …. 7.36 personal injury, Tasmanian regime …. 7.67 tort, in …. 6.30–6.44 Discretion see Extensions of time E Equitable defences acquiescence see Acquiescence laches see Laches preservation interaction between time bars at law and equity …. 3.31, 3.32 statutory …. 3.30 Equity limitation periods by analogy …. 13.32–13.34 accounts …. 13.38, 13.39 contribution …. 13.37 discretion …. 13.40, 13.41 identifying …. 13.35, 13.36 statute of limitation …. 1.5 couching cause of action …. 3.29 equitable defences, preservation …. 3.30 interaction between at law and in equity …. 3.31, 3.32

statutory embracing …. 3.27, 3.28 traditional exclusion …. 3.26 Estoppel pleading precluded …. 4.61 Evidence statute of limitation achieving fair and just result …. 1.19 adducing expert evidence …. 1.20 decisions made on less evidence …. 1.21 discretion to extend time …. 1.22 loss or compromise of integrity …. 1.18 Express trust …. 10.32 defence of laches …. 13.27–13.29 Extension of time admiralty actions …. 21.30–21.33 defamation discharging the onus to extend time …. 21.5–21.10 factors going to issue of extending time …. 21.12–21.27 period of extension …. 21.28, 21.29 statutory provisions …. 21.2–21.4 subjective versus objective inquiry from plaintiff’s perspective …. 21.11 judicial discretion …. 23.13–23.18 personal injury actions see Extension of time for personal injury actions Extension of time for personal injury actions Australian Capital Territory and early Victorian regime …. 20.2, 20.3 application …. 20.4–20.6 duration of any disability …. 20.34–20.36 length and reasons for delay …. 20.13–20.24 onus of proof …. 20.7 plaintiff’s acts upon securing knowledge …. 20.37, 20.38 prejudice to defendant …. 20.25–20.33

relevance of merits of plaintiff’s case …. 20.39–20.43 relevant factors …. 20.8–20.12 certainty approach …. 18.1 costs of litigation appeal, on …. 18.23 first instance …. 18.17–18.22 discretion, appeals against …. 18.24–18.26 discretion, nature of …. 18.4 explanation for delay …. 18.13 judicially …. 18.5 merit of plaintiff’s case …. 18.9, 18.10 not premised on exceptional circumstances …. 18.6 prejudice to defendant …. 18.11, 18.12 relevant factors …. 18.7, 18.8 discretion, Northern Territory and South Australia additional condition: it is just to grant extension of time …. 19.22 alternative condition: ascertainment of material facts by plaintiff …. 19.13–19.20 constraints …. 19.6–19.9 delay attributable to plaintiff’s lawyer …. 19.32–19.34 pleading …. 19.10, 19.11 relevant factors …. 19.24, 19.25 scope …. 19.1, 19.2 second alternative condition: delay caused by representations or conduct by defendant …. 19.21 evidence to establish the right of action …. 20.110, 20.111 impact of plaintiff’s disability …. 20.117 material facts …. 20.90–20.94 means of knowledge …. 20.105–20.109 overview of discharging onus under s 31(2) …. 20.89 provision for extending time …. 20.78–20.88

residual discretion – focus on prejudice …. 20.112–20.116 expiry of time and discretion to extend …. 18.14–18.16 New South Wales and Victorian regimes current …. 20.71 application of provisions …. 20.72 discretion to extend time …. 20.73 New South Wales …. 20.74, 20.77 Victoria …. 20.75, 20.76 New South Wales regime between 1990 and 2002 …. 20.44 causes of action between 1990 and 2002 …. 20.47, 20.48 curial approach to factors …. 20.53, 20.54 effect of order extending time before 2002 amendments …. 20.55 factors to be considered by the court …. 20.50–20.52 overview …. 20.49 pre-1990 causes of action …. 20.45, 20.46 New South Wales regime pre-2002 for latent injury matters to be considered for purposes of ss 60G and 60H …. 20.61–20.70 provision for extension of time …. 20.56–20.60 overriding …. 18.2 Queensland and earlier New South Wales and Victorian regimes decisive character, of a …. 20.95–20.104 Tasmanian regime as from 1 January 2005 …. 20.118 before 1 January 2005 …. 20.119, 20.120 date of discoverability …. 20.121 time bars imposed by other legislation …. 19.3–19.5 weight given to prejudice to defendant …. 19.26–19.31 Western Australian regime …. 20.122–20.124 External events when running of time ends …. 4.56 Extinction regimes

Australian Capital Territory …. 2.27, 2.31 New South Wales …. 2.26, 2.31 Queensland …. 2.26 South Australia …. 2.26 Tasmania …. 2.26 Victoria …. 2.26 Western Australia …. 2.26 F Fiduciary duty …. 3.29 Finality …. 1.1 multiple legal doctrines …. 1.3 speedy justice …. 1.2 statute of limitation …. 1.4 Forfeiture recovery of land …. 8.43–8.45 Fraud …. 15.1 Australian statutory schemes …. 15.9 accrual pegged to discoverability …. 15.20 Australian Capital Territory …. 15.10 based on fraud …. 15.15 concealment, language of …. 15.19 concealment of cause compared to fact …. 15.17, 15.18 extension of persons to whom time bar applies …. 15.23–15.26 fraud or deceit …. 15.16 New South Wales …. 15.10 Northern Territory …. 15.10 Queensland …. 15.11 South Australia …. 15.12 Tasmania …. 15.11 uberrimae fidei …. 15.21

Victoria …. 15.11 Western Australia …. 15.13 concealed …. 15.5, 15.6, 15.8 context …. 15.2, 15.3 definition …. 15.27–15.31 deliberate concealment …. 15.36–15.40 equity prevailing over common law …. 15.7 fraudulent concealment identity …. 15.34, 15.35 parameters …. 15.32, 15.33 pleading of …. 15.22 purchase by innocent third party …. 15.48 knowing and reason to believe …. 15.50 States and Territories …. 15.49 subsequent concealment …. 15.41–15.47 ultimate time bar, commencement of …. 23.7 Fraudulent breach of trust Australian Capital Territory …. 10.17–10.19 fraud, meaning …. 10.22, 10.23 New South Wales …. 10.17–10.19 Northern Territory …. 10.17–10.19 Queensland …. 10.20, 10.21 relationship with general fraud provisions …. 10.24, 10.25 South Australia …. 10.20, 10.21 Tasmania …. 10.20, 10.21 Victoria …. 10.20, 10.21 Fraudulent concealment …. 15.5, 15.6, 15.8 identity …. 15.34, 15.35 parameters …. 15.32, 15.33 Frustrated contracts …. 5.6 Future interests

land …. 8.39–8.42 trusts …. 10.26–10.28 G General extinction regimes New South Wales …. 2.28–2.30 I Income arrears …. 5.10 Indebitatus assumpsit …. 5.22 Indemnity cause of action …. 5.12 Innocent breach of trust accrual of action …. 10.12, 10.13 Australian Capital Territory …. 10.6 New South Wales …. 10.6, 10.10 Northern Territory …. 10.6, 10.10 Queensland …. 10.6–10.11 South Australia …. 10.14, 10.15 Tasmania …. 10.6–10.11 Victoria …. 10.6–10.11 Intentional torts personal injury actions …. 7.72–7.76 Interest recovery Australian Capital Territory …. 9.15 New South Wales …. 9.15 Northern Territory …. 9.15 Queensland …. 9.16, 9.17 real and personal property …. 9.20 secured debt …. 9.21

South Australia …. 9.18, 9.19 Tasmania …. 9.16, 9.17 Victoria …. 9.16, 9.17 Western Australia …. 9.15 Interest adjustment redemption by mortgagor …. 9.6 Interest arrears …. 5.7 Australian Capital Territory …. 5.9 South Australia …. 5.8 Tasmania …. 5.8 Victoria …. 5.8 Western Australia …. 5.9 Interest reipublic ut sit finis litium …. 1.2 Interlocutory injunctions defence of laches …. 13.22, 13.23 J Joint tenants adverse possession …. 8.34 Judgments time bar …. 12.8, 12.9 Judicial apprehension …. 5.12 L Laches acquiescence, compared with …. 13.7–13.10 application …. 13.2 impact of nature of claim …. 13.17 express trust, enforcement …. 13.27–13.29 interlocutory injunctions …. 13.22, 13.23 recovery of trust property …. 13.26

remedy …. 13.31 specific performance …. 13.18–13.21 subject matter …. 13.26–13.30 undue influence …. 13.24, 13.25 nature of …. 13.4–13.6 onus of proof …. 13.11 parameters …. 13.13–13.16 response to breadth of equity claims …. 13.3 time beginning to run …. 13.12 Land …. 8.1 accrual administrator of deceased estate …. 8.38 adverse possession …. 8.25–8.29 adverse possession, commencement …. 8.30–8.33 adverse possession, joint owners …. 8.34 deceased in possession …. 8.35 dispossession and discontinuance …. 8.24 forfeiture and breach of condition …. 8.43–8.45 future interests …. 8.39–8.42 grantor in possession …. 8.36 present interests …. 8.23 trust beneficiary in possession …. 8.37 expiry of time bar beneficiary’s claim against trustee …. 8.22 extinction of title …. 8.13, 8.14 extinction of title, effect …. 8.15–8.18 extinction of title, Torrens System land …. 8.19–8.21 leases land recovery from tenant …. 8.49–8.52 rent recovery …. 8.46–8.48 rent wrongly paid …. 8.53, 8.54

scope of application differential between States and Territories …. 8.2 equitable interests …. 8.3, 8.4 time bar for recovery …. 8.5, 8.6 action to recover land and action brought against land, distinguished …. 8.8 relevant terms …. 8.7 vis-à-vis Crown New South Wales …. 8.9 Queensland …. 8.11 South Australia …. 8.11 Tasmania …. 8.9, 8.10 Victoria …. 8.11, 8.12 Western Australia …. 8.11 Latent building defects discoverability …. 6.33 Australian Capital Territory …. 6.34 English law …. 6.35, 6.36 long-stop periods …. 6.41 shift in Australian case law …. 6.37–6.40 title …. 6.42–6.44 Law Reform (Limitation of Actions) Act 1954 (UK) …. 7.3 Leases land recovery from tenant …. 8.49–8.52 rent recovery …. 8.46–8.48 rent wrongly paid …. 8.53, 8.54 Lex fori …. 2.35 Limitation Act 1623 (UK) …. 1.8 account of action …. 12.4 acknowledgement of debt …. 17.1 amendment of pleadings …. 4.24

Australian Capital Territory …. 1.10 causes of action in equity excluded …. 3.26, 13.2, 15.2 defence of laches …. 13.2 disability beyond the seas …. 14.30 suspension of running of time …. 14.2 New South Wales …. 1.9 Queensland …. 1.10 six year period contract debt …. 9.11 no means of extension …. 18.1 personal injury actions …. 7.2 Tasmania …. 1.12 Limitation Act 1939 (UK) …. 1.10 account of action …. 12.4 acknowledgement of debt …. 17.5, 17.24 adverse possession …. 8.30 based on fraud …. 15.15 counterclaim …. 4.19 curial discretion to extend time excluded …. 23.13 fraud …. 15.27, 15.42 fraudulent concealment …. 15.8, 15.11, 15.32 land title, 30 year ultimate bar …. 4.62 mistake …. 16.5, 16.11, 16.15 overriding of time limits …. 18.2 part payment of debt …. 17.48 personal injury actions discretion to extend time …. 20.9 six year period …. 7.2 Victoria …. 1.13 Limitation Act 1963 (UK) …. 7.7, 20.79

Limitation Act 1975 (UK) …. 7.8, 18.2 Limitation Act 1980 (UK) …. 1.10 fraud and concealment …. 15.9, 15.37, 15.43 personal injury causes of action …. 7.9, 7.34, 20.9 Limitation periods accrual of cause of action …. 4.33, 4.34 impact of contract …. 4.37–4.41 impact of death …. 4.42–4.44 time runs from day after …. 4.35, 4.36 amendment of pleadings …. 4.24–4.32 causes of action accrued to plaintiff …. 4.3 action, meaning …. 4.11–4.13 counterclaim and set-off …. 4.18–4.23 focus on facts material to be proven …. 4.4–4.6 impact of unfulfilled procedural steps …. 4.7–4.9 joint …. 4.16, 4.17 multiple …. 4.14, 4.15 need for plaintiff …. 4.10 single period …. 4.2 tied to particular types …. 4.1 no interruption once time runs general rule …. 4.45, 4.46 general rule, qualifications …. 4.47 when running of time ends …. 4.49–4.66 Litigation costs extensions of time appeal, on …. 18.23 first instance …. 18.17–18.22 M

Material facts personal injury actions, Queensland and earlier New South Wales and Victorian regimes a fact as opposed to any of the facts …. 20.93 facts, meaning …. 20.91, 20.92 identifying …. 20.90 nature and extent of the personal injury so caused …. 20.94 Means of knowledge Queensland and earlier New South Wales and Victorian regimes …. 20.105 imputed knowledge excluded …. 20.106 objective and subjective inquiries …. 20.107, 20.108 when reasonable steps necessary …. 20.109 Mental incapacity distinguishing capacity and incapacity …. 14.43–14.45 intermittent (in)capacity …. 14.46–14.48 Minors disability, cause of action …. 14.33 defendant in close relationship …. 14.38 extension of time if with guardian …. 14.39–14.42 without guardian …. 14.34–14.37 personal injury, irrational failure to bring action …. 20.77 Mistake …. 16.1 common law and equity, compared …. 16.2–16.4 statutory response …. 16.5 mistake of law …. 16.14, 16.15 onus of proof on plaintiff …. 16.8 reasonable diligence, meaning …. 16.12, 16.13 for relief from the consequences of a mistake, meaning …. 16.9–16.11 States and Territories …. 16.6

third party purchase …. 16.7 Money under statute …. 11.1 accrual …. 11.6–11.10 recovery of amount paid by reason of mistake or invalidity …. 11.16 Australian Capital Territory …. 11.18 commonalities in statutory schemas …. 11.17 New South Wales …. 11.19 Northern Territory …. 11.20 Queensland …. 11.21 South Australia …. 11.22 Tasmania …. 11.23 Victoria …. 11.24–11.26 Western Australia …. 11.27 recovery of penalty or forfeiture …. 11.11 obligation penal or compensatory …. 11.13 penalty, meaning …. 11.12 recoverable by virtue of an enactment, meaning …. 11.14, 11.15 recovery, constraints New South Wales …. 11.28 South Australia …. 11.28 Tasmania …. 11.28 Victoria …. 11.28, 11.29 Western Australia …. 11.28, 11.30 time bar Australian Capital Territory …. 11.5 money recoverable by virtue of an enactment …. 11.3, 11.4 New South Wales …. 11.2 Northern Territory …. 11.2 Western Australia …. 11.5 Mortgages …. 9.1 interest, recovery of

Australian Capital Territory …. 9.15 New South Wales …. 9.15 Northern Territory …. 9.15 Queensland …. 9.16, 9.17 real and personal property …. 9.20 secured debt …. 9.21 South Australia …. 9.18, 9.19 Tasmania …. 9.16, 9.17 Victoria …. 9.16, 9.17 Western Australia …. 9.15 principal, possession or foreclosure by mortgagee Australian Capital Territory …. 9.7 New South Wales …. 9.7 Northern Territory …. 9.7, 9.8 other remedies barred …. 9.14 Queensland …. 9.9–9.11 South Australia …. 9.12, 9.13 Tasmania …. 9.9–9.11 Victoria …. 9.9–9.11 Western Australia …. 9.7 redemption by mortgagor adjustment of interest …. 9.6 limitation period and accrual …. 9.3–9.5 Torrens legislation …. 9.2 Motor accident compensation New South Wales …. 3.15–3.21 Queensland …. 3.22–3.24 Multiple debts …. 17.50–17.52 N Notice to proceed …. 14.49–14.53

O Onus of proof defence of laches …. 13.11 defendant pleading …. 2.19 Australian case law …. 2.20, 2.21 taking case outside of statute …. 2.22 disability …. 14.7 extension of time …. 2.22, 18.6 trusts …. 10.4 P Part payment of debt extension to unliquidated claims application vis-à-vis joint debtors …. 17.60, 17.61 modern translation …. 17.58, 17.59 traditional restrictions …. 17.56, 17.57 multiple debts owed …. 17.50–17.52 revival of action …. 17.47–17.49 timing …. 17.54, 17.55 voluntariness …. 17.53 Peace or repose …. 1.25–1.27 Personal injury, time bars …. 7.1 adverse consequences reduction in time …. 7.4, 7.5 statutory response, Australia …. 7.11–7.22 statutory response, United Kingdom …. 7.7–7.11 Australian Capital Territory regime …. 7.28 no extension avenue …. 7.29 provision of health services …. 7.30 child abuse

alternative approach …. 7.27 discoverability …. 7.23–7.25 ouster …. 7.26 extension of time see Extensions of time general six year limitation period …. 7.2 New South Wales and Victoria post-Ipp regime date cause of action is discoverable …. 7.45–7.52 date of discoverability …. 7.36 effect of disability …. 7.54–7.57 long-stop period …. 7.37 parameters of application …. 7.40–7.42 prescription of period …. 7.43, 7.44 special period for minors injured by close relatives …. 7.53 temporal application …. 7.39 translation to law …. 7.38 New South Wales pre-Ipp regime …. 7.31 application …. 7.32 breach of duty, application …. 7.35 breach of duty, definition …. 7.34 personal injury, definition …. 7.33 Northern Territory regime …. 7.58 extension of time …. 7.59 no limitation period for dust disease …. 7.60 Queensland regime …. 7.61 extension of time …. 7.62 Sexual abuse see Sexual abuse claims South Australian regime …. 7.63 extension of time …. 7.65 modification of limitation period …. 7.64 Tasmanian regime …. 7.66 date of discoverability …. 7.67

personal representative of deceased person …. 7.68 pre-1 January 2005 …. 7.69 three year limitation period …. 7.3 Victorian pre-Ipp regime …. 7.70, 7.71 insidious diseases …. 7.77, 7.78 intentional torts …. 7.72–7.76 knowledge of injury …. 7.79–7.82 Western Australian regime childbirth …. 7.90, 7.91 inhalation of asbestos …. 7.87–7.89 period and accrual …. 7.83–7.85 survival of certain actions …. 7.86 Personal injury actions, extending time Australian Capital Territory and early Victorian regime …. 20.2, 20.3 application …. 20.4–20.6 disability, duration …. 20.34–20.36 lawyer negligence …. 20.20–20.24 length and reasons for delay …. 20.13–20.24 onus of proof …. 20.7 on part of plaintiff …. 20.15–20.19 plaintiff’s acts upon securing knowledge …. 20.37, 20.38 prejudice to defendant …. 20.25–20.33 relevance of merits of plaintiff’s case …. 20.39–20.43 relevant factors …. 20.8–20.12 extensions of time …. 20.1 New South Wales and Victorian current regimes …. 20.71 application of provisions …. 20.72 discretion to extend time …. 20.73 New South Wales …. 20.74, 20.77 Victoria …. 20.75, 20.76

New South Wales regime between 1990 and 2002 …. 20.44 causes of action between 1990 and 2002 …. 20.47, 20.48 curial approach to factors …. 20.53, 20.54 effect of order extending time before 2002 amendments …. 20.55 factors to be considered by the court …. 20.50–20.52 overview …. 20.49 pre-1990 causes of action …. 20.45, 20.46 New South Wales pre-2002 regime for latent injury matters to be considered for purposes of ss 60G and 60H …. 20.61–20.70 provision for extension of time …. 20.56–20.60 Queensland and earlier New South Wales and Victorian regimes of a decisive character …. 20.95–20.104 evidence to establish the right of action …. 20.110, 20.111 impact of plaintiff’s disability …. 20.117 material facts …. 20.90–20.94 means of knowledge …. 20.105–20.109 overview of discharging onus under s 31(2) …. 20.89 provision for extending time …. 20.78–20.88 residual discretion …. 20.112–20.116 Tasmanian regime as from 1 January 2005 …. 20.118 before 1 January 2005 …. 20.119, 20.120 date of discoverability …. 20.121 Western Australian regime …. 20.122–20.124 Personal representatives breach of trust …. 10.7 Pleading limitation defence …. 2.16 appeal on interlocutory issue …. 2.17 purpose …. 2.15

onus of proof …. 2.19 Australian case law …. 2.20, 2.21 taking case outside of statute …. 2.22 timing …. 2.18 Pleading statute defendants …. 2.6, 2.9 impact of failure …. 2.7 insolvency administrator …. 2.14 personal representative …. 2.10–2.12 trustee …. 2.13 waiver …. 2.8 Possessory lien substantive rights extinguished by …. 2.31 Prejudice defence of laches …. 13.15 Procedural nature of limitation time bars …. 2.6–2.23 Public authorities Western Australia …. 12.32–12.35 Q Quantum meruit …. 5.35 Quasi-contractual claims accrual …. 5.40 current usage …. 5.37 implied contract foundation rejected …. 5.36 money paid under mistake …. 5.38, 5.39 R Rationales for limitation see Statutes of limitation Real and personal property interest recovery …. 9.20

Real Property Limitation Act 1833 (UK) …. 4.62, 8.5, 23.1 Recognisance accrual at date of breach …. 5.47 Australian jurisdictions …. 5.46 definition …. 5.45 Recovery of moneys …. 5.16 accrues when work completed …. 5.17 on demand …. 5.19–5.24 ouster …. 5.25 banker-customer relationship …. 5.34 contractual expression …. 5.26–5.29 contractual implication …. 5.30–5.32 terms important …. 5.18 Reforming time bars law reform body recommendations …. 22.2 Canada …. 22.5 focus …. 22.6 Ireland …. 22.3 New Zealand …. 22.3 overseas countries …. 22.3 South Australia …. 22.4 Limitation Act 1939 (UK), impact of …. 22.1 Remedial constructive trusts …. 10.37 Rent recovery …. 8.46–8.48 wrongly paid …. 8.53, 8.54 Res judicata …. 1.3 Resulting trust …. 10.32 Retrospectivity application to statutes …. 3.36–3.38 general principle …. 3.33–3.35

Running of time accrual-based approach advantages …. 22.13 drawbacks …. 22.14, 22.15 tort …. 6.4–6.29 act or omission approach …. 22.26 discoverability approach …. 22.16 addressing drawbacks …. 22.18 advantages …. 22.17 knowledge of corporate plaintiffs …. 22.23–22.25 objective versus subjective approach to knowledge …. 22.20–22.22 onus …. 22.19 tort …. 6.30–6.44 S Sale of goods contracts cause of action …. 5.13 Seaman’s wages …. 5.5 Secured debt interest recovery …. 9.21 Setting time bars general versus specific …. 22.7, 22.8 breakdown of common law and equity divide …. 22.9–22.11 duration …. 22.12 Sexual abuse claims alternatives to addressing issues …. 24.7 collapsing within broader discoverability rule …. 24.10, 24.11 curial discretion …. 24.12 reference to disability provisions …. 24.8 removal of time bat altogether …. 24.13, 24.14 specific provision whereby time does not run …. 24.9

inaptness of rationales …. 24.3–24.6 time bars …. 7.23–7.27 Signature acknowledgement of debt …. 17.35, 17.36 Single promises cause of action …. 5.14 Specialty accrual at date of breach …. 5.44 Australian jurisdictions …. 5.42 definition …. 5.41 no special regime required …. 5.43 Statute of Frauds Amendment Act 1828 (UK) …. 17.2 Statutes of limitation arbitrations, application to …. 3.12 Commonwealth, application to identifying statute to be applied …. 3.7–3.10 interaction between Commonwealth and State law …. 3.4–3.6 criminal prosecutions, application to …. 3.25 Crown, application to no exclusions …. 3.2 yielding to contrary provision …. 3.3 default, application by motor accident compensation, New South Wales …. 3.15–3.21 motor accident compensation, Queensland …. 3.22–3.24 relationship with other statutes …. 3.13, 3.14 derived rights, application to …. 3.11 equity, application to couching cause of action …. 3.29 equitable defences, preservation …. 3.30 interaction between at law and in equity …. 3.31, 3.32 statutory embracing …. 3.27, 3.28

traditional exclusion …. 3.26 historical context Australian Capital Territory …. 1.10 Commonwealth …. 1.14 English background …. 1.8 impact of common law of equity …. 1.5 lack of judicial activism in Australia …. 1.7 New South Wales …. 1.9 Northern Territory …. 1.11 Queensland …. 1.10 South Australia …. 1.11 Tasmania …. 1.12 United States …. 1.6 Victoria …. 1.13 legislation construing, impact on …. 1.35, 1.36 drafting, impact …. 1.34 non-procedural aspects limited extinction regimes …. 2.26–2.31 substantive provisions …. 2.24, 2.25 procedural nature …. 2.2 cast-iron defence to cause of action …. 2.3 defendant to plead statute …. 2.6–2.8 defendant, impact on costs order …. 2.23 defendant, onus of proof …. 2.19–2.22 defendant, pleading limitation defence …. 2.15–2.17 defendant, timing of pleading …. 2.18 expiry of time extinguishes right or title …. 2.4 pleading where defendant acts in representative capacity …. 2.9–2.14 retrospective application …. 2.5 rationales

balancing function …. 1.29 binary approach …. 1.30 not all compelling in any case …. 1.33 specific policy choices of legislatures …. 1.31 welfare of society …. 1.32 rationales for …. 1.15, 1.17 constant nature of …. 1.16 diligence …. 1.28 evidentiary …. 1.18–1.22 oppression to defendant …. 1.23, 1.24 peace or repose …. 1.25–1.27 retrospectivity application to statutes …. 3.36–3.38 general principle …. 3.33–3.35 Statute of Merton 1235 …. 1.8 Subsequent concealment …. 15.41–15.47 Substantive aspects of limitation law…. 2.24, 2.25 extinguished by contract …. 2.32 extinguished by statute …. 2.26 Australian Capital Territory …. 2.27, 2.31 New South Wales …. 2.28–2.31 outside provisions applied by court …. 2.33–2.40 Sui generis action …. 12.22 Supervening disability …. 14.5, 14.6 T Third party purchases fraud …. 15.48 mistakes …. 16.7 Tolling doctrines …. 1.6 Torrens land

extinction of title …. 8.19–8.21 mortgages …. 9.2 Torts …. 6.1 accrual …. 6.4 actual damage compared to prospective/contingent damage …. 6.8–6.13 contract and tort overlapping …. 6.16, 6.17 prospective damage stemming from actual damage …. 6.14, 6.15 tied to proof of damage …. 6.5–6.7 accrual, subsequent loss …. 6.18, 6.19 ouster where discrete cause of action …. 6.20–6.24 successive conversions …. 6.25–6.29 Australian jurisdictions limitation periods …. 6.2 limitation periods, exclusions …. 6.3 discoverability approach to running of time …. 6.30 latent building defects …. 6.33–6.44 personal injury see Personal Injury Actions Trade Practices Act 1974 (Cth) …. 13.23 Trust property recovery, defence of laches …. 13.26 Trusts …. 10.1–10.3 actions specific to each beneficiary …. 10.29 constructive Australian Capital Territory …. 10.36 New South Wales …. 10.36 Northern Territory …. 10.36 Queensland …. 10.34, 10.35 remedial …. 10.37 South Australia …. 10.34, 10.35 Tasmania …. 10.34, 10.35

Victoria …. 10.34 definition …. 10.30, 10.31 express …. 10.32 fraudulent breach of Australian Capital Territory …. 10.17–10.19 fraud, meaning …. 10.22, 10.23 New South Wales …. 10.17–10.19 Northern Territory …. 10.17–10.19 Queensland …. 10.20, 10.21 relationship with general fraud provisions …. 10.24, 10.25 South Australia …. 10.20, 10.21 Tasmania …. 10.20, 10.21 Victoria …. 10.20, 10.21 innocent breach of accrual of action …. 10.12, 10.13 Australian Capital Territory …. 10.6 New South Wales …. 10.6, 10.10 Northern Territory …. 10.6, 10.10 Queensland …. 10.6–10.11 South Australia …. 10.14, 10.15 Tasmania …. 10.6–10.11 Victoria …. 10.6–10.11 later accrual for future interests …. 10.26–10.28 onus of proof …. 10.4 resulting …. 10.32 Western Australia …. 10.5 U Uberrimae fidei …. 15.21 Ultimate time bars commencement

candidates …. 23.5, 23.6 disability, impact of …. 23.9–23.11 fraud or concealment, impact of …. 23.7 minority, impact of …. 23.8 successive confirmations, impact of …. 23.12 duration …. 23.1–23.4 New South Wales …. 4.62–4.64 Undue influence defence of laches …. 13.24, 13.25 Unliquidated claims application vis-à-vis joint debtors …. 17.60, 17.61 modern translation …. 17.58, 17.59 traditional restrictions …. 17.56, 17.57 V Vigilantibus et non dormientibus aesquitas succurit …. 13.2 Vigilantibus et non dormientibus succurunt jura …. 1.28 W Waiver pleading precluded …. 4.61 Without prejudice privilege acknowledgement of debt …. 17.26–17.28