A recent case in the United States has highlighted the importance of considering limitation periods (or, statute bars) before bringing an action to the Courts or Tribunals.
Spencer Elden, statute barred
When he was just four months old, Spencer Elden’s parents were approached by a photographer who asked if he could photograph the parent’s four month old baby underwater for an album cover for an up and coming band in exchange for US$200.00. The parents agreed and Mr Elden became famous for appearing on the cover of ‘Nevermind,’ an album by Nirvana which has sold over 30 million copies worldwide.
But in August 2021, Mr Elden, now thirty years old, brought an action against the photographer, the band members, and the record labels involved, alleging that the album cover was child pornography and that he had suffered emotional distress, loss of earning capacity and loss of enjoyment of life which continued into his adulthood as a result. Just over a year later though, a US District Court Judge threw dismissed Mr Elden’s case, stating that as he had learned of the album’s cover over 10 years ago, any loss suffered was outside the statute of limitations.
How limitation periods work
Mr Elden’s case is a timely reminder that no matter the strength of one’s claim, the law places time limits on your ability to bring an action to promote efficiency and expediency and avoid vexatious claims. Those time periods, known as ‘limitation periods’ mean that after a certain amount of time, you will be barred from being able to bring an action for loss suffered. This is also sometimes called being ‘statute barred’.
In New South Wales, many of these limitation periods can be found through the Limitation Act 1969 (NSW), although many other statutes also include their own limitation periods for key breach provisions. You should also be wary of when the ‘clock’ begins to run on these actions, because it differs according to circumstances. For example, home building disputes begin to run from the date that the building was completed, whilst actions by a liquidator must be brought within a time period from when the liquidator is appointed, providing far more length and duration to claims.
There are of course particular proceedings which have no time limit, pertinently in the criminal law space, because this would work against and constrain the pursuit of justice. For the lay person involved in a civil dispute though, limitation periods are an important consideration before deciding to bring an action, because litigation is a timely and costly exercise, which can all be wasted if an action is indeed actually statute barred.
Key limitation periods in New South Wales
Some important limitation period to know are as follows:
- 1 year for defamation from the date of publication;
- 6 years for negligence from the date that the alleged breach occurred;
- 3 years for a personal injury claim from the date that the action bringing about the injury occurred;
- 6 years for a breach of trust from the date of the alleged breach;
- 2 years for non-major defects in residential building work from the date the work was complete;
- 6 years for major defects in residential building work from the date the work was complete;
- 21 days for unfair dismissal from the date of the dismissal taking effect;
- 1 year for discrimination complaints from the date of the alleged act of discrimination;
- 6 years for a breach of directors’ duties from the date of the alleged breach; and
- 6 years for insolvent trading from the date of the appointment of the liquidator.
Before considering whether to commence proceedings, you should always ensure that any proceedings or claimed are filed within their appropriate jurisdiction within the appropriate time frame, because if you are out of time, it can be a very costly and wasted exercise.
