By Estephen Gear Bugarin
Introduction
When you feel that you have been wronged by an individual or an organisation, it is prudent to seek legal advice at the earliest convenience. In NSW, the Limitation Act 1969 (NSW) (‘the Limitation Act’)[1] is the principal legislation that oversees the period of time a wronged party can take legal action regarding a civil claim. If a legal action is made outside the limitation period, the wronged party will effectively be prevented from making a claim against the alleged wrongdoer.
The primary purpose of the limitation period is to allow for the quick administration of cases in court. It also aims to promote fairness in the legal process, preventing surprise legal actions many years after damage takes place. However, there may be flexibility for the wronged party, as there are available exemptions which extend either the limitation period or the determination of when the limitation period begins. This article will explore limitation periods for causes of actions under the Limitation Act and some exemptions that apply.
The Limitation Periods of Different Causes of Actions
Section 14 of the Limitation Act prescribes the limitation periods for general causes of actions. Particularly, this section outlines the limited time frame when legal action must be taken for each respective cause of action under this section. From the date of the wrongful act, the wronged party has a 6-year period before their right to claim expires. The types of cause of action stipulated by this section are:[2]
- Cause of action under contract (excluding deed);
- Cause of action under tort;
- Cause of action enforcing a recognisance;
- Cause of action to recover money by virtue of an enactment (excluding penalty or forfeiture).
Beyond the general causes of action under section 14, the Limitation Act also outlines the limitation periods for certain specific causes of action. These include:
- Personal Injury – 3 years from the date of cause of action.[3]
- Defamation – 1 year from the date of publication.[4]
- Deed – 12 years from the date of breach.[5]
- Judgment – 12 years from the date of enforceability.[6]
- Penalty – 2 years from the date of enforceability.[7]
- Land Recovery – 12 years from possession of land.[8]
- Equity – No limitation unless remedy can be applied to another cause of action.[9]
Flexibility of the Limitation Period
Certain causes of action have flexibility regarding their limitation period. For example, causes of action concerning personally injury claims have flexible limitation period. The legislation accounts for instances where a plaintiff may not become aware of the injury inflicted by the defendant at the initial time of the defendant’s wrongful act. This may be because of the nature of the injury (e.g., gradual build-up of pain) or because of the duration it takes for the wronged party to recognise their injury.
The limitation period for personal injury will begin once it has become “discoverable”.[10] A cause of action becomes discoverable when it is satisfied that the plaintiff knows or “ought to know” each of the following:[11]
- The fact that the injury or death has occurred;
- The fact that the injury or death was caused by fault of the defendant; and
- 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.
Therefore, it is possible, that while it may appear that a cause of action by way of personal injury may have expired, there may be available flexibility which could allow the plaintiff to seek damages.
Limitation Periods which fall outside the Limitation Period
It is worth noting that there are other limitation periods for areas of law not covered by the Limitations Act. Generally, the relevant statute will specify the relevant time limit. For example,
- A cause of action regarding specific corporate misconduct has a 6-year limitation period.[12]
- For criminal proceedings falling under NSW legislation, prosecution proceedings against an individual must begin in the 6-month period after the alleged summary offence[13] (with exceptions e.g., for murder).[14]
- For criminal proceedings falling under federal legislation, prosecution proceedings must start against an individual within the 12-month period after an alleged summary offence.[15]
Conclusion
The action of bringing a claim is a complex and difficult process requiring a precise understanding of the Limitation Act as the structured framework outlining the time limitation of wronged parties’ ability to take legal action. Identifying a cause of action years after it has occurred will have significant ramifications and may bar a potential plaintiff from seeking damages against a potential defendant.
This article is not meant to act as legal advice and serve the purpose of providing academically generalised information regarding the general principles regarding limitation periods. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
[1] Limitation Act 1969 (NSW) (‘the Limitation Act’).
[2] Ibid s 14.
[3] Ibid s 50C.
[4] Ibid s 14B.
[5] Ibid s 16.
[6] Ibid s 17.
[7] Ibid s 18.
[8] Ibid s 27.
[9] Ibid s 23.
[10] Ibid s 50D.
[11] Ibid s 50D.
[12] Corporations Act 2001 (Cth) s 1325(4).
[13] Criminal Procedure Act 1986 (NSW) s 179(1).
[14] Ibid s 179(2).
