Written by
Ilyas Omari
Reviewed by
Have you ever wondered whether there is a time limit for when legal action can be taken after a particular incident in Australia? Many countries in the world have what is known as a statute of limitation, including New Zealand, the USA and the UK. A statute of limitation refers to legislation that sets out a time period in which legal proceedings must be commenced.
In this article, we’ll explain whether Australia has a statute of limitations, what’s the purpose of a statute of limitations, the legislation governing statutes of limitations and answers to other frequently asked questions.
Read along!
What is a Statute of Limitations?
A statute of limitations refers to the law that governs the maximum time period within which parties to an issue can bring legal proceedings following the occurrence of an offence.
Statutes of limitations can apply to both criminal and civil proceedings.
Want more?
Sign up for our newsletter and be the first to find hand-picked articles on topics that we believe are crucial to successfully scale your unique small business.
By clicking on 'Sign up to our newsletter' you are agreeing to the Lawpath Terms & Conditions
Does Australia have a Statute of Limitations?
Australia does have a statute of limitations. In Australia, statutes of limitations are governed by commonwealth, state and territory legislation.
Statutes of limitations in Australia can apply to offences including the following:
- Criminal offences
- Civil offences
- Traffic offences
You should also be aware that statutes of limitations vary between different state and territory jurisdictions.
What is a limitation period?
A limitation period refers to the maximum period of time that can pass from the time a cause of action occurs until the start of court proceedings relating to that cause of action.
The factors that determine limitation periods include the nature of the offence and the governing legislation.
Why is there a Statute of Limitations?
The statute of limitations operates as a statutory barrier to prevent individuals from pursuing claims after a substantial period of time has passed since the cause of action occurred.
This is because if a cause of action was allowed to proceed after a substantial delay, there could be a detrimental effect on the administration of the court proceedings. The primary issue that relates to legal proceedings being delayed relates to the evidence that will be presented.
The evidentiary factors that will be negatively impacted include the following:
- The availability of witnesses
- The availability of documents
- The accuracy of detail which is the subject of the evidence.
Therefore, the purpose of limitation periods is to balance the interests of all parties and the effective administration of justice.
Statute of Limitations in Australia
In Australia, statutes of limitations apply. Statutory limitations in civil proceedings are governed by state law. Whereas statutory limitations in criminal proceedings are determined by the discretion of the judge.
You should be aware that claims can be initiated after limitation periods have ended. However, the courts will have jurisdiction in order to determine that issue. Therefore, the onus is on the defendant to plead it as part of their defence, or else the claim will not be prevented by the statute of limitations.
Statute of Limitations: Civil Proceedings
In civil proceedings, each Australian jurisdiction sets out rules governing the period of time in which a plaintiff must commence a civil proceeding. The legislation governing statutes of limitation in each jurisdiction is listed below:
- In New South Wales, the legislation that governs statutes of limitations is the Limitation Act 1969 NSW
- In the Australian Capital Territory, the legislation that governs statutes of limitations is the Limitation Act 1985 ACT
- In the Northern Territory, the legislation that governs statutes of limitations is the Limitation Act 1981 NT.
- In Queensland, the legislation that governs statutes of limitations is the Limitation of Actions Act 1974 QLD
- In South Australia, the legislation that governs statutes of limitations is the Limitation of Actions Act 1936 SA
- In Tasmania, the legislation that governs statutes of limitations is the Limitation Act 1974 TAS
- In Victoria, the legislation that governs statutes of limitations is the Limitation of Actions Act 1958 VIC
- In Western Australia, the legislation that governs statutes of limitations is the Limitation Act 1935 WA
In Contracts
In New South Wales, in accordance with s14(1)(a) Limitation Act for simple contracts the time period to commence proceedings is six years from the date on which the cause of action accrues. Whereas with deeds, a longer period of 12-20 years generally applies depending on the jurisdiction. You should be aware that the end of the applicable limitation period doesn’t discharge the contract, it only terminates the right to commence litigation.
It’s crucial to note that you can request for the limitation period to be extended by the court. If you’re applying for relief under the Contracts Review Act 1980, the limitation period is shorter than the period outlined by the Limitation Act. Section 16 of the Contracts Review Act 1980 outlines the periods to obtain relief under this Act, which is as follows:
- You can apply for relief within two years after the contract was created
- You can apply within three months before or two years after the time for performance of the contract or if any power or obligation or any activity in relation to the contract has been performed
- During the pendency of a maintainable proceeding arising out of or in relation to the contract the period of the pendency of maintainable proceedings arising out of or in relation to the contract, including proceedings against the party that’s seeking relief
You should check the legislation in your own state jurisdiction before making decisions based on a potential statue of limitations.
In Personal Injury/Death
Section 50C of the Limitation Act 1969 states that the limitation period for a cause of action in negligence is three years from the time the cause of action is discoverable, or twelve years from the time the injury or death occurs (whichever runs out first). However, the limitation period for damages due to personal injury caused by tort can be extended in some instances, such as where the person has subsequently died. This includes acts relating to the following:
- Negligence
- Trespass
- Nuisance
- Breach of duty
For Corporations
Section 1325(4) of the Corporations Act 2001 establishes a 6-year limitation period on an applicant from the time a cause of action occurs due to specific corporate misconduct.
The High Court, in the 2004 case of Murphy v Overton Investments Pty Ltd, clarified the meaning of “loss” or “damage” as expressed in s 82 of the Trade Practices Act 1974. The court held that these terms are not to be given a narrow meaning. Another principle that came out of this case was that when conduct causes numerous losses which occur at different times, the right to recover the amount of each loss accrues only when the particular loss accrues.
The Australian Consumer Law also establishes separate statutes of limitations for breaches of consumer law.
Statute of Limitations-Criminal Proceedings
The statutory period varies depending on the offence and jurisdiction. Generally, a limitation period applies to minor or summary offences. Furthermore, limitation periods can also apply in the prosecution of indictable sexual offences.
Regarding criminal proceedings section 15B of the Crimes Act 1914 (Cth) outlines the statute of limitations. This section states that the prosecution of an individual in relation to a summary offence must begin within 12 months after the offence occurs. Furthermore, the prosecution of a corporation in relation to a summary offence must begin within 12 months after the offence occurs.
State-specific crimes acts likewise have statues of limitation for separate offences, which take into consideration the rights and circumstances of victims. As an example, there is no limitation period to commence an action in relation to murder. Furthermore, there are cases where the applicant doesn’t feel comfortable or is prevented from commencing legal proceedings within a year from when the incident occurred. For example, victims of sexual abuse or sexual assault sometimes don’t take legal action for an extended period of time following the incident.
Statute of Limitations-Summary Offences
In NSW, Section 179(1) of the Criminal Procedure Act 1986 states that the limitation period to commence legal proceedings against an individual in relation to a summary offence is six months. However, there are some exceptions to this subsection outlined by s 179(2) of this Act. These include the following:
- Where an Act or Law states that a different limitation period applies to take legal action for the specific offence
- If the offence is an indictable offence that is being handled summarily
- If the offence relates to an individual’s death or if the offence is the subject of a coronial inquest
Conclusion
Statutes of limitations do apply in Australia, although they’re mostly associated with civil proceedings in the Australian legal system rather than criminal proceedings. In criminal proceedings, the judge determines the statutory limitation except for less serious (summary) offences and indictable sexual offences.
If you’re unsure about whether you can make a claim in relation to an event that has occurred, you should hire a lawyer for legal advice to determine whether you can begin legal proceedings.
Get a fixed-fee quote from Australia's largest lawyer marketplace.
