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CLAUSE NOTES
Limitation Amendment Bill 2013
Clause 1: Short Title
Clause 2: Commencement date
Clause 3: Principal Act
Clause 4: Omits the definition of "commencement day" from section
2 as it is no longer required.
Clause 5: Repeals section 5 of the Principal Act. This completes the
process commenced in 2004 of changing to a limitation
period commencing on the date of discoverability in respect
of personal injury actions.
As from 1 January 2005, section 5 only applied to causes of
action accrued before that date and under that section the
limitation period commenced on the date of accrual that is,
the date the injury was caused, whether or not the plaintiff
knew that it had been caused. Notwithstanding the
possibility of an extension of time pursuant to 5(3) no
action could now be commenced seeking to rely on section
5.
Clause 6: Amends section 5A to
omit subsections (1) and (2) as these are no longer
required; and
replace subsection (3) so as to remove the
requirement to seek leave of the court to take action
if 12 or more years have passed from the date of the
act or omission which gave rise to the personal
injury the subject of the claim; and
amend subsection (5) to allow for a court to extend
time for a further 3 years (i.e. to 6 years from the
date of discoverability) having regard to the justice of
the case, including specified factors; and
clarify subsection (6)
Clause 7: Amends section 26 to:
replace subsection 26(1A), to ensure that a longer
period of time in which to bring an action applies if the
person is under a disability for a significant portion of the
time between when their injury arose and the time they
bring an action, rather than limiting the application of the
subsection to only those persons who were under a
disability at the time of the injury.
replace sub 26(6), to ensure that a longer period of time
in which to bring an action applies if the person is, for a
significant portion of the time between when their injury
arose and the time they bring an action, in the custody of
a parent, or a person in a close relationship with a
parent, who is the intended defendant, rather than
limiting the application of the subsection to being in that
custody at the time of the injury.
Amends subsection 26(7), and inserts a new subsection
(7A), to clarify that if the person with a disability was
only such a person because they were a minor, the date
of discoverability occurs before they become 25 years
old, and the parent, or a person in a close relationship
with a parent, is the intended defendant, subsections
(1A) and (6) do not apply so as to have the period of
time in which to bring an action run from when the
person ceases to be under a disability because they have
become 18 years old. Instead, the period of time (which
will be the same as for a person not under a disability)
will run from the time the person becomes 25 years old.
Clause 8: Amends section 38A to delete transitional provisions
relevant to the amendments that commenced on 1 January
2005 and replace them with transitional provisions in
relation to the amendments made by this Bill.
Provides that a person who might be out of time under a
previously applicable provision may now apply to a court to
extend the limitation period to three years from the
amendment day, defined as the day on which the
amendments in this Bill commence.
The extension of time applicable under subsection 26(7) will
now apply to any cause of action, no matter when accrued.