Time Limits for Commencing Proceedings

Parties need to keep in mind the time limits for commencing Court action otherwise they could be prevented from making a claim and face the risk of having their action extinguished.

What are limitation periods?

The law imposes time limits, known as limitation periods, as to when actions must be commenced in Court. A party that fails to bring an action within the relevant limitation period is barred from bringing that action and the action is extinguished.

The policy behind imposing limitation periods was discussed in Brisbane South Regional Health Authority v Taylor [1996] HCA 25 where the Court identified the following four bases for upholding limitation periods:

• evidence is likely to be lost as time goes by;
• it is oppressive to a defendant to allow an action to be brought after the circumstances which gave rise to the action have long since passed;
• parties should be able to arrange their affairs and their resources on the basis that claims can no longer be made against them; and
• the public interest requires that disputes be settled as quickly as possible.

What are the time limits for commencing proceedings?

All the states have specific legislation which set out the limitation periods for various causes of action. To ascertain a relevant limitation period, it is recommended that the specific Limitation Act or applicable legislation be referred to.

However, limitation periods for actions based on contracts and/or torts are generally subject to a limitation period of 6 years. Personal injury limitation periods are a specialist area with the legislation providing for many and varied limitation deadlines.

A limitation period runs from the date when the cause of action accrues, that is, when all the elements to an action exist. In contract, a cause of action accrues when the contract is breached. For an action based on tort, it is when the loss or damage has been suffered by the wronged party. This means that the time can commence even if the plaintiff is unaware that he or she has actually suffered damage.

Extending time

Courts in all jurisdictions have a statutory discretion to extend the limitation period with respect to most, but not all, causes of action. Typically, a Court will consider extending the time for bringing an action if a plaintiff is able to demonstrate that it would be just and reasonable to extend the limitation period.

Conclusion

If you believe you have a claim and are considering commencing proceedings against another party, it is advisable to:

• check, or have your lawyer check, the relevant legislation to ascertain the applicable time limit for commencing proceedings;
• be careful not to let your matter drag on without it being resolved;
• if negotiating with the other party, be mindful of the expiration of the limitation period and don’t assume you will be able to settle the matter without commencing proceedings; and
• do not assume that a Court will grant an extension of time for commencing proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 1300 149 140 or email info@lawbase.com.au.