Schedule of Statutory Limitation Periods for Civil Matters in Western Australia

Transcription

1 Schedule of Statutory Limitation Periods for Civil Matters in Western Australia This document is intended to serve as a fi rst point of reference for practitioners in Western Australia on the limitation periods that apply to the commonest causes of action in the State. The Schedule does not exhaustively address all potential causes of action or address the issue of the date of accrual of a cause of action. The Schedule is not intended to provide particular legal advice or to be used in substitution for the research and inquiries legal practitioners should undertake to determine the application of the information in this Schedule to the given facts on which they are instructed. Persons referring to this Schedule should seek advice or conduct their own research to determine the accuracy and application of the information in this schedule and to determine when the relevant cause of action accrues. Current as of 31 March 2014

2 CAUSE OF ACTION Limitation Act 2005 (WA) A. CONTRACT (1) Actions on a specialty or deed: 12 years: s 18 (2) Quasi Contract: 6 years: s 13(1) (3) Other claims: 6 years: s 13(1) B. TORT (1) General period which applies save where described below: (2) Trespass to the person, assault, battery, or imprisonment: 6 years: s 13(1) 3 years: s 16 (3) Trespass to land, detinue and conversion: 6 years: s 13(1) (4) A second or subsequent conversion: 6 years from the original conversion: s 60 (5) Breach of statutory duty: 6 years: s 13(1) (6) (i) Defamation: 1 year from date of publication: s 15 (ii) Extension of time: (7) Personal Injury: Court may extend time up to 3 years from date of publication: s 40 (a) (i) General limitation period: 3 years: s 14(1) (ii) Extension of time: Up to 3 years: s 39 (iii) Accrual of cause of action (b) (i) Asbestos related disease: 3 years: s 14(1) (ii) Extension of time: Up to 3 years: s 39 (iii) Accrual of cause of action (c) (i) Childbirth related claims 6 years: s 7(2) Earlier of: (i) person becomes aware that he/she has sustained a not insignifi cant personal injury; or (ii) fi rst symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignifi cant personal injury: s 55 If pre 01/01/1984, the claimant did not have knowledge of relevant facts, cause of action accrues when the claimant has knowledge of relevant facts: s 56 (ii) Extension of time: s 7 has effect subject to Part 3: see s 7(3) (iii) Accrual of cause of action A cause of action (child birth) is to be taken as having accrued on commencement day: s 7(4) Earlier of: (i) person becomes aware that he/she has sustained a not insignifi cant personal injury; or (ii) fi rst symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignifi cant personal injury: s 55 Law Mutual (WA) Page 1

3 B. TORT (Continued) (d) (i) Fatal accidents: 3 years from date of death: s 14(2) (ii) Extension of time: Up to 3 years: s 39 (e) (i) Estate claim for personal injury other than asbestos related disease: (ii) Estate claim for personal injury that is an asbestos related disease: (iii) Extension of time: Up to 3 years: s 39 (f) (i) Cause of action in tort against the estate of a deceased person: (ii) Extension of time: (8) Extension of time for fraudulent or improper conduct of defendant: If cause of action had not accrued at date of death, 3 years from date of death: ss 14(1) and 57(1) If cause of action had not accrued at date of death, 3 years from date of death: ss 14(1) and 57(2) Same period as if deceased had survived: No provision Up to 3 years: s 38 (9) Contribution claims between tortfeasors: 2 years from date of judgment, award or agreement fi xing liability: s 17 C. EQUITABLE CLAIMS (1) Equitable actions 6 years: s 13(1) (2) Equitable actions not analogous to other actions (i) the elapse of 6 years since the cause of action accrued; or (ii) the elapse of 3 years since time started running on equitable principles: s27(1) D. LAND (1) Action to recover land: 12 years: s 19(1) (2) Action to recover future interest in land: 12 years. If no person in possession, cause of action accrues when claimant becomes entitled to immediate possession: ss 19(1) and 69 (3) Action to recover arrears of rent or damages in respect of arrears 6 years: s 13(1) E. MORTGAGES: LAND (1) Redemption action by mortgagor: 12 years from the later of the most recent possession of the mortgagee or date of receipt of the most recent payment of principal money or interest from the person wanting to redeem: s 25 (2) Possession action by mortgagee: 12 years: s 23 (3) Foreclosure action: 12 years: s 24 (4) Action to recover principal: 12 years: s 20 (5) Action to recover interest: 6 years or if prior mortgagee in possession when cause of action accrues, 1 year after prior mortgagee in possession discontinues possession or expiration of 12 years from the accrual of a cause of action to recover the principal: s 21 Law Mutual (WA) Page 2

4 F. MORTGAGES: PERSONALTY (1) Redemption action by mortgagor: 12 years from the later of the most recent possession of the mortgagee or date of receipt of the most recent payment of principal money or interest from the person wanting to redeem: s 25 (2) Possession action by mortgagee: 6 years unless claim founded on a deed or mortgage covers land and personalty in which case 12 years: ss 13(1), 18 and 23 (3) Foreclosure action: 6 years unless claim founded on a deed or mortgage covers land and personalty in which case 12 years: ss 13(1), 18 and 24 (4) Action to recover principal: 6 years unless claim founded on a deed in which case 12 years: ss 13(1) and 18 (5) Action to recover interest Land and personalty see above for land only claim, otherwise 6 years or if prior mortgagee in possession when cause of action accrues, 1 year after prior mortgagee in possession discontinues possession or expiration of 12 years from the accrual of a cause of action to recover the principal: s 22 G. TRUSTS Benefi ciary claim against trustee to recover trust property or for breach of trust: 6 years s 13(1) Note extension of period available in cases of fraud is 3 years: s 38 H. DECEASED ESTATES (1) For personal estate of deceased: 6 years: s 13(1) (2) For arrears of interest or damages in respect of arrears 6 years: s 13(1) I. DISABILITY (1) People under 18 years of age (i) Person under 15 years of age 6 years: s 30 (ii) Persons aged 15, 16 or 17 years Action cannot commence if the person has reached 21 years of age: s 31 (iii) Persons under 18 without a guardian (iv) Defendant in a close relationship with a person under 18 Time is suspended, action cannot commence where the person has reached 21 years of age: s 32 Action cannot commence if the person has reached 25 years of age: s 33 (v) Defamation by a person under 18 years of age Normal limitation applies: s 34 1 year from date of publication: s 15 (vi) Extension of limitation for persons under 18 years of age involved in personal injury or matters under Fatal Accidents Act 1959 Can apply to the Court where the cause of action accrues to the person under 18 years of age or their guardian: s39 Law Mutual (WA) Page 3

5 I. DISABILITY (Continued) (i) Extension of limitation for persons under 18 years with guardian (2) Persons with a mental disability (i) Persons with a mental disability is without a guardian Can apply to the Court where the period has expired up to when the person reaches 21 years of age: s 41 Time is suspended unless 12 years have elapsed: s 35 (ii) Defamation by a person with a mental disability Normal limitation applies: s 37 1 year from date of publication: s 15 (iii) Persons with a mental disability involved in personal injury or matters under Fatal Accidents Act 1959 (iv) Extension of limitation for persons with a mental disability with guardian (3) Those in a close personal relationship with a person under a disability (i) Defendant in a close relationship with a person with a mental disability (4) Persons suffering multiple disabilities (i) Persons with mental disability under 18 years J. MISCELLANEOUS Can apply for extension to limitation period where the cause of action accrues to the person with a mental disability or their guardian: s39 Can apply to the Court where the period has expired up to 12 years from when action accrued: s 42 3 years since the relationship ceased: s36 Most benefi cial period applies of those relating to people under 18 and those with a mental disability: s 52 (1) Action on a judgment 6 years: s 13(1) see also arbitral awards s 64 (2) To enforce arbitration award 6 years: s 13(1) or 12 years were agreement to arbitrate made under seal s 18 (see also s 64) (3) (i) Crown general Limitation Act 2005 applies to Crown except for recovery of a tax or interest on a tax, forfeiture of a ship (s 10), recovery of land (s 19(2)) and adverse possession (s 76). (Section 6 of Crown Suits Act 1947 repealed by Limitation Legislation and Repeal Act 2005) (ii) Crown Asbestos For purposes of Asbestos related diseases, no special provisions in respect of Crown after repeal of s6 of Crown Suits Act. (4) Extend or shorten limitation period Allowable by agreement unless it contravenes ss 33, 36 or 38: s 45 Law Mutual (WA) Page 4

6 K. CONSUMER CLAIMS Competition and Consumer Act 2010 (Cth) (1) Damages claims for breach of general protections: a. misleading or deceptive conduct, b. unconscionable conduct c. unfair contract terms (2) Damages claims for breach of specifi c protections: a. unfair practices, b. consumer transaction, c. safety of consumer goods, d. information standards, e. liability of manufacturers 6 years: s years: s 236 (3) Product liability (covered in Sch 2 Ch 3 5): 6 years: s 237 (4) Claims for damages or compensation for death or personal injury: (i) Resulting from smoking or use of tobacco products (i) Effect of being a minor or incapacitated (5) Action for damages resulting from loss or damage of breach of: (i) Restrictive trade practices 6 years: s 82 (ii) Industry codes 6 years: s 82 (6) Orders for loss or damage of non-parties: (i) Under industry codes 3 years after the sate of discoverability of death or injury, or the end of the long-stop period: s 87F 3 years after the sate of discoverability of death or injury: s 87F Disregard any period the plaintiff has been a minor not in custody of a guardian, or an incapacitated person with no guardian: s 87J 6 years: s 51ADB (ii) As a consumer 6 years: s 239 (7) Civil action for pecuniary penalties: (i) For the Commonwealth where breach of restrictive trade practices or prohibition on cartel provisions (ii) For the Commonwealth where breach of competition rule, tariff fi ling direction, record keeping rule or disclosure direction (iii) For the Commonwealth, State or Territory where breach of rules against a. unconscionable conduct, b. unfair practices, c. unsolicited consumer agreements, d. lay-bys, e. proof of transactions, f. warranties and repairers, g. safety of consumer goods, h. information standards, and i. substantiation notices 6 years: s 77 6 years: s 151BY 6 years after contravention or conduct: s 228 Law Mutual (WA) Page 5

7 K. CONSUMER CLAIMS (Continued) (8) Claim against acquisitions lessening market competition (9) Claim where asset merger has been completed under false pretences 3 years: s 81 3 years from date of acquisition: s 81A (10) Action for damages in the telecommunications industry where: (i) Breach of competition rule (ii) Contravention of written procedural direction is ignored 3 years: s 151CC 6 years: s 152BBB (11) Defective goods actions 3 years from the time the person became aware/ reasonably should be aware of the loss or defect, safety defect or manufacturer identity, but within 10 years of supply by the manufacturer: s 143 (12) Prosecution of offences in Sch 2, Ch 4 3 years: s 212 (13) Action for damages against manufacturers of goods 3 years from the time the person became aware/ reasonably should be aware that the guarantee has not been complied with: s 273 (14) Indemnifi cation of suppliers by manufacturers 3 years from the earlier of the day the supplier made payment discharging their liability to the consumer, or the day proceedings was commenced by a consumer against supplier: s 274 Law Mutual (WA) Page 6

8 Contact Law Mutual (WA) for further information. All enquiries are treated with the utmost confidentiality. Street Address Level 4, 160 St Georges Terrace Perth WA 6000 Postal Address PO Box Z5345, Perth WA 6831 Phone (08) Fax (08) Web