3 Feb 2014

Am I too late? Some deadlines have no extensions, and no excuses


To ensure the Courts don’t get clogged up with old cases based on distant past events and the inflaming of ancient grievances, there has long existed legislation imposing deadlines on legal claims. 


Probably the biggest pitfall in litigation is missing a limitation deadline, being the last date on which legal action can be brought.  Once that deadline has passed, the right to claim money or property or other available redress in a court, tribunal or arbitration is generally lost forever.  There are extremely few exceptions to this rule.


Given the implications of missing out, the first thing you should do if you think you may have a claim is take advice about the limitation deadline and make sure you don’t miss it. The real danger is that it sounds so simple. Unfortunately, if often isn’t.  It can at times be unclear when a limitation period starts and ends, and which period applies.  Several factors combine to complicate the law of limitations. 


These are probably the top 7 complicating factors (in no particular order, and often in combination):


(a)  In WA, some legal rights may be limited under the old Limitation Act of 1935 and others, under the new Limitation Act of 2005, depending on which Act applied when a particular claim first became available.

(b)  Some claims are based on written laws which substitute their own special limitation periods for those that apply generally under the Limitation Acts.

(c)  There is no single limitation period that applies in all cases. On the contrary, limitation periods vary both in relation to different claims and also, in relation to the same claims, under the 1935 Act compared with the 2005 Act Their range is also extreme: from 6 months in some cases to 20 years in others!

(d)  There are some differences among the various Australian States’ legislation.

(e)  When time starts to run for limitation purposes will depend on the laws that you are relying on in making your claim. For example, time starts to run as soon as someone breaches a contract. However, if someone breachs certain other legal duties, time may not start to run until some damage is done or until the breach becomes known or would have become known to a reasonable person.

(f)   The facts and evidence you rely on when working out the limitation date may be arguable, but ultimately different to the facts found by the court. You may need to take into account potential alternative limitation dates based on a variety of factors.  Examples include when and how a contract was breached or terminated, when and how a partnership or joint venture came into existence or ended, when and how significant events like misrepresentations, fraud or concealment occurred, and when and how loss or damage first arose or became apparent.

(g)  Often, a single event or circumstance can give you several different legal grounds for making a claim in a court or tribunal (called “causes of action”). And each cause of action may have a different limitation date.  Just because it is too late to take legal action on one or two causes of action, that doesn’t mean others aren’t available. Likewise, it can be disastrous if an available cause of action is not pleaded in a case, the deadline passes, and the cause of action that you do rely on fails and your claim therefore fails altogether. 


When in doubt, the best way to protect yourself from missing a limitation date and losing your rights forever is to make sure you take legal action before the earliest date when, on any view of the facts, the limitation period could possibly be said to pass.  Identifying that date can be quite tricky, so good legal advice is essential.


This is general information only, and does not constitute specific legal advice. Murray Thornhill is the Director at HHG Legal Group with the Litigation/Commercial Law team. Daniel Morris is an Associate with the Litigation/Commercial Law team at HHG Legal Group. If you would like further details in relation to this information, please contact HHG Legal Group on 1800 609 945.

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