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TASMANIA
__________
LIMITATION AMENDMENT BILL 2013
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 2 amended (Interpretation)
5. Section 5 repealed
6. Section 5A amended (Actions in respect of personal injuries)
7. Section 26 amended (Extension of limitation period in case of
disability or when certain injuries occur to minors)
8. Section 38A substituted
38A. Application of amendments made by Limitation
Amendment Act 2013
9. Repeal of Act
[Bill 44]-XI
2
LIMITATION AMENDMENT BILL 2013
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
17 September 2013
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend the Limitation Act 1974
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Limitation
Amendment Act 2013.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Limitation Act 1974* is referred
to as the Principal Act.
*No. 98 of 1974
THIS BILL IS COGNATE WITH THE CIVIL LIABILITY AMENDMENT BILL 2013
[Bill 44] 3
Limitation Amendment Act 2013
Act No. of
s. 4
4. Section 2 amended (Interpretation)
Section 2(1) of the Principal Act is amended by
omitting the definition of commencement day.
5. Section 5 repealed
Section 5 of the Principal Act is repealed.
6. Section 5A amended (Actions in respect of personal
injuries)
Section 5A of the Principal Act is amended as
follows:
(a) by omitting subsections (1) and (2);
(b) by omitting subsection (3) and
substituting the following subsection:
(3) An action for damages for
negligence, nuisance or breach of
duty (whether that duty exists by
virtue of a contract or a provision
made by or under an enactment or
independently of any contract or
any such provision), where the
damages claimed by the plaintiff
for the negligence, nuisance or
breach of duty consist of, or
include, damages in respect of
personal injuries to any person,
must not be brought after the
expiration of 3 years commencing
on the date of discoverability.
4
Limitation Amendment Act 2013
Act No. of
s. 7
(c) by omitting from subsection (5)
"subsection (3)(b) to the expiry of 3
years" and substituting "subsection (3) to
the expiry of 6 years";
(d) by omitting from subsection (6) "The
periods of limitation specified in
subsection (3)(a) and (b) apply to the
personal representative of a deceased
person commencing at" and substituting
"For the purposes of this section, the date
of discoverability is taken to be, in
relation to a plaintiff who is the personal
representative of a deceased person,".
7. Section 26 amended (Extension of limitation period
in case of disability or when certain injuries occur
to minors)
Section 26 of the Principal Act is amended as
follows:
(a) by omitting subsection (1A) and
substituting the following subsection:
(1A) If a cause of action to which
section 5A applies has accrued
and the person to whom it has
accrued is a person under a
disability at any time during the
relevant period -
(a) a reference in
section 5A(3) or (5) to the
date of discoverability is,
in relation to the cause of
5
Limitation Amendment Act 2013
Act No. of
s. 7
action, to be taken to be a
reference to the date on
which that person ceases
to be under a disability or
dies, whichever event first
occurs; and
(b) section 5A(6) does not
apply in relation to the
cause of action.
(b) by omitting subsections (6) and (7) and
substituting the following subsections:
(6) Subsection (1A) does not apply in
relation to a cause of action to
which section 5A applies unless
the person bringing the action
proves that the person to whom
the action accrued -
(a) was not in the custody of
a parent for a significant
proportion of the relevant
period; or
(b) was, for a significant
proportion of the relevant
period, in the custody of a
parent who was a person
under a disability.
(7) If a person is a relationship-
influenced person in relation to a
cause of action -
6
Limitation Amendment Act 2013
Act No. of
s. 7
(a) subsection (1A) and
section 5A(6) do not
apply in relation to the
cause of action; and
(b) a reference in
section 5A(3) or (5) to the
date of discoverability is,
in relation to the cause of
action, to be taken to be a
reference to the date on
which the person attains
the age of 25 years.
(7A) For the purposes of
subsection (7), a person is a
relationship-influenced person in
relation to a cause of action if -
(a) the action is a cause of
action, to which
section 5A applies, that
has accrued to the person
while the person is a
minor; and
(b) the parent of the person -
(i) is the intended
defendant; or
(ii) is in a close
relationship with
the intended
defendant for a
significant
proportion of the
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Limitation Amendment Act 2013
Act No. of
s. 7
relevant period;
and
(c) the date of discoverability
in relation to the cause of
action occurs before the
person attains the age of
25 years; and
(d) the person is not, at any
time in the period
between the day on which
the cause of action
accrues and the day on
which the person ceases
to be a minor, a person
under a disability other
than by virtue of being a
minor.
(c) by omitting from subsection (8)
"subsection (7)" and substituting "this
section";
(d) by omitting subsection (9) and
substituting the following subsection:
(9) In this section -
relevant period, in relation to a
person to whom a cause
of action, to which
section 5A applies, has
accrued, means the period
between -
8
Limitation Amendment Act 2013
Act No. of
s. 8
(a) the date of
discoverability in
relation to the
cause of action;
and
(b) the day on which
proceedings in
relation to the
cause of action
commence, or the
day that is 3 years
after the date of
discoverability,
whichever occurs
first.
8. Section 38A substituted
Section 38A of the Principal Act is repealed and
the following section is substituted:
38A. Application of amendments made by
Limitation Amendment Act 2013
(1) In this section -
amending Act means the Limitation
Amendment Act 2013;
amendment day means the day on
which the amendments to this Act
effected by the amending Act
commence.
9
Limitation Amendment Act 2013
Act No. of
s. 8
(2) Section 5A and section 26 apply in
relation to an action in respect of a
personal injury -
(a) whether the cause of action
accrued before the amendment
day or on or after that day; and
(b) whether or not a period of
limitation under the Act as in
force before the amendment
day -
(i) has, before the
amendment day, expired
in respect of the injury; or
(ii) has, before the
amendment day, expired
in respect of the injury
before an application that
relates to the injury is
made for an extension of
the period under
section 5A(5), as in force
before the amendment
day or after that day, or
section 26(9), as in force
before the amendment
day.
(3) A person may apply to a judge for an
extension, of the period of limitation
specified in section 5A(3) as inserted by
the amending Act, to 3 years
commencing on the amendment day.
10
Limitation Amendment Act 2013
Act No. of
s. 9
(4) A judge may, on the application of a
person under subsection (3), extend the
period of limitation specified in
section 5A(3), as inserted by the
amending Act, to 3 years commencing on
the amendment day, having regard to -
(a) the justice of the case; and
(b) whether the passage of time has
prejudiced a fair trial of the
action; and
(c) the nature and extent of the
plaintiff's loss; and
(d) the nature of the defendant's
conduct.
(5) Subsections (3) and (4) apply in relation
to a cause of action whether or not a
period of limitation under section 5A, as
in force before the amendment day, had
expired before the amendment day.
9. Repeal of Act
This Act is repealed on the three hundredth and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 11