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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Civil Liability Legislation Amendment (Child
Sexual Abuse Actions) Bill 2017
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Civil Liability Act 2002
amended
3. Act amended 3
4. Section 8 amended 3
5. Part 2A inserted 3
Part 2A -- Child sexual abuse actions
Division 1 -- Preliminary
15A. Terms used 3
Division 2 -- Liability of certain office holders and
institutions, and availability of assets
15B. Liability of current office holder in
unincorporated institution 4
15C. Assets available for judgments and
settlements: office holders 5
15D. Liability of incorporated institution that was
unincorporated at time of abuse 6
15E. Assets available for judgments and
settlements: institutions 7
15F. Continuity of institutions: institution
substantially the same 8
15G. Continuity of institutions: no institution the
same or substantially the same 9
15H. Continuity of offices 11
53--3 page i
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Contents
15I. Accrual of certain child sexual abuse
causes of action 12
15J. Displacement of Corporations legislation 12
Division 3 -- Prior compensation payments
15K. Prior compensation payments taken into
account 12
Division 4 -- Caps on legal fees
15L. Caps on legal fees 13
Division 5 -- Review of Part 2A
15M. Review of Part 14
Part 3 -- Criminal Injuries
Compensation Act 2003 amended
6. Act amended 15
7. Section 68 amended 15
Part 4 -- Limitation Act 2005
amended
8. Act amended 16
9. Section 5 amended 16
10. Section 6A inserted 16
6A. Special provisions for child sexual abuse
actions: no limitation period 16
11. Section 9 amended 18
12. Part 7 inserted 18
Part 7 -- Transitional provisions
Division 1 -- Provisions for Civil Liability Legislation
Amendment (Child Sexual Abuse Actions)
Act 2017
89. Terms used 18
90. Application of section 6A 19
91. Previously barred causes of action 19
92. Previously settled causes of action 20
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Civil Liability Legislation Amendment (Child
Sexual Abuse Actions) Bill 2017
A Bill for
An Act to amend --
• the Civil Liability Act 2002; and
• the Criminal Injuries Compensation Act 2003; and
• the Limitation Act 2005.
The Parliament of Western Australia enacts as follows:
page 1
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Civil Liability Legislation Amendment (Child Sexual
4 Abuse Actions) Act 2017.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
page 2
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 3
1 Part 2 -- Civil Liability Act 2002 amended
2 3. Act amended
3 This Part amends the Civil Liability Act 2002.
4 4. Section 8 amended
5 In section 8 delete "Act" and insert:
6
7 Act, other than Part 2A,
8
9 5. Part 2A inserted
10 After Part 2 insert:
11
12 Part 2A -- Child sexual abuse actions
13 Division 1 -- Preliminary
14 15A. Terms used
15 In this Part --
16 assets means any legal or equitable estate or interest
17 (whether present or future, whether vested or
18 contingent and whether personal or assignable) in real
19 or personal property of any description, and includes
20 money and securities, choses in action and documents;
21 child sexual abuse has the meaning given in the
22 Limitation Act 2005 section 6A(1);
23 child sexual abuse action has the meaning given in the
24 Limitation Act 2005 section 6A(1);
25 child sexual abuse cause of action has the meaning
26 given in the Limitation Act 2005 section 6A(1);
page 3
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 institution means an entity (other than the Crown),
2 organised for some purpose or work, that exercises or
3 exercised care, supervision or authority over children,
4 whether as part of its primary functions or activities or
5 otherwise.
6 Division 2 -- Liability of certain office holders and
7 institutions, and availability of assets
8 15B. Liability of current office holder in unincorporated
9 institution
10 (1) Subsections (2) and (3) apply if --
11 (a) a person was subjected to child sexual abuse by
12 a person associated with an institution; and
13 (b) the person has or had a child sexual abuse cause
14 of action against the holder of an office of
15 authority in the institution (the office holder)
16 founded on the responsibility of the office
17 holder for the associated person and for the
18 institution generally; and
19 (c) at the time of the accrual of the cause of action,
20 the institution --
21 (i) exercised care, supervision or authority
22 over children; and
23 (ii) was not incorporated;
24 and
25 (d) the institution is currently not incorporated; and
26 (e) the office holder no longer holds the office; and
27 (f) the person would be able to maintain an action
28 on the cause of action if the office holder
29 continued to hold the office.
30 (2) An action on the cause of action referred to in
31 subsection (1)(b) may be commenced against the
page 4
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 5
1 current holder of the office (the current office holder)
2 in the name of the office.
3 (3) Any liability that the office holder would have had in
4 relation to the cause of action is taken to be held by the
5 current office holder.
6 (4) This section applies --
7 (a) regardless of when the act or omission that
8 constitutes the child sexual abuse occurred; and
9 (b) regardless of when the cause of action accrued.
10 (5) If the current office holder has a liability in relation to a
11 cause of action in tort because of subsection (3), the
12 current office holder is taken to be a tortfeasor, for the
13 purposes of the Law Reform (Contributory Negligence
14 and Tortfeasors' Contribution) Act 1947 section 7, in
15 respect of damage suffered as a result of the tort.
16 15C. Assets available for judgments and settlements:
17 office holders
18 (1) This section applies if a holder of an office of authority
19 in an institution has a liability under a judgment in or
20 settlement of an action on a child sexual abuse cause of
21 action of the type described in section 15B(1)(b).
22 (2) The holder of the office may satisfy the liability out of
23 assets held by or for the office or the institution,
24 including assets of a trust (whether or not a charitable
25 trust).
26 (3) However, personal assets of the holder of the office
27 cannot be used to satisfy the liability.
28 (4) For the purposes of subsection (2) --
29 (a) the holder of the office may realise assets held
30 by or for the office or the institution; and
page 5
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 (b) a trustee of a trust may pay an amount in
2 satisfaction of the liability and, for that purpose,
3 realise assets of the trust.
4 (5) The holder of the office and a trustee may take the
5 actions referred to in subsections (2) and (4) despite --
6 (a) any written or other law (including any law
7 concerning trusts or the holding of property by
8 or for the office or the institution); or
9 (b) the terms of any trust; or
10 (c) any duty whether as member of the institution,
11 office holder, trustee or otherwise.
12 (6) Subsection (3) has effect despite any written or other
13 law, including the Civil Judgments Enforcement
14 Act 2004.
15 (7) This section does not apply in relation to a judgment in
16 or settlement of a child sexual abuse action given or
17 reached before the day on which the Civil Liability
18 Legislation Amendment (Child Sexual Abuse Actions)
19 Act 2017 section 5 came into operation.
20 15D. Liability of incorporated institution that was
21 unincorporated at time of abuse
22 (1) Subsections (2) and (3) apply if --
23 (a) a person was subjected to child sexual abuse by
24 a person associated with an institution; and
25 (b) the person has or had a child sexual abuse cause
26 of action against the holder of an office of
27 authority in the institution (the office holder)
28 founded on the responsibility of the office
29 holder for the associated person and for the
30 institution generally; and
page 6
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 5
1 (c) at the time of the accrual of the cause of action,
2 the institution --
3 (i) exercised care, supervision or authority
4 over children; and
5 (ii) was not incorporated;
6 and
7 (d) the institution is currently incorporated; and
8 (e) the person is able to maintain an action on the
9 cause of action or would be able to do so if the
10 office holder continued to hold the office.
11 (2) An action on the cause of action referred to in
12 subsection (1)(b) may be commenced against the
13 institution.
14 (3) Any liability that the office holder would have had in
15 relation to the cause of action is taken to be held by the
16 institution.
17 (4) This section applies --
18 (a) regardless of when the act or omission that
19 constitutes the child sexual abuse occurred; and
20 (b) regardless of when the cause of action accrued.
21 (5) If the institution has a liability in relation to a cause of
22 action in tort because of subsection (3), the institution
23 is taken to be a tortfeasor, for the purposes of the Law
24 Reform (Contributory Negligence and Tortfeasors'
25 Contribution) Act 1947 section 7, in respect of damage
26 suffered as a result of the tort.
27 15E. Assets available for judgments and settlements:
28 institutions
29 (1) This section applies if an institution has a liability
30 under a judgment in or settlement of a child sexual
31 abuse action.
page 7
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 (2) The institution may satisfy the liability out of assets
2 held by or for the institution, including assets of a trust
3 (whether or not a charitable trust).
4 (3) For the purposes of subsection (2) --
5 (a) the institution may realise assets held by or for
6 the institution; and
7 (b) a trustee of a trust may pay an amount in
8 satisfaction of the liability and, for that purpose,
9 realise assets of the trust.
10 (4) The institution or a trustee may take the actions
11 referred to in subsections (2) and (3) despite --
12 (a) any written or other law (including any law
13 concerning trusts or the holding of property by
14 or for the office or the institution); or
15 (b) the terms of any trust; or
16 (c) any duty whether as member of the institution,
17 office holder, trustee or otherwise.
18 (5) This section does not apply in relation to a judgment in
19 or settlement of a child sexual abuse action given or
20 reached before the day on which the Civil Liability
21 Legislation Amendment (Child Sexual Abuse Actions)
22 Act 2017 section 5 came into operation.
23 15F. Continuity of institutions: institution substantially
24 the same
25 (1) For the purposes of sections 15B, 15D and 15H(4)(a),
26 it is sufficient that an institution (as it is currently) is
27 substantially the same as it was at the time when the
28 cause of action accrued (the relevant time).
29 (2) Without limiting the generality of subsection (1), an
30 institution (as it is currently) is substantially the same
31 as it was at the relevant time if the class or type of
32 member and the primary purposes or work of the
page 8
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 5
1 institution (as it is currently) are substantially the same
2 as they were at the relevant time.
3 (3) Subsections (1) and (2) have effect regardless of
4 whether, after the relevant time --
5 (a) the name of the institution changed;
6 (b) the organisational structure of the institution
7 changed;
8 (c) the institution became incorporated;
9 (d) the geographic area in which the members of
10 the institution carried out the purposes or work
11 of the institution changed.
12 15G. Continuity of institutions: no institution the same or
13 substantially the same
14 (1) If, for the purposes of section 15B or 15D, there is no
15 current institution that is the same or substantially the
16 same as the institution referred to in section 15B(1)(a)
17 or 15D(1)(a) (the earlier institution), the current
18 institution that is, under this section, the relevant
19 successor of the earlier institution is taken to be the
20 same institution as the earlier institution for the
21 purposes of this Division.
22 (2) A current institution is the relevant successor of an
23 earlier institution if --
24 (a) 1 of the circumstances in subsection (3) applies
25 to the institution and the earlier institution; or
26 (b) in the case where there is at least 1 institution
27 interposed, over time, between the institution
28 and the earlier institution -- at least 1 of the
29 circumstances in subsection (4) applies to each
30 link in the chain between the institution and the
31 earlier institution.
page 9
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 (3) For the purposes of subsection (2)(a), the
2 circumstances are --
3 (a) some or all of the earlier institution merged into
4 the institution;
5 (b) some or all of the earlier institution merged
6 with 1 or more other entities to form the
7 institution;
8 (c) the institution is the remainder of the earlier
9 institution after some of the earlier institution
10 ceased to be part of the earlier institution.
11 (4) For the purposes of subsection (2)(b), the
12 circumstances are --
13 (a) some or all of an earlier institution merged into
14 an institution;
15 (b) some or all of an earlier institution merged with
16 1 or more other entities to form an institution;
17 (c) an institution is the remainder of an earlier
18 institution after some of the earlier institution
19 ceased to be part of the earlier institution;
20 (d) an institution as it is at a particular time is
21 substantially the same as it was at an earlier
22 time (and section 15F(2) and (3) apply, with all
23 necessary modifications, in determining what is
24 substantially the same).
25 (5) The Governor may, on the recommendation of the
26 Minister, make regulations providing that, for the
27 purposes of subsection (1), a specified current
28 institution is the relevant successor of a specified
29 earlier institution.
30 (6) The Minister cannot make a recommendation for the
31 purposes of subsection (5) unless satisfied that --
32 (a) the current institution has some relevant
33 connection to the earlier institution; or
page 10
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 5
1 (b) the head of the current institution, as worked
2 out under section 15H(3), has agreed to the
3 current institution being the relevant successor
4 of the earlier institution.
5 (7) Regulations made for the purposes of subsection (5) --
6 (a) prevail over subsections (2) to (4) to the extent
7 of any inconsistency; and
8 (b) may have effect from a day that is before the
9 day on which they are published in the Gazette,
10 but not before the day on which the Civil
11 Liability Legislation Amendment (Child Sexual
12 Abuse Actions) Act 2017 section 5 came into
13 operation.
14 15H. Continuity of offices
15 (1) For the purposes of section 15B, it is sufficient that an
16 office (as it is currently) is substantially the same as it
17 was at the time when the cause of action accrued.
18 (2) However, if there is no current office that is the same
19 or substantially the same as the office referred to in
20 section 15B(1)(b) but there is continuity of the
21 institution, the current head of the institution is taken to
22 be the current office holder for the purposes of this
23 Division.
24 (3) The head of an institution is the individual or body who
25 or which, as a member or part of the institution --
26 (a) is acknowledged by the institution as the head
27 of the institution; or
28 (b) in the absence of such an individual, body or
29 acknowledgment -- has overall responsibility
30 for the institution.
page 11
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 (4) For the purposes of subsection (2), there is continuity
2 of the institution if the institution (as it is currently) --
3 (a) is the same as it was at the time when the cause
4 of action accrued; or
5 (b) is the same institution, under section 15G, as
6 the institution referred to in section 15B(1)(a).
7 15I. Accrual of certain child sexual abuse causes of
8 action
9 For the purposes of this Division, if a child sexual
10 abuse cause of action does not accrue at the time of the
11 act or omission giving rise to the cause of action, the
12 cause of action is taken to have accrued at the time of
13 the act or omission, despite any written or other law.
14 15J. Displacement of Corporations legislation
15 Sections 15C and 15E are declared to be Corporations
16 legislation displacement provisions for the purposes of
17 the Corporations Act 2001 (Commonwealth)
18 section 5G in relation to the Corporations legislation
19 generally.
20 Division 3 -- Prior compensation payments
21 15K. Prior compensation payments taken into account
22 (1) In this section --
23 compensation payment, made in respect of a person --
24 (a) means a payment made in respect of the person
25 by way of compensation or redress (including
26 an ex gratia payment) for child sexual abuse of
27 the person; but
28 (b) does not include an amount paid under a
29 judgment in or settlement of a child sexual
30 abuse action.
page 12
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Civil Liability Act 2002 amended Part 2
s. 5
1 (2) A court, in making an award of damages in a child
2 sexual abuse action in respect of a person, must deduct
3 an amount equal to the amount of any compensation
4 payment made in respect of the person for the child
5 sexual abuse the subject of the action.
6 (3) The court must do so only to the extent to which the
7 compensation payment is for that child sexual abuse.
8 (4) If the court is not satisfied as to the extent to which the
9 compensation payment is for that child sexual abuse,
10 the court must deduct an amount equal to 50% of the
11 payment.
12 (5) This section does not limit a court's power, in making
13 an award of damages in a child sexual abuse action in
14 respect of a person, to take into account an amount paid
15 under a judgment in or settlement of a previous child
16 sexual abuse action in respect of the person.
17 Division 4 -- Caps on legal fees
18 15L. Caps on legal fees
19 (1) In this section --
20 costs determination has the meaning given in the Legal
21 Profession Act 2008 section 252;
22 law practice has the meaning given in the Legal
23 Profession Act 2008 section 3.
24 (2) An agreement must not be made for a law practice to
25 receive, for appearing for or acting on behalf of a
26 person in a child sexual abuse action, any greater
27 reward than is provided for by any costs determination
28 that is in force.
page 13
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 2 Civil Liability Act 2002 amended
s. 5
1 (3) An agreement is void, and any money paid under the
2 agreement is recoverable by the person who paid the
3 money, if the agreement --
4 (a) is made contrary to this section; or
5 (b) would have been contrary to this section if it
6 had been made after the commencement of the
7 Civil Liability Legislation Amendment (Child
8 Sexual Abuse Actions) Act 2017 section 5.
9 (4) Subsection (3) does not affect the operation of an
10 agreement so far as it relates to services provided
11 before the commencement of the Civil Liability
12 Legislation Amendment (Child Sexual Abuse Actions)
13 Act 2017 section 5 and does not apply in relation to any
14 money paid or payable in respect of services so
15 provided.
16 Division 5 -- Review of Part 2A
17 15M. Review of Part
18 (1) The Minister must carry out a review of the operation
19 and effectiveness of this Part as soon as is practicable
20 after the 3rd anniversary of the day on which the Civil
21 Liability Legislation Amendment (Child Sexual Abuse
22 Actions) Act 2017 section 5 comes into operation.
23 (2) The Minister must prepare a report based on the review
24 and, as soon as is practicable after the report is
25 prepared, cause it to be laid before each House of
26 Parliament.
27
page 14
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Criminal Injuries Compensation Act 2003 amended Part 3
s. 6
1 Part 3 -- Criminal Injuries Compensation
2 Act 2003 amended
3 6. Act amended
4 This Part amends the Criminal Injuries Compensation Act 2003.
5 7. Section 68 amended
6 After section 68(1) insert:
7
8 (1A) Subsection (1) does not apply if the amount referred to
9 in subsection (1)(b) was reduced to take into account
10 the compensation award referred to in
11 subsection (1)(a).
12
page 15
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 4 Limitation Act 2005 amended
s. 8
1 Part 4 -- Limitation Act 2005 amended
2 8. Act amended
3 This Part amends the Limitation Act 2005.
4 9. Section 5 amended
5 In section 5(2) delete "section 6." and insert:
6
7 sections 6 and 6A.
8
9 10. Section 6A inserted
10 After section 6 insert:
11
12 6A. Special provisions for child sexual abuse actions: no
13 limitation period
14 (1) In this section --
15 child means a person under 18 years of age;
16 child sexual abuse, of a person, means an act or
17 omission in relation to the person, when the person is a
18 child, that is sexual abuse;
19 child sexual abuse action means an action on a child
20 sexual abuse cause of action;
21 child sexual abuse cause of action means a cause of
22 action that relates, directly or indirectly, to a personal
23 injury of the person to whom the cause of action
24 accrues, where the injury results from child sexual
25 abuse of the person.
26 (2) Despite anything in this or any other Act, no limitation
27 period applies in respect of a child sexual abuse action.
page 16
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Limitation Act 2005 amended Part 4
s. 10
1 (3) The following provisions do not apply in respect of a
2 child sexual abuse action --
3 (a) the Crown Suits Act 1947 section 6 (as applying
4 under the Limitation Legislation Amendment
5 and Repeal Act 2005 section 8);
6 (b) the Limitation Act 1935 section 47A (as
7 applying under the Limitation Legislation
8 Amendment and Repeal Act 2005 section 4);
9 (c) section 5 of this Act.
10 (4) This section applies regardless of whether the action is
11 brought in tort (including trespass), in contract, under
12 statute or otherwise.
13 (5) This section does not limit --
14 (a) any inherent, implied or statutory jurisdiction of
15 a court; or
16 (b) any other powers of a court arising or derived
17 from the common law or under any other Act
18 (including any Commonwealth Act), rule of
19 court, practice note or practice direction.
20 Note for this subsection:
21 For example, this section is not intended to limit a court's
22 power to summarily dismiss or permanently stay
23 proceedings where the lapse of time has a burdensome
24 effect on the defendant that is so serious that a fair trial is
25 not possible.
26 (6) A cause of action referred to in the definition of child
27 sexual abuse cause of action does not include a cause
28 of action, action on which could not be maintained but
29 for the Fatal Accidents Act 1959 or the Law Reform
30 (Miscellaneous Provisions) Act 1941.
31 (7) The Minister must carry out a review of the operation
32 and effectiveness of this section and Part 7 as soon as is
33 practicable after the 3rd anniversary of the day on
34 which the Civil Liability Legislation Amendment (Child
page 17
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 4 Limitation Act 2005 amended
s. 11
1 Sexual Abuse Actions) Act 2017 section 10 comes into
2 operation.
3 (8) The Minister must prepare a report based on the review
4 and, as soon as is practicable after the report is
5 prepared, cause it to be laid before each House of
6 Parliament.
7
8 11. Section 9 amended
9 In section 9(1) delete "section 28(3) and (5))" and insert:
10
11 sections 6A and 28(3) and (5))
12
13 12. Part 7 inserted
14 After Part 6 insert:
15
16 Part 7 -- Transitional provisions
17 Division 1 -- Provisions for Civil Liability Legislation
18 Amendment (Child Sexual Abuse Actions) Act 2017
19 89. Terms used
20 In this Division --
21 child sexual abuse has the meaning given in
22 section 6A(1);
23 child sexual abuse action has the meaning given in
24 section 6A(1);
25 child sexual abuse cause of action has the meaning
26 given in section 6A(1);
27 commencement day means the day on which the Civil
28 Liability Legislation Amendment (Child Sexual Abuse
29 Actions) Act 2017 section 12 comes into operation;
page 18
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Limitation Act 2005 amended Part 4
s. 12
1 previously barred cause of action means a child sexual
2 abuse cause of action that was statute barred
3 immediately before commencement day;
4 previously settled cause of action means a child sexual
5 abuse cause of action that was settled after it was
6 statute barred but before commencement day;
7 statute barred, in relation to a child sexual abuse cause
8 of action, means that action on the cause of action
9 cannot be maintained --
10 (a) under one of the provisions referred to in
11 section 6A(3); or
12 (b) because a limitation period applicable to the
13 action under this or any other Act has expired.
14 90. Application of section 6A
15 Section 6A applies in relation to a child sexual abuse
16 action regardless of when the act or omission
17 constituting child sexual abuse occurred.
18 91. Previously barred causes of action
19 (1) An action on a previously barred cause of action may
20 be commenced even though one or more of the
21 following apply --
22 (a) the action was statute barred before
23 commencement day;
24 (b) an action on the cause of action had
25 commenced but was discontinued or not
26 finalised before commencement day;
27 (c) a judgment was given before commencement
28 day in relation to the cause of action on the
29 ground that the action was statute barred;
30 (d) an action on the cause of action was dismissed
31 before commencement day on the ground that
32 the action was statute barred.
page 19
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Part 4 Limitation Act 2005 amended
s. 12
1 (2) Application may be made to a court with jurisdiction to
2 deal with the action to set aside a judgment referred to
3 in subsection (1)(c) or (d) (the previous judgment). An
4 application may be made prior to the commencement
5 of the action.
6 (3) The court may, if satisfied that it is just and reasonable
7 to do so, set aside the previous judgment to the extent
8 to which it relates to the action.
9 (4) If the previous judgment is wholly or partly set aside, a
10 person who paid an amount under the judgment cannot
11 seek to recover that amount on the basis of the
12 judgment having been set aside to that extent.
13 (5) If an action on a previously barred cause of action is
14 commenced, the court dealing with the action may, if
15 satisfied that it is just and reasonable to do so, take into
16 account any amount paid under a previous judgment
17 relating to the cause of action.
18 (6) A court, other than the Supreme Court, may not set
19 aside a previous judgment of another court.
20 92. Previously settled causes of action
21 (1) This section applies in relation to a proposed action on
22 a previously settled cause of action and to the
23 agreement effecting the settlement (the settlement
24 agreement).
25 (2) Application may be made to a court that would have
26 jurisdiction to deal with the action, but for the
27 settlement agreement, for leave to commence the
28 action.
29 (3) The court may, if satisfied that it is just and reasonable
30 to do so --
31 (a) grant leave to commence the action, subject to
32 conditions; and
page 20
Civil Liability Legislation Amendment (Child Sexual Abuse Actions)
Bill 2017
Limitation Act 2005 amended Part 4
s. 12
1 (b) to the extent necessary for that, set aside the
2 settlement agreement and any judgment giving
3 effect to the settlement.
4 (4) If an action on the previously settled cause of action is
5 commenced, the settlement agreement and each
6 agreement relating to the settlement, other than a
7 contract of insurance, is, despite any written or other
8 law, void to the extent to which it relates to the child
9 sexual abuse the subject of the cause of action.
10 (5) A party to an agreement that is wholly or partly void
11 under subsection (4) cannot seek to recover an amount
12 paid by or for the party under the agreement on the
13 basis that the agreement is void to that extent.
14 (6) The court dealing with the action may, if satisfied that
15 it is just and reasonable to do so, take into account any
16 amount paid under an agreement that is wholly or
17 partly void under this section, to the extent to which the
18 amount relates to the child sexual abuse the subject of
19 the cause of action.
20 (7) For the purposes of subsection (6), amounts paid under
21 an agreement are taken to relate to the child sexual
22 abuse the subject of the cause of action to the extent of
23 50% if the agreement --
24 (a) does not relate solely to that child sexual abuse;
25 and
26 (b) does not expressly deal with the extent to which
27 the agreement and amounts paid under it relate
28 to that child sexual abuse.
29
30
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