Review

To simplify limitation periods for bringing actions in Western Australia, amendments to the West Australian Limitation Act 1935 took effect on 15 November 2005. Even though you may be based in another State or Territory, you should be aware of the changes in case you want to bring or defend an action in WA.

In particular, professionals such as accountants, solicitors and doctors should consider the impact that the changes may have on their professional indemnity insurance policies and how long they will require insurance coverage after retirement or closure of a business. In many cases, the impact of the 2005 Act will be to reduce the period for which insurance must be retained.

The amendments were introduced by the Limitation Legislation Amendment and Repeal Act 2005 and the Limitation Act 2005.

Limitation periods for causes of action accruing before 15 November 2005

Section 4 of the Limitation Legislation Act repeals the 1935 Act (which reproduced provisions of English statutes dating back as far as 1623).

The 1935 Act continues to apply to causes of action that accrued before the 15 November 2005. The only exceptions are causes of action relating to personal injuries and childbirth. These are now dealt with by the 2005 Act, irrespective whether the cause of action accrued before 15 November 2005.

General limitation period

The 2005 Act establishes a general limitation period of six years. Only a few specific causes of action excluded.

The 2005 Act also grants Courts the discretion to extend the limitation period for certain causes of action. These are outlined below:

General extension of the limitation period

Under the 1935 Act the Courts were unable to extend the limitation periods. The 2005 Act provides that a Court (being any Court in which the proceeding is commenced) may extend the limitation period in certain circumstances.

A Court will take into account the following general considerations when determining whether to grant an extension:

• whether the delay would unacceptably diminish the prospects of a fair trial of the action; and
• whether extending the time would significantly prejudice the defendant.

Extension of limitation period by Courts in cases of fraud or improper conduct

• Where a Court is satisfied that the failure to commence an action was attributable to fraudulent or improper conduct by the defendant or person for whom the defendant is vicariously liable, a Court may extend the limitation period by up to three years, notwithstanding any provision in the 2005 Act.
• An extension is unavailable for actions relating to the publication of defamatory material.

Extensions for defamation actions

• A Court may extend the limitation period for a defamation action.
• No action can be commenced if three years have elapsed since publication of the defamatory material.

Limitation periods for actions against the Crown

It is no longer necessary to obtain permission from the Attorney-General or leave from a Court to bring actions against the Crown (section 10 of the 2005 Act).

Contribution between tortfeasors

Under the 1935 Act a tortfeasor (A) could bring an action against another tortfeasor (B) for contribution within six years after the cause of action accrued. The cause of action accrued when there was a finding of liability against A.

Under the 2005 Act, an action for contribution must be commenced within two years from the cause of action accruing to tortfeasor A.

Limitation periods under other written laws

The 2005 Act does not affect the operation of limitation provisions in another written law or anything done under that law. However there will be no limitation for the Crown:

• to recover tax or interest on tax
• to forfeit a ship, or
• to recover land.

A limitation provision includes any provision that:

• establishes, modifies or extinguishes a cause of action or a defence to a cause of action
• prescribes the time within which an action can be commenced
• deals with the limitation or exclusion of liability or the barring of a right of action if an action is not commenced within a particular time limit.

Footnotes

¹There are specific extensions available where the person is under the age of 18 years when the cause of action accrues and for those suffering a mental illness. Defamation actions also have specific extension rules, as to which see below.

² Subject to section 8 which is relevant where there are two or more causes of action and one accrues before the commencement date of the 2005 Act.

³ Extension of the limitation period is subject to section 38(3)and (4).

⁴If the cause of action accrued before the commencement day, the limitation period of six years runs from the commencement day (section 7(2)).