Whether you are enforcing your rights under a contract, seeking damages for negligence or pursuing some other form of relief, anyone considering litigation should be aware of the applicable limitation period.
A limitation period is a period of time prescribed by statute within which a legal action can be brought or a right enforced. The limitation period commences when the cause of action accrues, and runs for the period of time set out in the written law. In Queensland, most limitation periods are set out in the Limitation of Actions Act 1974 (“the Act”).
How much time do I have to commence proceedings?
The applicable limitation period will vary depending on the particular cause of action. The below table sets out the limitation periods for some of the more common causes of action.
|Limitation Period||Cause of Action|
|1 Year||Defamation and Claims under the Anti-Discrimination Act 1991 (Qld)|
|3 Years||Claim for damages resulting from personal injuries or death|
|6 Years||Contract, Negligence (save for claims relating to personal injuries/death), Trespass and Nuisance|
|12 Years||Enforcing a judgment|
When does a cause of action “accrue”?
Generally speaking, a cause of action will accrue when all of the elements required to establish a claim materialise. This will vary for each specific cause of action. For example, a claim for breach of contract will arise when there is a breach of a material term of a contract (such as failing to pay money or completing works). The limitation period for an action for breach of contract begins to run from the date of the breach. As you can see from the table set out above, a claimant has up to six years to bring an action for that breach.
An action for negligence also has a limitation period of six years (except in respect of personal injury or death claims, where the limitation period is three years). However, the limitation period for a negligence claim begins once loss is suffered or damage occurs.
Calculating the applicable limitation period is not always a straight forward process. For example, a claimant may have a claim in both contract and negligence arising from the same circumstances. Quite often, both causes of action are pursued simultaneously. However, in many instances the limitation period for breach of contract will expire first.
Can a limitation period be extended?
The courts have discretion to extend a limitation period. For example:
- Where the claimant is under a disability, the court can order an extension of the relevant time limit to six years after a person ceased being under a disability (or died, whichever is earlier).
- In personal injury matters, the court may extend the limitation period by one year where there is a “material fact of a decisive character” that is unknown to the claimant until at least a year before expiry of the limitation period (or afterwards).
Further, in causes of action based on fraud, the Act provides that the limitation period is postponed until the claimant has discovered the fraud, while in certain circumstances an acknowledgment of debt can extend the limitation.
Notwithstanding the court’s discretion to extend the limitation period, we do not recommend relying on the exercise of this discretion, as there is a very real possibility that any such application would be refused. In such circumstances, you would lose your right to bring a claim before the court.
Limitation periods, and their application to the various causes of action can be complex and confusing. As such, it is imperative that potential claimants act promptly to protect their rights.