Australian law imposes strict time limits on all types of cases, known as limitation periods. These limits mean that a party must commence proceedings in court within the specified period. If you miss the limitation period, it may be difficult to bring legal proceedings to protect your rights.

Today, we will explain the limitation periods for common types of cases in Australia, and what you can do if the limitation period has expired.

Case Study

Mr H was assaulted during a dispute. He did not seek compensation at the time, and the assailant had disappeared. Moreover, Mr H felt his injuries were not serious, so he did not pursue the matter further. However, after some time, Mr H noticed his injuries had worsened, and upon examination it was discovered that he had suffered irreversible physical harm. Recently, Mr H suddenly learned of the assailant’s whereabouts through a mutual acquaintance, and wanted to hold the assailant accountable and seek compensation. However, he discovered that the limitation period had already expired….

1. What is a Limitation Period?

A limitation period is a strict time limit within which most civil (and some criminal) proceedings must be commenced. If the limitation period has expired before any proceedings are commenced, it may be difficult or even impossible to bring legal action. The limitation period applies only to commencing proceedings — that is, filing the relevant court documents with the court — and does not require the case to proceed to a substantive hearing.

2. Why Are Limitation Periods Imposed?

Limitation periods are typically imposed for the following reasons:

To ensure defendants are not subjected to the indefinite threat of being sued;

To protect evidence (particularly the ability to preserve documents and locate witnesses whose recollections remain reliable);

To promote certainty as to the attribution of liability;

To ensure that matters involving the public interest are dealt with promptly;

To reduce overall costs within the justice system (for example, if evidence is lost, it may increase the time, money, and resources required to resolve disputes).

3. Limitation Periods for Common Types of Cases

Limitation periods vary slightly between states, and we recommend consulting a professional lawyer for advice. Based on the New South Wales Limitation Act 1969, we set out below the commonly applicable limitation periods for different types of cases within NSW:

1. Contract cases (except actions founded on a deed):

Limitation period: 6 years

2. General tort cases (Tort):

Limitation period: 6 years

3. Defamation (applicable to causes of action arising on or after 1 January 2006)

Limitation period: 1 year from the date the defamatory material was published

4. Personal injury (applicable to causes of action arising on or after 6 December 2002)

Limitation period: 3 years from the date of discoverability, or 12 years from the act or omission, whichever expires first.

5. Child abuse:

Limitation period: no time limit applies where child abuse results in death or personal injury.

6. Cases involving negligent property damage or economic loss:

Limitation period: 6 years

7. Action by mortgagor to redeem (land and personalty):

Limitation period: 12 years from the date the mortgagee last took possession or last received principal or interest

8. Dust-related conditions arising from particular work:

Limitation period: no time limit applies.

Limitation periods for NSW family law cases:

1. Property Settlement:

Applications for property settlement must be made within the following periods:

· De facto couples: within two years of the date of separation, or

· Married couples: within 12 months of the date of divorce.

2. Spouse Maintenance:

Applications for spouse maintenance must be made within the following periods:

· De facto couples: within two years of the date of separation, or

· Married couples: within 12 months of the date of divorce.

In addition to legal proceedings, the following types of complaints are also subject to time limits:

1. Unfair dismissal

The limitation period is 21 days from the date of dismissal.

2. Discrimination

If you, as an employee, make a discrimination complaint to the AHRC, you should do so within 6 months of the discriminatory conduct occurring. If you complain to ADNSW, you should do so within 12 months of the discriminatory conduct occurring.

4. What Can You Do If the Limitation Period Has Expired?

If you have missed the limitation period, please note that limitation periods can be statutorily extended. Australian law contains provisions allowing an application to be made to extend the limitation period. Accordingly, you may apply to the court for an extension of time, but certain conditions must be satisfied, and the court has discretion to decide whether to grant the extension.

Example 1

Defamation cases (applicable to causes of action arising on or after 1 January 2006):

If the plaintiff satisfies the court that it is just and reasonable to allow the action to proceed, the court may extend the limitation period to a maximum of 3 years from the date the defamatory matter was published.

Example 2

Personal injury (applicable to causes of action arising on or after 6 December 2002):

The 12-year period may be extended by up to 3 years from the date of discoverability, but the 3-year period cannot be extended.

Example 3

Unfair dismissal:

For unfair dismissal matters, an application may also be made to the Fair Work Commission to extend the time limit.

The Fair Work Act 2009 provides that, where “exceptional circumstances” exist, the FWC has the power to

extend the 21-day time limit for lodging an unfair dismissal application. In deciding whether to exercise this discretion, the FWC must consider the following factors:

Whether the person became aware of the dismissal only after it took effect;

The reasons for the failure to lodge the application on time;

Fairness as between the person and other persons in a similar position, among other considerations.

Final Thoughts

In Australia, each type of case is subject to its own limitation period. If you miss the limitation period, you may be unable to protect your rights or pursue compensation, so understanding the time limits for commencing proceedings is very important. If you are unsure of the limitation period applicable to your situation, or have inadvertently missed it, we recommend seeking the assistance of a professional lawyer to assess whether there may be reasonable grounds to apply for an extension.