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CHOICE OF LAW (LIMITATION PERIODS) BILL 1993
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The Limitation (Amendment) Bill 1993 is cognate with this Bill.
The High Court, in McKain v. R. W! Miller & Company (South Australia) Pty. Limited
(1991) 174 C.L.R. 1, decided that, according to the general rules as to choice of law.
limitations are treated as governed by the law of the place where the proceedings are
brought, regardless of where the cause of action arose. This may tend to encourage
forum shopping to take advantage of the longest limitation periods.
The object of this Bill is to ensure that limitation laws are treated as matters of
substantive law for the purposes of choice of law and therefore governed by the law of
the cause and not that of the forum. Accordingly, when the law of another place (being
another State, a Territory or New Zealand) is applied by a New South Wales court as the
law governing the proceedings, the limitation laws of that place will also be applied.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day to be
appointed by proclamation.
Clause 3 defines "court" and "Iimitation law" for the purposes of the proposed
Act.
Clause 4 provides that the proposed Act applies to causes of action that arose before
the commencement of the proposed Act but not to proceedings instituted before that
commencement.
Clause 5 ensures that a limitation law of another State, a Territory or New Zealand
is treated as a substantive law by New South Wales courts applying choice of law rules.
Clause 6 provides that if a New South Wales court exercises a discretion under a
limitation law of another jurisdiction, it is to exercise that discretion in a manner
comparable to the way in which the courts of that jurisdiction would exercise the
discretion.
Clause 7 provides that the proposed Act will not apply in relation to New Zealand
until it is proclaimed to apply in relation to that country, and modifies the transitional
provisions accordingly.
Clause 8 is a standard provision requiring the Minister to review the operation of
the Act after 5 years.