LIMITATION ACT 1969 - SCHEDULE 5
LIMITATION ACT 1969 - SCHEDULE 5
SCHEDULE 5 – Savings, transitional and other provisions
(Section 6 (2))
Part 1 - Provisions consequent on enactment of Limitation (Amendment) Act 1990
1 Definitions
(1) In this Part--
"legal professional negligence" extends to the breach of any duty of professional care owed by an Australian legal practitioner, whether arising in tort, contract or otherwise.
"limitation period" means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under a provision of this Act (including a repealed or omitted provision of this Act).
(2) In this Part, a reference to a judgment given extends to a judgment entered, and also to an agreement entered into before and in connection with any such judgment.
2 Ultimate bar
Section 51 (2) applies even if a relevant limitation period had expired before 1 September 1990.
3 Secondary limitation period
(1) This clause applies in relation to a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default, where--(a) the deceased's cause of action accrued before 1 September 1990, and(b) the cause of action arising under that Act accrues on or after 1 September 1990.
(2) Subdivision 1 of Division 3 of Part 3 applies to the deceased's cause of action.
(3) Subdivision 2 of Division 3 of Part 3 applies to the cause of action arising under that Act.
4 Existing causes of action for personal injuries may be extended where latent injury etc
(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .
(2) Section 60H also applies to--(a) a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default, or(b) a cause of action that would arise under the Compensation to Relatives Act 1897 but for the expiration as against the deceased of a limitation period,being a cause of action that accrued or would have accrued before 1 September 1990.
(3) Sections 60G and 60H so apply--(a) whether or not a relevant limitation period has expired--(i) before 1 September 1990, or(ii) before an application is made under either of those sections in respect of the cause of action, and(b) whether or not an action has been commenced on the cause of action before 1 September 1990, and(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date), and(d) whether or not a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date).
(4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, if an application for such an order is made within--(a) the period of 3 years referred to in section 60I, or(b) the period of 3 years commencing on 1 September 1990.
(5) For the purposes of this clause, a reference in Part 3 to a limitation period is to be read as including a reference to a limitation period as defined by this Part.
5 Pre-existing judgments and settlements
(1) In this clause--
"previously barred cause of action" means a cause of action that was not maintainable immediately before 1 September 1990, but to which clause 4 applies.
(2) Without affecting the generality of Division 3 of Part 3, an action on a previously barred cause of action may be brought as a result of an order made under Subdivision 3 of that Division, even though--(a) a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date), or(b) a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date),or both.
(3) Such an action may be brought as if the action in which such a judgment was given had not itself been commenced.
(4) If such an action is brought after 1 September 1990 on such a previously barred cause of action, the court hearing the action may, if it decides that it is just and reasonable to do so, do any or all of the following--(a) set aside any such judgment already given on or in relation to the cause of action,(b) take into account any amounts paid or payable by way of damages under any such judgment,(c) take into account any amounts paid or payable by way of costs in connection with any action in which any such judgment was given.
(5) The Supreme Court may, on application, exercise the power to set aside a judgment under subclause (4) (a) even though it is not hearing the action.
(6) A court (other than the Supreme Court) may not, under this clause, set aside a judgment of any other court.
Part 2 - Provisions consequent on enactment of Defamation Act 2005
6 Definition
In this Part--
"new defamation provisions" means--
(a) section 14B (as substituted by the Defamation Act 2005 ), and
(b) Division 2A of Part 3 (as substituted by the Defamation Act 2005 ).
7 Application of amendments made by Defamation Act 2005
(1) The new defamation provisions apply to the publication of defamatory matter after the commencement of those provisions, unless subclause (2) provides otherwise.
(2) The new defamation provisions do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of those provisions (the
"post-commencement action" ) if--(a) the post-commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff, and(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and(c) one or more of the other causes of action in the proceedings accrued before the commencement of the new defamation provisions (a
"pre-commencement action" ), and(d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued.
(3) The existing limitation law continues to apply to the following causes of action in the same way as it would have applied to those causes of action had the new defamation provisions not been enacted--(a) any cause of action that accrued before the new defamation provisions,(b) any post-commencement action to which the new defamation provisions do not apply because of subclause (2).
(4) In this clause, the
"existing limitation law" means the provisions of this Act that applied in relation to the limitation period for defamation actions immediately before the commencement of the new defamation provisions.
Part 3 - Provisions consequent on enactment of Limitation Amendment (Child Abuse) Act 2016
8 Definitions
(1) In this Part--
"legal professional negligence" and
"limitation period" have the same meanings as in clause 1.
(2) In this Part, a reference to a judgment given extends to a judgment entered and also to an agreement entered into before and in connection with any such judgment.
9 Application of amendments
Section 6A extends to a cause of action that arose before the commencement of that section, and applies--
(a) whether or not any limitation period previously applying to the cause of action has expired, and
(b) whether or not an action has been commenced previously on the cause of action, and
(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired, been given previously, and
(d) whether or not a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired, been given previously.
10 Pre-existing judgments
(1) An action on a previously barred cause of action may be brought even though--(a) a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired, been given previously, or(b) a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired, been given previously,or both.
(2) An action on a previously barred cause of action may be brought as if the action in which such a judgment was given had not itself been commenced.
(3) If an action on a previously barred cause of action is brought on or after the commencement of section 6A, the court hearing the action may, if it decides that it is just and reasonable to do so, do any or all of the following--(a) set aside any such judgment already given on or in relation to the cause of action,(b) take into account any amounts paid or payable by way of damages under any such judgment,(c) take into account any amounts paid or payable by way of costs in connection with any action in which any such judgment was given.
(4) The Supreme Court may, on application, exercise the power under this clause to set aside a judgment even though it is not hearing the action.
(5) A court (other than the Supreme Court) may not exercise the power under this clause to set aside a judgment of any other court.
(6) In this clause--
"previously barred cause of action" means a cause of action to which section 6A applies that was not maintainable immediately before the commencement of that section.
Part 4 - Provisions consequent on enactment of Defamation Amendment Act 2020
11 Application of 2020 amendments
(1) The amendment made to section 14B by the Defamation Amendment Act 2020 applies in relation to the publication of defamatory matter after the commencement of the amendment.
(2) Section 14C (as inserted by the Defamation Amendment Act 2020 ) applies in relation to the publication of defamatory matter after the commencement of the section, subject to subclause (3).
(3) Section 14C extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement.
(4) Section 56A (as amended by the Defamation Amendment Act 2020 ) applies in relation to the publication of defamatory matter after the commencement of the section.