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1
Choice of Law (Limitation Periods)
CHOICE OF LAW (LIMITATION
PERIODS) BILL 1996
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objective 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 Queensland court as the law governing the
proceedings, the limitation laws of that place will also be applied.
Reasons for the Bill
The High Court, in McKain v. R W Miller & Company (South Australia)
Pty. Limited (1991) 174 CLR 1, decided that, according to the general rules
as to choice of law, limitation periods 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.
Achievement of Objectives
The Bill is based on a model Bill proposed by the Parliamentary
Counsel's Committee and which has been approved by the Standing
Committee of Attorneys-General (SCAG). In order to ensure that
limitations periods are treated as matters of substantive law for the purposes
of choice of law, every other State and Territory has passed the model Bill.
By making this Bill uniform legislation throughout Australia the policy
objective will be achieved.
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Choice of Law (Limitation Periods)
The passing of the model Bill by the States and Territories is the only
option available to ensure implementation of the policy objective and
uniform application of that objective throughout Australia.
Estimated Cost for government Implementation
There will be no cost for Government.
Fundamental Legislative Principles
Section 4(3)(g) of the Legislative Standards Act 1992 provides that one
of the fundamental legislative principles is whether legislation adversely
affects rights and liberties, or imposes obligations, retrospectively.
Clause 3 of the Bill (the application clause) provides that the amendment
applies to a cause of action that arose before commencement, but not
proceedings started before the commencement. It is not directed at
retrospectively affecting the rights of potential litigants. Retrospective laws
are generally passed to validate past actions, correct defects in legislation or
confer benefits retrospectively. The purpose of the Bill is to obviate the
contentious decisions of the High Court of Australia in cases such as
Stevens v. Head (1993) 67 ALJR 343 and McKain v. Miller (1991) 174
CLR 1 which evidence some disagreement between the members of the
Court concerning procedural and substantive aspects of the law.
Consultation
The agencies and persons consulted include the Litigation Reform
Commission, the Bar Association of Queensland, the Queensland Law
Society Inc., Nominal Defendant (Queensland), Insurance Commissioner,
Motor Accident Insurance Commission, and the Department of Training
and Industrial Relations.
NOTES ON PROVISIONS
Clause 1 Short title
Clause 2 provides for the Act to commence on a date to be fixed by
proclamation.
Clause 3 provides that the Act applies to causes of action that arose
before the commencement of the Act. It does not apply to a proceeding
started before the commencement of the Act.
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Choice of Law (Limitation Periods)
It provides that the Act will not apply to New Zealand until declared to
apply by regulation and modifies the transitional provisions accordingly.
Clause 4 defines "court", "limitation law" and "relevant place" for the
purposes of the Act.
Clause 5 ensures that a limitation law of another State, a Territory or
New Zealand is treated as a substantive law by Queensland courts applying
choice of law rules.
Clause 6 provides that if a Queensland 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 for the making of regulations under the Act by the
Governor-in-Council.
Clause 8 provides for the amendments to the Limitation of Actions Act
1974 listed in the Schedule.
SCHEDULE
AMENDMENTS OF LIMITATION OF ACTION ACT 1974
Clauses 1--8 These clauses amend the Limitation of Actions Act in
minor respects to reflect current drafting practices such as--
· altering definitions to accord with current drafting practices and
consistent use of terms in Queensland legislation;
· omitting provisions which are addressed by the Acts
Interpretation Act 1954;
· replacing words and phrases with plain English;
· replacing words and phrases to ensure greater consistency with
words and phrases already appearing in the Act;
· renumbering sections where appropriate.
The explanation for the amendments is self-evident. However the
following explanations are made in respect of these clauses--
Clause 4 omits s. 10A(5) which was inserted by the Limitation of
Actions Amendment Act 1993. The new s. 43A which characterises all
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Choice of Law (Limitation Periods)
limitation laws of Queensland to be substantive laws includes the objective
which was achieved by the 1993 amendment and therefore s. 10A(5) is no
longer necessary.
Clause 8 is a corollary of proposed sections 4 and 5 of the Choice of
Law (Limitation Periods) Act. This section characterises limitation laws of
Queensland as part of the substantive law of this State so that, when the law
of Queensland is applied in another jurisdiction as the law governing the
proceedings, Queensland limitation laws will also be applied.
© The State of Queensland 1996