Victorian Consolidated Legislation

Wrongs Act 1958 - SECT 20

Application to court as to cause of action under this Part

20. Application to court as to cause of action under this Part



(1) Not more than one action shall lie for and in respect of the same
subject-matter of complaint, and (subject to subsection (1A)) every such
action shall be commenced within six years after the death of such deceased
person or, where an application is made to a court under subsection (2),
within the period referred to in the order of the court.

(1A) Where the death of a deceased person was caused by an injury consisting
of a disease or disorder contracted by a person and the person did not know
before he died-

   (a)  that he had suffered the injury; or

   (b)  that the injury was caused by the act or omission of some person-

an action in respect of the injury shall be commenced within six years after
the date when the person claiming to have a cause of action under this Part
first knows-

   (c)  that the death was caused by the injury; and

   (d)  that the injury was caused by the act or omission of some person-

or, where an application is made to a court under subsection (2), within the
period referred to in the order of the court.

(2) Where on an application to a court by a person claiming to have a cause of
action under this Part, it appears to the court that-

   (a)  the death of the deceased person was caused by a wrongful act, neglect
        or default; and

   (b)  the deceased did not before his death bring an action in respect of
        the wrongful act neglect or default-

the court subject to subsection (3) and after hearing such of the persons
likely to be affected by that application as it sees fit, may, if it decides
that it is just and reasonable so to do, order that the period within which an
action on the cause of action may be brought be extended for such period as it
determines.



(3) In exercising the powers conferred on it by subsection (2) a court shall
have regard to all the circumstances of the case including (without derogating
from the generality of the foregoing) the following-

   (a)  the length of and reasons for the delay on the part of the deceased or
        the claimant or each of them (as the case may be);

   (b)  the extent to which, having regard to the delay, there is or is likely
        to be prejudice to the defendant;

   (c)  the extent, if any, to which the defendant had taken steps to make
        available to the deceased or the claimant or each of them (as the case
        may be) means of ascertaining facts which were or might be relevant to
        the cause of action of the deceased or the claimant or each of them
        (as the case may be) against the defendant;

   (d)  the duration of any disability of the deceased arising on or after the
        date of the accrual of the cause of action;

   (e)  the extent to which the deceased or the claimant or each of them (as
        the case may be) acted promptly and reasonably once he knew in
        relation to the injury that caused the death that the act or omission
        to which that injury was attributable might be capable at that time of
        giving rise to an action for damages;

   (f)  the steps, if any, taken by the deceased or the claimant or each of
        them (as the case may be) to obtain medical legal or other expert
        advice and the nature of any such advice he may have received.

(3A) The powers conferred on a court by subsection (2) may be exercised at any
time notwithstanding-

   (a)  that more than six years has expired since the cause of action
        accrued; or

   (b)  that an action in respect of such personal injuries has been commenced
        by the claimant.

(4) Where under this section a question arises as to the knowledge of a
deceased person the court may have regard to the conduct and statements oral
or in writing of the deceased person.

(5) A copy of an application under this section must be served on each person
against whom the applicant claims to have the cause of action.



(6) This section applies in respect of a cause of action whether or not the
cause of action accrued before the commencement of the Wrongs Act 1972.

(7) This section does not apply in respect of a cause of action to which Part
IIA of the Limitation of Actions Act 1958 applies.