In brief - New legislation applies retrospectively

The NSW government has recently passed legislation removing time limitations on claims for child sexual and serious physical abuse. The legislation addresses the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse that time limitations should be removed with retrospective effect, while also preserving the right to a fair trial.

Limitation Amendment (Child Abuse) Bill 2016 passed by NSW government

On 14 September 2015, the Royal Commission released its Redress and civil litigation report. One of the recommendations made in the report was that limitation periods that apply to a claim for damages resulting from child sexual abuse be removed.

In 2015, Victoria introduced the Limitation of Actions Amendment (Child Abuse) Act 2015 which removed limitation periods for claims relating to the sexual or physical abuse of a child, and psychological abuse that is connected to the sexual or physical abuse.

The NSW government has now passed legislation removing time limitations on claims for child sex abuse, effective from 17 March 2016 and with retrospective application.

Recommendations aim to assist survivors to pursue civil litigation

Chapter 14 of the Royal Commission's report found that limitation periods are a significant, sometimes insurmountable, barrier to survivors of child sexual abuse pursuing civil litigation.

The Royal Commission recommended that state and territory governments legislate to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child, and that such amendments should:
  • be removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past
  • preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period
  • implement the recommendations to remove limitation periods as soon as possible, even if that meant implementation before other recommendations by the Royal Commission (e.g. identifying a proper defendant) are implemented
On 16 February 2016, the Limitation Amendment (Child Abuse) Bill 2016 was introduced to the NSW parliament, aimed at implementing those recommendations.

Less than a month later, on 9 March 2016, the Bill was passed by both houses of the NSW parliament, and on 17 March 2016 the Limitation Amendment (Child Abuse) Act 2016 received assent.

Child sexual or serious physical abuse victims no longer need to seek extensions of time

Prior to these amendments, the Limitation Act 1969 (NSW) applied a range of limitation periods to actions for damages relating to child abuse, depending on when the abuse took place, in some cases, the identity of the perpetrator and their relationship to the survivor, and the awareness of the individual of various matters, such as their right to commence proceedings.

Prior to the amendments, if the limitation period had expired, the claimant had to seek an extension of time from the court to bring a claim. Now those claims can be brought at any time, without the need to seek an extension from the court. (See section 6A(1) of the Limitation Act.)

Amendments only remove limitation period for victims under 18 when abuse occurred

Under section 6A(2) of the Limitation Act, "child abuse" is defined as abuse perpetrated against a person when the person is under 18 years of age; that is, sexual abuse, serious physical abuse, and/or other abuse perpetrated in connection with sexual or serious physical abuse (defined as "connected abuse"), whether or not that connected abuse was perpetrated by the same person who perpetrated the sexual abuse or serious physical abuse.

The threshold for the removal of the limitation period is the sexual or serious physical abuse of a person under the age of 18. If this threshold has been met, then there is no limitation period in respect of a claim arising from "connected abuse", such as minor physical abuse (and, again, whether or not the "connected abuse" was by the same, or a different perpetrator). Both the "threshold abuse" and "connected abuse" must occur when the victim is under the age of 18 years.

During the discussion of the amendments in the Legislative Council on 9 March 2016, the Leader of the Opposition noted that it appears that, where abuse covers a number of years, including both before and after the age of 18, the amendments will only remove the limitation period in relation to the pre-18-year-old victims. Although the Opposition supported remedying this issue, the Bill was passed without amendment.

Amendments apply retrospectively and can be brought on previously time-barred cause of actions

The removal of the limitation period applies retrospectively (regardless of when the abuse occurred), whether or not any limitation period had already expired, whether or not an action had been commenced previously on the same cause of action, and whether or not a judgment on the cause of action had been given previously. (See schedule 5, part 3, clause 9 of the Limitation Act.)

It applies to cases which have commenced but which have not been determined or settled where the limitation period has already expired.

As a matter of general principle, a matter may not generally be re-litigated once it has been judged on the merits or where a matter has been settled between the parties. However, the amendments provide that an action can be brought on a previously time-barred cause of action (see schedule 5, part 3, clause 10(1) of the Limitation Act):
  • where judgment was given on the basis that the action was statute barred
  • where judgment was obtained against a former solicitor for professional negligence arising from a failure to provide accurate advice in relation to the limitation period applicable to the abuse claim
The court has the power, in this regard, to:
  • set aside any such judgment already given on or in relation to the cause of action
  • take into account any amounts paid or payable by way of damages or costs under or in relation to any such judgment

Courts' power to safeguard right to a fair trial preserved but may be exercised rarely

The courts' inherent, implied and statutory jurisdictions are expressly preserved by the amendments (see section 6A(6) of the Limitation Act), as are any other powers of a court arising from the common law or any other Act, rule of court, practice direction or practice note.

The courts, therefore, retain the power to summarily dismiss or permanently stay a proceeding where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible (for example, where crucial evidence has deteriorated or been lost over time). Given the intent of the amendments, however, and noting the comments of the Royal Commission discussed above, it is to be anticipated that this power will rarely be exercised.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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