South Australian Limitation Schedule · PDF fileCurrent as at April 2015 South Australian Limitation Schedule Page 1111 Type of Action Legislation Limitation Period Comments ADMINISTRATIVE

South Australian South Australian South Australian South Australian

Limitation ScheduleLimitation ScheduleLimitation ScheduleLimitation Schedule

Current as at April 2015

This Schedule is prepared as a guide for legal practitioners on the limitation periods which apply to causes of action instituted in South

Australia. The Schedule does not include every possible cause of action, nor every limitation period, nor does it comprehensively

describe the limitation periods. For example there are many specific time limits contained in the Corporations Act 2001 (Cth) and

related legislation and the Income Tax Assessment Act 1936 (Cth) and related legislation which is beyond the scope of this Schedule.

The Schedule is not intended to provide particular legal advice to the readers of the Schedule or to be used by legal practitioners as a

substitute for their own research to determine the accuracy and application of the information in this Schedule to any given facts.

Contents

ADMINISTRATIVE LAW (FREEDOM OF INFORMATION) – (CTH) ___________________________ 1

ADMINISTRATIVE LAW (FREEDOM OF INFORMATION) – (SA) ____________________________ 1

ADMINISTRATIVE LAW (JUDICIAL REVIEW) _________________________________________ 1

ADMINISTRATIVE LAW (APPEALS FROM EXTERNAL REVIEW DECISIONS) _____________________ 2

ASBESTOS CLAIMS _________________________________________________________ 2

AVIATION _______________________________________________________________ 3

BUILDING WORK __________________________________________________________ 3

COMMON LAW PROCEEDINGS/WORK INJURIES _____________________________________ 3

CONTRACT ______________________________________________________________ 3

CONTRIBUTION ___________________________________________________________ 4

CRIMINAL LAW (APPEALS) ___________________________________________________ 4

CRIMINAL LAW (CRIMINAL ASSETS CONFISCATION) ___________________________________ 4

CRIMINAL LAW (CRIMINAL INJURIES COMPENSATION / VICTIMS OF CRIME) __________________ 6

DE FACTO RELATIONSHIPS ____________________________________________________ 6

DEFAMATION ____________________________________________________________ 6

DEPENDANT’S CLAIMS (WRONGFUL DEATH) _______________________________________ 7

DISCRIMINATION - (CTH) ____________________________________________________ 7

DISCRIMINATION - (SA) _____________________________________________________ 7

DOMESTIC PARTNERS PROPERTY _______________________________________________ 7

DUST DISEASES (SA) _______________________________________________________ 8

DUST DISEASES (NSW) _____________________________________________________ 8

ESTATE/INHERITANCE _______________________________________________________ 8

EXTENSIONS OF TIME _______________________________________________________ 9

FAIR TRADING ___________________________________________________________ 9

FAMILY LAW ____________________________________________________________ 10

GUARANTEES ___________________________________________________________ 10

LEGAL PRACTITIONERS _____________________________________________________ 10

MEDICAL NEGLIGENCE _____________________________________________________ 11

MINING _______________________________________________________________ 11

MINING (ABORIGINAL) _____________________________________________________ 11

MISLEADING AND DECEPTIVE CONDUCT _________________________________________ 12

PERSONAL INJURIES (including Motor Vehicle Accidents and claims for Nervous Shock) ______ 12

PRODUCT LIABILITY _______________________________________________________ 13

PROPERTY DAMAGE (including Damage to Motor Vehicles) ___________________________ 14

REAL PROPERTY __________________________________________________________ 15

RECOVERY OF MONEY PAID UNDER A MISTAKE OF LAW OR FACT ________________________ 15

RECOVERY OF MONEY PAID PURSUANT TO AN INVALID TAX ____________________________ 15

RECOVERY OF RENT OR LAND ________________________________________________ 15

SHIPPING ______________________________________________________________ 15

SUPERANNUATION ________________________________________________________ 15

TORTS (e.g. Trespass / Nuisance / Negligence not causing personal injury) _______________ 17

UNFAIR DISMISSAL (CTH) ___________________________________________________ 18

UNFAIR DISMISSAL (SA) ____________________________________________________ 20

WORK INJURIES __________________________________________________________ 20

Current as at April 2015 South Australian Limitation ScheduleSouth Australian Limitation ScheduleSouth Australian Limitation ScheduleSouth Australian Limitation Schedule

Page Page Page Page 1111

Type of Action Legislation Limitation Period Comments

ADMINISTRATIVE LAW Freedom of Information (Cth)

Freedom of Information Act 1982 (Cth) s.54B

30 day time period for seeking internal review.

Freedom of Information Act 1982 (Cth) s.54 (1)

60 day time period for seeking review of decision by Information Commissioner re refusal of access.

Freedom of Information Act 1982 (Cth) s.54 (2)

30 day time period for seeking review of decision by Information Commissioner re grant of access.

Freedom of Information Act 1982 (Cth) s.56

Appeals (on questions of Law) to the Federal Court from decisions of the Information Commissioner within 28 days of the decision.

Freedom of Information Act 1982 (Cth) s.57A

Applications may be made to the AAT for a review of decisions of the Information Commissioner within 28 days of the decision.

ADMINISTRATIVE LAW Freedom of Information (SA)

Freedom of Information Act 1991 (SA) s.29

30 days for internal review.


30 days from decision or Internal Review for external review to “Relevant review authority” (e.g. Ombudsman).


30 days from External Review to appeal (on questions of Law) to District Court.

ADMINISTRATIVE LAW Judicial Review

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.11 (3)

Generally there is a 28 day time limit for making applications but extensions of time may be sought in certain circumstances.

Applications for review of decisions made by a Commonwealth government decision maker or of conduct in relation to a decision making process may be made to the Federal Court of Australia or the Federal Circuit Court.

Supreme Court Rules 2006 SA R200 (2)

An action for judicial review must be commenced as soon as practicable, and in any event within 6 months, of the date on which the ground for review arose.

Permission to proceed with the action must be sought.




ADMINISTRATIVE LAW Judicial Review cont.

District Court Civil Rules 2006 R279A

Where external review is conducted in the Administrative and Disciplinary Division of the District Court (as opposed to one of many specialist tribunals), this Rule provides that (subject to any other time limit provided in the legislation conferring the right of review) proceedings must be instituted within 21 days after the date of the judgment or decision subject to review.

Review of the judgment of some other Court or Tribunal on the decision of a Minister.

ADMINISTRATIVE LAW Appeals from External Review decisions

Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)

A person adversely affected by a decision may seek review of that decision within 28 days of receiving a written statement of the reasons for the decision or within 28 days of being notified of the decision.

A comprehensive list of the time limits in which internal review can be sought is governed in each instance by the legislation under which the decision is made (and it should be noted that internal review mechanisms are not provided for all administrative decisions – this will depend on the applicable legislation) – generally 28 days is allowed. Regard should be had to s,29 of the AAT Act to determine how the time limit is calculated depending on whether reasons were provided at the time the decision was notified or requested later.

Appeals – State Jurisdiction Under State legislation regard should be had to the particular legislation under which the right of appeal is granted to determine the time limit for appeal to the Supreme Court or District Court (e.g. 30 days under the Freedom of Information Act 1991 (SA), one month under the Motor Vehicles Act 1959 (SA) and 14 days under the Public and Environmental Health Act 1987 (SA).

ASBESTOS CLAIMS Limitation of Actions Act 1936 (SA) s.36 (1)

A claim for an asbestos disease (being a personal injury) must be commenced within 3 years of when the cause of action accrued.

The Court may extend the time in which a claim can be brought for a further 12 months after the claimant became aware of a material fact. Limitation of Actions Act 1936 (SA) s.48 (3) (b)

Limitation of Actions Act 1936 (SA) s.36 (1a)

If the injury is latent for some time after its cause, then the 3 years begins to run when the injury first comes to the claimant’s knowledge.




AVIATION Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s34

For claims for injury or death on aircraft:

� 2 years from date of arrival of aircraft at destination or, where aircraft does not arrive at destination. 2 years from:

(a) the date on which aircraft ought to have arrived; or

(b) the date on which the carriage stopped, whichever is the later.

The legislation provides that after the 2 year period the right to damages is “extinguished”.

Presumably there is therefore no way of securing an extension of time.

Note also there are special rules which apply to international travel – see the Montreal Convention which is given effect through the Civil Aviation Carriers Liability Act 1959 (Cth).

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s.30 (2)

For claims for damage to, or loss or destruction of, baggage, the limitation is 2 years as stipulated above. Periods for giving a notice of claim range from 3 days to 21 days.

For claims for injury or death from things falling from aircraft see Damage by Aircraft Act 1999 (Cth); s30(3) Civil Aviation (Carriers’ Liability) Act 1959 (Cth); s30(4) Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

BUILDING WORK Development Act 1993 (SA) s.73

Despite the Limitation of Actions Act 1936 (SA) or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building (including an action for breach of statutory duty) can be commenced more than 10 years after the completion of the building work.

This period cannot be extended (s.73(2)).

This period does not apply to actions to recover damages for death or personal injury resulting from defective building work.

COMMON LAW PROCEEDINGS / WORK INJURIES

Workers Rehabilitation & Compensation Act 1986 (SA) s.54 (7) (g)

3 years from date of accident. Only applies in circumstances where a negligent third party causes the action.

See also comments in WORK

INJURIES.

CONTRACT Limitation of Actions Act, 1936 (SA) s.35 (a)

6 years from the date upon which that the cause of action accrues (i.e. from breach of the contract).

A plaintiff may suffer damage arising out of breach of contract but will often also allege negligence.

Note – the time at which the limitation period will commence for breach of contract and for claims in tort for negligence will sometimes be different became of the different manner in which the causes of action accrue.




CONTRIBUTION Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s. 6 (4) (b)

An action for contribution against a person liable in damages for the same harm as a person liable to a claimant must be brought within the period within which the person who suffered the harm could have brought an action against the person from whom contribution is sought or 2 years after the damages payable by the person entitled to contribution are finally determined.

CRIMINAL LAW Appeals

Supreme Court Criminal Appeal Rules 2014 R.107

21 days to Appeal from the date of the conviction, sentence, order or decision appealed from.

Supreme Court Civil Rules 2006 R.281

21 days to Appeal from Magistrates Court to single Judge.

CRIMINAL LAW Criminal Assets

Confiscation

Criminal Assets Confiscation Act 2005 (SA) s.35 (1)

A person whose property would be covered by a restraining order may apply to the Court to exclude specified property from the restraining order within 14 days of being notified of the application for the order.

An application can be made to exclude property covered by the restraining order may be made after the order has been made, but only if the applicant had a good reason for not appearing when the order was made or new evidence is available. s.35 (3).

Criminal Assets Confiscation Act 2005 (SA) s.43

A person who was not notified of the application for the restraining order may apply to the Court to revoke the order with 28 days of the person being notified that the order was made or within such longer period (not exceeding 3 months after notification) as the Court allows.


An application for a forfeiture order that relates to a conviction for a serious offence must be made (by the DPP) before the end of the period of 6 months after the date of conviction.





Confiscation cont.


A person may apply for an order excluding property from a forfeiture order within 6 months of the order being made.

If the applicant appeared at the hearing of the application for the forfeiture, or didn’t appear but was given notice of the hearing, they will only be permitted to make the application if they had good reason for not appearing when the order was made, where new evidence is available or where special grounds for giving permission exist. s.60 (3).


A person whose property is specified in a forfeiture order may apply for a compensation order. The application must be made within 6 months of the forfeiture order being made.

The Court may give permission for an application for a compensation to be made more than 6 months after the forfeiture order was made. S.63 (2) (3).

Criminal Assets Confiscation Act 2005(SA) s.80

If property is forfeited as a result of a restraining order and the subsequent conviction of a person of a serious offence (see s.74) then an application may be made that the property be transferred or bought back (see s.78/79).

Any such application must be made within 6 months of the forfeiture.

The Court may give permission for a person to apply after 6 months from the forfeiture if the Court is satisfied that the delay was not due to neglect on the part of the applicant. A person who was given notice of the application for the restraining order or the making of the restraining order must not apply for a transfer/buy back order unless the Court is satisfied that the failure to have the property excluded from forfeiture was not due to that person’s neglect.


DPP may make application for a pecuniary penalty order before the end of 9 months commencing from the date of conviction (3 month extension applicable in certain circumstances – s.95 (5) (b).


A Court must not, make a pecuniary penalty order in relation to a person’s conviction of a serious offence until after the end of the period of 6 months commencing on the date of conviction. The Court may, however, make a pecuniary penalty order in relation to the person’s conviction when it passes sentences on the person.





Confiscation cont.


If a pecuniary penalty order is made in relation to a person’s conviction when sentence is passed, that pecuniary penalty order cannot be enforced within the period of 6 months commencing on the day the order was made.


The Administrator of property confiscated may destroy or sell that property however the Administrator must give not less 14 days notice of that intention to the owner of the property or any other person the Administrator has reason to believe may have an interest in the property.

Criminal Assets Confiscation

Act 2005 (SA) s.201

A person who has been so notified may object to the Administrator within 14 days of receiving the notice.

CRIMINAL LAW Criminal Injuries Compensation / Victims of Crime

Victims of Crime Act 2001 (SA) s.18 (2) (a)

A victim of crime may make an application for compensation within 3 years after the commission of the offence.

The Court may, for any proper reason, extend a period of limitation fixed by s.18. s.18 (7).

Victims of Crime Act 2001 (SA) s.18 (5) (6)

If after a further 3 months (the “negotiation period”) the claim has not been settled then the claim must be made to the Court within 6 months from the end of the negotiation period.

Victims of Crime Act 2001 (SA) s.18 (2) (b)

An application for compensation arising from the death of a victim may be made within 12 months after the death.

DE FACTO

RELATIONSHIPS

See DOMESTIC PARTNERS

PROPERTY

DEFAMATION Limitation of Actions Act, 1936 (SA) s.37

1 year from the date of publication of the matter complained of.

A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of publication, extend the limitation period to a period of up to 3 years running from the date of the publication (but no further extension is to be allowed under any provision of the Limitation of Actions Act, 1936 (SA).




DEPENDANT'S CLAIMS Wrongful Death

Civil Liability Act, 1936 (SA) s.25

Such action shall be commenced within 3 years after the date of death (if a dependant is a minor, the period runs from when the plaintiff reaches majority). In order for dependants to commence an action, deceased must have had a cause of action at the moment of death.

An action on behalf of the deceased’s dependants may be extended “to such an extent and upon such terms (if any) as the justice of the case may require.” Limitation of Actions Act 1936 (SA) s.48.

DISCRIMINATION (CTH) There is no specific time limit for making complaints of discrimination which in the first instance must go to Human Rights and Equal Opportunity Commission (HREOC).

The President of the Human Rights and Equal Opportunity Commission may however terminate a complaint if the complaint was lodged more than 12 months after the alleged unlawful discrimination took place. If the complaint has been terminated by the President then application may be made to the Federal Court or the Federal Circuit Court within 60 days of the decision to terminate or such further time as the Court allows.

This includes claims made under the Age Discrimination Act 2004 (Cth), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth).

DISCRIMINATION (SA) Equal Opportunity Act 1984 (SA) s.93 (2)

12 months from the date on which the contravention is alleged to have been committed. S.93 (2b).

If a complaint concerns a series of acts within 12 months of the last of those acts. s93 (2a).

The Equal Opportunity Commissioner, may on application, extend the time for a complaint to be made if the Commissioner is satisfied that there was good enough reason for the delay and that is it just and equitable to do so.

DOMESTIC PARTNERS

PROPERTY

Domestic Partners Property Act 1996 (SA) s.9 (3)

Application for division of property must be made within 1 year after the end of the domestic partnership.

The court, after considering the interests of both domestic partners, may extend the limitation period to avoid serious injustice to the applicant.




DUST DISEASES (SA) Limitation of Actions Act 1936 (SA) s36 (1) (1a)

Being a claim in respect of personal injuries the time limit for such a claim is 3 years after the cause of action accrues.

Where an injury (such as is common in a Dust diseases claim) remains latent for some time after its cause the limitation period (3 years) runs when the injury first comes to the person’s knowledge. Also refer Dust Diseases Act 2005.

DUST DISEASES (NSW) Dust Diseases Tribunal Act 1989 (NSW) s.12A

No limitation period for a dust related condition.

This applies only where there is jurisdiction under the Dust Diseases Tribunal Act 1989 (NSW).

ESTATE / INHERITANCE

Inheritance (Family Provision) Act 1972 (SA) s.8 (1)

Application to be made and served within 6 months from the date of the grant of probate of the will, or letters of administration of the estate, of the deceased person.

An extension of time to bring a claim may be granted, however any application for such an extension shall be made before the final distribution of the estate. s.14 (2) (3) (4).

Inheritance (Family Provision) Act 1972 (SA) s.14 (2)

Notice of claim expires after 3 months.

Powers of Attorney and Agency Act 1984 (SA) s.11 (a)

6 Months after probate.

An extension of time to bring a claim may be granted however any application for such an extension must be made before the final distribution of the estate. s.11 (4) (5) (6).

Guardianship and Administration Act 1993 (SA) s.43

6 Months after probate.

An extension of time to bring a claim may be granted however any application for such an extension must be made before the final distribution of the estate. s.43 (4) (5) (6).

Aged and Infirm Persons Property Act 1940 (SA) s.11 (a)

6 Months after probate. An extension of time to bring a

claim may be granted however any application for such an extension must be made before the final distribution of the estate. s.16A (4) (5) (6).

Wills Act 1936 (SA) s.25 AA

6 Months after probate (rectification).

An application for rectification of a will should be made within 6 months of the grant of probate only with the consent of the Court. s.25AA (2).

Administration and Probate Act 1919 (SA) s.72L

3 Months (election by a spouse to purchase real estate).

Court may allow an extended period within which to bring application. s.72L (2) (b).




ESTATE / INHERITANCE

cont.

Probate Rules 2004 (SA) Rule.52.04

A caveat preventing the grant of probate must be made prior to any such grant however, such caveat remains in force for a period of 6 months only.

Caveats may be renewed from time to time for further periods of 6 months.

Administration and Probate Act 1919 (SA) s.120A

Interest becomes payable on pecuniary legacies contained in wills on the date so fixed in the will or on the date of the first anniversary of the testator's death.

EXTENSIONS OF TIME Limitation of Actions Act 1936 (SA) s.48

Pre 1 May 2004

A Court may grant an extension of time in aspects of a time limit contained in Acts / Regulations/Rules/By-Laws (other than the Limitation of Actions Act 1936 (SA)) upon such terms as the justice of the case may require. (s.48 (1)).

Where the time limit is imposed by the Limitation of Actions Act 1936 (SA) itself an extension may be granted if facts material to the plaintiff’s case where ascertained 12 months prior to the expiration of the limitation period or material facts to the plaintiff’s case where ascertained after the expiration of the limitation period and proceedings are instituted within 12 months after the ascertainment of those facts.

Post 1 May 2004

Same but have regard to s.48 (3a) as to the definition of a material fact and have regard to s.48 (3b) as to factors the Court is to consider in determining whether it is just in the circumstances to grant an extension of time.

See also s.47 of the Limitations of Actions Act 1936 (SA) for special provisions which apply to time limitations of less than 12 months prescribed by Acts / Rules / Regulations.

FAIR TRADING See also MISLEADING AND

DECEPTIVE CONDUCT

Fair Trading Act 1987 (SA) s.85

Applications for orders with respect to contraventions of the Fair Trading Act 1987 (SA) may be commenced at any time within 3 years after the day on which the cause of action arose.

The Fair Trading Act 1987 (SA) adopts the text of the Australian Consumer Law as in force from time to time as a law of South Australia. The right to seek orders for the contravention of the Fair Trading Act 1987 (SA) does not apply to conduct which would be in contravention of the Australian Consumer Law (i.e. it applies only to other provisions of the Fair Trading Act 1987 (SA).




FAMILY LAW

Family Law Act 1975 (Cth) s.44

12 months from decree nisi becoming absolute for s.79 (property settlement) and s.74 (spousal maintenance) proceedings: s.44 (3) and (3A) of the Family Law Act 1975 (Cth).

In relation to an appeal, within 28 days after the date the order appealed from was made: Rule 22.03 Family Law Rules 2004.

Generally no extensions available but see s.44 (3A), (3B) and (4) Family Law Act 1975 (Cth).

ss.94 (2D) (a) and 94AAA (10) (a) of the Family Law Act 1975 (Cth), ss.102 (8) (a) and 102A (9) (b) of the Child Support (Registration and Collection) Act 1988 (Cth) and Division 22.7.1 of the Family Law Rules 2004.

From 11/6/1996, in relation to claims for child bearing expenses (where father not married to mother) pursuant to s.67G Family Law Act 1975 (Cth):

(a) any time during the pregnancy; or

(b) after the birth, but not later than 12 months after the birth, except by leave of the Court.

s.67G (2) provides the Court must not grant leave unless refusal to grant leave would cause hardship.

Family Law Act 1975 (Cth) s.44 (5)

Ìn relation to orders regarding maintenance and adjustment of property interests in respect of a de facto relationship (ss.90SE, 90SG, 90SM and 90SL of the Family Law Act 1975 (Cth)) the application for such orders must be made within 2 years after the end of the de facto relationship.

The Court may grant leave to apply after the end of the 2 year period if the court is satisfied that hardship would be caused to the party on a child. s.44 (6) (a).

See also s.44 (6) (b) for the position regarding an application for maintenance after a de facto relationship.

GUARANTEES

See SPECIALTY

LEGAL PRACTITIONERS Legal Practitioners Act 1981 (SA) s.61 (1)

A time limit of 6 months for claims against the Fidelity Fund in respect of a fiduciary or professional default by a legal practitioner from the publication of a Notice by the Law Society may be fixed by the Law Society.

The Law Society can determine that a claim not made within the time limited can proceed. s.61 (2).




MEDICAL NEGLIGENCE Limitation of Actions Act 1936 (SA) s.36

3 years from the date of the cause of action arising.

The cause of action arises when a negligent act occurs which results in loss, damage or injury. In the case of negligent treatment, this is likely to be the date on which the treatment occurred. The date on which the cause of action arises can be a complex issue and requires consideration in each case. For example, in the case of a personal injury that remains latent for some time after its cause, the 3 year period begins to run when the injury first comes to the person’s knowledge.

MINING Mining Act (1971) SA s.65 (3b)

One month after the publication of the Judgment or order of the Warden’s Court.

An appeal lies to the ERD Court from a judgment or order of the Warden’s Court.

Appeals must be instituted within one month after the judgment or order of the Warden’s Court, but the ERD Court may, for proper cause, extend the period for instituting any appeal.

Mining Act (1971) SA s.73B Caveat lapses upon the expiration of 14 days after notification that application has been made for the registration of a transfer or after instruments affecting the subject matter of the caveat has been sent to the Register.

A person claiming a legal or proprietary interest in a mining tenement may lodge a Caveat forbidding the registration of any transfer or other instrument affecting that tenement. The caveat will lapse after 14 days unless the Warden’s Court otherwise orders.

MINING Aboriginal

Mining Act (1971) SA s.63L A proponent who seeks a native title mining agreement may negotiate with native title parties (a native title mining agreement is required prior to carrying out mining operations that affect native title).

Mining Act (1971) SA s.63M A proponent initiates negotiations by giving notice under this section.

Mining Act (1971) SA s.63N If after 2 months of giving notice, there are no native title parties in relation to the land to which the notice relates, the proponent may apply without notice to any person, to the ERD Court for a summary determination.

Mining Act (1971) SA s.63(S)

The relevant period is: � In relation to mining

operations which are merely exploratory in nature, four months from when the negotiations were initiated.

� In any other case, six months from when the negotiations were initiated.

If an agreement is not reached between the proponent and the native title parties within the relevant period, any parties to the negotiations or the minister may apply to the ERD Court for a determination.




MISLEADING AND

DECEPTIVE CONDUCT

(CTH)

Competition and Consumer Act 2010 (Cth)

Actions for damages in respect of contraventions of Chapters 2 or 3 of the Australian Consumer Law may be commenced within 6 years after the date on which the cause of action accrued: s.236 Australian Consumer Law.

From 1/1/11

Note: For claims on or after 1/1/11 for negligently-inflicted economic loss or property damage made under s.236 Australian Consumer Law, caused by conduct in breach of s.18 Australian Consumer Law, damages are to be apportioned between wrongdoers: s.87CB, s.87CC and s.87CD Competition and Consumer Act 2010 (Cth).

Note: The Australian Consumer Law text can be found in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Australian Securities and Investments Commission Act 2001 (Cth)

Actions in respect of misleading and deceptive conduct with respect to financial services must be commenced within 6 years of the cause of action arising on or after 11/3/02: s.12GF(2) and s.12GM(5) Australian Securities and Investments Commission Act 2001 (Cth), as amended by the Financial Services Reform (Consequential Provisions) Act 2001.

Note: For claims on or after 26/7/04 s12GF(1B) Australian Securities and Investments Commission Act 2001 (Cth) as amended by Schedule 3 to the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) 2004 (Cth), provides for proportionate liability for negligently inflicted economic loss or property damage in claims for contravention of s12DA Australian Securities and Investments Commission Act 2001 (Cth).

PERSONAL INJURIES

including MOTOR VEHICLE

ACCIDENTS and claims for NERVOUS SHOCK

Limitation of Actions Act, 1936 (SA) s.36

3 years from the date of accident. If the injured person was a minor at time of accident, 3 years after turning 18. s.45A Limitations of Actions Act 1936 (SA).

All actions in which the damage claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within 3 years next after the cause of action accrued but not after. In the case of a personal injury that remains latent for some time after its cause, however, the 3 year period begins to run when the injury first comes to the person’s knowledge.

If person bringing the action is under a legal disability, the action can be extended by periods for which the disability exists or continues after the time at which the right to bring the action or proceeding arose. No period of action shall be extended to more than 30 years from the time at which the right to bring the action or proceeding arose. s.45 Limitation of Actions Act 1936 (SA).




PERSONAL INJURIES

cont.

Notice of an intended action must be given within 6 years after the accident date on behalf of the child.

PRODUCT LIABILITY

Consumer guarantee actions against manufacturers and importers of goods (Part 3-2, Division A Australian Consumer Law) 3 years from the date the consumer became aware or ought reasonably to have become aware that the consumer guarantee had not been complied with: s.273 Australian Consumer Law.

Note: The Australian Consumer Law text can be found in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

For actions against manufacturers and importers of goods (Part 3-5 Australian Consumer Law) 3 years from when the person became aware, or ought to have reasonably become aware of all of the following: the alleged loss or damage; the safety defect of the goods; and the identity of the person who manufactured the good: s.143(1) Australian Consumer Law. Provided that the action must be commenced within 10 years of the supply by the manufacturer of the particular goods the subject of the action: s.143(2) Australian Consumer Law.

For damages and other orders for contravention of Chapter 2 or Chapter 3 of the Australian Consumer Law 6 years after the date on which the cause of action accrued: s236(2), s237(3) Australian Consumer Law.

For personal injury damages claims relating to Part 2-2, 3-3, 3-4, 3-5 or Division 2 of Part 5-4 of the Australian Consumer Law see Part VIB Competition and Consumer Act 2010 (Cth): (a) 3 years from the “date of discoverability” of an injury or death: s.87F(1)(a) and s.87G Competition and Consumer Act 2010 (Cth). or

See the definition of "date of discoverability: s.87G Competition and Consumer Act 2010 (Cth).




PRODUCT LIABILITY cont.

(b) a 12 year long-stop period for injury or death, from the time when an act or omission causing injury or death occurred: .s.87F(1)(b) and s.87H Competition and Consumer Act 2010 (Cth).

See extensions available: s.87H(1)(b), (2) and (3) Competition and Consumer Act 2010 (Cth).

Note: For minors, the running of the limitation period is not suspended until the minor reaches 18 years if the minor has a capable parent or guardian: s.87J(a) Competition and Consumer Act 2010 (Cth). Minors injured by a parent or guardian or a person in a “close relationship” with a parent or guardian – a special (and longer) limitation period applies: s.87K Competition and Consumer Act 2010 (Cth). Incapacitated person – limitation period not suspended if an incapacitated person has a guardian or other person to manage the incapacitated person’s estate under a law of a State or Territory relating to the protection of incapacitated persons: s.87J.(b) Competition and Consumer Act 2010 (Cth).

For claims for personal injury damages for injury or death to a person resulting from smoking or other use of tobacco products the 12 year long-stop period does not apply: s.87.(F).(1A) Competition and Consumer Act 2010 (Cth).

Latent injuries – see the definition of “date of discoverability” and provisions for extending the long-stop provisions up to a maximum of 3 further years: s.87H Competition and Consumer Act 2010 (Cth). Otherwise, there are no special provisions for latent injuries.

PROPERTY DAMAGE including DAMAGE TO

MOTOR VEHICLES

6 years after the cause of action accrued.




REAL PROPERTY Real Property Act 1886 (SA) s.215

Applications to the Registrar-General in respect of claims against the Assurance Fund (where a claimant has been deprived of land in consequence of fraud or as a result of any error in the Register Book) the claim must be made within 20 years from when the right to take action first accrued.

RECOVERY OF MONEY

PAID UNDER A MISTAKE

OF LAW OR FACT

RECOVERY OF MONEY

PAID PURSUANT TO AN

INVALID TAX

Limitation of Actions Act 1936 (SA) s.36 (a) / s.36 (2)

Actions for the recovery of money paid under a mistake of law or fact, or otherwise based on restitutionary grounds, or actions for the repayment of money paid pursuant to an invalid must be commenced within 6 years of when the cause of action arose.

The 6 year period of limitation with respect to the recover of money paid pursuant to an invalid tax cannot be extended and if the action is not brought within that period, the right to recover that money is extinguished. s. 36 (3).

RECOVERY OF RENT OR

LAND Limitation of Actions Act 1936 (SA) s.4

No person shall make an entry on land or distress or bring an action to recover any land or rent unless they do so within 15 years after the time when the right to do so first accrued.

See also ss.27, 33 and 34 of the Limitations of Actions Act 1936 (SA) which also provide for a 15 year limitation on particular actions relating to rent reserved mortgages, judgments and liens.

SHIPPING Schedule 1 Article 3, paragraph 6 to the Carriage of Goods by Sea Act 1991 (Cth), incorporating the Hague amended Rules

For goods carried by sea, usually 1 year from the date of delivery or date goods should have been delivered.

SPECIALTY Limitation of Actions Act 1936 (SA) s. 34

All actions of covenant or debt upon any bond or other speciality (i.e. a speciality can include a Deed of Guarantee) shall be commenced within 15 years after the cause of action accrued.

If the party liable sign an acknowledgement of liability or makes a part payment then the 15 year period runs from the date of the acknowledgement or part payment.




SUPERANNUATION

CLAIMS

Superannuation (Resolution of Complaints) Act 1993 (Cth)

A complaint to the Superannuation Complaints Tribunal following a person’s objection to the payment of a death benefit by a trustee of a fund, an annuity, a Retirement Savings Account (“RSA”) death benefit or a death benefit in relation to a contract of insurance must be made to the Tribunal within the period prescribed by the trustee or insurer (as appropriate) in a written notice to the person: s.14 (3) Superannuation (Resolution of Complaints) Act 1993 (Cth).

For complaints to the Tribunal about decisions of trustees of superannuation funds or approved deposit funds by a superannuation fund or an approved deposit fund or an insurer, as appropriate (other than decisions to admit persons to life policy funds):

• in relation to the payment of a disability benefit made on or after 1/11/94 – complaint must be made to the Tribunal within 2 years of the decision to which the complaint relates: s.14 (6A) Superannuation (Resolution of Complaints) Act 1993 (Cth) (but also see below)

• in relation to the payment of a disability benefit by a superannuation or approved deposit fund and the person permanently ceased employment because of the condition giving rise to the claim for a disability benefit prior to the decision being made – complaint cannot be lodged with the Tribunal unless a claim for payment was first lodged with the trustee within 2 years of permanently ceasing work: s.14 (6B) Superannuation (Resolution of Complaints) Act 1993 (Cth).




SUPERANNUATION

CLAIMS cont.

The complaint must be made within 4 years in the case of a person who, before the making of the decision, permanently ceased employment (s.14 (6A(a)) and in other cases within 6 years after the making of the decision. The complaint cannot be heard if the claim was not lodged, or is not lodged, with the trustee within 2 years after the person permanently ceased that employment (s14 (6A)(b)). For complaints against insurers to the Tribunal against a decision of an insurer:

• in relation to the payment of a disability benefit for total and permanent disability – complaint must be made to the Tribunal within 1 year of the decision to which the complaint relates: s.15J (5) Superannuation (Resolution of Complaints) Act 1993 (Cth)

• in relation to the payment of a disability benefit because of total and permanent disability and the person permanently ceased particular employment because of a condition giving rise to the claim for a disability benefit, prior to the decision being made – a complaint cannot be lodged with the Tribunal unless a claim was first lodged with the insurer within 1 year of the person permanently ceasing work: s.15J (6) Superannuation (Resolution of Complaints) Act 1993 (Cth).

A claim for a civil liability where a person suffers loss or damage because of the contravention of the insider trading rules must be commenced within 6 years after the day on which the cause of action arose: s.1317K of the Corporations Act 2001 (Cth) maintains a 6 year limitation period following the

Note: This section does not affect any liability that a person may have under any other provision of the Act or any other law.




SUPERANNUATION

CLAIMS cont.

repeal on 11/3/02 of s.185 (3) Superannuation Industry (Supervision) Act 1993 (Cth).

A party may appeal to the Federal Court on a question of law from a determination of the Tribunal, not later than 28 days after the date on which a copy of the determination is given to the person or such further period of time as the Federal Court may allow: s.46 (2) (a) Superannuation (Resolution of Complaints) Act 1993 (Cth).

TORTS ETC - TRESPASS /

NUISANCE Limitations of Actions Act 1936 (SA) s36

6 years from the date upon which the cause of action accrues (i.e. from the suffering of loss).

A plaintiff may suffer damage arising out of negligence and will often also allege a breach of contract.

Note – the time at which the limitation period will commence for negligence and breach of contract will sometimes be different because of the different manner in which the causes of action accrue.

UNFAIR DISMISSAL (CTH) Fair Work Act 2009 (Cth) 21 days after dismissal took effect s 394(2) Fair Work Act 2009 (Cth).

Within such period as the Fair Work Commission allows if there are exceptional circumstances s.394 (2) (b) and (3) Fair Work Act 2009 (Cth).

Unfair Dismissal Appeal

Within 21 calendar days after the date of the decision or order, an appeal may be instituted to the Full Bench of the Fair Work Commission by lodging a notice of appeal: Rule 56 (2) of the Fair Work Commission Rules 2013 (Cth).

The Fair Work Commission must not grant permission to appeal unless it is in the public interest to do so and, if the appeal is based on an error of fact, it is a significant error of fact: s.400 (1)-(2) Fair Work Act 2009 (Cth).

On application to the Fair Work Commission, within such time as is allowed where there are good reasons for doing so: Rule 56 (2) (c) of the Fair Work Commission Rules 2013 (Cth) and [22] of the Fair Work Commission Practice Note: Appeal Proceedings.

General Protections Application involving a dismissal

An Application to the Fair Work Commission under s.365 Fair Work Act 2009 (Cth) (involving a dismissal): within 21 days of dismissal or “within such further period” as the Fair Work Commission allows: s.366 (1) Fair Work Act 2009 (Cth).

Within such period as the Fair Work Commission allows if there are exceptional circumstances s.366 (1) (b) and (2) Fair Work Act 2009 (Cth).




General Protections Application to the Court after making a General Protections Application to the Fair Work Commission involving a dismissal

Within 14 days after the day the Fair Work Commission issues a certificate under s.368 (3) (a) Fair Work Act 2009 (Cth), notice can be given to the Fair Work Commission for it to arbitrate the dispute if, following a conciliation conference, the parties agree to the Fair Work Commission arbitrating the dispute: s.369 (1) (c) (i) Fair Work Act 2009 (Cth).

Within 14 days after the day the Fair Work Commission issues a certificate under s.368 (3) (a) Fair Work Act 2009 (Cth), a General Protections Court Application may be made: s.370 (a) (ii) Fair Work Act 2009 (Cth).

Within such period as the Fair Work Commission allows: s.369 (1) (c) (i) Fair Work Act 2009 (Cth).

Within such further period as the Court allows: s.370 (a) (ii) Fair Work Act 2009 (Cth) unless the application includes an application for an interim injunction in which case the 14 day limit does not apply.

Unlawful Termination Application

Within 21 days after employment was terminated, an application for the Fair Work Commission to deal with a dispute under s.773 Fair Work Act 2009 (Cth) may be made: s.774 (1) (a) Fair Work Act 2009 (Cth).

If, following a conciliation conference, the parties agree to the Fair Work Commission arbitrating the dispute, notification to be given to the Fair Work Commission within 14 days after the day the Fair Work Commission issues a certificate under s.776 (3) (a) Fair Work Act 2009 (Cth): s.777 (1) (c) (i) Fair Work Act 2009 (Cth).

If, following the conciliation conference, an unlawful termination Court application is made to the Court, the Court application must be made within 14 days after the day the Fair Work Commission issues a certificate under s.776 (3) (a) Fair Work Act 2009 (Cth): s.778 (a) (ii) Fair Work Act 2009 (Cth).

Provided there are exceptional circumstances, within such further period as the Fair Work Commission allows under s.774 (2) Fair Work Act 2009 (Cth): s.774 (1) (b) Fair Work Act 2009 (Cth).

Within such period as the Fair Work Commission allows: s.777 (1) (c) (i) Fair Work Act 2009 (Cth).

Within such further period as the Court allows: s.778 (a) (ii) Fair Work Act 2009 (Cth) unless the application includes an application for an interim injunction in which case the 14 day limit does not apply.




Application for an order to stop bullying under P6-4B Fair Work Act 2009 (Cth)

Section 789FC of the Fair Work Act 2009 (Cth) allows a worker as defined to make an application to the Fair Work Commission for an order to stop bullying occurring. The application must be made, and the proceedings conducted, while the worker remains “at work”.

Note: The Fair Work Commission is expressly prohibited from making compensation orders in relation to bullying: s789FF (1) Fair Work Act 2009 (Cth).

Other Fair Work Act Applications / General notes

An application for orders for breach of: (a) a civil remedy provision; (b) a safety net contractual entitlement; (c) an entitlement arising under ss.542 (1) Fair Work Act 2009 (Cth),

must be made within 6 years after the day on which the contravention occurred: s544 Fair Work Act 2009 (Cth).

A court cannot make an order in relation to an underpayment under s.545 of the Fair Work Act 2009 (Cth) if it relates to a period that is more than 6 years before the proceedings commenced: s.545 (5) Fair Work Act 2009 (Cth).

A person aggrieved by a decision made by the Fair Work Commission (other than a decision of the Full Bench or an Expert Panel) or a decision made under the Fair Work (Registered Organisations) Act 2009 by the General Manager (or delegate) may appeal the decision with the permission of the Fair Work Commission. If the Commission is satisfied it is in the public interest to do so it must grant permission to appeal: s.604 (1) and (2) Fair Work Act 2009 (Cth).

Note: The Fair Work Act 2009 (Cth) appeal provisions in relation to appeals where the public interest criterion of s.604 (2) is not met are intended to embrace the historical case law that dealt with seeking leave to appeal.

UNFAIR DISMISSAL (SA) Fair Work Act 1984 (SA) s.106

21 days from the date the dismissal takes effect.

The Industrial Relations Court or the Industrial Relations Commission may extend this limitation (except in relation to a monetary claim). S.167 (1) and s.167 (2).




WORK INJURIES See also “Common Law Proceedings”

Workers Rehabilitation and Compensation Act, 1986 (SA)

Note that this Act is to be replaced by the Return to Work Act 2014 (SA) and the South Australian Employment Tribunal Act 2014 (SA) on 1 July 2015.

Give Notice of Work Related Disability

Section 51 If practicable, within 24 hours of the occurrence of the disability or after the worker becomes aware of the occurrence of the disability, but if that is not practicable, as soon as possible thereafter.

Notice may be given orally or in writing.

Notice is to be given to the employer out of whose employment the disability arose, or if the worker is not then in employment or is self-employed, then to the WorkCover Corporation.

Failure to give timely notice is not a bar to making a claim for compensation in respect of the disability of the proper determination of the claim has not been prejudiced by the delay or if the failure to give timely notice was due to ignorance, mistake, and absence from the State or other reasonable cause.

Make Claim for Compensation

Section 52 Within 6 months of the date on which the entitlement to claim the compensation arose.

Failure to make the claim within time is not a bar to the claim for compensation in respect of the disability if the proper determination of the claim has not been prejudiced by the delay or if the failure to make the claim within time was due to ignorance, mistake, and absence from the State or other reasonable cause.

Employer Report Sections 51 & 52 Within 5 business days of receipt of notice of disability and/or a claim for compensation.

Penalty for non-compliance – up to $1,000.00.

Provisional Payments of Income Maintenance

Section 50B Must be commenced by the Compensating Authority within 7 days of initial notification of disability by the worker unless the Compensating Authority determines that there is a reasonable excuse for not commencing such payments – notice of such decision to be provided to the worker.

Decision under s50B not capable of being disputed.




Hearing Loss Claims Sections 31 & 113 Notice of Disability and Claim for Compensation as per sections 51 and 52.

Special provisions as to onus of proof of contribution to hearing loss by employment apply only if a claim for hearing loss is made while a worker is in employment or within two years after retirement on the grounds of age or ill-health.

Decision on a Claim Section 53 As expeditiously as possible and where practicable within 10 business days of receipt of the claim.

Application for Expedited Decision

Section 97B Cannot be made until at least 14 days after the claim was placed before the decision maker.

Undue delay in the determination of the claim is required in order that an application can be made.

Extension of time can be sought and granted. Grounds are at large.

Interim Extension of time will be granted automatically for administrative purposes. Application to set aside extension can be made after conclusion of conciliation.

Notice of Dispute of a Reviewable Decision of a Compensating Authority

Section 90A Within one month of the party being given notice of the reviewable decision.

In some circumstances, notice of a decision may have been given to a party other than in writing because the party has become aware that the decision must have been made – e.g. discontinuance or reduction of payments.

Reconsideration of a Reviewable Decision

Section 91 A compensating authority must reconsider a disputed decision within 7 days of receipt by it of the Notice of Dispute or within such longer period as may be allowed by the Registrar.

Application for Counsel fees to be awarded other than by reference to the Scale in WCT Rule Thirty (7) (d)

WCTR Thirty (8) Advise the Tribunal and the other parties to the dispute of the foreshadowed application at the earliest possible time.

Appeal to the Full Bench

WCT Rule Thirty Three Notice of Appeal must be files and served within 14 days of the delivery of the decision appealed from.




Registration of Employers

Section 59 Within 14 days of the arising of the obligation to register – usually the first employment of an employee.

Negligence Claims Section 54 Usually 3 years.

See separate items for the specific type of disability / liability.

No claim can be made in negligence against the employer out of whose employment the disability arose, or against a person for whose torts that employer would be vicariously liable, except in respect of a disability arising out of the use of a motor vehicle which was or ought to have been insured under motor vehicle CTP law.

A claim can be made against a non-employer.

A claim can be made against the employer or a co-worker in a motor vehicle case.

In some circumstances, negligence claims may be made against an employer if, for territorial reasons, the worker’s employment is not covered by the SA Worker’s Compensation legislation.

Documents

South Australian Limitation Schedule · PDF fileCurrent as at April 2015 South Australian Limitation Schedule Page 1111 Type of Action Legislation Limitation Period Comments ADMINISTRATIVE