The Tasmanian statutes of limitation
Creators: name: James, DA
Publisher: name: University Of Tasmania
Year: 2023

description: The Courts are always flooded with a multitude of civil actions. When a civil action is instituted by a party the law allows the defendant to raise the defence of limitation of action, where the party instituted proceedings outside the given time period. This thesis examines the defence of limitation of action. A person who has a good cause of action against another is given a certain period of time to institute legal proceedings. His claim should not be barred by statute. This time constraint for instituting proceedings is referred to as limitation of action. The need for a time constraint for instituting proceedings is justified on the grounds that there must be a limit on the level of litigation. More importantly, time constraints may be justified as otherwise there would be no end to stale claims being resurrected against unfortunate defendants, who would continue to remain under the constant threat of legal proceedings. Therefore, from a very early period in time in the development of the common law, statutes were enacted to stipulate time periods within which actions had to be instituted. The effect of these statutory time periods was to prevent any plaintiff, who did not institute' proceedings within the stipulated time period, from pursuing his right in a court of law. Originally, the early statutes of limitation were established with reference to real actions such as distress, entry and proceedings for recovery of realty. The periods of limitation were limited from the occurrence of some recent or fixed era as from the death of a particular king or the coronation of another. Some such event set the beginning of the general limitation period. As for example by the Statute of Merton, 1236 which was the earliest of such statutes, a claimant in a writ could not claim any seisin earlier than the reign of Henry the second and likewise by the Statute of Westminster, no claim could be made earlier than that of Richard the First. These dates were unaltered and allowed to continue for such long periods that with the passage of time they became in effect no limitation at all. Later, the modern concept of a time period commencing on the accrual of a cause of action was established by the Act of Limitation with Proviso, 1540. This statute was the first English Statute to adopt general limitation period based on the commencement of a cause of action. In other words, real actions were limited not from any fixed date or event but according to a fixed interval of antecedent time. From this time, the basic policy of statutes of limitation have remained the same namely to preclude the right of an action after the lapse of the prescribed time. The reason underlying the introduction of limitation periods remains valid that it may often be harsher' to allow a dormant claim to be revived than to prevent it being enforced. So in A Court v Cross, Best C.J. said \....it has been supposed that the legislature only meant to protect persons who had paid their debts but from length of time had lost or destroyed the proof of payment. From the title of the act to the last section every word of it shows that it was not passed on this narrow ground. It is as I have heard it often called by great judges an act of peace. Long dormant claims have often more of cruelty than justice in them\". The need and justification for limitation periods have been recognised on many occasions by judges for instance in Board of Trade v Cayzer. Irving &amp; Co Lord Atkinson stated \"...the whole purpose of this Limitation Act is to apply to persons who have good causes of action which they could if so disposed enforce and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to use\". Lord Goddard C.J. in Jones v Bellgrove Properties Ltd stressed the problem of evidence which arises if a dormant action is revived. The learned Chief Justice stated \"...if a claim is made for payment of a debt many years after it has been incurred there may be difficulty in proving that the debt ever was in fact incurred or that it was not already paid and so forth. That is why the law bars the right of action after a certain period has elapsed from the accrual of the cause of action....\". Finally in R.B. Polices at Lloyds v Butler Streatfield J. highlighted the need for finality in litigation and stated that \"....it is a policy of the Limitation Act that those who go to sleep upon their claims should not be assisted by the courts in recovering their property but another and I think equal policy behind these Acts is that there shall be an end of litigation and that protection shall be afforded against stale demands\". From the several reasons of practicality justice and finality of litigation which are proposed from time to time to explain the existence of the statutes of limitation it would be apparent that an attempt is made to protect the defendant as well as the plaintiff. A plaintiff is encouraged not to sleep on his right but to institute proceedings as soon as he possibly could as delay in prosecuting a claim by him could affect the accurate recollection of facts by him and his witnesses which inevitably could prove fatal to the plaintiff. Defendants on the other hand are protected from being vexed by stale claims as after the lapse of time they could with certainty treat the matter as closed once and for all and destroy all documentary evidence which they might have to preserve otherwise. The general law relating to limitation of actions is not exhaustively found in the Limitation Act 1974 as besides this Act there are various other legislation which provide for time periods for instituting proceedings in various specific cases. This undoubtedly would give rise to conflict between the time provisions provided in the Limitations Act and those provided in the other legislation. Limitation of Actions may not be viewed upon as something worthy of academic consideration however it is very practical and of immense value to legal practitioners who view it as a potential time bomb. Further there are a whole body of case law which has evolved around the various aspects of limitation and certainly these are worthy of consideration. Then there is the question of balancing the policies of the Statute of Limitations namely that of resurrecting stale claims against the undue injustice to a litigant which may result if he is barred from pursuing his claim. For these reasons a discussion on the Statute of Limitation is justified. In this thesis I have outlined the historical developments of the Statute of Limitation both in England and in Australia and then examined in detail the scheme and provisions of the Tasmanian Limitation Act. In particular I have looked at the provisions relating to extension of time where in certain instances like in an action for damages for negligence nuisance breach of duty including damages in respect of personal injuries a judge is given a general discretion to extend the period of limitation for bringing an action. Although a general discretion is granted by the Limitation Act1974 to judges decided cases show that this discretion would be exercised only on certain established criteria and these criteria are examined in this thesis. Besides the general discretion the Act also contains provisions for specific extension of time in cases where there has been an acknowledgment or part-payment by the defendant. Finally I have included a chapter on some proposals for reform to the Tasmanian Limitation Act."