Borrows Chester: Limitation Bill — First Reading 
Borrows Chester: Limitation Bill — First Reading 
[Volume:656;Page:5397] 
CHESTER BORROWS (National—Whanganui) 
: 
 I wish to take a relatively short call on the Limitation Bill in order to make two or three points. The key message of the bill will be to provide a clearer and more comprehensive law on civil limitation periods that will be more accessible to New Zealanders. The bill seeks to achieve a balance between the competing right of access to justice and the right of defendants not to be accountable for stale claims. Of course that is concerned totally with the idea or the theme of fairness. I can think back to a number of matters that I have worked on over the years that were bound by limitation periods. There are statute limitations on various statutes within our criminal law and other statutes that my friend Jacinda Ardern just referred to. Some of them are very easy to explain. For instance in the Crimes Act there is no statute of limitations on crimes. Under the Transport Act for instance there is a limitation of 6 months on bringing a charge. That is because it is unfair to expect a driver to remember something that occurred when he or she was driving between Ikamatua and Reefton at 10 o’clock on a Sunday 3 years ago. So it is a matter of fairness. 
In thinking about this Limitation Bill which relates to a civil limitation on offences I believe that it is easy to see where some people can get caught out. For instance many of the members of the public who are listening will have bought and sold a house over time; fairness is easy to explain in relation to that. During the course of the sale and purchase of a house one signs a sale and purchase agreement. The fine print on that agreement reassures the purchaser that a number of things have been done and a number of pieces of law have been complied with. One of those particular things for instance is that any alteration to the house that required a building permit had a building permit at the time the alteration was done. 
I recall representing the respondent in one of those matters and I felt very much that I was on the wrong side of it. There was a definite tension there. The people I was representing had sold a house that was built about 1910 and a number of alterations had been done to it. At the time they signed the sale and purchase agreement the vendor who was not the person who had done the work on the house but who was the owner at the time that work was done signed that building permits had been obtained because that vendor believed that the building permits had been obtained. On inspection of the house the would-be purchaser must have noted that there was a mezzanine floor on a standard circa 1910 villa in New Zealand where none had ever existed. The ordinary plans of that house were replicated hundreds of thousands of times for houses all around the country and the people I was representing had never bothered to go to the local district council and look for the land information memorandum or some sort of proof that those building permits had been obtained. So there is a real tension between the “buyer beware” side of it and the ability of vendors to get out of the tentacles reaching down through the years and pulling them up for something that in this case they had no real knowledge of even if they probably should have. 
Within the limitation periods of the bill then a number of things relate to fairness. In fact I would argue that most of it is all about fairness in those competing tensions between access to justice and the right of defendants not to be accountable to stale claims. 
The ability in the new bill to have extended periods based on awareness—when someone should have been aware or was made aware—of certain vulnerabilities to people in respect of a contract of the way of the law or of the law impacting on them down the track is something I am pleased to see in this bill. I have felt that in some of the cases I have been aware of it is difficult to feel entirely comfortable with people hiding behind a statute of limitations when anyone looking at it fairly coldly and maybe with a moral set of eyes would say that there should still be some ability for someone who has been caught purely by a limitation lapse from taking any action to be able to do that. The ability to extend the period based on the factual scenario that the person exposed to whatever the vulnerability was within the contract should have been aware of it is a good thing. I note that that can extend as far back as 15 years in respect of the longstop provisions ensuring certainty against stale claims and a number of applications run down through the law there. 
I want to mention one other thing which I mention because it relates to constituents of mine. That is a recent judgment in the Keith and Margaret Berryman matter. That case is no longer before the court because it has been decided and the only application it has in respect of the Limitation Act is that the Act is referred to a number of times throughout the judgment. I am not making any comment on the decision or on the likelihood if the Limitation Act did not apply of any success or otherwise but they are people who over a long period of time have been the subject of a significant inequity of arms as they have tried to get some sort of settlement from the State. The case is something that is fairly raw in the minds of rural New Zealanders in particular and of people looking at their situation from a principal of fairness. 
A bridge was built by the army in 1986 on a public road that accessed the Berrymans’ land as part of an army exercise. The bridge eventually collapsed in 1994 and it has been the subject of a lot of debate and political debate. At the by-election in 1998 the would-be Prime Minister Helen Clark stood on the bridge and said that she promised to have that matter settled by Government. In actual fact it went nowhere near that. There was a sum offered that was nowhere near what the Berrymans thought they needed to have as a result of the continued litigation initiated by them. Because of the processes around the inquest and the prosecution by the Department of Labour under Occupational Safety and Health Service regulations they found themselves before the court and they used up a vast quantity of their reserves. They now find themselves in a position where they are old and minus a large number of the reserves that they had put aside for their old age. 
From my point of view as their local member of Parliament and as someone with a little bit of experience in civil law it is difficult to see how they have been treated fairly. It is an awful shame to see that a lot of their ability to continue making their argument is prevented by the run-out of limitation periods within the Building Act and the Limitation Act. I think it is a real shame that this matter was not dealt with by the previous Labour Government and I hope that we can get some sort of settlement between the Crown and the Berrymans these constituents of mine who are getting elderly and who are finding this a real suppurating sore in respect of their history and their willingness to more on. Thank you. 
Bill read a first time.  
Bill referred to the Justice and Electoral Committee.