8Reliance on limitation periods

8 Reliance on limitation periods

Entities to get approval before waiving or agreeing to extend limitation periods 8.1 A defence based on the expiry of an applicable limitation period is to be pleaded by a non‑corporate Commonwealth entity, unless approval not to do so is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances, for example, where the Commonwealth has through its own conduct contributed to the delay in the plaintiff bringing the claim. 8.2 An application for an extension of a limitation period is to be opposed by the entity unless approval to consent to the application is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances which would justify not pleading a limitation defence or where it is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay.) When Attorney‑General’s approval is not required 8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances: (a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and (b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement. Meaning of ‘limitation period’ 8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example: (a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery) (b) periods in which to appeal (eg from a single judge of the Federal Court to the Full Court of the Federal Court), or (c) time limits that apply to the judicial or merits review of administrative decisions.