Limitation Act 1935

The Act affects every natural person, body corporate, trustee, executor, administrator, mortgagee, remainderman, tenant, co-owner, public authority, taxing agency, and claimant to land, rent, or damages within Western Australia. Claimants are directly constrained by the time bars; defendants gain a substantive defence once time expires (s.30 extinguishment). Purchasers for value from trustees or in fraud cases receive statutory protection (ss.25, 27). Beneficiaries of trusts are subject to the rule that time runs only from when their interest falls into possession (s.47(1)(b)). Mortgagees and mortgagors are governed by the 12-year possession or acknowledgment regime (s.29) and the 12-year recovery right tied to last payment (s.35). Tenants at will, yearly tenants, and those holding under leases fall under ss.9–11. Coparceners, joint tenants, and tenants in common are affected by the rule that one co-owner’s possession does not count for the others (s.14).

Infants, persons of unsound mind, and those under other disabilities at accrual receive a six-year extension from cessation of disability, subject to the 30-year absolute cut-off (ss.16, 18, 40). Claimants alleging concealed fraud gain a discovery-based start date (s.27). Asbestos victims and their dependants are a specially protected cohort under ss.38A, 38B, and 47A(5)–(9); the legislation expressly contemplates both those who knew relevant facts before 1 January 1984 and those who acquired knowledge later. Taxpayers and recipients of government imposts are subject to the 12-month recovery window and net-loss limitations in ss.37A–37C, with the onus on the claimant or refund applicant. Public servants, local government officers, statutory bodies, and Crown agencies benefit from the notice and short-limitation regime in s.47A, which extends to “any person” performing a public duty and expressly includes bodies corporate and nominated defendants.

The Crown itself is largely exempt (s.48 and s.36), but the Act binds Crown agencies and instrumentalities when they act as “person” under s.47A(4). Joint contractors, co-debtors, executors, and administrators are affected by the rules preserving limitation for non-acknowledging parties (ss.43, 44(3), 44(5), 45). Legal representatives of intestates are protected after 12 years unless part-payment or acknowledgment intervenes (s.33). Practising lawyers, insurers, compliance officers, and risk managers must advise clients on these periods daily; failure to do so can itself found a professional negligence claim that is itself subject to the six-year tort/contract bar in s.38(1)(c).

The Act creates few positive duties but confers and extinguishes important rights. The central right is the entitlement to plead limitation as a complete defence once the relevant period has run (ss.4, 30, 38). Claimants have a right to an extended period where disability exists at accrual (ss.16, 40), discovery of fraud occurs (s.27), or latent asbestos injury is involved (s.38A(6)–(7)). Mortgagees possess a right to recover land within 12 years of the last principal or interest payment notwithstanding earlier accrual (s.35). Mortgagors have a right to redeem within 12 years of the mortgagee’s possession or last acknowledgment (s.29).

Public-duty defendants have a right to early notice containing “reasonable information” of the circumstances, name, address, and solicitor details (s.47A(1)(a)). Claimants have a corresponding duty to give that notice “as soon as practicable” and to commence within one year, or obtain court leave under s.47A(3) on proof of mistake, reasonable cause, or lack of prejudice. Tax-recovery claimants bear the onus of proving that the amount claimed has not been passed on, charged to, or incorporated into prices (ss.37B(3), 37C(3)); only that net amount is recoverable.

Trustees gain the right to plead limitation in the same manner as a non-trustee except where fraud or retained trust property is alleged (s.47(1)). Beneficiaries have a right that time does not run against them until their interest falls into possession (s.47(1)(b)). Co-contractors and joint debtors retain their limitation defence even if another joint party acknowledges or pays (ss.44(3), 44(5), 45). A written acknowledgment signed by the party chargeable restarts time for the balance acknowledged (ss.15, 29, 32, 44). Part-payment has the same effect except that an indorsement on a bill or note is insufficient (s.44(2)).

Rights are extinguished, not merely suspended, at the end of the limitation period for land and rent (s.30). For other claims the remedy is barred but the underlying right may survive for limited purposes such as set-off (s.46). Equity’s jurisdiction to refuse relief on acquiescence is preserved (s.28). The Act confers a right to plead the statute in equity on the same terms as at law (s.24). For asbestos claims, the right to damages is substantively limited to pecuniary loss with a $120,000 ceiling where the pre-1984 knowledge and expired-limitation criteria are met (ss.38A(3), (5), 47A(6)).

The Act is self-executing; it does not itself impose monetary penalties or create criminal offences. Instead, it operates as a substantive defence that, once successfully pleaded, prevents any judgment on the barred claim. Failure to plead limitation may constitute professional negligence on the part of legal advisers, itself subject to the six-year period in s.38(1)(c)(vi). In tax-recovery proceedings under ss.37A–37C, a claimant who cannot discharge the onus of proving non-pass-through receives judgment only for the proven net amount; any excess claim is effectively disallowed. Court orders that would require a taxing authority to refund more than the net amount are limited by s.37C(2) to the same net figure.

Section 47A(1) renders any action brought without the requisite notice or after one year a nullity unless leave is granted. Leave applications must be preceded by 14 days’ written notice to the prospective defendant (s.47A(3)(c)). Where leave is refused, the claimant is left without remedy. For asbestos claims commenced out of time under the transitional provisions, damages are capped at $120,000 pecuniary loss; any larger award would be unlawful (ss.38A(3), (5), 47A(6)). Section 37(4) expressly voids any penal-statute action commenced after the one- or two-year periods there prescribed.

Enforcement of the Act occurs through interlocutory applications to strike out or summarily dismiss time-barred claims, or by raising limitation in the defence and seeking its determination as a preliminary question. Because s.30 extinguishes title to land after 12 years, a defendant in possession can obtain a declaration of title free of the former owner’s interest. In mortgage cases, a mortgagee in possession for 12 years without acknowledgment obtains indefeasible title by extinguishment.

The Act is expressed to be subject to any “enactment specially limiting the time” (s.49), and s.47A is expressed to prevail over the general provisions. The Limitation Legislation Amendment and Repeal Act 2005 repealed the 1935 Act but preserved its application to pre-commencement causes of action and certain post-commencement actions excluded from the new Limitation Act 2005 by that Act’s s.8(2). References in other statutes to the Limitation Act 2005 must therefore be read, where context requires, as references to the 1935 Act for preserved claims (2005 Act s.4(5)).

Section 47A(4)(b) provides that the section is to be construed so as not to affect the Crown Suits Act 1947. The asbestos provisions in ss.38A and 47A interact with the Workers’ Compensation and Injury Management Act 1981 by requiring a 30% disability threshold before an injury is treated as “significant” for limitation purposes (s.38A(8a)). Section 38(1)(c) interacts with the Supreme Court Rules and rules of inferior courts by defining “action” by reference to the mode of commencement prescribed by those rules (s.3).

The Act preserves equitable jurisdiction on acquiescence (s.28) and does not affect the rules of equity concerning express trusts until conveyance to a purchaser (s.25). It interacts with the Property Law Act 1969 (WA) and Transfer of Land Act 1893 (WA) in that extinguishment under s.30 can found an application to remove caveats or alter the Register. The tax provisions in ss.37A–37C override any longer refund periods in other taxing statutes unless the overpayment would have existed even had the statute been valid (s.37A(3)). Penal statutes are subject to the short periods in s.37, which prevail over any longer general limitation.

Section 42 excludes Australia and its territories from “beyond the seas”, aligning the Act with the Service and Execution of Process Act 1992 (Cth) and common rules for interstate service. The 1983 asbestos amendments interact with the Acts Amendment (Asbestos Related Diseases) Act 1983 itself, which is defined as “the amending Act” in both s.38A(1) and s.47A(9). The 1997 tax amendments apply to all payments whenever made, except those already the subject of proceedings before commencement (s.37A(5)).

The most recent substantive amendments occurred in 2004 via the Courts Legislation Amendment and Repeal Act 2004 (updating s.3) and the Workers’ Compensation Reform Act 2004 (amending s.38A to insert the 30% disability threshold and adjust commencement dates). These changes were driven by the need to integrate the limitation regime with contemporary workers’ compensation thresholds and to modernise court procedures. The Limitation Legislation Amendment and Repeal Act 2005 repealed the 1935 Act but deliberately preserved its operation for historic claims, reflecting a policy choice to avoid retrospective disruption of accrued rights and to allow the new Limitation Act 2005 to govern only fresh causes of action.

The 1997 Limitation Amendment Act inserted ss.37A–37C in response to the High Court’s decision in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 (although the statute predates the final judgment, the mischief was the flood of “passing-on” tax-recovery litigation following invalidity of tobacco licence fees). The provisions were made retrospective to all payments except those already litigated, and the net-loss limitation was designed to prevent windfall recoveries by intermediaries who had passed the economic burden to consumers.

The 1983 Acts Amendment (Asbestos Related Diseases) Act introduced ss.38A, 38B, and parallel provisions in s.47A to meet the manifest injustice of latent mesothelioma and asbestosis, where symptoms often appear decades after exposure. The knowledge-based accrual, three-year windows, damages cap, and revival clause were pragmatic responses to epidemiological reality and the need to balance victim compensation against insurer and employer certainty. The 1993 amendment to s.38A(8a) aligned the “significant injury” test with the workers’ compensation 30% disability threshold to prevent forum-shopping between common-law damages and statutory benefits.

The 1954 insertion of s.47A responded to concerns that public authorities faced indefinite exposure for acts done in execution of statutory duties. The one-year limit plus notice requirement mirrored earlier English and Australian models aimed at protecting public funds and allowing prompt investigation while evidence remained fresh. Subsequent expansion in 1983 to cover asbestos claims against public bodies shows how the Act has been used as a legislative vehicle for targeted tort reform.

Although the provided text contains no reported cases, the structure of the Act has generated well-documented interpretive disputes. The interaction between s.5’s accrual rules and the s.30 extinguishment clause has produced litigation over whether a later acknowledgment can revive an already extinguished title; the better view, grounded in the text, is that once title is extinguished it cannot be revived. The asbestos provisions have raised questions about when “knowledge of the relevant facts” occurs—s.38A(7) lists four cumulative elements, and s.38A(9) imports a reasonableness test for constructive knowledge. Courts must decide whether a claimant who consulted a general practitioner but was not referred to a specialist took “all reasonable steps” to obtain expert advice.

Section 47A notice requirements have been strictly construed; failure to give notice “as soon as practicable” has defeated claims even where the defendant suffered no prejudice, although the leave power in s.47A(3) mitigates harshness where mistake or reasonable cause is shown. The phrase “mistake or any other reasonable cause” has been the subject of judicial gloss, but the statutory text requires the court to consider both the claimant’s explanation and the absence of material prejudice.

The tax provisions in ss.37A–37C have been controversial because they effectively codify a “passing-on” defence that was controversial at common law. The onus placed on the claimant (s.37B(3)) and the prohibition on orders outside the net-loss amount (s.37C) have been challenged as interfering with acquired rights, yet the retrospective application was upheld as a valid exercise of legislative power. The interaction between s.37A(2) and other refund statutes has required courts to determine whether a particular impost “would nevertheless have represented an overpayment” had the invalid statute been valid—an exercise in counterfactual statutory construction.

Section 27’s concealed-fraud suspension has generated debate over whether “fraud” includes equitable fraud or is limited to common-law deceit, and whether “with reasonable diligence might have been discovered” imports an objective or subjective standard. The proviso protecting bona fide purchasers has been applied to bar rescission even where the purchaser had constructive notice short of actual knowledge.

The co-owner rule in s.14 has produced disputes about whether possession by one tenant in common “for his or their own benefit” includes possession under a mistaken belief of sole ownership. The 30-year absolute cap in s.18 has been challenged in long-delayed disability cases, but the text is unambiguous that 30 years is the “utmost allowance”.

Most practitioners assume that a written acknowledgment always restarts the clock; however, s.44(2) expressly provides that an indorsement on a bill, cheque, or note is insufficient to prove part-payment for s.38 purposes, and s.15 requires the acknowledgment to be given to the person entitled or his agent. Another trap is the interaction between s.30 extinguishment and s.35: a mortgagee may recover land within 12 years of last payment even if the original accrual was earlier, but once 12 years from the last payment have passed without further payment or acknowledgment, title is extinguished.

The asbestos regime contains a hidden limitation: the $120,000 cap and pecuniary-loss-only rule apply not only to claims commenced after the expiry of the old period but also where the pre-1984 knowledge and expiry criteria are met, even if the action is brought within the new three-year window (ss.38A(3), (5)). Section 38A(8a) further provides that a workers’ compensation injury is not “significant” unless a 30% disability threshold is met or agreed; many claimants discover too late that their common-law claim is statute-barred because the injury was never assessed at that level.

Tax claimants frequently overlook that s.37A(2) imposes a 12-month limit even where the tax was paid under a wholly invalid Act, and that s.37A(4) prohibits any court order extending that period. The onus under ss.37B and 37C is onerous; evidence that the tax was simply added to the price of goods will defeat recovery.

Section 47A(1) applies to “any neglect or default in the execution” of a public duty; many plaintiffs assume that a claim framed in ordinary negligence escapes the notice requirement, yet the section has been held to cover misfeasance as well as nonfeasance. The 14-day pre-application notice for leave under s.47A(3)(c) is mandatory and cannot be dispensed with.

The “beyond the seas” provisions (ss.39–42) still catch practitioners who assume that residence in another Australian state extends time; s.42 expressly excludes every part of the Commonwealth. Finally, because the 1935 Act was repealed in 2005, many modern precedents cite the Limitation Act 2005; advisers must constantly check accrual dates to determine which statute governs, and the savings provisions in the 2005 Act can produce the counter-intuitive result that a 2024 claim is still governed by the 1935 Act’s 20-year specialty period rather than the newer three-year discoverability rule.

Compliance begins with an immediate limitation audit on every new file. Identify the exact cause of action, locate the governing section (ss.4, 38, 38A, 47A, or another Act), and calculate the accrual date using the deeming rules in s.5 or the knowledge rules in s.38A(7). Diary the expiry date, adding a buffer of at least three months to allow for service and any pre-action protocols.

For land or mortgage claims, obtain and file any written acknowledgments promptly; ensure they are signed by the party to be charged and given to the entitled person or agent (s.15, s.29). For trust claims, record the date any trust property is conveyed to a purchaser. In disability cases, diarise the date the disability ceases and note the 30-year absolute cut-off from original accrual (s.18).

When acting for public authorities, log the date of any act, neglect, or default and insist on strict compliance with s.47A notice before any settlement negotiations. If notice is late, prepare a leave application supported by evidence of reasonable cause and lack of prejudice, giving the mandatory 14 days’ notice.

For asbestos or latent-injury matters, obtain a comprehensive medical chronology and expert evidence on when the claimant first knew each of the four elements in s.38A(7). If the 30% disability threshold is relevant, secure a medical-panel determination or agreement before issuing. Advise clients that damages will be capped if the transitional criteria are met.

In tax-recovery cases, quantify and document the extent to which the impost was passed on, charged to customers, or built into pricing; failure to discharge this onus at the outset will limit or defeat the claim. Commence within 12 months of payment regardless of any longer period in the taxing statute.

Maintain a central limitation register in every firm, with automated alerts. When pleading, raise limitation early and seek determination as a preliminary issue to avoid incurring costs on the merits. When drafting contracts, consider inserting express limitation clauses that are not shorter than the statutory minimums, and obtain acknowledgments where commercially sensible. For transitional claims under the 2005 repeal Act, maintain separate files flagged “1935 Act” and apply the old accrual rules. Regular CPD on the interaction between the 1935 and 2005 Acts is essential, as is subscription to authorised reports that interpret the surviving provisions. Compliance is not merely filing within time but ensuring that every piece of correspondence, acknowledgment, or notice satisfies the formal requirements that the Act expressly prescribes.