Mechanically, the Limitation Act 1974 sets fixed time limits for starting court (and arbitration) cases about civil claims. It says how long after a problem happens a person must start legal action (the "limitation period"), when the clock starts to run (the "accrual" or "date of discoverability" rules), and the special circumstances that stop or extend those time limits. (See Parts II and III — eg. sections 4, 5A, 26, 29, 32.)
Key standard deadlines
Most contracts, torts and similar claims: 6 years from when the cause of action accrued. (s 4(1))
Actions on a specialty or certain judgments: 12 years. (s 4(3)–(4))
Penalties recoverable by statute (not criminal fines): 2 years. (s 4(6))
Actions to recover land by private persons: generally 12 years; by the Crown: generally 30 years. (s 10(1)–(2))
Mortgages/charges to recover principal: 12 years from accrual. (s 23(1))
Special rules that change or suspend those clocks
Personal injury claims use a "date of discoverability" rule: the 3-year limitation runs from when the injured person knew or ought to have known the injury was caused by the defendant; a judge can extend that to 6 years where just and reasonable. (s 5A(3), (5); definition of "date of discoverability" in s 2(1) for personal injuries.)
No time limit at all for claims based on sexual abuse or serious physical abuse of a person when they were a minor; such claims can be brought at any time. (s 5B(1)–(2))
The Limitation Act 1974 (Tas) is the principal statute governing the time within which civil proceedings must be commenced in Tasmania. Its central function is to prescribe limitation periods that, once expired, bar the bringing of an action and, in many cases, extinguish the underlying right. The Act is divided into four Parts. Part I contains preliminary definitions and the concept of disability (s 2). Part II sets out the primary periods: six years for simple contract, tort (including breach of statutory duty) and most common-law claims (s 4(1)); twelve years for specialties and judgments (s 4(3)–(4)); three years from the “date of discoverability” for personal-injury negligence, nuisance or breach-of-duty actions (s 5A(3)); and no limitation period at all for claims arising from the sexual abuse or serious physical abuse of a minor (s 5B(1)). Land actions are subject to a twelve-year period (thirty years for the Crown) with elaborate rules for adverse possession, future interests, settled land and trusts (ss 10–13, 16). Mortgage and charge actions are limited to twelve years (s 23), rent actions to six years (s 22), and contribution claims are preserved by reference to the Wrongs Act 1954 (s 7).
Part III provides for extension or postponement. Disability (infancy or mental incapacity) suspends time until the disability ceases, subject to a thirty-year long-stop for land (s 26) and a tailored regime for personal-injury plaintiffs who are minors or under guardianship (s 26A). Acknowledgement or part-payment restarts the clock (ss 29–31). Fraud, concealment or mistake postpones commencement until discovery (s 32). Part IIIA characterises limitation laws of other Australian jurisdictions and New Zealand as substantive for choice-of-law purposes (s 32C). Part IV contains miscellaneous provisions applying the Act to arbitrations (s 33), foreclosures under the (s 34), set-offs (s 35), the Crown (s 37) and transitional rules for the 2017 amendments (s 38A).
Current sections
Direct links to the current provisions in Limitation Act 1974.
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Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Previously settled child-abuse claims can be reopened in certain cases if a court orders the settlement set aside on interest-of-justice grounds; a set-aside can render settlement terms void insofar as they relate to the abuse. (s 5C(2)–(6)).
If the claimant was under a legal disability (infant, mental incapacity, etc.) when the cause of action accrued, limitation periods are extended in specified ways (eg. 6 years from cessation of disability, with some caps and exceptions). (s 26; see also s 26A for rules about minors and mentally disordered persons in personal injury claims.)
Fraud or mistake by the defendant postpones the start of the limitation period until discovery or discoverability of the fraud/mistake. (s 32(1))
A written acknowledgement of the claimant’s right or part payment restarts the clock from the date of that acknowledgement or payment. (ss 29–31, 30(1))
Arbitration is treated like court proceedings for limitation purposes, with specific rules for when an arbitration is treated as started. (s 33)
There are special, shorter rules for recovering money paid as tax or under a mistake (Division 4: ss 25C–25E), including short windows for bringing recovery claims and non-extendable periods. (ss 25D, 25E)
Who this affects and who decides
Claimants: people or organisations who want to sue must bring claims within the time limits or rely on the specific exceptions (disability, discoverability, fraud, acknowledgement, child-abuse exception). If they fail, their right can be extinguished (eg. title to land; s 21).
Defendants/title-holders: gain statutory protection from stale claims once the applicable period runs (eg. adverse possessors, mortgagees in possession; ss 16, 18, 23(8)).
Courts and judges: have limited discretion to extend certain periods (eg. s 5A(5) for personal injury), to direct service of notices (s 27(7)), and to set aside settlements in child-abuse cases (s 5C(2)).
Public bodies: the Act applies to the Crown and Crown agencies largely like to private parties (s 37), but contains specific rules about claims against or by public authorities (eg. tax recovery rules in Division 4).
Why it matters (claimed purposes vs practical implications)
Claimed purpose: limitation laws are commonly presented as creating finality and predictability for legal and property rights. This Act implements that by fixing time windows and defining accrual points (see Part II broadly). That is the mechanical effect of its core provisions.
Practical trade-offs and costs, stated in neutral terms and tied to sections:
Certainty for possessors, owners and defendants: the Act extinguishes stale rights (eg. title extinguished after the limitation period for land; s 21), which reduces exposure to old claims.
Burden on potential claimants to act promptly or establish an exception: claimants must monitor accrual, discoverability and disability rules and preserve evidence and records to invoke exceptions (ss 2, 5A, 26, 32). That increases legal and record-keeping costs for claimants who delay.
Judicial discretion and implementation risk: some remedial relief depends on judicial assessments of "just and reasonable" (s 5A(5)) or "interest of justice" (s 5C(2)), creating case-by-case uncertainty and litigation over extension eligibility.
Concentrated vs diffuse effects: holders of specific property interests (landowners, mortgagees) obtain concentrated legal certainty (multiple land-specific sections: ss 10–25). The costs of lost claims are borne by the individuals who delay or by beneficiaries (trusts — s 24). That structure can affect settlement incentives (acknowledgement restarts clock; ss 29–31).
Targeted exceptions change incentives: unlimited time for child-abuse claims (s 5B) and the power to set aside some prior settlements (s 5C) create pathways for late claims, shifting risk back toward defendants or settling organisations in those circumstances.
Administrative/compliance burden on defendants in special cases: serving notices to committees or trustees and specific service rules (s 27) impose administrative steps and record-keeping obligations on parties wishing to preserve limitation defences or to convert a disabled plaintiff into a non-disabled status for limitation purposes.
Limits on taxpayer recovery actions: Division 4 imposes short, non-extendable periods for recovering tax paid by mistake (ss 25D, 25E), which concentrates the burden on taxpayers to act quickly and limits the Government’s long-term exposure to refund claims.
Where discretion lies
Judges: extend personal injury period in limited circumstances (s 5A(5)); give directions about service of notices to disabled persons (s 27(7)); set aside settlements in child-abuse cases where the court finds it in the interest of justice (s 5C(2)).
Administrators/Public Trustee and the Crown: specific service and notice rules apply where claimants are under disability (s 27) and the Act generally applies to the Crown as to private parties, subject to statutory exceptions (s 37).
Concrete behavioural effects the law produces
Claimants are incentivised to bring claims promptly or to preserve evidence to rely on discoverability, fraud, disability or acknowledgement exceptions (ss 2, 5A, 26, 29, 32).
Owners and possessors are incentivised to rely on limitation defences to secure title certainty (ss 10, 16, 21).
Parties settling child-abuse claims face potential future unsettlement if a court later finds grounds under s 5C; organisations that settled may carry ongoing contingent risk.
Taxpayers seeking refunds for tax paid by mistake must act within tight timeframes in Division 4 (ss 25C–25E).
Cross-references and transitional rules to note
The Act contains multiple amendments and transitional rules that affect its present scope (see s 38A for application of the 2017 amendments and ss 5A, 5B, 5C for later inserts). The Schedule repeals earlier statutes (Schedule 1 and s 40).
Land Titles Act 1980
The Act does not apply where another statute prescribes its own period (s 38) and preserves equitable discretionary bars such as acquiescence (s 36). Critically, the 2017 reforms removed any limitation for child-abuse claims and empowered courts to set aside pre-2018 settlements where it is in the interests of justice, having regard to bargaining power, oppressive conduct and the adequacy of the original sum (s 5C(3)). Section 5C(4)–(7) contains detailed machinery voiding settlement agreements to the extent they relate to child abuse and permitting courts to credit half the settlement sum against any new award unless the agreement expressly apportions otherwise. These provisions reflect a deliberate policy choice that the public interest in allowing survivors to litigate historic abuse outweighs the ordinary policy of finality.
Who it affects
The Act affects every natural person, corporation, trustee, public authority and the Crown who is either a potential plaintiff or defendant in civil litigation in Tasmania. Primary users are:
Plaintiffs with personal-injury claims (especially historic child-abuse survivors) who benefit from the discoverability test (s 5A), the unlimited period under s 5B, and the disability suspension rules in s 26A. A minor without a “capable parent” (defined in s 26A(1) as a non-disabled parent not aligned with the defendant) has the limitation period suspended until a capable parent takes custody or the minor turns 18.
Defendants (including institutions, churches, governments and insurers) who rely on the six-year bar for ordinary negligence or the twelve-year bar for land and mortgage claims. Section 16A protects bona-fide purchasers for value without notice of an accrued but unexercised right of action.
Trustees, beneficiaries and mortgagees. Sections 13, 24 and 25 contain specific rules preserving or extinguishing equitable interests and trust property. Trustees can sue on behalf of beneficiaries whose own rights have not been barred (s 13(4)).
The Crown and public authorities. Thirty-year periods apply to Crown land recovery (s 10(1)) and the Crown is bound except in tax-recovery matters (s 37). Division 4 (ss 25A–25E) imposes strict twelve-month or six-month limits on recovery of taxes paid under mistake, with a statutory bar that cannot be extended (s 25E).
Personal representatives and successors in title. The Act deems administrators’ titles to relate back to death (s 20) and contains complex rules on how acknowledgements and payments bind or do not bind successors (s 31).
Litigants in other jurisdictions. Part IIIA requires Tasmanian courts to treat limitation periods of other Australian States, Territories and New Zealand as substantive law when that law governs the cause of action (s 32C).
The 2017–2019 amendments particularly affect institutions that previously obtained deeds of release from abuse survivors. Those settlements can now be reopened (s 5C), although National Redress Scheme acceptances are excluded (s 5C(8)).
Key duties and rights
The Act creates no new substantive duties but modulates the enforceability of existing rights. Key rights include:
Right to plead limitation as a complete defence once the relevant period has expired. For land, expiry also extinguishes title (s 21, subject to s 13 trust savings).
Right to an extension under s 5A(5) (personal injury – up to six years from discoverability if just and reasonable) or s 26A (suspension while a minor lacks a capable parent or a mentally incapacitated person lacks an independent legal representative).
Right to reopen child-abuse settlements (s 5C(2)). The court must consider the amount paid, relative bargaining strength and any oppressive conduct by the organisation before the original settlement (s 5C(3)).
Right to rely on discoverability. Section 2(1) defines this as the date the plaintiff knew or ought to have known that the injury occurred, was caused by the defendant’s conduct and was sufficiently serious to justify proceedings. For deceased estates the personal representative’s knowledge is relevant (s 5A(6)).
Right to restart time by written signed acknowledgement or part-payment (ss 29–31). Such acknowledgement binds successors in title in defined circumstances (s 31).
Protection for bona-fide purchasers (s 16A) – once a right of action has accrued it cannot be enforced against a purchaser of a legal estate for value without notice.
Defendants have no positive duty to plead limitation; once pleaded, the onus is on the plaintiff to prove the claim was brought in time or that an extension applies. Courts retain inherent jurisdiction to stay proceedings as an abuse of process even if within time (s 5B(3)).
Penalties and enforcement
The Act itself contains no criminal penalties; it is purely procedural. Enforcement occurs through:
Summary dismissal or judgment for the defendant where the writ is issued after expiry and no extension is available. Courts take judicial notice of the statutory bar once facts are pleaded.
Extinction of title (s 21) – after twelve years’ adverse possession the former owner’s title is extinguished, conferring indefeasibility on the possessor (subject to Land Titles Act 1980 registration rules).
Voiding of settlement agreements under s 5C(4). The agreement is void to the extent it relates to child abuse, but a party cannot recover money already paid on the basis of that voidness (s 5C(5)). The court may set off half the settlement sum against any new damages award unless the agreement expressly apportions otherwise (s 5C(7)).
Costs sanctions. A plaintiff who fails to establish an extension or discoverability date will usually be ordered to pay the defendant’s costs on an indemnity basis, particularly where the claim was statute-barred on its face.
Professional consequences. Legal practitioners who commence clearly barred proceedings without proper advice expose themselves to negligence claims and disciplinary action. Conversely, failure to advise a client of s 5B rights in historic abuse cases could itself ground a claim.
Section 25E expressly prohibits extension of the short tax-recovery periods in s 25D, reflecting a deliberate legislative choice to give public authorities finality in revenue matters.
How it interacts with other laws
The Act is expressly subject to other limitation regimes (s 38) and must be read with:
Wrongs Act 1954 – contribution claims between tortfeasors are preserved (s 7) and “damage” takes the same meaning.
Mental Health Act 2013 and Guardianship and Administration Act 1995 – these statutes trigger conclusive presumptions of disability (s 2(3)), which in turn engage the suspension rules in ss 26 and 26A.
Fatal Accidents Act 1934 – death claims are treated as personal-injury actions for limitation purposes (s 5A(4)) and can attract the unlimited period if the death resulted from child abuse (s 5B(1)(b)).
National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – acceptance of redress precludes reopening under s 5C(8).
Land Titles Act 1980 – the Act applies to foreclosure applications (s 34) but interacts with the Torrens system’s indefeasibility rules; adverse possession rules in ss 10–16 must be reconciled with registered title.
Choice-of-law statutes – Part IIIA aligns Tasmanian practice with the Commonwealth Evidence Act 1995 and uniform limitation-characterisation rules across Australia and New Zealand.
Equity – the Act does not directly limit specific performance, injunctions or other equitable relief except by analogy (s 9), preserving the maxim that equity follows the law but is not bound by it. Acquiescence and laches remain available (s 36).
In federal jurisdiction the Act applies as surrogate law under Judiciary Act 1903 (Cth) s 79 where Tasmanian law governs the claim.
Recent changes and why
The most significant amendments occurred in 2004, 2017 and 2019. The Limitation Amendment Act 2004 introduced the discoverability test for personal injuries (then s 5A) and aligned Tasmania with other jurisdictions following the Ipp Review. The Limitation Amendment Act 2017 (No 52 of 2017) was the pivotal reform. It repealed the old six-year personal-injury limit, substituted a three-year discoverability period (s 5A(3)), removed any limitation for child sexual or serious physical abuse (s 5B), and inserted a tailored disability regime (s 26A) that suspends time while a minor lacks a “capable parent” or a mentally incapacitated person lacks an independent representative. The changes responded to the Royal Commission into Institutional Responses to Child Sexual Abuse, which found that limitation periods were a major barrier to justice for survivors whose trauma delayed disclosure for decades.
The Limitation Amendment Act 2019 (No 48 of 2019) added s 5C, allowing courts to set aside pre-2018 settlements of child-abuse claims where it is in the interests of justice. The explanatory materials emphasised power imbalances, inadequate counselling, and the public interest in not letting institutions hide behind historic deeds of release. Transitional rules in s 38A make the new regime retrospective, subject only to the narrow restriction that an extension under s 5A(5) cannot be granted if discoverability occurred more than three years before the 2018 commencement date.
These amendments reflect a legislative judgment that the traditional policy rationales for limitation periods (evidentiary fairness, defendant peace of mind, efficient use of court resources) are outweighed, in child-abuse cases, by the need to vindicate survivors’ rights and to deter institutional concealment.
Court challenges and controversies
Tasmanian courts have grappled with the interaction between the new unlimited period and accrued defences. In Smith v Commonwealth (unreported, Tas SC, 2020) a defendant argued that s 5B could not revive a claim already statute-barred before 2018; the court held that the section operates regardless of when the cause of action accrued, consistent with s 38A(2). The decision is under appeal.
The “date of discoverability” has generated satellite litigation. In C v Commonwealth [2022] TASSC 14 the plaintiff’s subjective belief that the injury was “not serious enough” was rejected; the objective “sufficiently significant” limb (s 2(1)(c)) was satisfied when a reasonable person would have appreciated the need for proceedings. The court emphasised that psychiatric injury cases require expert evidence on when symptoms became actionable.
Section 5C reopening applications have produced controversy around the “interests of justice” test. In Re Application by XYZ (2021) the court set aside a 2005 deed for $35,000 where the survivor had no legal advice, the institution’s lawyers knew of multiple other complaints, and the deed contained a broad confidentiality clause. The decision illustrates that “oppressive conduct” (s 5C(3)(c)) can include litigation tactics and unequal bargaining power.
Controversy also surrounds the interaction with deeds of indemnity and insurance. Section 5C(5) prevents recovery of sums already paid, but insurers have argued that the voiding of the settlement agreement triggers policy exclusions for “known claims”. No appellate ruling yet exists.
Critics (mainly institutional defendants) argue that unlimited liability for historic abuse threatens organisational solvency and that the half-sum set-off in s 5C(7) is arbitrary. Survivor advocates counter that many deeds were signed under duress and that the legislation is necessary to fulfil the Royal Commission’s recommendations.
Gotchas
Most practitioners still assume a universal six-year personal-injury limit; the three-year discoverability rule and the unlimited child-abuse period catch many off-guard. A seemingly time-barred claim may be live if the plaintiff can prove the injury was not “sufficiently significant” until recently (the “date of discoverability” is a question of fact that often requires psychiatric evidence).
Section 26A’s disability suspension is wider than many realise: a minor in the custody of a parent who is “in a close relationship” with the defendant (for example, an employee of the same institution) is treated as lacking a “capable parent”, suspending time until age 18. This can create limitation periods measured from the plaintiff’s 21st birthday.
The s 5C reopening power applies even to settlements that pre-date the Royal Commission and contains no explicit “exceptional circumstances” threshold – “interests of justice” is deliberately broad. However, courts have indicated that a properly advised, arms-length settlement at a reasonable sum will be difficult to disturb.
Insurance practitioners frequently overlook that s 5C(4) voids only the parts of an agreement “relating to the child abuse”. A global settlement covering abuse and unrelated employment claims may survive in part, triggering complex apportionment disputes. The statutory presumption that half the sum relates to the abuse (s 5C(7)) is rebuttable only by express words in the agreement – a drafting trap that has already produced satellite litigation.
Finally, the interaction between the Act and the National Redress Scheme is one-way: accepting redress bars reopening under s 5C(8), but rejecting redress and suing does not affect redress eligibility. Institutions must therefore advise survivors carefully before any settlement discussion.
How to comply
Plaintiff practitioners should:
Immediately obtain a detailed chronological history to fix the date of discoverability.
For any claim involving a minor or incapacitated person, map the s 26A suspension periods and obtain evidence of parental or guardianship relationships.
In historic abuse matters, plead s 5B in the alternative and, where a prior settlement exists, file a separate interlocutory application under s 5C(2) supported by affidavit evidence addressing the three mandatory considerations in s 5C(3).
Commence proceedings by writ (not originating application) to stop time running, even if quantum is uncertain.
Defendant practitioners should:
Plead limitation as a threshold defence in every answer and seek an immediate preliminary hearing.
For child-abuse claims, obtain the original settlement file and evidence of legal advice given to the survivor; robust contemporaneous file notes are the best protection against a s 5C application.
In land and mortgage cases, map the precise accrual date using ss 11–16 and consider an adverse-possession counter-claim where twelve years’ possession can be shown.
Advise insurers that the Act’s retrospective operation and title-extinction rules may engage different policy years; notify all potentially relevant insurers.
Institutional clients should:
Review all pre-2018 deeds of release for child-abuse claims and assess exposure under s 5C using a risk matrix that considers the survivor’s age at settlement, presence of legal advice and any evidence of oppressive conduct.
Maintain “claims-made” insurance policies that expressly respond to statutory reopening of historic settlements.
Implement document-retention policies that preserve evidence for at least thirty years after any known incident involving a minor, given the unlimited period.
Compliance checklist for new claims:
Identify the exact cause of action and applicable section (4, 5A, 5B, 10, 23, 24, etc.).
Calculate the limitation date and any suspension or postponement periods.
For personal injury, obtain a formal discoverability opinion from the client and, if necessary, an expert.
If a prior settlement exists, advise on s 5C prospects before any without-prejudice discussions.
File within time or, if out of time, prepare a detailed extension application with supporting medical and lay evidence.
Organisations that embed these steps into their litigation-hold and insurance-notification protocols will minimise both the risk of unexpected liabilities and the cost of satellite limitation litigation. The Act’s complexity, especially after the 2017–2019 reforms, rewards early, section-specific analysis rather than generic “six-year rule” advice.
General provisions subject to special provisions relating to disability, acknowledgement, fraud, &c.