Limitation Act 2005

The Act affects every person or entity who may wish to commence, or who may face, a civil claim or arbitration in Western Australia. Plaintiffs include individuals pursuing damages for personal injury, defamation, trespass, breach of contract, equitable relief, recovery of land or trust property, contribution, or repayment of mistakenly paid tax. Defendants include individuals, corporations, incorporated associations, the Crown (subject to s.10), trustees, personal representatives, mortgagees, landlords, co-owners and tortfeasors.

Particular cohorts receive heightened protection. Children under 18 at accrual benefit from suspended or extended periods (ss.30–33, 41, 52), with further safeguards where the defendant stands in a “close relationship” (s.33). Persons with mental disability—defined in s.3(1) as any intellectual, psychiatric, acquired brain injury or dementia condition that prevents reasonable judgments—likewise receive suspension and extension rights (ss.35–36, 42, 52). Guardians (defined by reference to the Guardianship and Administration Act 1990) are central to these provisions; their failure to act can itself ground an extension application if unreasonable (ss.41(3), 42(3)).

Victims of child sexual abuse form a distinct class: s.6A removes any temporal barrier regardless of when the abuse occurred, and Part 7 permits revival of previously statute-barred or settled claims. Similarly, plaintiffs with subsequent dust-disease claims under s.6B are freed from limitation constraints. Claimants with latent personal injuries who only later discover the injury, its cause or the identity of the wrongdoer may obtain extensions under s.39. Taxpayers who paid money under a mistake of law or fact, or pursuant to an invalid statute, are subject to a strict twelve-month limit (s.28), with special rules limiting judgments and refunds to amounts not passed on to third parties (ss.86–87).

On the defendant side, the Act protects those who would otherwise face indefinite exposure. Long-stop dates (e.g. 12 years for mental disability under s.35(2), 30 years under the close-relationship rule in s.36(3), three years absolute for defamation under s.40(3)) provide certainty. Mortgagees, landlords and adverse possessors benefit from extinguishment of title after 12 years (ss.75, 19). The Crown enjoys immunity from adverse possession (s.76) and is not bound in tax-recovery or ship-forfeiture actions (s.10(2)).

Legal practitioners, insurers, compliance officers, liquidators, trustees and personal representatives must constantly monitor accrual dates, guardian status, confirmation events and extension criteria. Courts are given expanded jurisdiction to hear extension applications by summons (s.43) and must weigh prejudice and fair-trial considerations (s.44). Arbitrators and parties to arbitration agreements are subject to parallel rules (ss.29, 54, 63, 88).

In practice, the Act therefore touches almost every civil dispute in Western Australia, from simple debt claims to multi-generational trust litigation, institutional child-sexual-abuse suits, asbestos and silica-dust disease cases, and complex mortgage foreclosures.

The Act creates few standalone duties but confers and conditions important rights. The primary right is the right to commence an action or arbitration within the applicable limitation period. Once that period expires, the right is barred (and, for land, extinguished). Plaintiffs have the right to apply for extensions in the circumstances set out in Part 3. Defendants have the right to plead expiry as a complete defence, with the burden of proving that the limitation period has run resting on them (s.79(1)).

Minors and persons with mental disability possess conditional rights to suspension of time while they lack a guardian (ss.32, 35). They also enjoy extended long-stops (age 21 for most minors under ss.30–31, 12 years for mental disability under s.35(2)). Where the defendant is in a “close relationship” (defined expansively in ss.33(3) and 36(4) to include persons whose relationship makes it reasonable not to sue or to keep the events secret), further tailored limits apply: age 25 for child plaintiffs (s.33) and three years from cessation of the relationship (subject to a 30-year absolute long-stop) for mentally disabled plaintiffs (s.36).

Victims of child sexual abuse have an unqualified right to bring an action at any time (s.6A(2)). The same applies to subsequent dust-disease actions (s.6B(1)). Both provisions operate “despite anything in this or any other Act” and apply regardless of the cause of action’s legal character.

Parties may agree to extend or shorten periods (s.45(1)), but any contractual term that purports to exclude the fraud jurisdiction (s.38), the close-relationship rules (ss.33, 36) or to extinguish rather than merely bar title inconsistently with Part 5 is void (s.45(2)). A person who confirms a cause of action by written acknowledgment or part-payment extends the limitation period for those who have the benefit of the confirmation and binds those who are bound by it (ss.47, 49–50). Confirmation of interest also confirms principal, and confirmation of one instalment confirms later instalments on the same account (s.51).

Courts possess statutory powers to extend time on satisfaction of statutory criteria (ss.38–42) and must have regard to prejudice to the defendant and the effect of delay on a fair trial (s.44). The Act expressly preserves equitable jurisdiction to refuse relief on grounds of laches or acquiescence (s.80), so a plaintiff who satisfies the statutory limitation rules may still be denied equitable relief.

Taxpayers have a limited right to recover mistaken tax payments, but judgments and administrative refunds are capped at amounts not passed on to third parties (ss.86–87). The Crown’s right to recover tax is not subject to the Act at all (s.10(2)(a)).

Arbitration parties gain the right to have the limitation period for the underlying civil claim applied to the arbitration (s.29), with court power to adjust time where an award is set aside or an arbitrator removed (s.54).

The Act does not itself create criminal offences or civil penalties. Enforcement occurs through the ordinary civil process: a defendant pleads the limitation defence, and if successful the action is dismissed. Failure to plead the defence may result in the defendant being held to have waived it, although courts have sometimes allowed late amendments.

The real sanction is the permanent loss of the right to litigate. For land, the plaintiff’s entire estate or interest is extinguished (s.75), conferring indefeasible title on the adverse possessor (subject to the Crown exception in s.76). Once extinguished, even a court extension under ss.38, 41 or 42 cannot revive the title itself, though s.74 permits an extension application notwithstanding extinguishment.

Where a plaintiff obtains an extension but then fails to commence within the extended period, the original extinguishment or bar revives. Judgments obtained on limitation grounds before the 2018 child-sexual-abuse amendments can be set aside if just and reasonable (s.91), but amounts already paid cannot be recovered by the payer (s.91(4)).

In tax cases, a court that ignores the twelve-month limit in s.28(3) acts without power; s.28(5) prohibits any order permitting a later action. Refunds by taxing authorities are limited by s.87, and the authority may refuse to refund amounts passed on to third parties.

Non-compliance with the Act can also sound in professional negligence claims against lawyers who miss limitation dates. Courts have awarded damages measured by the lost chance of success in the underlying action.

The Act is expressed to operate subject to limitation provisions in other written laws (s.9(1)), except that ss.6A and 28(3)–(5) prevail. It therefore yields to specific regimes such as the Workers’ Compensation and Injury Management Act 1981 (as amended), the Strata Titles Act 1985, and various revenue statutes that contain their own time bars.

Section 6A expressly displaces the Crown Suits Act 1947 s.6 and the old Limitation Act 1935 s.47A in child-sexual-abuse cases. The Act is stated to bind the Crown except in tax recovery and ship forfeiture (s.10). It interacts heavily with the Civil Liability Act 2002, especially through the shared definitions of “personal injury” and the cross-reference in s.6B to that Act’s dust-disease provisions.

Equity is preserved: s.80 keeps laches and acquiescence available even where a statutory period has not expired. The Act does not affect the inherent jurisdiction of superior courts to stay proceedings where delay makes a fair trial impossible (note to s.6A(5)).

Arbitration is dealt with by applying the same limitation period that would govern a court action (s.29), with special rules for when an arbitration is taken to commence (s.88) and for court adjustment of time after removal of an arbitrator or setting aside of an award (s.54).

The Trustees Act 1962 definitions of “trust” and “trustee” are imported (s.3(1)). The Guardianship and Administration Act 1990 supplies the meaning of guardian for mentally disabled persons. Land concepts draw on general property law, including the concepts of future interests, rentcharges and adverse possession.

Transitional interaction with the repealed Limitation Act 1935 is preserved for causes of action that accrued before commencement day (ss.4–6), subject to the child-sexual-abuse revival rules in Part 7.

The most significant recent change was the insertion of s.6A by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018. Parliament responded to the Royal Commission into Institutional Responses to Child Sexual Abuse, which found that limitation periods had prevented many victims from obtaining redress. By removing any temporal limit and permitting revival of previously barred and settled claims (ss.90–92), the legislature prioritised victim access to justice over defendant repose. A statutory review after three years was mandated (s.6A(7)–(8)).

In 2023 the Workers Compensation and Injury Management Act 2023 amended ss.55–57 and 56(4) to update cross-references to the new impairment-assessment regime, ensuring consistency between limitation accrual for dust diseases and the compensation scheme.

Most recently, the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 inserted s.6B, removing limitation periods for subsequent actions in respect of subsequent dust diseases. This mirrored the child-sexual-abuse policy choice: certain latent occupational diseases manifest decades later, and Parliament decided that victims should not be penalised for the long latency.

These amendments reflect a broader legislative trend away from strict limitation rules where powerful policy reasons—protection of children, recognition of institutional betrayal, and the science of latent disease—outweigh the traditional justifications for temporal finality.

Although the Act contains no reported constitutional invalidity challenges, several provisions have generated appellate litigation. The s.39 extension power for latent personal injury has produced debate over the precise meaning of “not aware of the physical cause” and the date on which a plaintiff “ought reasonably to have become aware” of attribution to another’s conduct. Courts have emphasised that the test is objective yet personalised, taking into account the plaintiff’s particular circumstances.

The child-sexual-abuse provisions have raised questions about the interaction between s.6A(5) and the court’s power to permanently stay proceedings for want of a fair trial. Defendants in historic institutional cases have argued that the passage of decades renders a fair hearing impossible through loss of witnesses, destruction of records and faded memories. The statutory note to s.6A(5) expressly contemplates such applications, and superior courts have granted stays in extreme cases while emphasising that each case turns on its own evidentiary prejudice.

Section 28’s strict twelve-month limit on recovery of mistakenly paid tax, especially where the statute under which tax was collected was later held invalid, has been criticised for its rigidity. The provision was inserted to protect public finances from “floodgates” claims following constitutional or administrative-law successes. Its interaction with the general law of restitution continues to generate academic and practitioner controversy.

The land extinguishment rules in Part 5 have produced litigation concerning the precise moment adverse possession begins (s.65) and whether a trustee’s title is extinguished when all beneficiaries’ rights are also barred (s.78). The “close relationship” definitions in ss.33 and 36 have been tested in family and institutional settings, with courts adopting a broad construction that captures not only legal guardians but persons whose relational dynamics made complaint unreasonable.

Overall, the case law demonstrates that while the Act provides a clear framework, its discretionary extension powers and open-textured definitions continue to require careful factual analysis.

Most practitioners instinctively look at the date of the wrongful act or injury, yet accrual under this Act is often knowledge-based or event-based. Section 55(1) ties personal-injury accrual to awareness of a “not insignificant” injury or the first consistent symptom; a plaintiff who experiences symptoms but reasonably attributes them to a benign cause may have years of additional time. Conversely, s.56’s knowledge test for dust diseases imports a reasonableness overlay that can catch plaintiffs who delayed seeking expert advice.

The “close relationship” extension in s.33(3)(b) is extraordinarily wide. It captures not only parents but any person whose relationship with the child or the child’s guardian makes it reasonable for the child not to sue or to remain silent. Courts have indicated this can include teachers, coaches, religious figures and even older siblings in certain circumstances. Many defendants fail to appreciate they may be caught by the extended age-25 long-stop.

Section 6A(5) and the note beneath it are frequently overlooked. While there is no limitation period, nothing prevents a court from summarily dismissing or permanently staying a claim where the lapse of time makes a fair trial impossible. Institutional defendants have successfully obtained stays despite s.6A; the provision removes a technical bar but does not guarantee a hearing on the merits.

The tax provisions in ss.28, 86 and 87 contain a trap: even if another statute allows a longer recovery period, s.28(3) imposes an absolute twelve-month limit where the tax was collected under an invalid Act or provision. Subsection (5) ousts any judicial power to extend that period. Practitioners acting for taxpayers who have succeeded in constitutional or judicial-review challenges must move within twelve months of payment, not of the court’s decision.

Confirmation under ss.46–51 can inadvertently restart the clock. A casual written acknowledgment of debt, even without promising to pay, can revive an otherwise expired claim. Conversely, part-payment in circumstances not inconsistent with an acknowledgment has the same effect. Mortgagees and lenders must be wary of accepting late payments without carefully drafted reservations.

For land lawyers, the interaction between adverse possession (s.65), future interests (s.69) and the extinguishment rules (s.75) can produce counter-intuitive results. A remainderman’s interest may be extinguished the moment it falls into possession if the prior estate holder’s title was already barred. The Crown exception in s.76 is absolute; no length of adverse possession can defeat Crown title.

Finally, the burden-of-proof rules in s.79 are asymmetric. The defendant must prove the limitation defence, but the plaintiff must prove that time did not run during periods of guardianship absence (ss.32, 35). In extension applications the plaintiff bears the onus on all discretionary matters, including the s.44 fair-trial and prejudice criteria. Many extension applications fail because practitioners treat the hearing as a mere formality rather than a contested evidentiary contest.

Compliance begins with a systematic limitation audit on every new file. Identify the exact cause of action, locate the applicable limitation period in Part 2 Division 3 (or the residual six years under s.13), then determine the accrual date by reference to the detailed rules in Part 4. For personal injury, obtain a detailed chronology of symptoms, medical attendances and when the plaintiff first appreciated the injury’s significance. For latent disease, document the date of knowledge of each element in s.56(2).

Where the plaintiff is or was a minor or has a mental disability, immediately investigate guardian status and any “close relationship” with the proposed defendant. Diarise the relevant long-stops (age 21, age 25, 12 years, 30 years) and consider protective proceedings or extension applications well before they expire.

For child-sexual-abuse and dust-disease claims, note that no limitation period applies but that a fair-trial stay remains possible. Preserve all available evidence immediately—witness statements, contemporaneous documents, medical records—and consider seeking early court directions on the timing of any stay application.

When acting for defendants, plead the limitation defence early and particularise the date of accrual. Gather evidence of prejudice (lost witnesses, destroyed records, faded memories) to oppose any extension application under s.44. In tax matters, advise clients that the twelve-month limit in s.28 is effectively absolute where invalid legislation is involved.

Drafting tip: any agreement to vary a limitation period should be in writing, should expressly preserve the operation of ss.33, 36 and 38, and should not purport to extinguish title in a manner inconsistent with Part 5 (s.45(2)).

Where an extension application is necessary, prepare detailed affidavit evidence addressing the precise statutory criteria (e.g. lack of awareness under s.39(3), unreasonableness of a guardian under s.41(3)) and the s.44 factors. Serve all proposed defendants and be ready for cross-examination on prejudice.

For arbitrations, ensure the notice commencing the arbitration complies with s.88 so that the commencement date is beyond dispute. If court intervention occurs (removal of arbitrator, setting aside award), apply promptly for a s.54 order adjusting the limitation clock.

Maintain a central diarising system that flags every statutory long-stop, not merely the primary limitation period. Review files at least six months before any critical date to allow time for extension applications or protective proceedings. In institutional or historic cases, engage specialist counsel early to navigate the interaction between s.6A, Part 7 revival powers and the court’s inherent power to stay proceedings.

Finally, remember that even perfect compliance with the Limitation Act 2005 does not guarantee success; equitable defences remain available (s.80). Advise clients that the Act provides a shield against technical time bars but not against the equitable doctrine of laches where delay remains unconscionable.