Introduction

The law imposes time limits, known as limitation periods, within which civil actions must be commenced in court. For further information on what limitation period applies, see our factsheet on Limitation Periods.

If a limitation period does apply and it expires, it may be difficult or impossible to commence legal proceedings, even if your case has merit.

However, a plaintiff may, under certain circumstances, apply to the court to have a limitation period extended. This factsheet explains how a limitation periods under the Limitation of Acts Act 1974 (Qld) (LAA) can be extended. If a limitation period is provided for by another Act, then the test for whether an extension of time will be granted will be set out under that Act.

Extension of time for personal injury actions (section 31 of the LAA)

The following test applies to actions for damages for negligence, trespass, nuisance or breach of duty (under contract, statute or other duty) where the damages claim consists of or includes damages for personal injury or injury resulting from the death of any person.

The court may, upon application by a person, extend a limitation period if it appears to the Court: 

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation: section 31(2), LAA

In other words, firstly, there needs to be a very important "material fact" unknown to the applicant until a year before expiry of the limitation period or afterwards. Secondly, there needs to be sufficient evidence to establish a Cause of Action.

The court may only order an extension of 1 year from the date the applicant had knowledge (or reasonable means of knowledge) of the "material fact".

It should be noted that section 31 of the LAA gives the court a discretion to grant an extension of time. Therefore, even if the above requirements are satisfied, this does not mean an extension will be automatically granted: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The onus of proof is on the applicant to establish that the court's discretion should be exercised to grant an extension of time. This is because extensions of time outside the limitation period are considered prima facie prejudicial to the defendant.

What constitutes a "material fact"?

Under section 30(1)(a) of the LAA, "material facts" include:

• The fact of the occurrence of the negligence, trespass, nuisance or breach of duty on which the right of action is founded
• The identity of the defendant
• The fact that the negligence, trespass, nuisance of breach of duty causes personal injury
• The nature of extent of the personal injury caused
• The extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.

What constitutes a "material fact of a decisive character"?

Under section 30(1)(b), material facts are of a "decisive character" only if a reasonable person knowing those facts and having sought appropriate advice (meaning advice of competent persons qualified to advise on the medical, legal and other aspects of the facts) would regard those facts as showing:

• That an action would (apart form the expiration of the limitation period) have a reasonable prospect of success and result in an award of damages sufficient to justify the bringing of an action; and
• That the applicant should in their own interests and taking their own circumstances into account bring an action on the right of action.

In relation to dust-related conditions, section 30A of the LAA provides that unless the person suffering the injury knows that the dust-related condition is or will be a contributing factor to significant loss of amenities or loss of life then merely knowing the nature and extent of the injury will not be a material fact of a decisive character.

A dust related condition are those listed in Schedule 2 of the Civil Liability Act 2003 such as diseases arising from asbestos or coal dust, but does not include personal injury resulting from smoking or exposure to tobacco smoke.

What constitutes "within the means of knowledge of the applicant"?

Under section 30(1)(c), a fact is not within the means of knowledge of the applicant at a particular time if:

• the applicant does not know the fact; and
• as far as the fact is able to be found out by the applicant, the applicant has taken all reasonable steps to find out the fact before that time.

In determining whether or not a plaintiff has undertaken reasonable steps to ascertain material facts, the court will make an objective assessment taking into account the background and circumstances of the applicant - Carter v Co. of the Sisters of Mercy Diocese Rockhampton & Ors [2001] QCA 335.

Where a plaintiff is not sufficiently knowledgeable or informed to be aware that negligence has occurred, it will not be reasonably expected that the plaintiff will have conducted enquiries to ascertain a material fact, such as determining whether a person is legally accountable - N v Queensland [2004] HCATrans 1006.

Where a plaintiff is aware that some of their psychiatric attributes are due to particular events, it is not unreasonable to expect the plaintiff to inquire as to whether other conditions, such as depression, are also due to those events - Carter v Co. of the Sisters of Mercy Diocese Rockhampton & Ors [2001] QCA 335.

Extension of time for defamation actions (section 32A of the LAA)

Section 32A of the LAA allows an applicant to apply for an extension of time in defamation matters. A court must extend the limitation period to 3 years after the date of the publication if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within 1 year from the date of publication.

Extension of time for children and people under a disability (section 29 of the LAA)

Special provisions exist for limitation periods for people who were under the age of 18 years or were of unsound mind on the date the cause of action arose. See our factsheet on Limitation Periods for more details.

Extension of time in cases of fraud or mistake (section 38 of the LAA)

Where: 

• the cause of action is based on fraud, or
• the cause of action was concealed by fraud of the defendant or their agent, or
• the action is for relief from the consequences of mistake,

then the commencement of the limitation period is postponed until the date the plaintiff discovers the fraud or mistake or could have discovered it with reasonable diligence (section 38 LAA).

Contact us

Please contact QPILCH by:

E:    services@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101

Last updated: 9 June 2009.