Introduction

The law imposes strict time limits, known as limitation periods, within which civil actions must be commenced in court. 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.

It is not necessary that the claim actually be heard in court within the prescribed limitation period. It is only necessary that the relevant court documents initiating the claim have been filed in court.

This Factsheet will assist you to determine the limitation period that applies to your civil legal action.

What is the relevant limitation period?

The Limitation of Actions Act 1974 (Qld) (LAA) sets out limitation periods for the commencement of various actions in Queensland. The LAA does not apply if the limitation period for a specific Cause of Action is prescribed by another Act.

Generally speaking, to work out the limitation period that applies to your case:

1. Look at the legislation which gives rise to the cause of action, if any
2. If there is no such legislation or time limit, look at the LAA

If the limitation period has already expired, then there may still be scope for commencing legal action if:

• The person was a child or under a disability at the time the cause of action arose, or
• In the circumstances, the court may grant an extension of time.

Some examples of limitation periods

• personal injury - 3 years from the date on which the cause of action arose (section 11 LAA - however, see below for further time restrictions)
• tort or contract without personal injury (for example, property damage or economic loss) - 6 years from the date on which the cause of action arose (section 10 LAA)
• rent recovery - 6 years from the date on which the arrears became due (section 25 LAA)
• land recovery - 12 years from the date on which the cause of action accrued (section 13 LAA)
• defamation - 1 year from the date of the publication of the matter complained of (section 32A LAA)
• unfair dismissal - 21 days from termination of employment (section 74(2)(a) Industrial Relations Act 1999 (Qld))
• discrimination - 1 year from date of the alleged discriminating act (section 138 Anti-Discrimination Act 1991 (Qld)).

Postponement of limitation period in cases of fraud or mistake

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 limitation period runs from the date the plaintiff discovered the fraud or mistake or could have discovered it with reasonable diligence (section 38 LAA).

Limitation periods relation to children and persons with a disability

Under section 29 of the LAA, if a person was "disabled" on the date the cause of action arose then, the LAA limitation periods are, subject to certain exceptions, extended to 6 years from the date the person ceased to be under a disability or died, whichever is earlier. The extended timeframe is only 3 years if the action is to recover damages in respect of personal injury or damages in respect of injury resulting from the death of any person.

A person is disabled if they are a child under the age of 18 years, or are of unsound mind (section 5(2), LAA). A person is presumed to be of unsound mind if they are an involuntary patient under the Mental Health Act 2000 (Qld) or if they are in strict custody pursuant to an order of the court or in safe custody pursuant to an order given by the Governor under section 647 of the Criminal Code (section 5(3) LAA). Therefore, for example, if a 15 year old suffers an injury which gives rise to a personal injury claim, then he or she will have until they are 21 years old, that is, 3 years after they turned 18, to commence personal injury proceedings.

Prior to 7 November 2008, the definition of a person under a disability under section 5(2) included a prisoner who, after conviction, is undergoing a sentence of imprisonment. If a cause of action arose before 7 November 2008, then a prisoner may still be able to take advantage of this provision.

Personal injury claims

As set out above, the LAA provides that any claim for damages for personal injury must be brought within 3 years from the time the cause of action arose. In cases where the cause of action requires proof of damage (for example, negligence) then the limitation period commences at the time the injury was first suffered. This means that time could commence even though the plaintiff is unaware of the injury, for example, if the injury arose from the inhalation of dust over a long period of time or a latent mental disorder. In these cases, the limitation period may be extended if there is a material fact of a decisive character coming to the plaintiff's attention, such as the nature and extent of an injury. Please see our factsheet on Extensions of Time - Limitation of Actions Act 1974 for more information.  

However, the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), as amended by the Civil Liability Act 2003 (Qld), sets out a detailed pre-action procedure to be followed prior to commencing court action with specific timeframes. Importantly, under section 9(1) of PIPA, a person considering personal injury action must first give written notice of the claim to the proposed defendant within the earlier of:

(a) 9 months of the incident giving rise to the personal injury or the first appearance of symptoms of the injury; or
(b) 1 month after the person first instructs a law practice to act on that person's behalf in seeking damages for the personal injury and the proposed defendant has been identified (although consultation with a community legal service is to be disregarded - section 9(9A) PIPA)

If these time frames are not followed, the claim cannot proceed unless, among other things, the defendant waives the notice requirement or the court authorises the claim to proceed (section 18 PIPA).

For a flow chart on PIPA pre-action procedure, please see the Department of Justice & Attorney General website at www.justice.qld.gov.au/1829.htm.

Extensions of time

If legal proceedings are not commenced within the specified limitation period, then they are deemed to be "out of time". The right to bring the action will be lost unless the circumstances are exceptional and the court is prepared to allow an extension of time.

Please see our factsheet on Extensions of Time - Limitation of Actions Act 1974 for more information.

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: 12 June 2009.