Among the many defences that may be available in response to a claim, one that can be particularly potent is the defence that a claim is statute-barred because of an expiration of a time limitation.

The Limitation of Actions Act 1974 (Qld) (LoAA) governs the law in Queensland in relation to the applicable time limits for a person to bring legal proceedings against another.

For example, pursuant to section 10 of the LoAA, and in relation to claims founded on simple contract, quasi-contract, or on tort where the damages claimed by the plaintiff are not in respect of (or consist of) any personal injury to any person, such actions cannot be brought against another after the expiration of 6 years from the date on which the relevant causes of action arose.

The date when a cause of action arises is when all elements of the action can be established. For example, for a cause of action for breach of contract to arise, the date in which it arises will generally be on the day of the breach.

There, are certain situations where the applicable time limit can be extended. These include the following situations:

3. in the context of claim a debt or liquidated demand, where a defendant has formally acknowledged the alleged debt in writing (with the acknowledgement being signed by the person or their agent), or made a part payment towards an alleged debt – in which case the limitation period will commence anew from the date of the acknowledgement or the part-payment;
4. where the action is based upon the fraud of the defendant or their agent, or the right of action is concealed by the fraud of the defendant or their agent – in which case the limitation period will begin to run from the date the plaintiff discovered the fraud, or could had discovered the fraud with reasonable diligence; and
5. the action is for relief from the consequences of a mistake – in which case, the limitation period will begin to run from the date the plaintiff discovered the mistake, or could have discovered the mistake with reasonable diligence.

In relation to the third situation above, the mistake must be the “gist” or “essential ingredient” to the cause of action for the time limit to be extended. If it is not, the action cannot be said to be for relief from the consequence of the mistake. An example of this is where the relief sought is from the consequence of negligence regarding a mistake, as was the situation in Hillebrand v Penrith Council [2000] NSWSC 1058.

In that case, the plaintiffs sued the defendant council for wrongfully selling three portions of the plaintiff’s land for alleged non-payment of rates, resulting from mistakes claimed to have been made by the defendant. The Court held that the plaintiffs’ claim was time-barred and that the equivalent provision of the limitation legislation applicable in New South Wales was not available because the plaintiffs sought relief from the consequences of negligence, rather than a mistake. In coming to this conclusion, the Court held that while it was true that the particulars of the negligence relied upon involved the assertion that the defendant council made mistakes including the mistake of confusing the lots owned by the plaintiffs, the “gist of the cause of action” was negligence rather than mistake (see [48]).

The effect of expiry of a limitation period is generally that the remedy is barred by the plaintiff’s right is not extinguished. Once a time period has expired, it will not be relevant until such time that the defendant pleads the limitation period as a bar to the remedy. If the limitation is not pleaded, it cannot be relied upon and the Court will not consider any limitation defence on its own initiative.