Limitation periods are informed by complex policy considerations, including the interests of justice,

moral issues, and commercial interests. A redesign of the limitation periods in Australia would be
subject to the competing interests of commercial stability and issues associated with a fair trial,
against the actual and perceived role of the justice system to provide redress for wrongs. I will argue
that a redesign of the limitations scheme should be uniform across Australia. Then, with reference
to the traditional policy justifications espoused by McHugh J in Taylor and recent policy
developments, I will consider some proposed reforms in the area of child abuse and conclude that
the competing interests are best served by increasing judicial discretion rather than simply
increasing the limitation period for entire categories of cases.

Traditional Considerations
McHugh J in Brisbane South Regional Health Authority v Taylor (1996) noted that limitation
policies are more than arbitrary limits: they represent the legislature's judgment of where, for
different causes of action, public policy can be best achieved with a presumption that causes of
action expire at the end of the limitation period. The traditional policy considerations that McHugh
J raised in favour of limitation periods are concerns about the quality of justice, unfairness to
defendants, public interest in immunity for ancient wrongs, and public interest in expedient dispute
resolution.

Deconstruction of the traditional approach

It is not doubted that these traditional considerations are valid policy considerations. However, the
imposition of blanket limitation periods for given causes of action runs the risk of considering these
policies in isolation from other compelling policy reasons that may attach depending on the facts of
the case, or the particular issues that might arise from a cause of action. A more nuanced approach is
called for, and were I to reform the limitations period, I would consider the following policy
considerations which act against the uncritical codification of McHugh J's principles in legislation
- Power imbalance between the plaintiff and the defendant, where fairness to the plaintiff is of
elevated concern given the relative social positions of the parties
- Public interest considerations, where the need to right the alleged wrong is in the interests of
public policy such as child abuse cases or cases arising from the Stolen Generation

Limitation period reform with respect to child abuse

Under the current circumstances, normal limitation periods and extension provisions apply with
respect to child abuse. The ordinary limitation periods represent a failure of policy to take into
account fairness to the plaintiff, and the unusual barriers to damages claims child abuse victims
face, arising from power imbalance. Correspondingly, the NSW Discussion Paper for reforms in
this area raises concerns as to the fairness to child abuse plaintiffs under current limitations statutes
in NSW, and notes incongruence between civil limitations and criminal liability for defendants in
actions related to child abuse. I will apply those concerns in redesigning the largely similar ACT
provisions with respect to child abuse.

Current position, Empirical Evidence and Effects on Litigation

The NSW Discussion Paper (http://www.haveyoursay.nsw.gov.au/assets/Uploads/Discussion-paperwith-attachments-FINAL-2.pdf) raises empirical evidence that child abuse victims take unusually
long to act on their abuse and therefore are specially affected by the limitation period. They take, on
average, 22 years to act on the abuse, well after any chances of litigation are likely to have

evaporated as a consequence of the limitation period. In addition to the inability to pursue civil
litigation, this limitation period has adversely affected victims in the context in pre-litigation ADR
(Ellis). As these delays are usually as a result of stress and anxiety associated with reliving
memories, they will often not fall under the current exceptions relating to illness, allowing the
limitation period to be extended.

Complications associated with solutions

Because child abuse victims take so much time to act on their abuse, solutions which dilute the
operation of the limitation period will in many cases cause great difficulties for the administration
of a fair trial and the policy considerations espoused by McHugh J. Yet it is clear that the public
opinion (though influenced by moral outrage), which emphasises with the plight of the victim, is
frustrated by the inelastic limitations period. In the context of these competing policy interests I will
survey some proposed solutions.

Efficacy of protection to defendants outside of limitations

One proposed solution is the complete removal of the limitation period with respect to child abuse
claims. Putting aside murkiness around the definition of child abuse, this seems to be too reactive a
solution because of concerns around the administration of justice which arose in Taylor. The
discussion paper ultimately addresses these concerns by noting that strike-outs or stay of
proceedings would be unaffected by the removal of a limitation period. However, the historically
cautious approach courts have taken to strike out proceedings suggests that it would provide limited
protection indeed against expensive litigation. It would be reasonable to assume that in most child
abuse cases before the court the plaintiff could be counted on as an eyewitness, suggesting that
some evidence at least would be present, making the claim not manifestly groundless (General
Steels Industries), or an abuse of process. Accordingly, proceedings would be rarely struck out or
stayed and would continue to trial with very low chances of success (Law Council Submission).
Hence in my view, given the severe deterioration of justice (Taylor) and the low success rates for
civil cases for victims of child abuse (Law Council Submission), it seems that in the majority of
cases litigation will neither be struck out nor be successful.
In this context, simply removing the limitation period will increase costs for child abuse victims,
defendants, and the justice system, without any discernable societal good for the victim on average
given their low chances of success. Though complete removal of the limitation period may do some
good for individual defendants, from a systems perspective it is not an improvement. Accordingly, I
would leave blanket exclusions of the limitation period out of my redesign of the Limitations Act.

Expansion of suspension for disability

In my view, the proposed suggestion that suspension of the limitation period for disability be
extended to stress caused because of child abuse will function in a similar way to simply removing
the limitation period for cases of child abuse. The reform as proposed will not allow consideration
as to prejudice caused to the defendant, or any of the other key policy considerations espoused by
McHugh J in Taylor. As such, it is subject to the same criticisms as above, and I would not expand
the grounds for suspension to include stress arising from child abuse.

Solutions in judicial discretion

The issues with removing the limitation periods altogether demonstrate that the policy interests are
best served with reference to the individual facts of the case. Accordingly, a solution should be
found by skewing judicial discretion towards outcomes more favourable to plaintiffs in child abuse
cases. The current ACT provisions for judicial discretion include considerations about promptness

and reasonableness of response. The application of a reasonable response in the context of child
abuse is inappropriate based on empirical evidence. As such, I would consider a provision excluding
consideration of s40(2)(b) if the case fell into any one of special categories to be defined by the
legislature, which would include child abuse. I would further add a provision requiring
consideration of public interest in extension of the limitation period for cases in that special
category. This would hopefully operate to reflect public concern and give increased freedom to
judges to act in the interests of justice based on the facts of the case. Finally, in recognition of the
effect of stress arising from child abuse as an access to justice issue, I would add a provision
requiring consideration of stress and anxiety arising from child abuse.
It is true that under the current provisions judges are free to exercise their discretion and consider
the matters in the provisions I would add. The purpose of the provisions is to give judges more
freedom to consider those matters, and to pull the complex policy considerations towards the
judiciary where both the interests in Taylor and more specific social justice implications can be
considered with reference to the facts and circumstances of child abuse victims.

Redesign of the State-based limitations scheme

At the present time, limitations acts are specific to each state and territory, leading to
inconsistencies between legislatures. As an example, actions in equity are limited by Limitations
Acts in WA and ACT (Flynn) but not in any other jurisdictions. This fragmentation of limitation
periods is in all cases damaging to the policy endorsed in Taylor that entities should be able to
arrange their affairs and conduct business assuming that they will not be liable for wrongs beyond a
certain time, because inconsistent provisions apply in different jurisdictions. But it would be
particularly unjust in relation to child abuse cases if my proposed redesign applied in certain states
and not in others, given the ubiquitous nature of the access to justice issues addressed in my
proposed redesign.