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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
imitation Amendment (Child Abuse)
Bill 2016
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Limitation Act 1969 (the Act) to provide that there is to be
no limitation period for an action for damages that relates to death or personal injury resulting
from child abuse (a child abuse action).
The amendments define child abuse to mean abuse perpetrated against a person when the person
is under 18 that is sexual abuse, serious physical abuse, or other abuse perpetrated in connection
with sexual abuse or serious physical abuse.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent.
Schedule 1 Amendment of Limitation Act 1969 No 31
Schedule 1 [2] allows a child abuse action to be brought at any time without regard to any
limitation period under the Act.
The amendments remove the existing time limitations on the commencement of child abuse
actions but do not create any new cause of action or liability.
The amendments are not limited to actions against the perpetrator of child abuse and extend to any
action that relates to death or personal injury resulting from child abuse (for example an action
founded on the negligence or vicarious liability of a person other than the perpetrator).
b2015-009.d09
Limitation Amendment (Child Abuse) Bill 2016 [NSW]
Explanatory note
The amendments will not limit any existing powers or jurisdiction of a court (for example, the
power to stay or dismiss proceedings where a court determines that the lapse of time results in a
fair trial not being possible).
Schedule 1 [4] provides that the amendments extend to existing causes of action, including cases
where the relevant limitation period has already expired, an action has been commenced
previously on the cause of action, or judgment on the cause of action has previously been given
on the ground that the action was statute barred. This will not permit an action that has already
been determined on the merits or settled to be re-litigated.
Schedule 1 [1] and [3] make consequential amendments.
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First print
New South Wales
imitation Amendment (Child Abuse)
Bill 2016
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Limitation Act 1969 No 31 3
b2015-009.d09
New South Wales
imitation Amendment (Child Abuse)
Bill 2016
No , 2016
A Bill for
An Act to amend the Limitation Act 1969 to permit an action for damages in relation to child abuse
to be brought at any time.
Limitation Amendment (Child Abuse) Bill 2016 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Limitation Amendment (Child Abuse) Act 2016. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
Page 2
Limitation Amendment (Child Abuse) Bill 2016 [NSW]
Schedule 1 Amendment of Limitation Act 1969 No 31
Schedule 1 Amendment of Limitation Act 1969 No 31 1
[1] Section 6 Transitional provisions 2
Omit "section 26" from section 6 (1). Insert instead "sections 6A and 26". 3
[2] Section 6A 4
Insert after section 6: 5
6A No limitation period for child abuse actions 6
(1) An action for damages that relates to the death of or personal injury to a person 7
resulting from an act or omission that constitutes child abuse of the person may 8
be brought at any time and is not subject to any limitation period under this Act 9
despite any other provision of this Act. 10
(2) In this section, child abuse means any of the following perpetrated against a 11
person when the person is under 18 years of age: 12
(a) sexual abuse, 13
(b) serious physical abuse, 14
(c) any other abuse (connected abuse) perpetrated in connection with 15
sexual abuse or serious physical abuse of the person (whether or not the 16
connected abuse was perpetrated by the person who perpetrated the 17
sexual abuse or serious physical abuse). 18
(3) To remove doubt, connected abuse is child abuse only if both the connected 19
abuse and the sexual abuse or serious physical abuse in connection with which 20
it is perpetrated are perpetrated when the person is under 18 years of age. 21
(4) This section applies regardless of whether the claim for damages is brought in 22
tort, in contract, under statute or otherwise. 23
(5) This section extends to the following causes of action: 24
(a) a cause of action that arises under the Compensation to Relatives Act 25
1897, 26
(b) a cause of action that survives on the death of a person for the benefit of 27
the person's estate under section 2 of the Law Reform (Miscellaneous 28
Provisions) Act 1944. 29
(6) This section does not limit: 30
(a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of 31
a court, or 32
(b) any other powers of a court arising or derived from the common law or 33
under any other Act (including any Commonwealth Act), rule of court, 34
practice note or practice direction. 35
Note. For example, this section does not limit a court's power to summarily 36
dismiss or permanently stay proceedings where the lapse of time has a 37
burdensome effect on the defendant that is so serious that a fair trial is not 38
possible. 39
[3] Schedule 5, heading 40
Omit "Further transitional provisions". 41
Insert instead "Savings, transitional and other provisions". 42
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Limitation Amendment (Child Abuse) Bill 2016 [NSW]
Schedule 1 Amendment of Limitation Act 1969 No 31
[4] Schedule 5, Part 3 1
Insert after clause 7: 2
Part 3 Provisions consequent on enactment of Limitation 3
Amendment (Child Abuse) Act 2016 4
8 Definitions 5
(1) In this Part: 6
legal professional negligence and limitation period have the same meanings 7
as in clause 1. 8
(2) In this Part, a reference to a judgment given extends to a judgment entered and 9
also to an agreement entered into before and in connection with any such 10
judgment. 11
9 Application of amendments 12
Section 6A extends to a cause of action that arose before the commencement 13
of that section, and applies: 14
(a) whether or not any limitation period previously applying to the cause of 15
action has expired, and 16
(b) whether or not an action has been commenced previously on the cause 17
of action, and 18
(c) whether or not a judgment on the cause of action has, on the ground that 19
a limitation period applying to the cause of action had expired, been 20
given previously, and 21
(d) whether or not a judgment in respect of legal professional negligence 22
has, on the ground that a limitation period applying to the cause of 23
action had expired, been given previously. 24
10 Pre-existing judgments 25
(1) An action on a previously barred cause of action may be brought even though: 26
(a) a judgment on the cause of action has, on the ground that a limitation 27
period applying to the cause of action had expired, been given 28
previously, or 29
(b) a judgment in respect of legal professional negligence has, on the 30
ground that a limitation period applying to the cause of action had 31
expired, been given previously, 32
or both. 33
(2) An action on a previously barred cause of action may be brought as if the 34
action in which such a judgment was given had not itself been commenced. 35
(3) If an action on a previously barred cause of action is brought on or after the 36
commencement of section 6A, the court hearing the action may, if it decides 37
that it is just and reasonable to do so, do any or all of the following: 38
(a) set aside any such judgment already given on or in relation to the cause 39
of action, 40
(b) take into account any amounts paid or payable by way of damages under 41
any such judgment, 42
(c) take into account any amounts paid or payable by way of costs in 43
connection with any action in which any such judgment was given. 44
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Limitation Amendment (Child Abuse) Bill 2016 [NSW]
Schedule 1 Amendment of Limitation Act 1969 No 31
(4) The Supreme Court may, on application, exercise the power under this clause 1
to set aside a judgment even though it is not hearing the action. 2
(5) A court (other than the Supreme Court) may not exercise the power under this 3
clause to set aside a judgment of any other court. 4
(6) In this clause: 5
previously barred cause of action means a cause of action to which section 6A 6
applies that was not maintainable immediately before the commencement of 7
that section. 8
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