I introduction

V STATUTORY LIMITATION PERIODS

The threshold issue for most survivors wishing to pursue a claim at common law is the expiration of a limitation period, which is a major obstacle. It is well documented that many survivors take many years to disclose their abuse.²²² The Royal Commission found that the average time taken by those who attended its sessions to disclose their sexual abuse was 22 years from the date of the abuse.²²³

A Limitation Periods for Personal Injury
All Australian states and territories impose limitation periods for claims in respect of personal injury.²²⁴ Following the recommendations of the Ipp Report²²⁵ in 2002, some Australian jurisdictions²²⁶ enacted limitation provisions that generally follow the recommendations, though they are not uniform.²²⁷ Broadly speaking, pursuant to these provisions the limitation period of three years commences upon the date of ‘discoverability’ of the cause of action with a ‘long-stop’ period of 12 years running from the date of the event on which the claim is based. In some instances the courts have discretion to extend the long-stop period to the expiry of a period of three years from the date of discoverability. Limitation periods may be suspended during any incapacity of the plaintiff, including minority or disability.²²⁸ Though, it should be noted that in New South Wales and Victoria the provisions concerning children are particularly severe with the limitation period continuing to run during minority in most cases where a child has a parent or guardian, except where minors were injured by the parent, guardian or close associate of the parent or guardian.²²⁹ Under present limitation legislation around Australia, plaintiffs whose claims are statute barred need to persuade a court that it is just and reasonable to grant an extension of time in which to bring proceedings.²³⁰
There are important rationales for the imposition of limitation periods: that delays in commencing proceedings lead to loss of evidence; that it may be oppressive to defendants to allow distant past claims to be maintained; that defendants should be able to arrange their affairs without indefinite uncertainty concerning potential liability; and that public interest requires that disputes should be settled expeditiously.²³¹ Yet the law must maintain a balance between the rights of defendants and those of plaintiffs²³² so that the limitation period does not operate to shut out claims unjustly.