I introduction

C Legislative Reforms to Date
In some Australian legislatures there is now recognition that the demands of justice for survivors of child sexual abuse require alteration to existing statutory limitation regimes. In New South Wales the Limitation Amendment (Child Abuse) Act 2016 (NSW) removes altogether the limitation period for damages claims for death or personal injury arising from child abuse. The Act defines ‘child abuse’ as abuse perpetrated against a person under 18 years of age, that is sexual abuse, serious physical abuse, and/or other abuse perpetrated in connection with sexual or serious physical abuse.²⁴² Importantly, the Act preserves any inherent jurisdiction of the courts including the court’s powers to stay proceedings where a defendant would be unduly prejudiced by delay. In Victoria, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) retrospectively removes limitation periods for causes of action for damage resulting from physical or sexual abuse (and consequent psychological damage) when the plaintiff was a minor.²⁴³

D The Royal Commission’s Recommendation

The Royal Commission has recommended that state and territory governments should retrospectively remove limitation periods in respect of all claims for personal injury resulting from institutional childhood sexual abuse.²⁴⁴ This recommendation is consistent with the approach in other Australian and overseas common law jurisdictions.²⁴⁵ There is no limitation period in relation to criminal prosecution for the abuse which causes the injuries for which adult survivors seek compensation. It has been argued that this anomaly should be a persuasive factor enabling survivors to bring civil claims out of time.²⁴⁶

The removal of limitation periods altogether²⁴⁷ is a straightforward and effective method of providing plaintiffs with a pathway to a tortious remedy. It obviates the need for expensive and uncertain interlocutory proceedings where defendants plead the limitation defence and seek to have proceedings struck out. Plaintiffs would not be required to provide evidence of their psychological damage at the interlocutory stage, and defendants’ legal attention would shift to the merits of the substantive case rather than a limitation defence. Existing judicial powers to order the stay of proceedings, or to strike out or dismiss claims without prospects of success, provide protection to defendants against prejudicial litigation in respect of distant past events.