Limitation of Actions Amendment
(Criminal Child Abuse) Bill 2014
Exposure Draft
EXPLANATORY NOTES
General
The Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014
amends the Limitation of Actions Act 1958. The aim of the Bill is to
implement recommendation 26.3 of the Family and Community
Development Committee’s November 2013 Betrayal of Trust report, by
removing all inappropriate time limitations and impediments with respect to
access to justice for victims of criminal child abuse within the Limitation of
Actions Act 1958.
Background
Betrayal of Trust, the final report of the Family and Community
Development Committee’s Inquiry into the Handling of Child Abuse by
Religious and other Non-Government Organisations, was tabled on 13
November 2013. Recommendation 26.3 of that report suggested that the
Victorian Government consider amending the Limitation of Actions Act
1958 to exclude criminal child abuse from the operation of the limitation
period under that Act. The Bill implements that recommendation.
Clause Notes
PART 1—PRELIMINARY
Clause 1
571558
provides that the purpose of the Bill is to amend the Limitation
of Actions Act 1958 to remove limitation periods that apply to
actions in respect of causes of action that relate to death or
personal injury resulting from criminal child abuse.
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13/10/2014
Clause 2
provides that the Limitation of Actions Amendment (Criminal
Child Abuse) Act 2014 will come into operation on a day or
days to be proclaimed, or on 1 July 2015 if not proclaimed before
that date.
PART 2—AMENDMENT OF LIMITATION OF ACTIONS
ACT 1958
Clause 3
inserts a definition of criminal child abuse into section 27A(1) of
the Limitation of Actions Act 1958. The term is defined to
mean an act or omission in relation to a person when the person
is a minor—

that is physical or sexual abuse; and

that could, at the time the act or omission is alleged to
have occurred, constitute a criminal offence under the
law of Victoria or the Commonwealth.
The definition of "criminal child abuse" is broad, encompassing
both the physical and sexual abuse of children. By including
physical abuse, as well as sexual abuse, within the scope of the
Bill, the Bill recognises that different forms of abuse do not
always occur in isolation, and that both forms of abuse share
equally harmful consequences.
The Bill avoids defining the exact boundaries of what constitutes
"physical or sexual abuse" (doing so may lead to the inadvertent
creation of loopholes), and, as a first step, instead allows courts
to determine what is "physical or sexual abuse" by reference to
the ordinary meaning of those words, which may be informed by,
for example, the work of the Family and Community
Development Committee’s Inquiry into the Handling of Child
Abuse by Religious and other Non-Government Organisations,
and the work of the Royal Commission into Institutional
Responses to Child Sexual Abuse.
The further requirement that the relevant act or omission that is
physical or sexual abuse "could, at the time the act or omission is
alleged to have occurred, constitute a criminal offence under the
law of Victoria or the Commonwealth", is simply a means of
further defining the threshold level of conduct that is considered
to be "abuse".
It is not a test that requires that a person has actually been
convicted of an offence, nor does it require that the alleged
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conduct actually be proven to a criminal standard. Further, it
does not require consideration of any criminal defences.
Clause 4
inserts a new subsection 27N(6) into the Limitation of Actions
Act 1958 to provide that the existing transitional provisions in
section 27N of the Limitation of Actions Act 1958 do not apply
to a cause of action for which an action to which Division 5
applies may be brought. This means that the provisions inserted
into the Limitation of Actions Act 1958 by clause 5 of the Bill
apply equally across all actions to which Division 5 applies,
regardless of what point in time the relevant act or omission
alleged to have resulted in the death or personal injury occurred.
This avoids the legislative complexity and inequality found in the
present-day Act, where, due to the transitional provisions in
section 27N, different limitation periods apply depending upon
the date on which the alleged acts or omissions occurred.
Clause 5
inserts a new Division 5 into Part IIA of the Limitation of
Actions Act 1958 which applies to actions resulting from
criminal child abuse. The Division consists of new sections 27O
to 27R.
New section 27O provides that Division 5 applies to an action if
the action is an action to which Part IIA of the Limitation of
Actions Act 1958 applies and if the action is founded on the
death or personal injury of a person resulting from criminal child
abuse.
New section 27O also provides that Divisions 2 and 3 of Part IIA
of the Limitation of Actions Act 1958 do not apply to an action
of a kind referred to in new section 27P. Further, that Division 2
of that Part (other than section 27F) does not apply to an action of
a kind referred to in new section 27Q and that Division 3 of that
Part does apply to those actions.
The new section 27O makes it clear that all relevant claims
founded upon criminal child abuse are to be governed by
Division 5. It excludes the limitation periods provided by
Divisions 2 and 3, with the exception of an interpretive aid in
section 27F and the discretion to extend limitation periods for
actions arising under Part III of the Wrongs Act 1958.
New section 27P provides that there is no limitation period for
actions to which Division 5 applies (except for actions that arise
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under Part III of the Wrongs Act 1958 and to which Division 5
applies).
The new section 27P implements recommendation 26.3 of
Betrayal of Trust. It removes the limitation period in respect of
all relevant claims resulting from criminal child abuse, and
applies equally regardless of in what context the alleged abuse
occurred. Furthermore, the new section 27P applies irrespective
of the date of the relevant act or omission and irrespective of
whether or not the action was subject to a limitation period at any
time in the past.
New section 27Q removes the long stop limitation period
applying to actions to which Division 5 applies that arise under
Part III of the Wrongs Act 1958. The new section 27Q provides
that actions to which Division 5 applies that arise under Part III
of the Wrongs Act 1958 shall not be brought after the expiration
of the period of 3 years from the date on which the cause of
action is discoverable by the plaintiff.
An action under Part III of the Wrongs Act 1958 is a statutory
cause of action whereby persons who were “wholly, mainly, or in
part” dependent upon the deceased at the time of his/her death
can recover damages if the death was caused by a wrongful act.
This cause of action is wholly separate from any cause of action
that belongs to the deceased (or his/her estate).
The limitation period applying to actions under Part III of the
Wrongs Act 1958 is currently the earlier of 3 years from the date
on which the cause of action is discoverable by the plaintiff, or a
long stop period of 12 years running from the date of death.
An action under Part III of the Wrongs Act 1958 can be brought
in response to a suicide caused by a wrongful act. For example,
in Haber v Walker (1963) VR 339, the plaintiff’s husband
incurred severe physical and mental injuries in a car accident
caused by the defendant’s negligence. Over time, the mental
health of the husband deteriorated, and he committed suicide. A
successful action was brought under Part III of the Wrongs Act
1958 by the wife and the eight children of the deceased. It was
held that the defendant’s negligence imposed mental pressure on
the deceased such that the suicide could not be regarded as a
voluntary act that would break the chain of causation linking the
negligence with the death.
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In removing the long stop limitation period for actions under Part
III of the Wrongs Act 1958 that are founded on criminal child
abuse, section 27Q recognises that the effects of criminal child
abuse can often extend to the dependants of a deceased victim of
abuse—such as where a victim of abuse commits suicide due to
the abuse, having not disclosed their abuse to his/her dependant
family members prior to death.
Section 27Q removes the long stop limitation period irrespective
of the date of death of the deceased and irrespective of whether
or not the action was subject to a long stop limitation period at
any time in the past. Furthermore, the existing discretion of a
court to extend the 3-year limitation period under section 27Q is
retained.
New section 27R provides that nothing in Division 5 limits the
inherent, implied, or statutory jurisdiction of the Supreme Court,
or the implied or statutory jurisdiction of a court other than the
Supreme Court, or any other powers of a court arising or derived
from the common law or under any other Act (including any
Commonwealth Act), rule of court, practice note or practice
direction. The new section 27R safeguards the fundamental
rights of parties before a court, including the right to a fair and
balanced trial, by expressly stating that it does not limit any
existing powers or jurisdiction of the courts. This includes the
power or jurisdiction to stay or dismiss proceedings where a
court determines that the lapse of time has had a burdensome
effect on the defendant that is so serious that a fair trial is not
possible (for example, where crucial evidence has deteriorated or
been lost over time).
These powers were exercised in Batistatos v Roads and Traffic
Authority of NSW (2006) 226 CLR 256, where the High Court
held that a 29-year lapse between an injury and the
commencement of proceedings (which, due to disability, still fell
within the NSW statute of limitations) created such a burdensome
effect upon the defendants that a fair trial was no longer possible.
To permit the case to proceed would have inflicted "unnecessary
injustice" upon the defendants, despite the fact that the plaintiff’s
conduct could not be considered "oppressive", and despite the
plaintiff bringing the claim within the relevant limitation period.
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In Batistatos, the High Court noted that the "right of the plaintiff
with a common law claim to institute an action is not at large",
nor does an unexpired limitation period give rise to an
implication of "priority" for the plaintiff. Instead, a plaintiff’s
claim (even within a limitation period) is "subject to the
operation of the whole of the applicable procedural and
substantive law administered by the court", including the right of
a defendant to seek a stay based on abuse of process principles.
PART 3—REPEAL OF AMENDING ACT
Clause 6
provides for the automatic repeal of the Limitation of Actions
Amendment (Criminal Child Abuse) Act 2014 on 1 July 2016.
The repeal of this Act does not affect the continuing operation of
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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