“For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates."

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.”

“The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.”

“A limitation provision is the general rule; an extension provision is the exception to it.”

“The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

The above passage is an edited excerpt of the Judgment of his Honour McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor and quoted in an abbreviated form in the Full Court of the Family Court case of Sharp and Sharp.

The English and Australian principles have, as ever, the same basis, and one would argue that they attempt to achieve the same end, finality tempered with a need for discretion in particular circumstances, but they differ markedly in the route they take to achieve that end. Whereas the English provisions have focussed on whether a case should be struck out because the case “discloses no reasonable grounds for bringing or defending the application” or that “the statement of case is an abuse of the court process or is otherwise likely to obstruct the just disposal of the proceedings”, the Australian legislative provisions are directly drafted to provide to set legislated time limits for  bringing financial proceedings.

Perhaps one could therefore expect that there is more certainty under the Australian provisions, but a review of the recent cases means that, unless a financial order is obtained, the door is not closed on the possibility of proceedings being brought much later.

To read our paper, click here (pdf, 184kb)

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