Limitation of Actions (Child Abuse) Amendment Act 2018 (SA)

South Australia

Limitation of Actions (Child Abuse) Amendment Act 2018

An Act to amend the Limitation of Actions Act 1936.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Limitation of Actions (Child Abuse) Amendment Act 2018.

2Commencement

This Act will come into operation on a day to be fixed by proclamation.

3Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2Amendment of Limitation of Actions Act 19364Insertion of Part 1A

After Part 1—insert:

Part 1A—Actions for child abuse

3A—No limitation period for child abuse actions

1. (1)

   An action for damages relating to the death of, or personal injury to, a person resulting from the abuse of the person when the person was a child—

   1. (a)

      may be brought at any time; and

   2. (b)

      is not subject to a limitation period under this Act, or any other Act or law.

2. (2)

   This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

3. (3)

   This section extends to an action for damages—

   1. (a)

      contemplated by section 23 of the Civil Liability Act 1936; or

   2. (b)

      that has survived on the death of a person for the benefit of the person's estate.

4. (4)

   This section does not limit—

   1. (a)

      any inherent, implied or statutory jurisdiction of a court; or

   2. (b)

      any other powers of a court arising or derived from the common law or under any other Act, (including a Commonwealth Act), rule of court, practice note or practice direction.

      Example—

      This section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

5. (5)

   In this section—

abuse includes any of the following:

1. (a)

   sexual abuse;

2. (b)

   serious physical abuse;

3. (c)

   psychological abuse related to sexual abuse or serious physical abuse.

Schedule 1—Transitional and other provisions

1—Interpretation

In this Schedule—

Act means the Limitation of Actions Act 1936;

commencement day means the day on which section 3A of the Act came into operation.

2—Application of section 3A of Act

Section 3A of the Act applies to an action for damages on a cause of action that accrued before or after the commencement day (including where a limitation period previously applying in respect of the cause of action had expired before the commencement day).

3—Previously barred cause of action

1. (1)

   Subject to subclause (2), an action on a previously barred cause of action may be commenced even though—

   1. (a)

      another action on the cause of action had been started but not finalised before the commencement day; or

   2. (b)

      another action was started on the cause of action but discontinued before the commencement day; or

   3. (c)

      a judgment was previously given in relation to the cause of action on the ground that a limitation period applying to the cause of action had expired; or

   4. (d)

      an action on the cause of action was dismissed on the ground that a limitation period applying to the cause of action had expired.

2. (2)

   An action on a previously barred cause of action in circumstances contemplated by subclauses (1)(c) and (d) may only be commenced if a court, being satisfied that it is just and reasonable to do so, grants permission for the action to be commenced.

3. (3)

   In granting permission under subclause (2) for an action on a previously barred cause of action to be commenced, a court may make any order the court considers to be necessary for the action to proceed or otherwise appropriate in the circumstances.

4. (4)

   In this clause—

previously barred cause of action means a cause of action for an action to which section 3A applies in respect of which a limitation period applying in respect of the cause of action had expired before the commencement day.