Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014

Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014

Exposure Draft

EXPLANATORY NOTES

571558

13/10/2014

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 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.

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 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 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.

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.

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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