New Zealand Legislation: Bills

60 New heading and sections 23A to 23D

• The following heading and sections are inserted above the heading to Part 2:

  “Longstop period of limitation

  “23A Actions to which longstop period of limitation applies

  • “(1) Section 23B applies to an action based on an act or omission before 1 January 2011 and to which this Act applied immediately before its repeal by section 55 of the Limitation Act 2009 so long as that action is neither—

    • “(a) an action to which section 7(1) or 21(1)(a) or (b) applies; nor

    • “(b) an action commenced before 1 January 2011.

    “(2) Sections 23B to 23D also apply, in accordance with section 29, to arbitrations.

  “23B Longstop period of limitation

  • “(1) No action to which this section applies may be brought after the last to end of the following periods:

    • “(a) 5 years ending on the close of 30 June 2015:

    • “(b) 15 years after the date of the act or omission on which the action is based.

    “(2) That period of limitation applies to the action in addition to every other period of limitation that applies to the action.

    “(3) This section is, in accordance with section 3, subject to Part 2, which provides for the extension of that period of limitation in the case of disability, acknowledgment, part payment, fraud, and mistake.

    “Compare: 1986 No 5 ss 80(5), 82(2); 1991 No 150 s 91; 2004 No 72 s 393

  “23C Discretion to allow relief for action of abuse of infant or of gradual process, disease, or infection injury

  • “(1) This section applies to an action—

    • “(a) of a kind specified in subsection (2) or (4); and

    • “(b) that the defendant could establish, or has established, is an action to which the longstop period of limitation in section 23B applies; and

    • “(c) that is not an action that, at the close of 31 December 2010,—

      • “(i) was otherwise barred because of an applicable period of limitation; and

      • “(ii) had not been revived by an acknowledgement.

    “(2) Subsection (1)(a) applies to an action in respect of abuse of the plaintiff (A) when he or she was under a disability because he or she was an infant, and that is wholly or partly sexual abuse of A by any 1 or more persons, or is wholly non-sexual abuse of A by 1 or more persons who are or include—

    • “(a) a person who is, or has at any time been, a parent, step-parent, or legal guardian of A (B); or

    • “(b) a person who is, or has at any time been, a close relative or close associate of B (C).

    “(3) Abuse, in the expressions ‘sexual abuse’ and ‘non-sexual abuse’ in subsection (2), means physical abuse, psychological abuse, or a combination of both.

    “(4) Subsection (1)(a) also applies to an action in respect of a personal injury—

    • “(a) of the plaintiff (A) when he or she was of any age; and

    • “(b) caused by a gradual process, disease, or infection.

    “(5) Personal injury, in subsection (4), means any physical, mental, or physical and mental injury (even if it causes the death), of the plaintiff.

    “(6) The court may, if it thinks it just to do so on an application made to it for the purpose, order that relief may be granted in respect of the action as if the longstop period of limitation in section 23B does not apply to it.

    “(7) The application for the order may be made before or after the court has decided whether the defendant has established that the longstop period of limitation in section 23B applies to the action.

    “Compare: Limitation Act 1969 s 50E(2) (NSW); Limitation of Actions Act 1958 s 27I(2) (Vic); Limitation Act 1980 s 33 (UK)

  “23D Matters to be taken into account under section 23C

  • In determining whether to make an order under section 23C, the court must take into account—

    • “(a) any hardship that would be caused,—

      • “(i) if the order were made, to a person who is, or is represented by, the defendant; and

      • “(ii) if the order were not made, to A; and

    • “(b) the length of, and reasons for, the delay on A's part; and

    • “(c) any effects or likely effects of the delay on—

      • “(i) the defendant’s ability to defend the action; and

      • “(ii) the cogency of the evidence offered, or likely to be offered, by A or the defendant; and

    • “(d) the defendant’s conduct on and after the date of the act or omission on which the action is based, including the extent to which the defendant responded to requests for information or inspection that were reasonably made by or on behalf of A in order to discover facts that were, or might be, relevant to the action; and

    • “(e) the extent to which prompt and reasonable steps were taken by or on behalf of A to bring the action after A became aware that A was entitled to do so; and

    • “(f) any steps taken by or on behalf of A to obtain relevant medical, legal, or other expert advice, and the nature of any relevant expert advice received by or on behalf of A; and

    • “(g) any other matters it considers relevant.”