Burns v Minister for Health

(2012) 45 WAR 276; [2012] WASCA 267

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Transitional provisions
3. › Repeal and replacement of limitation statute
4. › Childbirth injury causes of action accruing before commencement of new Act
5. › Whether extension of time provisions in new Act available
6. › Whether cause of action finally barred by lapse of time
7. › Limitation Act 1935 (WA), s 47A
8. › Limitation Act 2005 (WA), ss 4, 7, 39, 41, 42
1. Limitation of Actions
2. › Procedural and substantive limitation provisions
3. › Whether limitation provision bars remedy or extinguishes cause of action
4. › Public authority limitation period
5. › Limitation Act 1935 (WA), s 47A
1. Limitation of Actions
2. › Limitation period
3. › Whether period in which plaintiff can apply for order extending limitation period constitutes limitation period
4. › Limitation Act 1935 (WA), s 47A
1. Statutes
2. › Retrospective operation
3. › Presumption against retrospectivity
4. › Accrued rights
5. › Whether repeal of limitation statute revives barred cause of action
6. › Whether contrary intention appears
7. › Interpretation Act 1984 (WA), s 37

Quick Take

Section 7 of the Limitation Act 2005 (WA) permits plaintiffs with childbirth injury causes of action that accrued before commencement day to apply for leave to commence proceedings under Part 3 of the 2005 Act, provided the cause of action was not finally barred by lapse of time immediately before commencement. Section 47A of the Limitation Act 1935 (WA) was procedural in character and did not extinguish the cause of action; the limitation period under s 47A was one year, not six years. The obiter in [name withheld] suggesting s 47A substantively extinguished the cause of action is incorrect.