1Short title and commencement
This Act may be cited as the Limitation of Actions Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
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This Act may be cited as the Limitation of Actions Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
The Acts mentioned in the Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.
Except as in this Act expressly or by necessary implication provided—
all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under either of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;
in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuing of status operation or effect of any proceeding order award disability interest claim postponement arbitration notice determination acknowledgment submission consent liability or right made effected issued granted given presented fixed accrued incurred or acquired or existing or continuing by or under either of such Acts before the commencement of this Act.
No. 5914 s. 3.
In this Act unless inconsistent with the context or subject-matter—
S. 3(1) def. of action amended by No. 26/2023 s. 73.
action includes any proceeding in a court of law or in VCAT;
S. 3(1) def. of arbitration agreement inserted by No. 10167 s. 3(1), amended by No. 50/2011 s. 46(Sch. item 11.1).
arbitration agreement has the same meaning as in the Commercial Arbitration Act 2011;
land includes corporeal hereditaments and rentcharges and any legal or equitable estate or interest therein including an interest in the proceeds of the sale of land held upon trust for sale, but save as aforesaid does not include any incorporeal hereditament;
personal estate and personal property do not include chattels real;
personal injuries includes any disease and any impairment of a person's physical or mental condition;
rent includes a rentcharge and a rentservice;
rentcharge means any annuity or periodical sum of money charged upon or payable out of land, except a rentservice or interest on a mortgage on land;
settled land statutory owner tenant for life and terms of years absolute have the same meanings respectively as in the Settled Land Act 1958;
S. 3(1) def. of submission repealed by No. 10167 s. 3(1).
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trust trustee and trust for sale have the same meaning respectively as in the Trustee Act 1958.
S. 3(2) amended by Nos 9075 s. 5(1), 9427 s. 5(Sch. 4 item 6).
For the purposes of this Act a person shall be deemed to be under a disability while he is a minor or of unsound mind.
S. 3(3) amended by No. 9884 s. 2, substituted by No. 59/1986 s. 143(2), amended by No. 52/1998 s. 311(Sch. 1 item 50), substituted by No. 13/2019 s. 221(Sch. 1 item 27.1).
Without limiting the meaning of unsound mind, a person is conclusively presumed to be of unsound mind if the person is a represented person within the meaning of the Guardianship and Administration Act 2019.
A person shall be deemed to claim through another person if he became entitled by, through, under, or by the act of that other person to the right claimed:
Provided that a person becoming entitled to any estate or interest by virtue of a special power of appointment shall not be deemed to claim through the appointor.
References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land; and references to the bringing of such an action shall include references to the making of such an entry.
References in this Act to the possession of land shall, in the case of rentcharges, be construed as references to the receipt of the rent; and references to the date of dispossession or discontinuance of possession of land shall, in the case of rentcharges, be construed as references to the date of the last receipt of rent.
In Part II of this Act references to a right of action shall include references to a cause of action and to a right to receive money secured by a mortgage or charge on any property or to recover proceeds of the sale of land, and to a right to receive a share or interest in the personal estate of a deceased person; and references to the date of the accrual of a right of action shall—
in the case of an action for an account be construed as references to the date on which an account is claimed;
in the case of an action upon a judgment be construed as references to the date on which the judgment became enforceable;
in the case of an action to recover arrears of rent or interest or damages in respect thereof be construed as references to the date on which the rent or interest became due.
Pt 1 Div. 1 (Heading) inserted by No. 76/2004 s. 4(1)(a).
No. 5914 s. 4.
S. 4 substituted by No. 8300 s. 2.
The provisions of this Part have effect subject to the provisions of Part II.
Heading preceding s. 5 substituted as Pt 1 Div. 2 (Heading) by No. 76/2004 s. 4(1)(b).
Division 2—Actions of contract, tort etc.
No. 5914 s. 5.
The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
S. 5(1)(a) amended by Nos 9884 s. 3(a)(i)(ii), 52/2002 s. 3(1)(a)(b), 75/2005 s. 47(1).
Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;
Actions to enforce a recognizance;
Actions to enforce an award, where the submission is not by an instrument under seal;
Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
S. 5(1AAA) inserted by No. 75/2005 s. 47(2).
An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.
S. 5(1AAB) inserted by No. 35/2020 s. 40.
The 1-year limitation period referred to in subsection (1AAA) is taken to have been extended as provided by subsection (1AAC) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.
S. 5(1AAC) inserted by No. 35/2020 s. 40.
The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1‑year limitation period expires.
Example
Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.
S. 5(1AAD) inserted by No. 35/2020 s. 40.
In subsections (1AAB) and (1AAC)—
concerns notice has the same meaning as in the Defamation Act 2005;
date of publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.
S. 5(1AA) inserted by No. 52/2002 s. 3(2).
Subject to subsection (1A), an action for damages in respect of personal injuries must not be brought after the expiration of 3 years from the date on which the cause of action accrued.
S. 5(1A) inserted by No. 9884 s. 3(b), amended by Nos 21/1989 s. 3(a), 52/2002 s. 3(3).
An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 3 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows—
that he has suffered those personal injuries; and
that those personal injuries were caused by the act or omission of some person.
S. 5(1B) inserted by No. 21/1989 s. 3(b).
Subsection (1A) as amended by the Limitation of Actions (Amendment) Act 1989 applies to each case where the date on which a person first knew the matters specified in paragraph (a) and (b) of that subsection is within six years before the commencement of that Act.
S. 5(1C) inserted by No. 21/1989 s. 3(b).
Subsections (1A) and (1B) apply despite anything to the contrary in this or any other Act.
An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
An action upon a bond or other specialty shall not be brought after the expiration of fifteen years from the date on which the cause of action accrued:
Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.
An action shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable.
(a) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued.
In this subsection penalty does not include a fine to which any person is liable on conviction of a criminal offence.
S. 5(6) repealed by No. 9884 s. 3(c).
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Save as otherwise expressly provided an action shall not be brought to recover any arrears of interest in respect of any sum of money whether payable in respect of a specialty, judgment, legacy, mortgage or otherwise, or any damages in respect of such arrears, after the expiration of six years after they became due.
This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the Court by analogy in like manner as the enactment corresponding to that provision was applied before the repeal of that enactment by the Limitation of Actions Act 1955.
S. 5(9) inserted by No. 60/2003 s. 11.
Despite subsection (1C), this section does not apply to an action to which Part IIA applies.
S. 5A inserted by No. 35/2020 s. 41.
This section applies if—
a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and
the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.
Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when—
the limitation period applicable under section 5(1AAA) to (1AAC) begins; or
the 3-year period referred to in section 23B(2) begins.
Note
For extensions of time, see Division 2A of Part II.
Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.
In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to)—
the level of prominence that a matter is given; and
the extent of the subsequent publication.
This section does not limit the power of a court under section 23B to extend the limitation period applicable under section 5(1AAA) to (1AAC).
In this section—
associate of a first publisher means—
an employee of the publisher; or
a person publishing matter as a contractor of the publisher; or
an associated entity (within the meaning of section 50AAA of the Corporations Act) of the publisher (or an employee or contractor of the associated entity);
date of first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient;
public includes a section of the public.
S. 5B inserted by No. 35/2020 s. 41.
This section applies in respect of any requirement under section 5(1AAA) to (1AAC) or 5A for the date of publication of a matter in electronic form to be determined by reference to the day on which the matter was first uploaded for access or sent electronically to a recipient.
A requirement to which this section applies is relevant only for the purpose of determining when a limitation period begins and for no other purpose.
Without limiting subsection (2), a requirement to which this section applies is not relevant for—
establishing whether there is a cause of action for defamation; or
the choice of law to be applied for a cause of action for defamation.
No. 5914 s. 6.
Where—
any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person; and
before he recovers possession of the chattel, a further conversion or wrongful detention takes place—
no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.
Where—
any such cause of action has accrued to any person; and
the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired; and
he has not during that period recovered possession of the chattel—
his title to the chattel shall be extinguished.
Heading preceding s. 7 substituted as Pt 1 Div. 3 (Heading) by No. 76/2004 s. 4(1)(c).
No. 5914 s. 7.
Notwithstanding any law or enactment now or heretofore in force in Victoria, the right title or interest of the Crown to or in any land shall not be and shall be deemed not to have been in any way affected by reason of any possession of such land adverse to the Crown, whether such possession has or has not exceeded sixty years.
S. 7A inserted by No. 120/1993 s. 77, amended by Nos 104/1997 s. 50(a)(b), 54/2001 s. 39(a)(b), 6/2010 s. 203(1) (Sch. 6 item 28) (as amended by No. 45/2010 s. 22).
Despite any rule of law or provision made by or under this or any other Act but without limiting section 7, the right, title or interest of Victorian Rail Track within the meaning of section 3 of the Transport Integration Act 2010 to or in any land is not, and must be taken never to have been, affected by reason only of any possession of that land adverse to Victorian Rail Track, irrespective of the period of that possession.
S. 7AB inserted by No. 85/2006 s. 161, amended by No. 29/2011 s. 3(Sch. 1 item 51), substituted by No. 17/2012 s. 90.
Despite any rule of law or provision made by or under this or any other Act, but without limiting section 7, the right, title or interest of an Authority, within the meaning of the Water Act 1989 to or in any land is not affected by any possession of that land adverse to the Authority irrespective of the period of that possession.
S. 7B inserted by No. 76/2004 s. 3.
Despite any rule of law or provision made by or under this or any other Act, but without limiting section 7, the title of a Council to council land is not affected by reason only of any possession of that land adverse to the Council, irrespective of the period of that possession.
This section does not apply to a possession of council land adverse to a Council if—
an application for title to all or part of that council land based on that adverse possession is made to the Registrar before, or within 12 months after, this section commences; and
that adverse possession is for more than 15 years.
In this section—
S. 7B(3) def. of Council amended by No. 9/2020 s. 390(Sch. 1 item 61).
Council has the same meaning as in the Local Government Act 2020;
council land means land of which a Council is a registered proprietor under the Transfer of Land Act 1958;
registered proprietor and Registrar have the same meanings as in the Transfer of Land Act 1958.
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