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Limitation Bill (Consistent) (Sections 5, 28) [2009] NZBORARp 25 (7 May 2009)

Last Updated: 28 April 2020

Limitation Bill

7 May 2009

Attorney-General

LIMITATION BILL

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Our Ref: ATT395/86

1. I have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990. I conclude that while the Bill raises issues in respect of the following matters, no inconsistency arises:

1.1 The general right to an effective remedy under the Bill of Rights Act, which is limited by the extension of limitation periods to that Act in cl 11(2)(c); and

1.2 The right of non-discrimination on the grounds of ethnicity, which might be seen to be limited by the separate provision for claims in respect of Maori customary land (cl 26).

2. The Bill, which replaces the Limitation Act 1950, provides for the clarification and certain substantive changes to limitation periods for civil claims. In particular, the Bill:

2.1 Replaces current piecemeal periods applicable to particular categories of claim with general limitation provisions;

2.2 Standardises the start date for limitation periods in most instances; and

2.3 Introduces a “longstop period” of 15 years beyond which exceptions to the general

limitation periods will not normally be available.

Application of limitation period to claims under the Bill of Rights Act

3. The Court of Appeal held in Sugrue (PF) Ltd v Attorney-General [2003] NZCA 204; [2004] 1 NZLR 207 that the limitation provisions in s 4(1) of the current Limitation Act did not encompass such claims, although the Court did indicate that delay in pursuing a claim was a factor relevant to discretion to refuse relief [1].

4. Clause 11(2)(c) of the Bill alters that position by applying the general limitation period of six years to claims for monetary relief under the Bill of Rights Act. It follows that it is necessary to consider whether the application of a limitation period limits the general and implicit right to an effective remedy under the Bill of Rights Act, and, if so, whether that limitation is justifiable in terms of s 5 of that Act.

5. The Supreme Court has held in Taunoa [2] that while monetary compensation may in many instances not be required in order to provide an effective remedy for breach of an affirmed right, particularly where there is another available remedy such as the exclusion of evidence or where the nature of the breach is such that declaratory relief will suffice, there are nonetheless instances in which such compensation will be necessary.

6. In precluding monetary claims beyond a certain time, cl 11(2)(c) therefore limits that right and it is necessary to consider whether that limitation is justifiable. Beyond the indication in Sugrue, above, the consistency of limitation periods with rights instruments has been considered in comparative case law in respect of both the Canadian Charter and the European Convention on Human Rights (“ECHR”):

6.1 In Canada, while the question has not been considered by the Supreme Court to date (though that Court has refused leave in some such cases), it is broadly accepted that general limitation periods can permissibly apply to compensation claims under the Charter, notwithstanding the express right to a remedy under s 24(1). The position was recently summarised, with reference to extensive authority, in Pearson v Canada [2006] FCJ 1175, [50]-[51] and [54]:

“... there is a clear consensus that an award of damages contingent on a Charter violation must take place within the general legal regime of the province where the cause of action (or the alleged violation of a fundamental right) has taken place. This is to say that the rules

governing evidence, procedure and jurisdiction related to this field of the law must generally find application, since the Charter itself does not provide a parallel architecture to that

found in the various provincial and federal statutory schemes. This is indeed the position followed by most courts of the country with respect to time limitations related to claims for damages resulting from a violation of a Charter right...

.. prescriptions found in provincial and federal statutes are not, in and of themselves, antithetical to section 24(1) of the Charter. The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. ...”

The exception, as noted in Pearson and following Prete v Ontario (Attorney-General) (1993)

110 DLR (4th) 94, is that exceptionally short periods applicable to claims against public bodies (in Prete, a six month limit in respect of such claims) that can be regarded as an attempt by governments to immunise themselves against Charter liability, will not apply to Charter claims.

6.2 Under the ECHR, the European Court of Human Rights has indicated that it will be necessary to consider the proportionality of limitation periods. In the leading case of Stubbings v United Kingdom [1996] ECHR 44; (1996) 23 EHRR 213, the Court commented (at [51]):

“It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from

stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.” The Court accepted that reasonable limitation periods were not inconsistent with the right of access to the courts under the ECHR. The Court noted, in particular, that it was necessary to consider whether the limitation period (in that case, a limit of six years past the age of majority for claims in respect of sexual abuse suffered as a child) was “unduly short”

7. The point has also been considered in the context of international human rights standards, notably in respect of what are termed “gross violations”, such as torture. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, a non-binding expert statement of principles adopted by the United Nations General Assembly, differentiated between the non-application to such violations of criminal limitation periods, on the one hand, and the application of civil limitations (at [6] and [7]):

“Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that

do not constitute crimes under international law, including those time limitations applicable

to civil claims and other procedures, should not be unduly restrictive.”

8. Commentators have, however, suggested that the application of limitation periods to civil claims in such grave cases is inconsistent with the right to reparation for such breaches [3]. Notably, Professor Theo van Boven, the former United Nations Special Rapporteur on the Right to Reparation to Victims of Gross Violations of Human Rights, has commented [4]:

“The principle should prevail that claims relating to reparations for gross violations of human rights shall not be subject to a statute of limitations. In this connection, it should be taken into account that the effects of gross violations of human rights are linked to the most serious crimes to which, according to authoritative legal opinion, statutory limitations shall not apply. Moreover, it is well established that for many victims of gross violations of human rights, the passage of time has no attenuating effect; on the contrary, there is an increase in post-traumatic stress, requiring all necessary material, psychological and social assistance and support over a long time.”

9. I note, however, that that view was not ultimately reflected in the Basic Principles, above, and further that Professor van Boven’s latter concern can in part be met by the scope to extend time in cases of incapacity, as provided in cl 43.

10. Following the approach expressed in Pearson and Stubbings, above, and the statement in Basic Principles, I consider the limitation periods provided by the Bill, which are reasonably long and of general application, do not amount to undue restrictions. In

particular, and following the point raised in Prete, above, the application by cl 11(2)(c) of the

standard six year period to claims under the Bill of Rights Act cannot reasonably be seen as an attempt to immunise public bodies from liability under that Act.

Separate provision for Maori customary land

11. Secondly, cl 26 of the Bill makes separate provision for claims relating to Maori

customary land, replicating current provision introduced by Te Ture Whenua Maori Act 1993 [5]. In particular, cl 26(2)(b) provides that where the defendant to a claim for damages or injunction is, or is claiming through, the Crown, a six year period applies.

12. Given that regulation of claims to Maori customary land necessarily bears directly only upon Maori [6], it follows that it is necessary to consider whether that separate provision amounts to differential treatment, whether that difference is disadvantageous and, if so, whether that disadvantage can be justified. Given that the effect of cl 26 is, broadly, to parallel the six year period for monetary claims and the twelve year period for land claims found elsewhere in the Bill, the difference is at least very limited [7].

13. To the extent that there are minor differences, the broad point is that Maori customary land interests are, as recognised by Te Ture Whenua Maori Act, a distinct category of interests that have particular, and specialised, legal and practical attributes. The 1993 Act represents an integrated scheme for dealing with that distinct category. For that reason,

and given that the Bill replicates a statutory scheme that is now of reasonably long standing, I do not consider that the separate provision ought properly to be regarded as discriminatory.

14. This advice has been reviewed by Victoria Casey, Crown Counsel, in accordance with

Crown Law Office protocol.

Yours sincerely

Ben Keith

Crown Counsel

1. The question was not further addressed by the Privy Council: [2006] 3 NZLR 464.

2. [2007] NZSC 70; [2008] 1 NZLR 429.

3. See, for example, C Scott “Introduction” in Scott (ed) Torture as Tort: Comparative

Perspectives on the Development of Transnational Human Rights Litigation (Hart, 2001).

4. Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of

Gross Violations of Human Rights and Fundamental Freedoms, Final report submitted by

Mr. Theo van Boven, Special Rapporteur UN Doc. E/CN.4/Sub.2/1993/8, 2 July 1993, [135].

5. See explanatory note, 9.

6. See, similarly, Ward v Western Australia ( 2002 ) [2002] HCA 28; 213 CLR 1 (HCA), [120]ff (differential treatment of customary interests without reason may constitute racial discrimination).

7. I note that the Te Ture Whenua Maori provisions were introduced so as to apply the general limitation periods to such land: see Hon D Kidd MP, second reading speech,17

November 1992.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Limitation Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum

guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.