RAYMOND HUO (Labour)
: The Limitation Bill simplifies the limitation regime by providing a general civil limitation defence to most claims. A new concept—“money claim”—is introduced. It is a new and unifying concept, which means a claim for monetary relief, whether at common law, in equity, or under any enactment. This replaces the haphazard approach taken by the 1950 Act, which sets out different limitation periods for different causes of action. The limitation period of almost all claims will be 6 years after the act or omission on which the claim is based. There are exceptions or modifications to this period in cases of minority or incapacity, or if there has been an acknowledgment of liability, part-payments, or fraud. A 3-year late knowledge period is introduced, because there might be circumstances where people do not realise they have a cause of action.
Currently, the limitation period for most claims runs from the date the cause of action accrued—namely, the date on which all the elements necessary to establish the claim first came together. This has been very contentious and ambiguous. Under this bill, for most claims the start date will be the date when the act or omission, on which the claim is based, occurred. The bill provides that the limitation defence cannot be used in cases of child sexual abuse, no matter how much time has elapsed since the abuse took place. There is currently a new statutory limitation period for claims under the New Zealand Bill of Rights Act. This bill rectifies that situation, bringing the New Zealand Bill of Rights Act under the definition of “money claim” and the 6-year limit.
There are two other issues I wish to revisit in the third reading. Although Labour agrees with most of the bill, we disagree with the longstop period provisions. The bill provides for a longstop period of 15 years for most cases but only 10 years for Building Act cases. I acknowledge the contributions made by the Hon David Parker last night on that particular issue. I believe that it should be 15 years for all claims. Owners of houses with latent defects should have just as long to bring the claim as those with other claims.
The second matter is related to a Supreme Court case that I cited earlier in the first reading of the bill. The case is
Commerce Commission v Carter Holt Harvey Ltd. The brief background of that case is as follows: in October 2002 the Commerce Commission started an investigation relating to the misgrading of timber prior to November 2003. In August 2005 the commission brought proceedings under the Fair Trading Act in the District Court. Carter Holt Harvey pleaded guilty and was fined $900,000. In October 2006 the Commerce Commission brought civil proceedings in the High Court under the Fair Trading Act, seeking compensation for end-users of the timber and competitors of the company. Carter Holt Harvey applied to have the High Court proceedings struck out on the grounds that it was statute barred under section 43(5) of the Fair Trading Act, having been brought more than 3 years after the date on which the loss or damage was discovered or ought reasonably to have been discovered by the commission.
The struck-out application was unsuccessful in the High Court, but it succeeded in the Court of Appeal. In the Supreme Court, the decision of the Court of Appeal was reversed. What is relevant to this particular bill, according to Bell Gully, is in respect of “reasonable discoverability”. As drafted, the bill does not define “knowledge”, nor does it specify the degree of knowledge required before a claimant is taken to know or ought
reasonably to know the specified facts. I quote: “It is therefore likely that, in the absence of amendments to the Bill, the Supreme Court’s decision in the
Carter Holt Harvey
case will influence the application of the Limitation Bill, once enacted.” I asked the Attorney-General to take a call during the Committee of the whole House last night to shed some light on that point; it is a bit disappointing that the Attorney-General appears not to have taken a call on that point.
Turning back to the Limitation Act, nevertheless the bill appears to succeed in its goals of enhancing clarity as to the applicable limitation period. In relation to equitable claims, such clarity has arguably come at the expense of equities history freedom from limitation periods. I agree with what Russell McVeagh stated in its opinion that although the concept of the “late knowledge period” may prevent injustices to claimants, the bill cannot of course prescribe a code for assessing whether, in a particular case, a plaintiff knew, or ought to have known, the necessary facts. That will always be a task for the courts, and one of increased significance under the new regime. I guess that would have answered, to some extent, the question I posed last night to the Attorney-General. Having said that, I hope that with the bill being passed into the law, the surgery required is no longer beyond the proper province of the courts. Thank you.
HEKIA PARATA (National)
: Tēnā koe, Mr Assistant Speaker. Otirā, ki a tātou i tēnei ata, tēnā koutou katoa. I rise to speak in the third reading of the Limitation Bill, and I do so following the illustrious and comprehensive presentation made by the Attorney-General last night. At every phase of this bill he inspired us with the majesty of his comments as they relate to the Limitation Bill. I am aware that all around the country the lawyers and practitioners in this particular field are on their knees with gratitude that, finally, after three reports by the Law Commission we have this bill that updates the Limitation Act 1950. As members of the House who sat through this debate will know, we enjoyed the technical detail that the Hon David Parker and the Attorney-General were able to swap with each other about the length of the longstop period, and whether there should be the distinction drawn between claims relating to buildings and other types of claims—they gripped us with the detail that was attendant upon that discussion. We have, at last, an amending of an Act that has been in place for the last 60 years. It balances the rights of claimants to bring what they consider to be causes of action, with defendants’ rights when, after such a long passage of time, the cause, in their view, may have become stale.
I am pleased that we are at the point in this discussion where we will imminently be able to pass into law—since, I believe, all sides of the House are supporting it—this Limitation Bill. We have had the opportunity, and it is apposite and appropriate, to reiterate the contributions that all members of the Justice and Electoral Committee have made to this particular legislation. They have given it the scrutiny and the searing insights that this select committee has become known for, as well as its burden of work—our select committee chair, Chester Borrows, reminded the Committee last night that 17 pieces of legislation have passed through this very hard-working committee. All members are to be applauded, from the diminutive Ms Pillay to the hulking majesty of my colleague Mr Paul Quinn. He has brought his quick-witted, sharp, and incisive contributions not only to this bill but to all other bills that have come before our select committee. Indeed, my colleague Mr Kanwaljit Singh Bakshi has also offered his clear, considered, and deliberate approach to this legislation. I have been but a learner at the knees of these colleagues, as I have joined this select committee. I am delighted to have learnt so much from them. I end by saying that this legislation, all compliments aside, really does add to the strong foundation of quality legislation that the National-led Government has been navigating through this House. I commend the bill to the House.
