Australia: The limit of a limitation period: extension granted

Curwoods Case Note
Last Updated: 4 February 2012
Article by Joseph Vermiglio

Judgment date: 1 November 2011

Robertson v Sellin & Anor [2011] QSC 421

Supreme Court of Queensland1

In Brief

  • The one year for potential extension to the limitation period contained in s 31 of the Limitation of Actions Act 1974 (Qld) (the Act), does not commence until the plaintiff realises that if they do not take the proposed defendants to court, he or she may not have a successful action at all.
  • An objection to the grant of an extension of time, on the grounds of prejudice, will fail where, without more, the CTP insurer has obtained a liability report prepared soon after the accident.


On 26 May 2007, the plaintiff was seriously injured in a motor vehicle accident when the brakes of his employer's truck failed to engage. He instructed solicitors in January 2008 to otherwise do all that was necessary to protect his interests.

The plaintiff's solicitors originally filed a notice of claim with WorkCover within the limitation period. However, on 6 October 2010, they received a letter from WorkCover advising that the matter was governed by the Motor Accident Insurance Act 1994 (Qld), and that notices should be sent to the proposed defendant. A formal denial was issued on 3 November 2010.

Accordingly, following that notice, the plaintiff sought to commence proceedings against the defendant. However, as the limitation period had expired, the plaintiff sought an extension pursuant to s 31 of the Act.


Section 31 of the Act relevantly provides:

"(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court —
  1. that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
  2. that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

The plaintiff's solicitor provided an affidavit to the effect that he inspected a case file relating to the prosecution by the Department of Transport of the employer of the plaintiff. The plaintiff knew of the prosecution of his employer and believed that his employer was pleading guilty and so accepting liability.

The plaintiff argued that he had assumed he had a good claim against the employer, and so had not pursued any claim against the defendant directly. He submitted it was not until 3 November 2010, when WorkCover formally advised his solicitors that they would be denying liability, that he realised that a claim would have to be made against the defendant.


Atkinson J held that until 3 November 2010, the plaintiff was justified in believing that he had a good cause of action against his employer and demonstrated circumstances for an extension to the limitation period pursuant to s 30(1)(b) of the Act. Atkinson J followed the approach enunciated in the High Court decision of Queensland v Stephenson2 which held that:

"... an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a), coincides with the circumstances that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b))."3

It was held that, in the circumstances where the plaintiff only becomes aware of a serious claim for contribution against a CTP insurer, without necessarily excluding the plaintiff's claim against their employer, the one year period of time does not commence until the alternate claim is extinguished.

Atkinson J also took the opportunity to address the issue of prejudice to the insurer caused by the extension of time. He held that in circumstances of this case, in which the insurer has obtained a factual report within a short period of the accident, no such prejudice can arise.


When contesting a notice of motion to extend the limitation period, an insurer will face difficulties if the plaintiff's delay was on account of pursuing an employer under the belief that the claim was actionable pursuant to the Workers Compensation and Rehabilitation Act 2003 (Qld).


1 Atkinson J
2 [2006] HCA 20
3 Per Atkinson J at 8-9 quoting Gummow, Hayne and Crennan JJ in Queensland v Stephenson [2006] HCA 20 at [1]

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