The Supreme Court has recently determined that the Limitations of Actions Act 1958 (Vic) (LAA) does not apply to claims brought in VCAT. Of even more startling news is that the six year limitation period does not apply to statutory wrongs either.
The case was Lanigan v Circus Oz & Ors  VSC 35 (Lanigan), and the facts centred on a book called “The True History of the Hula Hoop”. The book, a partly autobiographical work of fiction, describes a number of encounters between fictionalised versions of the applicant and a senior employee of Circus Oz, including an alleged incident of sexual harassment.
The applicant alleged that after the book was released, the perpetrator used his position as an influential figure in the Australian circus industry and sent out an email to several people in the circus industry requesting they not support the book or the applicant. The applicant alleged that the sending of the boycott email was victimisation under the Equal Opportunity Act 2010 (Vic) (EO Act).
At first instance, VCAT dismissed the claims on the basis they were statute barred by reason of section 5 of the LAA, and the applicant then appealed to the Supreme Court.
On appeal, Justice McDonald adopted the now well settled view that VCAT is not a court. Applying this simple proposition to section 3 of the LAA, his Honour concluded that the six year limitation period would only apply to courts, and thus not VCAT.
To the extent that VCAT has jurisdiction to hear civil claims, there is now no obstacle to claims being brought where the cause of action accrued more than six years ago.
Application to Other Acts
The even more controversial aspect of Lanigan relates to whether the LAA applies to statutory wrongs. In Lanigan, the statutory wrong considered by the Court was the prohibition on victimisation under the EO Act. Justice McDonald concluded that a claim of victimisation under the EO Act was not a tort or a breach of statutory duty, but instead a statutory wrong.
His Honour then considered the precise application of section 5 of the LAA, which only applies to “actions found on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of statutory duty.” His Honour concluded that because a contravention of the EO Act was not a tort or breach of statutory duty, it therefore did not create anything to which the LAA could apply. As a result, the LAA did not apply to Ms Lanigan’s claim.
The breadth of statutory wrongs in Victoria is considerable. A breach of ‘statutory duty’ is a different beast entirely, and involves a breach of a duty of care imposed on some person or body by a statute. A statutory wrong, on the other hand, is conduct for which a civil remedy is created under a statute. An example of a statutory wrong is misleading and deceptive conduct, which does not involve a duty of care, but instead prohibits misleading and deceptive conduct in trade and commerce. It has also been found that a claim for misleading and deceptive conduct is not a tort, thus avoiding the other aspect of s 5 of the LAA. (See Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 which distinguishes between misleading and deceptive conduct claims and torts.)
This may have very significant implications for a great number of claims for statutory wrongs, particularly under the Australian Consumer Law where that regime is adopted by the Australian Consumer Law and Fair Trading Act 2012 (Vic). If one applies his Honour’s logic, then all of the causes of action set out in the Australian Consumer Law do not fall within section 5 of the LAA.
Justice McDonald’s time machine
There are now two very significant loopholes for anyone whose cause of action has gone stale under the LAA.
- The first option would be to identify a statutory wrong that could be pursued, as the LAA does not apply to such claims.
- Even if his Honour is wrong and statutory wrongs (such as for misleading and deceptive conduct) are indeed caught by section 5 of the LAA, then the problem simply evaporates if the claim is brought in VCAT.
No doubt this has caught the anxious attention of the Attorney-General and will be addressed in due course. In the interim, there is a very significant window for claimants who would otherwise have a stale cause of action. Act fast as this window may close quickly.