Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
I move, That the Limitation Bill be now read a first time. At the end of this debate, I intend to move that the bill be referred to the Justice and Electoral Committee.
This is a great day for black-letter law, because it represents the day when reform of New Zealand’s Limitation Act 1950 will have finally begun. The Act has been widely criticised by the judiciary, litigators, academics, and members of the legal profession, and it is really quite unsatisfactory that this kind of important law reform should have taken so long. The “mother” of the Electoral Finance Act, Annette King, should have been working on reform of limitation, and on removal of the partial defence of provocation, rather than on spending her time developing Stalinist electoral legislation, which will forever be a blot on her record, like everything else she has touched. The people of Rongotai will not forget very easily at all.
Limitation periods are a very important part of the law, and have been for centuries. There has been a Limitation Act in England since 1623. Limitation periods must balance three interests. The first is the plaintiff’s right to bring a well-founded claim, which, in justice, the defendant should satisfy. The second is the defendant’s right not to be vexed by very stale claims, for without limitation periods people could face liability indefinitely. The third is the public interest in the timely resolution of claims, as expressed in the Latin maxims “Interest reipublicae ut sit finis litium.”—it is in the public interest that there be an end to litigation—and, as Mr Auchinvole was saying to me just the other day, “Vigilantibus, et non dormientibus, jura subveniunt.”, which means that the law assists those who are vigilant and who do not sleep on their rights. Limitation statutes were described by the former Chief Justice of England and Wales in 1825 as an “Act of peace”.
This bill has had a very lengthy gestation period. The Law Commission considered the 1950 Act in 1988, in 2000, and again in 2007, and concluded that limitation laws should be simplified and clarified.
Chris AuchinvoleHon CHRISTOPHER FINLAYSON Link to this
The Labour Government did nothing on this issue, as on many issues, for 9 years. In December 2007 the Law Commission published an exposure draft bill for consultation, based on the commission’s earlier recommendations. The submissions on the draft bill raised a number of significant issues, so a working group, of which I was a member, was established to review the draft bill in the light of the submissions, and to address other technical issues. This bill implements the conclusions of both the Law Commission and the working group.
The 1950 Act is creaky and outmoded. It is fair to say that it is in an advanced state of legislative putrefaction. It drew on a 1939 English statute that was repealed many years ago. The 1950 Act does not adequately define very important concepts. In some cases its rules can be unfair, because people may be time-barred from gaining relief before they are even aware they have a claim. These flaws have led to a complex maze of case law in this area, and the Supreme Court has stated “The surgery now required is beyond the proper province of the courts.” This bill addresses these concerns by both improving and simplifying the general limitation rules.
First, the bill simplifies the rules considerably by providing a general civil limitation defence to most claims. The bill introduces a new concept called “money claims”, which is defined to include any claim for monetary relief, whether at common law, in equity, or under an enactment. This general defence will replace the piecemeal approach in the 1950 Act, which sets out different limitation periods for different causes of action. This reform means that the general civil limitation law will now cover claims for monetary relief for a breach of the New Zealand Bill of Rights Act 1990, and, in addition, claims for bodily injury will now be dealt with as money claims and the existing procedural requirements for bringing these claims will be removed.
The definition of “money claims” has a small number of exceptions. For example, claims for damages in respect of trespass or injury to Māori customary land that are not brought against the Crown will continue to be treated separately, in accordance with the scheme in Te Ture Whenua Maori Act 1993. The limitation period for almost all claims will be 6 years after the act or omission on which the claim is based. After this time has expired a defendant can raise a limitation defence against the claim. The bill provides some exceptions or modifications to this time period—for example, where the act or omission complained of occurred when the plaintiff was under 18 years of age, was incapacitated, or was unable to bring a claim. For minors, this ensures that the time period will start to run when the minority ends. If the claimant was incapacitated or became incapacitated during the limitation period, the courts will have a discretion to extend a limitation period where it is just to do so. Similarly, special exceptions or modifications will apply where the case involves acknowledgment of liability, part-payment, or fraud.
Secondly, the bill more clearly identifies the start of the primary limitation period. Currently, for most claims the limitation period begins to run on the date that the cause of action accrued—that is, the date on which all the elements necessary to establish the claim first came together. Identifying that date has been contentious and has added to the cost of litigation. Under the bill, the start date of the primary limitation period for most claims will simply be the date when the act or omission on which the claim is based occurred. That date will be readily identifiable. The bill also sets out special start dates for certain types of money claims. Other special limitation periods are created by other legislation, such as employment and securities legislation, the Fair Trading Act, the Commerce Act, and the Building Act. In the event of any conflict between the general rules in this bill and specific rules in other legislation, the specific rules will continue to prevail over the provisions in this bill.
Thirdly, the bill introduces a late knowledge period to address the difficulty caused when a current limitation period can end before a person knows enough to consider bringing a claim. The period will apply after the primary limitation period has expired in cases where the claimant has not known, and could not reasonably have known, the key facts required to make the claim within the primary limitation period. The late knowledge period will start on the date when the claimant has gained, or reasonably ought to have gained, knowledge of the key facts, and it will run for 3 years. The longstop period is a new feature of general limitation law, and I look forward to people making submissions on it to the select committee.
Finally, the bill addresses the issue whereby in some cases it may be inappropriate for a limitation period to bar relief, and in certain areas the court will have a discretion to enable relief to be granted even if a limitation defence can be made out. Those three areas include that where the case involves sexual abuse of a minor. It is important to note that the 1950 statute will continue to apply to claims for events occurring prior to the commencement of the Act.
In conclusion, the bill provides clearer and more comprehensive and accessible limitation law. It balances the interests of claimants to have access to justice, the right of defendants not to have to face stale claims, and the public interest. The bill will substantially improve the law. I commend the bill to the House.
Hon DAVID PARKER (Labour) Link to this
Before dealing with the substance of the Limitation Bill, I will just respond to the Attorney-General’s rather intemperate criticism of the previous Government for not implementing—
Hon Shane JonesIt was a gratuitous complaint, saying that the previous Government did not pay attention to that sort of housekeeping legislation. In fact, it is a matter of public record that the last Government implemented more Law Commission reports than any prior Government has ever implemented. I would be very, very surprised if the current Government does as well as that, because the reality is that we cleared it out; we passed virtually all of those measures that were there to be passed, and not much remains to be done. Some measures remain to be passed, and this bill is one of the most important of those. That is why the Labour Party will be supporting the bill going to the select committee.
It is important to reflect upon why we have a Limitation Act. It attempts to balance two interests. The first interest is the right of people to bring claims in court, where they have suffered injury or have been damaged in some way that offends common law rules or statutes. That is the first interest. We should be preserving the right of people to litigate their claims in court. The contrary interest that we need to balance is that we ought not to be letting that period run on indefinitely, and there are a number of reasons for this. We ought not to let plaintiffs, or claimants, sleep on their rights, and if they do so for too long they should be barred from bringing their claim and they should effectively lose their rights.
The reasons that underline that position are pretty common-sense reasons. For a start, when people are called to defend a case that has been brought against them, the more historical it is the harder it is to get the evidence they need to properly defend themselves. For example, witnesses might die, memories fade, documentary evidence is lost, and computer files that would have been in existence a number of years ago are lost. So the quality of evidence available to a court to determine a dispute that comes before it deteriorates over time. That is one of the reasons why we have a limitation period: the longer that period of delay, the more prejudice there is towards the defendant, and, indeed, the harder it is for the court to reach a good decision. Balancing those two interests is what this legislation is about. It protects defendants from stale or ancient claims.
One of the other things the bill does is stop stand-over tactics. People do make mistakes in life and they have consequences, but those consequences ought not to be held above someone’s neck forever like the sword of Damocles. That is another reason why we have a limitation period: it is so that people can get on with their lives. If there is something to be done against them because of a mistake they have made or something for which they bear legal responsibility, a complainant should get on and pursue his or her rights; that complainant should not be able to hold the sword of Damocles above the neck of someone who could be threatened by those proceedings for ever. That is another reason why we have the limitation period.
In another context, we need to make sure that people have security over their property interests. When people buy a piece of property, whether it is land or a car, they need to be able to have certainty as to the title they are acquiring. The claims that are adverse to that title should not be open-ended as to time. In the property context, there are various mechanisms for people to protect themselves if they want to lodge a claim, like caveats. However, they ought to have to pursue their claim within a period of years, and after that period—normally 6 years, as we have heard from the Attorney-General—buyers ought to be confident that the item they are buying is free from those sorts of claims or controversies.
The Limitation Act is old legislation. It does need to be reformed; it does need to be updated. The Labour Party supports the main changes being made. For a start, I am sure that when the New Zealand Bill of Rights Act 1990 was passed no one in this House contemplated that when people made a claim under that Act, the claim would not be time limited. I certainly did not know that, until I read the review of the Limitation Act. That is unlike most claims—for instance, a claim for damages to a motor vehicle after an accident, damage to a property, negligent damage done when a house is being built, or negligence shown by a professional in his or her duties. People have 6 years to bring that kind of claim under the Limitation Bill. However, under the New Zealand Bill of Rights Act there is no 6-year limitation period, so, effectively, people can bring a claim forever. That is wrong. That needs to be brought within some limitation framework, and that is what this bill achieves.
I also agree with the Attorney-General that the current rule, which states that the 6-year period starts from the date of the cause of action arising, is difficult to apply in practice. I disagree with him when he said there would be no future uncertainty. There will still be future uncertainty as to the date of the act, omission, negligence, or breach of contract that gave rise to the claim. There will be some doubt still, but there will be less doubt. I think it would be an improvement in the law if we could make the law less complex in this area.
I also agree with the concept of introducing a 3-year period that can run after the normal 6-year period, because after the 6-year period people may not know enough for it to be reasonable for the law to expect that they knew they had a right to sue. That is what this 3-year late knowledge period is being introduced for: there are circumstances where people have a right of action but do not know they have a right of action. There may be some fact that is unknown to them, and it could have been deliberately hidden from them—and that might be the reason that they do not know it—but because they do not know that fact, they do not have enough information upon which to base their action within the normal 6-year limitation period. In that circumstance this legislation says that people have 3 years from when they accrued sufficient knowledge, even if that 3-year period takes them outside the 6-year limitation period. But then there is a safeguard beyond that, and it states that even that period ought not to last forever. So there is a longstop liability period of 15 years beyond which even that 3-year extension cannot extend. I think that is a pretty wise balancing of the different interests involved, as well.
I also agree with the carrying forward of the exceptions relating to incapacity. At the moment the Limitation Act’s normal 6-year period to bring a cause of action does not apply to minors. Obviously, children cannot exercise their rights, except through someone else doing it for them. Sometimes the person who has been the cause of the child’s injury might be the person who would do those things for the child, were that person properly representing the child’s interests. We can easily see a situation where a child suffers abuse at the hands of the people who should be protecting him or her. As rare as these events may be, none the less they occur on occasions. In that situation minors ought not to lose their rights just because 6 years go past before they exercise those rights. The law deals with that situation by saying there is an exception to the normal limitation period; the limitation period ought not to start running until the minor is of full capacity. In the case of children, that is when they become of the age of legal capacity. Someone can correct me if I am wrong, but from memory that is 18 years of age. So minors have from that age to bring a claim. It runs from the time when he or she is no longer a minor. There are other causes of incapacity, such as mental incapacity due to insanity, and they can be covered by related exceptions.
The Labour Party will be supporting this change to the law. We think it is important that there is an end to the period in which people can bring claims. That is why we have a Limitation Act. That principle, I think, has served very well in jurisdictions like New Zealand, and in other jurisdictions around the world. We ought not to have an absolutely unrestricted period in which people can bring claims. There are public interests that mean that people should either pursue their rights or lose them. In respect of the complexities around the current date starting from the date the cause of action accrues, rather than from the date of the act or omission that led to the claim, I say that the latter is preferable to the former. That is what this legislation achieves, so the Labour Party supports its first reading.
AMY ADAMS (National—Selwyn) Link to this
It is my privilege this afternoon to take a call in support of the first reading of the Limitation Bill. I think it is fair to say that the Limitation Bill is the sort of law that perhaps lawyers become most excited about, because we recognise the extreme importance of some framework legislation like this to put in place the rules around bringing these sorts of claims. As the Minister and the Hon David Parker have already said, it is a difficult exercise, and one that I do not think any lawyer would suggest there is an easy answer to, in terms of getting the balance right.
This bill is about balancing the entitlement of wronged people in society to bring a civil claim, and their entitlement to do that without loss, while also recognising there is a real prejudice to defendants who are forced to defend claims well after the event. That is an issue that we do battle with on almost a day-to-day basis in legal practice, and I can think of many occasions where we have been grappling with those very issues: when does the limitation period start, is the claim statute barred, and how do we work that out? The whole point of legislation like this is to set clear parameters, and I think that one thing we will hear general consensus on is that the current, 1950 Act is not terribly clear. We all support its principles; we all support what it is trying to achieve. But I think three Law Commission reports and the general feeling in this House will convey that it is time for a change, a restatement, and a comprehensive relook at the rules that make up our limitation requirements. I am very pleased to see this bill in front of the House today. I think it is a fundamentally important piece of law, although, as I have already said, I think it is one that perhaps the average man on the Clapham omnibus will not get terribly excited about.
As I have already said, this bill replaces, in whole, the 1950 Act, and provides a comprehensive, one-stop restatement of limitation measures. In doing that, the bill is not seeking to reinvent the wheel, in that it will provide some consistency around what those limits fundamentally are, and it will not depart from the general principle, as much as we can state it at the moment, that in essence people have 6 years to bring a claim. That is an easy statement, and when we say it quickly it sounds straightforward. But the difficulties have always really started in respect of when the starting point is. The Minister in his first reading address has already talked about the difficulties of determining the prior trigger, the point at which the cause of action accrued. That brings in some very difficult legal issues and a fair amount of legal knowledge, but even if people had that sort of legal knowledge, they would get into some quite complex, time-consuming, and very uncertain debates around the timing of when a cause of action accrued.
I will throw up a couple of examples. There is some famous case law around negligence in the building of a very tall brick smokestack. There was negligence by the builder in constructing it. Unfortunately, that negligence did not show up for many years until the thing fell down. But short of climbing up ladders and getting it inspected from the ground up on the day it was handed over, it was very difficult for the people who commissioned the smokestack to be statute barred for something they would have had no knowledge of until the thing hit the ground, and until the after-the-fact analysis showed that the collapse was due to the negligence of the builder. So these were the sorts of inequities people were seeing, and they would get into arguments about whether the cause of action accrued at the time the bricklayer was negligent or at some time after that. That evolved into the even more complicated doctrine of reasonable discoverability, which, frankly, probably made the waters muddier rather than clearer.
Similarly, we can imagine a situation where a contract has been prepared by lawyers, but it is not until some years down the track, when it has all turned to custard and the parties have found they are at each other’s throats, that they pull out the contract only to find there is a significant error. But if the time is 6 years after the contract has been drafted, then the people will have some real issues about whether the negligent drafter is off the hook. These are some of the issues that have to be grappled with, and it is not actually that easy when we start getting into it to assess the right place to put that balance. I will be very interested to see what the select committee decides in terms of this legislation and whether that balance as now framed is appropriate. It is an excellent start.
I am particularly interested in the late-notice period replacing the reasonable discoverability test, and the circumstances in which that will apply. Like the Hon David Parker, I think that the 3-year limit, even with the late knowledge provision, still has to have some drop-dead time frames, so that even if a late knowledge system applies, people cannot be exempted entirely from limitation rules. I think it is very sensible that we will have a principal period of 6 years that is subject to a late knowledge exemption, which will itself be subject to a 3-year drop-dead time frame. Similarly, even with those sorts of provisions in place, I think we would be doing defendants a disservice if there was not an ultimate longstop period to the claims, and this bill provides for a longstop period of 15 years. I think that is important, because if people are carrying out their business and going through their business indemnity insurance provisions, it is very difficult, when sitting down with insurers, for them to work out where their liabilities and contingent liabilities start and stop when they are in any sort of trade or service. Under this bill, people in business will have reasonable ability, whatever else happens, to believe that 15 years on they are reasonably free and clear. So they can carry run-on insurance for any services provided for a period of 15 years, with pretty much total confidence in the fact that 15 years will mark a full stop to any liabilities in that prior period. I do not want to move away from the principal focus, which is the 6-year frame. That is the frame we have now, but, as I have said, we have much more clarity around when it starts, what claims it will apply to, and what the exceptions to it are.
The other point to note is that there are some other exceptions we have to take into account. One is in respect of sexual abuse claims of minors. I think we are all aware that there are some very difficult issues around that issue; we would not want to ensure that we go so far as to deny people proper access to justice but we have to bear in mind that this provision applies to civil claims and not to criminal ones.
The other thing I think worth mentioning in respect of this bill is the way it operates, which is that it effectively provides a defence. So if a claim is filed against a person, he or she can apply this legislation as a defence on the grounds that the claim would be statute barred, pursuant to the Act, if the claim transgressed it. If there was any dispute then as to whether the provisions and the tests of the legislation were being met, that could be worked through, and if the court was satisfied, then that would provide a complete defence to the claim.
I have talked about some of the exceptions for sexual abuse of minors. I will also take up another point around minors in a general contractual sense. My understanding of the Limitation Act of 1950 is that previously the limitation period could not start to run until the contracting party was 20. Under the amended legislation the period will start to run from when the contracting party is 18. Once again, I think that fits in neatly with the Minors’ Contracts Act framework, and parties contracting with minors are aware that minors have reduced legal capacity before that time. This bill fits nicely into that framework, so that the limitation will run from the time at which minors are considered to have full knowledge of their claims and full ability to act on their rights.
We are also aware that the bill will set up a different schedule for money claims as opposed to non-money claims. I want to highlight the point the Minister made in his first reading speech, because I think it is an important point. This new bill, if passed, will apply only to new acts and omissions that occur after the bill’s commencement date, which is 30 June 2010. So any litigation that commences in the future, if it still relates to an act or omission predating this bill, will still be under the prior law, and I think that is important for consistency and to ensure that parties have the arrangements they thought they would have in this respect at the time they entered into their contract. But we will see this bill starting to apply to new acts or omissions after the date the bill comes into force.
Just in closing, I think it is worth nothing that the court will retain an ability to have a discretionary waiver of some of these provisions, if it believes that the incapacity of one of the parties makes that fair and just, and I think that is entirely appropriate. So I am very, very pleased to see that this important area of law is now being tidied up as it deserves to be. It has taken three Law Commission reports to get there. We now have a very comprehensive piece of work. I am looking forward to seeing the select committee work through its processes in hearing submissions. I am very pleased, as I say, to see this bill before the House. It is an important area of law, and I commend it to the House. Thank you.
CHARLES CHAUVEL (Labour) Link to this
The previous speakers are right—limitation periods do matter, and they matter not only to lawyers but to ordinary people. I have just been reading an excellent history of the recent Supreme Court appointments in the United States and some of the important cases that have been decided by the justices on the wafer-thin margins between the conservative and the liberal wings of the court. One case that really captures the attention is the case of Ledbetter v Goodyear Tire & Rubber Co., Inc. It was a case that the Supreme Court of the United States came to decide in the spring of 2007. The dissenting opinion of Justice Ginsburg in that case is very interesting. Professor Ginsburg, when she was practising, represented many women who had been discriminated against in the workplace. The relevant part of the US law required individuals in that category to file their cases within 180 days of the “alleged unlawful employment practice”. For years and years the American courts ruled that that meant that as long as the woman brought a suit within 180 days of receiving the last pay cheque from the workplace that had engaged in the alleged discrimination, and then proved her case, she could get compensation for the entire period over which she had suffered, say, a discriminatory underpayment. But, reflecting the change in ideological composition on the court in the latter part of this decade, in 2007 the Supreme Court, or at least the five very conservative justices who had become by then the majority on that court, overturned that rule of long standing, and said that plaintiffs could be compensated only for discrimination that happened within the 6-month statute of limitations. Justice Ginsburg’s reasons for her opinion are worth a read. She says “this court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,”. The judge knew very well that that would be a problem for future cases. She said that women cannot possibly know within 180 days that they might be paid less than men. The judge said that Ledbetter’s “initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.”
I think that shows that limitation periods are not just abstract, arcane concepts to delight and fascinate lawyers; they matter to ordinary people in the real world. Limitation periods can mean the difference in any case between recovering damages for having suffered a legal wrong or not recovering damages.
The Attorney-General, on his introduction of the bill, said that the previous Minister of Justice, Mrs King, during her term in office, should have been concentrating on introducing legislation to repeal the partial defence of provocation and should have been progressing this legislation rather than preoccupying herself, as he said, with the Electoral Finance Bill. Let us set the record straight, first on provocation. We might as well have the truth, the whole truth, and nothing but the truth before the House.
That is right; new members might want to know this. In fact, anybody who has not read the Law Commission’s report on provocation might want to know the truth of the matter here. The Law Commission said two things. First, it said that the partial defence of provocation should go because it is archaic, outdated, and a relic of a former time. In fact, it dates to the time when we had the death penalty, and was a way for juries to avoid bestowing the ultimate punishment on somebody if he or she had lashed out in the moment, rather than having engaged in a premeditated crime. The defence of provocation is a product of its time. It has not really had any relevance to New Zealand since the 1960s. The Law Commission said it should go, but it said at the same time that there should be some recognition in the law of New Zealand that there is a difference between lashing out in the moment and premeditating a cold, calculated crime of violence, like murder. The Law Commission’s recommendation was that the Sentencing Council should be asked to produce a sentencing guideline to guide the judges as to the difference and how their practice should differ in dealing with the different types of offence.
It is a matter of record that the Sentencing Council was still being established late last year. It did not have time to prepare any sentencing guidelines. One of the first things the incoming Government did was abolish the council. So it has not been possible—it certainly was not possible for the previous Minister of Justice—to implement the Law Commission’s report. As the House knows, I am delighted to see Simon Power tabling legislation today that will do part of what the Law Commission said should happen. I am delighted that it is in identical terms to the bill I drafted for our justice spokesperson, Lianne Dalziel. But we should recognise that there was another aspect to the Law Commission’s report, and that—and that alone—is the only reason why the outgoing Government did not act to put its recommendations in place.
I think the less said about the Electoral Finance Act the better, but if members opposite want to revive that debate then we can recall the reasons for the legislation and the need for it prior to an election. No one on this side of the House ever wants to see an attempt to steal an election again. The Electoral Finance Act is a good thing. It was very important to legislate to prevent the sort of practices that new members might not remember, but that some of us remember very well from the 2005 election. I am simply signalling to members opposite that if their Attorney-General and others want to revive that debate, we are very happy to have it and to remind the public why some form of legislative redress was required for the sorts of practices we saw from the National Party and its allies in the 2005 election.
Anyway, I will get back to the text of the bill. Although the Attorney-General does not have it in him to be generous about terribly many people, I will try to be generous to him about his contribution in this matter. He was one of the people, as a representative of the profession, who had a close interest in the Limitation Bill over a number of years. I would say that he has contributed constructively to the debate over the need for new limitation legislation. It is also appropriate—and I am a little sad that the Attorney-General did not do this—to acknowledge some of the other people who have been involved in the construction of the bill: the Hon Justice Blanchard, who chaired the 2008 reference group that led to the particular legislation we are considering now; the Parliamentary Counsel Office; the New Zealand Law Society; the Bar Association; the Ministry of Justice; Christopher Corry; and law commissioners John Burrows and George Tanner. They are all people from the profession and from elsewhere, many of whom—
Mr Quinn just said “Doing their job.” He does not understand. He has heckled like this before about people who have agreed to be appointed to public bodies, and who are paid quite a lot less for that than they would earn in their ordinary professions. But they give up their time none the less to contribute to our law being better. I think they deserve respect, not mocking from members opposite.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. The member saying “mocking you” is the immediate point of order. The other thing is that when a member is making a serious speech on a legal bill and is showing respect to learned members of the judiciary, it behoves Parliament to have a slightly higher standard than it generally does.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
I think there is only one standard in this House, regardless of the bill. I am sure others want to think there are differing standards, but I think there is just one. I say to the members that saying “you” in terms such as “you do this”, or “you do that”, is inappropriate. The Speaker does not do any of those things. The Speaker does not mock people. Can we just come back to the bill.
The only other point I will make that I think is of relevance is that there have been three reports from the Law Commission on limitation. Again, it is a shame that the Attorney-General was not a little fairer in his introductory remarks about where responsibility lies for not progressing these reports. The first report came out in 1988 and recommended reform, and the second one came out in 2000. In the 12 intervening years we all know who was in Government for most of that time when no reform was progressing. To somehow lay the burden for not producing any new limitation legislation at the foot of the Labour Party for all time is grossly unfair and inaccurate, and it really does not wash. As the shadow Attorney-General, David Parker, said, Labour supports the bill. It is timely. It is the product of careful thought by the Law Commission. We respect the Law Commission, and during our last term in office implemented a large number of measures that originated from the commission. The bill is a good one and I commend it to the House.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
Before I call the next speaker I say now that I should have said in response to the Hon Trevor Mallard that one would hope that this House continues to strain for the highest possible standard on every occasion, not just on some.
Dr KENNEDY GRAHAM (Green) Link to this
I rise to support the Limitation Bill being referred to the Justice and Electoral Committee. I believe Green Party members share the view expressed just recently by the Attorney-General that this is a great day for black-letter law. The existing Limitation Act 1950 is in an advanced state of putrefaction, and, as he put it, the surgery now required is beyond the reach of the judiciary, so it falls to the legislature to clear up the matter—and that, indeed, is overdue.
The bill sets up a new regime for time limitations for civil claims in the courts. The current law in the Limitation Act has been widely and trenchantly criticised by the Law Commission and by the courts as being unfair, outdated, and uncertain. In addition, some of the important terms were left undefined. The bill therefore seeks to tidy up the civil limitation laws to make them clearer, more equitable, and more accessible. We see, certainly, six key measures that are highly desirable: first, retaining the current 6-year limitation period for most claims; second, providing for exceptions or modifications to the general limitation period in cases of minority, incapacity, acknowledgment or part-payment, and fraud; third, providing for a 3-year late knowledge period, replacing the phrase “reasonable discoverability”, which is somewhat dense; fourth, the provision of a longstop final limitation period of 15 years in most instances; fifth, the clarification and simplification of the current laws and rules for land claims; and, sixth, giving the court or tribunal discretion to order that monetary relief may be granted in respect of a claim of sexual abuse of a minor, or to enforce arbitral awards or ancillary awards, even though a general limitation defence has been or could be established against the claim. The bill in general is based on the Law Commission recommendations, and the key proposals seem to us eminently reasonable. As such, we support its referral to the select committee.
We do have one area of concern, and that pertains to clause 26 concerning Māori customary land claims. We recall the quite tortuous and somewhat opaque legislative history commencing with the Maori Affairs Act 1953. Section 155 of that Act prohibited the enforcement of customary law interests against the Crown. It was repealed 40 years later, in 1993. Further legislation, which was repealed, made it clear that the repeal of that section did not apply to the Crown. So we are left in a somewhat uncertain legislative situation, which can pose difficulties for the way the Waitangi Tribunal conducts its investigations, particularly in respect of the date on which a claim may be based, and in respect of the question of the onus of proof. I do not think we are about to resolve those rather arcane issues here in the first reading, but I do think it requires considerable scrutiny in the committee and it will be our intention to explore that, pertaining to customary Māori land rights. With that reservation signalled, we have considerable pleasure in supporting this bill. Thank you.
Hon TARIANA TURIA (Co-Leader—Māori Party) Link to this
Tēnā koe, Mr Assistant Speaker. Tēnā tātou katoa. The Limitation Bill is part of a recurring theme around updating legislation in such a way as to ensure it is clearer, more comprehensible, and more accessible. The legislation also wears the influence of the Law Commission. The Law Commission, in its 2007 report Limitation Defences in Civil Claims, recommended many of the changes that are set out in this bill.
The Māori Party has a special interest in one clause, clause 26, which we would turn to for any explanation of how the limitation defence rules apply for Māori customary land. Clause 26 gathers together all of the rules concerning Māori customary land into one provision. Although we are happy for the legislation to be updated, we have some concerns around clause 26. The problem is not about the clustering of provisions into one place; it is more fundamental than that. It is about the purpose of having such a clause included at all. We do not believe that there should be any limitation periods applied to Māori customary land claims. All limitation periods pertaining to Māori customary land need to be removed. They should not be there, and this is a chance to make that change now. In practice, the limitation provisions are yet another mechanism by which Māori customary land can become Crown land, and we have had a lot of experience of that.
Clause 26 of this bill specifies that nothing in the Act should limit or affect section 344 of Te Ture Whenua Maori Act 1993. In effect, this means that Te Ture Whenua Maori Act takes precedence, and this should not change.
Although the bill has sought to clarify provisions of when the time period starts to run, it is not always simple, because of the complexity of Māori land law and management. It is not always clear what is and what is not customary land. There have been many instances where Crown assumptions of statutory extinguishment do not hold up under investigation; the foreshore and seabed legislation is perhaps the most well-known example. These are issues for the Waitangi Tribunal to investigate, or for further dialogue with hapū and iwi, without limitation. Because of this, it becomes very problematic to put a time limit on the claims. It gives the Crown the advantage, which, in the interests of justice, it should not have.
The Māori Party considers that the general philosophy needs to be different. The philosophy might be that when it comes to matters of Māori customary land, the conditions for the ongoing Crown-Māori Treaty relationship are prioritised, not subject to a limitation date. It is through that Treaty relationship that matters can be continuously worked at so there is time to discuss and work through new matters as they come to attention. This is a key issue for discussion at the select committee, and the Māori Party looks forward to participating further in that debate. In order to enable the debate to proceed, we will be supporting this bill at its first reading.
SIMON BRIDGES (National—Tauranga) Link to this
It is a pleasure to take a call on the Limitation Bill and to talk about what is—
I agree with the member; it is about a small, discrete issue. Nevertheless, the bill is very important in terms of the rule of law. It has been interesting to listen to other speakers in this debate. I agree with them that there is a tension in this area between, on the one hand, the interests of the putative claimant who wants to bring his or her claim for ever and eternity, and, on the other hand, the interests of the defendant who wants there to be certainty and finality. But when one gets away from the individual players, one finds there is indeed also a higher purpose and principle involved here, which fundamentally concerns the rule of law. I will touch on that shortly.
But, firstly, I will talk about someone who knows, it seems, quite a lot about limitation periods: the Leader of the Opposition, Phil Goff. My reading recently has made it quite clear to me that he knows his limitation period is not 6 years, as it is in this bill, but in fact 3 years. That has been made quite clear in recent writings. One senior Labour MP said “We had a pact. It was for the full three years.” Another former Labour Minister, who was at the Cabinet meeting that was said to have been held, also said there had been a pact. So it is quite clear that the Leader of the Opposition has a 3-year limitation period. Of course, that does not mean that his time will not expire before then, and that is a critical point in relation to limitation periods. It is about the limits, the outside limits, and Mr Goff may not reach that period. As I say, it is quite clear that Mr Goff should be speaking in this debate. He is someone who knows a lot about having not a self-imposed limitation period but a party-imposed limitation period if things do not go well.
I will say the concepts and principles involved in this bill are very important, then I will touch on the practical aspects. But I now come back to another debate that is being held here between the Attorney-General—
The members opposite know that what I am saying has a little ring of truth to it. They have read the Listener article, as well. There were a lot of other interesting points in that material. I can tell that Opposition members want to read it. I liked what Phil Twyford had to say—
Jacqui DeanHe said: “We allowed ourselves to be associated with a set of reforms that really provoked the right wing, because the family and gender relations and parenting are the inner sanctum of the—”
Hon Steve Chadwick Link to this
I raise a point of order, Mr Speaker. The member is clearly not referring to this Limitation Bill that we are debating in the House. I wish he would stick to the bill.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
The member is correct. This debate should be within the confines of the bill. The member is entitled to make points that are outside it or draw them in briefly, but that should not be the substance of the member’s speech. The member will continue.
I will talk about the concepts involved with limitation law. Before I do that, I come back to a debate between the Attorney-General and Charles Chauvel from the Opposition. The Attorney-General is quite right when he says this bill has languished. It is an issue that has languished. We have had three reports from the Law Commission, in the 1980s, the 1990s, and the 2000s, yet the previous Labour Government was more interested in electoral finance reform—let us be charitable to it—than in dealing with the real issues.
I am happy to say those are the Attorney-General’s lines, and quite right they are, as well.
The concept here in this bill is very important, because court adjudication really is the ultimate means of enforcing rights. It is the mainstay of any system governed by the rule of law, yet what we must also factor in here is that the prospect of litigation also creates substantial uncertainty: uncertainty for the defendant who is yet to know whether a claim will be brought. That can weaken the rule of law, because people cannot fully enjoy their rights. Yes, the issue is about the claimant and the defendant and their interests, but there is also a point here about the rule of law, because, fundamentally, people have the right to have some certainty in the law, to know what they are up against, and to not go on indefinitely with uncertainty, wondering about what may come and what the legal position may be. So there is a strong public utility in ensuring that the possibility of initiating litigation is not open-ended. In practice, of course, this means time limits and the limitation period, and in this bill a limitation period of 6 years has been chosen.
There are other tensions involved, not just between the claimant and the defendant but also between finality and the truth. When we put a limitation period in, we are saying that is it and no one can go past it. We are saying it does not matter about the merits of the case and we do not want to know the truth; we want finality. Those two values come in and clash with each other in relation to limitation law. I think this bill gets the balance quite right with a limitation period of 6 years. Six years is a period known to our law in this country, and it is right here.
Something else that I will touch on, while I am talking about principles and concepts, is the issue of resources and the consideration of resources. The courts, like other public bodies that we deal with, whether they are ones in the hospital sector or the education sector, have limited resources. So it is reasonable, when putting parties through the not insubstantial—and often exceptionally expensive—process of litigation, that we do it on the basis of fresh disputes. It is reasonable that we litigate on disputes where people can still remember with accuracy what happened, where the documents are still there, and where everything is still as it should be, rather than trying to litigate grievance issues that are quite old and have been around for some time. That raises another point: the rectitude of the outcome, which is very important. That is the necessity that we have claims and cases going to court where the evidence is fresh and has not eroded.
Those are some of the principles in this area. I will also touch on the practicalities of this legislation. I agree with the member Charles Chauvel and what he has said here, which is that this bill is about fairly nuts and bolts stuff. It is pretty practical in its application to legal claimants and defendants, so that they know whether cases can be brought. A lawyer worth his or her salt really knows that the first question he or she has to ask is whether a matter is statute barred and whether the parties are out of time, because if they are it is all over and there is no examination of the merits of the case.
Finally, I say quite clearly this situation is not like the matters shown in Cold Case. This bill does not apply to criminal cases, so it is not about situations like those shown in that programme, where the characters go back and solve murders that occurred many years ago. This bill applies only to the civil sphere. I think we as a society make the clear policy choice that we feel we can and should limit civil claims. But certainly, truly criminal matters, such as murder and the likes of it, are much more serious matters, and we do not have a limitation period applying to them, although the courts can and do issue stays of proceedings for exceptionally old cases where the evidence has eroded too much.
This is a good bill, it is a solid bill, and it is a significant bill. It is not just about the individual participants; it is also about the rule of law. As we have also seen, it is quite clear that Mr Phil Goff, the Leader of the Opposition, knows a little about limitation periods, as well. His period is 3 years. It will be interesting to see what follows it.
LYNNE PILLAY (Labour) Link to this
It is a pleasure to stand and speak on the Limitation Bill. I will talk a little bit about the history of this bill, because the previous speaker—
Yes, I will remind the member. I see Chris Finlayson, who I know was part of the reference group under the Labour Government while the Law Commission report was being considered. I think it is a bit rich for Simon—
—Mr Bridges; Simon Bridges—to stand in this House and say that the previous Labour Government did nothing on the issue. I think that the National Government could become quite renowned for its practice of racing bills through the House and not ensuring that consultation takes part. In fact, I do not think the National members understand the word “consultation”. We have seen so many examples of that. My goodness! We are seeing the result of it with the super-city proposal, are we not? Those of us who have been on select committees from time to time will have heard the absolute surprise in the chairperson’s voice when saying how great it is to have people coming along to make comments on the bill. It is absolutely ludicrous that the members on the other side of the House do not accept that it is appropriate that a bill gets the appropriate consultation before it gets to this stage. The Limitation Bill should undergo the scrutiny of the Law Commission with many people out there in the community and within the law fraternity, and a reference group should consider it really carefully.
I note that the bill is being referred to the very hard-working Justice and Electoral Committee—
Yes, that is right. There is a lot of work before the committee. I assure everyone in this House that the Labour members on the committee will ensure that this bill is very, very carefully scrutinised, and we will listen very carefully to the points that are made by the submitters.
I have talked very briefly, but I would like to go over the background again. The consultation on the draft bill happened only in December 2007. Again, I acknowledge the Law Commission and the hard work it does; its recommendations were published for comment in December 2007. Some significant issues were raised during that consultation period, and as we know—well, we certainly know on this side of the House—consultation is worth its weight in gold. It flushes out problems or unforeseen circumstances that may arise. I know it is not a view that the Government holds, but it is very important. In this case it was deemed important enough for the Law Commission to convene a working group of key submitters and stakeholders. I think that the Hon Chris Finlayson—correct me if I am wrong; I think I see him nodding there quite proudly—
He was there to help the Labour Government, and he worked very hard and put a lot of time into it. So I know that Chris Finlayson sees this bill as the culmination of much work that was done over a considerable period. From what I have been told, I believe the working group’s review resulted in the proposed new rules being restructured and refined, and made simpler, clearer, and more comprehensive.
In summary, what does the bill do? It provides clearer and more comprehensive law on general civil limitation defences. One thing I will say is that it is about getting that balance, it is about the right of people to take claims, and it is about justice being served. But it is also about not letting stale claims just hang about and not be redressed. I think that for everybody, whichever side they are involved on or sit on, a degree of clarity and certainty is very important. This bill should—and the select committee will scrutinise whether it does—balance fairly the rights of claimants to have access to justice with the rights of defendants to not be disadvantaged by stale claims hanging around for long periods of time.
The bill also makes some substantive improvements to the law on general civil limitation defences. As has been said, it repeals and replaces the Limitation Act 1950. It provides general civil limitation defences to certain other claims, including claims in respect of lands and goods. It makes the start date of the primary limitation period for most claims the date of the act or omission on which the claim is based, rather than the date of accrual, which is sometimes very difficult to identify. For almost all claims it retains the current primary limitation period of 6 years. It provides for exceptions to those periods for cases involving minority, incapacity, acknowledgment or part-payment, and fraud. For money claims and certain other claims—for most of which time runs currently, even if they are not reasonably discoverable—it introduces a 3-year late knowledge period. It can apply if the claim is made after its primary limitation period and the claimant has late knowledge of the claim.
I see the members of the Justice and Electoral Committee looking quite excited about this bill coming before them. I know that all members will pay very strong attention to it.
It certainly is important as that bill. In the last Government the committee talked about the Sentencing Council Bill, which was a very important piece of legislation before the Justice and Electoral Committee. It was based on a Law Commission report and was an excellent piece of work. Very sadly, one of the first actions of the National Government was to disestablish the Sentencing Council, which would have given a lot of transparency and clarity to sentencing. That saddens me; it meant that a lot of the work that was done at that time by the Justice and Electoral Committee, which was chaired by a very good chair, was a waste of everyone’s time. Sadly, something that would have put a lot of consistency into our justice system did not happen.
However, this afternoon we are here to talk about the Limitations Bill. I strayed for a moment, but not as much as the previous speaker, Simon Bridges—not nearly as much. I look forward to this bill coming back to the House. I am absolutely sure that, even with the consultation, and even with the working group and the reference group, which worked very comprehensively on the bill, through the submission process something will be brought to the committee’s attention that may well improve the bill or flush out something that had not been noticed before. I really look forward to that.
I have nothing more to say about this bill, except that I look forward to its being referred to the Justice and Electoral Committee, where it will receive the full scrutiny that it deserves.
PAUL QUINN (National) Link to this
I acknowledge the very kind compliments that my colleague Lynne Pillay, who is the senior member of the Opposition on the Justice and Electoral Committee, paid to all the members of the committee on their diligent and committed hard work. I will say that committee runs a very close second only to the Māori Affairs Committee in terms of its camaraderie and members’ respect for one another. We look forward to that continuing, of course, driven by the outstanding chairmanship and leadership of that wonderful gentleman Chester Borrows. I, along with my colleague Lynne Pillay, in terms of the very fine remarks that she has made, acknowledge the committee.
Unfortunately, those are about all the fine remarks that Lynne Pillay made. She started off by talking about consultation, in terms of this Limitation Bill that we are going to send to a select committee. But I recall something called the Electoral Finance Act.
Who was the committee chair who rammed that legislation through, ignoring all the input, and who then by his own words “mea culpa”—I think “mea culpa” were the words the shadow Attorney-General used—bared his soul before this House for having rammed that nasty piece of legislation through? It was probably the worst piece of legislation that has been put through this House, closely followed by the Foreshore and Seabed Act. I ask the honourable member across the House where the consultation was on that. Does the member remember the foreshore and seabed legislation? Where was the consultation on that? I am advised—I was not aware of it—of another piece of legislation: the building legislation. Apparently the consultation on that legislation was such that the Standing Orders were suspended for the first time in 15 years. So all I say to my friend and colleague in the Opposition is that when we use words like “consultation”, we had better make sure we are lily-white before we actually start to throw around accusations. That is all I would like to say on that.
I now return to the Limitation Bill. To put things in perspective, it is worth acknowledging that the current 1950 Act stemmed from the original English law, the Limitation Act 1939, and it was from that Act that our current statute, the Limitation Act 1950, was derived. Like the Sentencing Council, that legislation has had its day. The reason we moved on from the Sentencing Council, which the previous speaker referred to, was that it was past its use-by date. In the same way, the Limitation Act 1950 is past its use-by date.
I think it is appropriate to reflect on a bit of the history, as some of the speakers have done—and on the fact that there have been three Law Commission reports on that Act. I do not want to conjecture or comment on why the previous administration took so long to act on this issue; previous speakers have covered that sufficiently. More important, I would like to refer to two or three cases that have highlighted—and where the justices have raised—issues about the legislation. I refer, of course, to a case in 2004, P F Sugrue Ltd v Attorney-General,in which the Court of Appeal passed a judgment about the fact that monetary relief did not come under the gambit of the Limitation Act 1950. Another case in the Supreme Court in 2008, Thom v Davys Burton, referred in the judgment to the date of accrual, or the commencement date, in terms of any claims.
The other case I want to refer to is Murray v Morell & Co Ltd, which was a Supreme Court case in 2007, and I will give a couple of quotes from the justices there. Blanchard J made the comment: “It is notorious that the New Zealand law concerning limitations is long overdue for reconsideration. It is to be hoped that Parliament will soon have the opportunity of giving it some attention.” Tipping J in the same case, and I think this is worthy of my friend and colleague Parekura Horomia’s ears, said: “What is required in New Zealand, and has been required for some considerable time,”—he is not referring to a National Government; he carries on to say—“is a complete legislative overhaul of the Limitation Act. All of the competing interests can then be fully considered and reconciled. Piecemeal attempts by the Courts to cure the difficulties with the present outdated legislation have already created their own difficulties and have produced a distinct lack of harmony in the areas being addressed. The surgery now required is beyond the proper province of the courts.”
It is these sorts of comments that have led our outstanding Attorney-General to take up the challenge that was left on the table for so long by the previous administration and to deal to this issue. It is one thing to claim that one thought about the idea; it is the ability to actually get something done that counts. Thoughts count for nothing. It is like Parekura’s All Black team; it is the actions that count, I say to my friend. I say this Government is about actions, not about thoughts. We have shown the leadership that the All Black team lacked the other day. The issue is about showing leadership on the Government side of the House. We are acting on this issue. We have turned our attention to the some of the specific issues that have been raised in those three judgments and by the Law Commission in its three reports. Like all things, we have to bring the legislation into modern times and refresh it so that it is applicable to the modern day that we face today.
The bill tidies up conflicting issues that various judgments through time have raised and, as a number of the speakers have referred to, it responds to the fact that evidence does deteriorate over time. When people sit on a claim because they think there might be leverage in doing that or it might be to their advantage to do so, that can impact on other people’s lives or on the activities of companies or commercial entities. This legislation tells people that if they have something they are going to actually take a claim about, they should get on with doing that. It tells them they should not pester other people in their lives but just get on with proving their case up and down. It may well limit in future the opportunities for lawyers to drag cases out, but what really counts here is justice for people. What this legislation now does—because we are behind the people—is to provide solid and sound justice for people. The legislation says lawyers should get on with it, and not dilly-dally around.
With those few words, I say it has been a pleasure to be able to stand here and support the first reading of this bill. Thank you, Mr Assistant Speaker.
JACINDA ARDERN (Labour) Link to this
It is my pleasure to have the opportunity to speak on the Limitation Bill. I intend to speak on some of the substantive matters in it; to my disappointment, not all of my colleagues from across the House have done the same. In fact, I was somewhat disappointed on hearing the majority of my colleague Simon Bridges’ speech; I expected a little more from Mr Bridges, as a lawyer, particularly in terms of his level of analysis and particularly given that he seems, if his pace is anything to go by, to be paid by the word. Perhaps he will do more next time. I was pleased to hear also the speech from Minister Finlayson, in particular when he gave us an education on his great knowledge of Latin. I find it particularly ironic, when we are talking about the simplification of a bill, to hear such a large amount of Latin in one speech. I enjoyed it none the less, although I have to say that Mr Guy seemed somewhat confused through most of the speech.
But I will go back to the bill. As my colleagues have pointed out, this bill has been in the pipeline since 2007. In fact, it was in the pipeline well before that. As I believe Mr Chauvel pointed out, there have been three Law Commission reports on the subject since the 1980s. Based on that fact, it is somewhat disingenuous for anyone from across the House to say that one particular party is to blame for the length of time that this bill has taken to come before us. Sir Geoffrey Palmer’s words probably reflect the general feeling across the House towards the substance of this bill: “It has been a long and tortuous journey to reform the limitation law of New Zealand”. That long and tortuous journey has continued while both sides of the House have been in Government, so I think we should be clear that this has been a lengthy journey, and it is not useful to place blame on either side of the House.
This bill amends the Limitation Act 1950, although the explanatory note of the bill states that that Act closely mirrors the UK Limitation Act 1939. So perhaps we are going back to some issues from well before 1950.
Members have talked about the importance of this bill and the substance contained within it, but I want to focus on a particular section of the bill today. In the explanatory note reference is made to the exceptions for when particular sets of limitations apply. One of the exceptions is based on age—the age of majority. It is clearly set out in the explanatory note that the old law stated that if a claimant “is under 20 years”, then quickly followed on with “or of unsound mind”, certain exceptions existed. That aspect of the law has changed quite significantly in the new bill we are discussing. I want to spend some time talking about that change, because I think it is significant and goes beyond just this bill itself.
Let us reflect on the relevant provision, which is clause 42. The explanatory note states, in relation to clause 42: “If, at the close of the start date of a claim’s primary period, longstop period, or Part 3 period the claimant was younger than 18 years old, the period does not start to run until the day after the date on which the claimant becomes 18 years of age.” Then it goes directly on to suggest how this is different from the current law: “By contrast, current law … deems an infant (that is, under section 4(2) of the Age of Majority Act 1970, a person younger than 20 years old)) to be under a disability.” So it can be seen that we are doing two things here. We are modernising the law to reflect the fact that people under the age of 20 are deemed to be an adolescent or a child, and not necessarily to be under a disability, and I think it also simplifies the law.
But we see that the outcome is different from what the Law Commission recommended during its review. The Law Commission said in paragraph 151 of its report, relating specifically to the issue of minority: “NZLC R6 recommended an extension of time which can be expressed as deferring the start date until the date the plaintiff obtains majority.”, majority again being set out in the Age of Majority Act 1970 as being 20 years of age. “NZLC R61 recommended no change to the present law, namely that time does not start running against a minor until majority, so that the cause of action does not accrue until the disability period has ended.” Of course, “disability period” means, if one is under 20, until one reaches that age. Paragraph 152 of the report states: “It is recommended that the recommendation in NZLC R6 be adopted in the case of minority. It is recommended the start date be the date majority is attained.” Let us be clear here: the New Zealand Law Commission said that for the sake of consistency in our law, we should refer back to the Age of Majority Act 1970, which says that the age of majority is 20. That was the recommendation from the New Zealand Law Commission. This bill has instead said explicitly that the age of majority should be 18.
In order to be clear, I think it helps to go to the clause itself rather than read the explanatory note. Clause 42 states: “If the claimant proves that, at the close of the start date of a claim’s primary period, longstop period, or Part 3 period the claimant was younger than 18 years old, the period does not start to run until the day after the date on which the claimant becomes 18 years of age.” Clearly we have strayed from cross-referencing to the Age of Majority Act and saying that 20 years is the point at which these limitations will kick in. Instead, we have said they will kick in at 18 years. That difference is significant for several reasons, the main one being the consistency issue. In New Zealand legislation we have consistently moved around the point at which we consider a young person to be an adult in the eyes of the law. Contract law refers to the Age of Majority Act 1970 and it is clear that it is 20; it is quite clear for that legal purpose. One would have thought that if under 20 one cannot enter into a contract, yet the Limitation Act applies when one is 18, then we have again created an inconsistency in law.
Where are these other inconsistencies? I am keen to review some of them because I think we will come up against this issue time and time again. Currently the Social Services Committee is looking at youth justice law, and it has highlighted the fact that we consider a person to be young if that person is aged 17 years or under—not 18 years. Again we have created an inconsistency, and it also flies in the face of the United Nations Convention on the Rights of the Child, which sets out clearly that the expectations on the New Zealand Government is that it treats a young person as young at 18 years or under. This issue exists not just in our youth justice system, where we now have 17 as the cut-off age; it is my understanding that we may look again at the drinking age. Currently it sits at 18, but debate exists on whether it should be moved up to 20. The age of voting is 18. Under the domestic violence law one is considered a child until age 17. Depending on where one’s parents sit on the issue of marriage, one can be married at 16 years.
It is high time that we in this House made a decision as to at what point a young person is a young person and at what point he or she is an adult. The Government has clearly flagged here, by setting aside the recommendation of the New Zealand Law Commission, that it thinks that point is age 18. If that is the case, that age should apply in our youth justice system as well. If that is the case, it should apply in the way we treat our alcohol legislation. If it is not the case, then is 20 the age for everything? I think there is a very clear principle here: we have to decide when we want to treat children as children and adults as adults. If we are going to put contractual obligations on people at 20 years and everything else at 18 years, I think there is an inaccuracy that needs to be rectified.
I look forward to having a little more discussion on this issue at the select committee, which I am privileged to be a part of. I also look forward to having this debate in the House, because I think it is time we had it. I assure members that I will be bringing up this very issue again when the youth justice bills come before the House.
CHESTER BORROWS (National—Whanganui) Link to this
I wish to take a relatively short call on the Limitation Bill in order to make two or three points. The key message of the bill will be to provide a clearer and more comprehensive law on civil limitation periods that will be more accessible to New Zealanders. The bill seeks to achieve a balance between the competing right of access to justice and the right of defendants not to be accountable for stale claims. Of course, that is concerned totally with the idea or the theme of fairness. I can think back to a number of matters that I have worked on over the years that were bound by limitation periods. There are statute limitations on various statutes within our criminal law and other statutes that my friend Jacinda Ardern just referred to. Some of them are very easy to explain. For instance, in the Crimes Act there is no statute of limitations on crimes. Under the Transport Act, for instance, there is a limitation of 6 months on bringing a charge. That is because it is unfair to expect a driver to remember something that occurred when he or she was driving between Ikamatua and Reefton at 10 o’clock on a Sunday 3 years ago. So it is a matter of fairness.
In thinking about this Limitation Bill, which relates to a civil limitation on offences, I believe that it is easy to see where some people can get caught out. For instance, many of the members of the public who are listening will have bought and sold a house over time; fairness is easy to explain in relation to that. During the course of the sale and purchase of a house, one signs a sale and purchase agreement. The fine print on that agreement reassures the purchaser that a number of things have been done and a number of pieces of law have been complied with. One of those particular things, for instance, is that any alteration to the house that required a building permit had a building permit at the time the alteration was done.
I recall representing the respondent in one of those matters, and I felt very much that I was on the wrong side of it. There was a definite tension there. The people I was representing had sold a house that was built about 1910, and a number of alterations had been done to it. At the time they signed the sale and purchase agreement, the vendor, who was not the person who had done the work on the house but who was the owner at the time that work was done, signed that building permits had been obtained, because that vendor believed that the building permits had been obtained. On inspection of the house, the would-be purchaser must have noted that there was a mezzanine floor on a standard, circa 1910 villa in New Zealand, where none had ever existed. The ordinary plans of that house were replicated hundreds of thousands of times for houses all around the country, and the people I was representing had never bothered to go to the local district council and look for the land information memorandum or some sort of proof that those building permits had been obtained. So there is a real tension between the “buyer beware” side of it and the ability of vendors to get out of the tentacles reaching down through the years and pulling them up for something that in this case they had no real knowledge of, even if they probably should have.
Within the limitation periods of the bill, then, a number of things relate to fairness. In fact, I would argue that most of it is all about fairness, in those competing tensions between access to justice and the right of defendants not to be accountable to stale claims.
The ability in the new bill to have extended periods based on awareness—when someone should have been aware, or was made aware—of certain vulnerabilities to people in respect of a contract, of the way of the law, or of the law impacting on them down the track, is something I am pleased to see in this bill. I have felt that in some of the cases I have been aware of, it is difficult to feel entirely comfortable with people hiding behind a statute of limitations when anyone looking at it fairly coldly, and maybe with a moral set of eyes, would say that there should still be some ability for someone who has been caught purely by a limitation lapse from taking any action to be able to do that. The ability to extend the period, based on the factual scenario that the person exposed to whatever the vulnerability was within the contract should have been aware of it, is a good thing. I note that that can extend as far back as 15 years in respect of the longstop provisions ensuring certainty against stale claims, and a number of applications run down through the law there.
I want to mention one other thing, which I mention because it relates to constituents of mine. That is a recent judgment in the Keith and Margaret Berryman matter. That case is no longer before the court because it has been decided, and the only application it has in respect of the Limitation Act is that the Act is referred to a number of times throughout the judgment. I am not making any comment on the decision, or on the likelihood, if the Limitation Act did not apply, of any success or otherwise, but they are people who over a long period of time have been the subject of a significant inequity of arms as they have tried to get some sort of settlement from the State. The case is something that is fairly raw in the minds of rural New Zealanders in particular, and of people looking at their situation from a principal of fairness.
A bridge was built by the army in 1986 on a public road that accessed the Berrymans’ land as part of an army exercise. The bridge eventually collapsed in 1994, and it has been the subject of a lot of debate and political debate. At the by-election in 1998 the would-be Prime Minister Helen Clark stood on the bridge and said that she promised to have that matter settled by Government. In actual fact, it went nowhere near that. There was a sum offered that was nowhere near what the Berrymans thought they needed to have as a result of the continued litigation initiated by them. Because of the processes around the inquest and the prosecution by the Department of Labour under Occupational Safety and Health Service regulations, they found themselves before the court, and they used up a vast quantity of their reserves. They now find themselves in a position where they are old and minus a large number of the reserves that they had put aside for their old age.
From my point of view as their local member of Parliament, and as someone with a little bit of experience in civil law, it is difficult to see how they have been treated fairly. It is an awful shame to see that a lot of their ability to continue making their argument is prevented by the run-out of limitation periods within the Building Act and the Limitation Act. I think it is a real shame that this matter was not dealt with by the previous Labour Government, and I hope that we can get some sort of settlement between the Crown and the Berrymans, these constituents of mine, who are getting elderly and who are finding this a real suppurating sore in respect of their history and their willingness to more on. Thank you.