Limitation Act 2005 (WA)

Western Australia Limitation Act 2005 Western Australia Limitation Act 2005 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Interpretation 1 4. Application of limitation periods under this Act 1 5. Actions other than personal injury actions do not revive 1 6. Personal injury actions — accrual, limitation periods 1 6A. Special provisions for child sexual abuse actions: no limitation period 1 6B. Special provisions for subsequent action in respect of subsequent dust disease: no limitation period 1 7. Special provisions for certain personal injury actions relating to childbirth 1 8. Special provisions for certain defamation actions 1 9. Limitation periods under other written laws 1 10. Application to Crown 1 Part 2 — Limitation periods Division 1 — Preliminary 11. Limitation periods under this Part are extendable etc. under Part 3 1 12. When actions commence 1 Division 2 — General limitation period 13. General limitation period — 6 years 1 Division 3 — Limitation periods for particular causes of action 14. Personal injury, Fatal Accidents Act 1959 actions — 3 years 1 15. Defamation — one year from publication 1 16. Trespass to the person etc. — 3 years 1 17. Contribution between tortfeasors — 2 years 1 18. Deeds — 12 years 1 19. Recovery of land — 12 years 1 20. Money secured on real property or on real and personal property — 12 years 1 21. Interest secured on real property or on real and personal property 1 22. Interest secured on personal property 1 23. Possession — 12 years 1 24. Foreclosure — 12 years 1 25. Redemption — 12 years 1 26. Accounts — limitation period for the basis of the duty to account applies 1 27. Equitable actions (not analogous to other actions) 1 28. Tax mistakenly paid — 12 months or as provided under other Act 1 29. Arbitration — limitation period for corresponding civil proceeding applies 1 Part 3 — Extension or shortening of limitation periods Division 1 — Extension for persons under 18 years when cause of action accrues 30. Limitation periods applicable to persons under 15 when cause of action accrues 1 31. Limitation periods applicable to persons between 15 and 18 when cause of action accrues 1 32. Suspension of time while person under 18 is without guardian 1 33. Defendant in close relationship with person under 18 when cause of action accrues 1 34. Defamation 1 Division 2 — Extension for persons with mental disability 35. Suspension of time while person with mental disability is without guardian 1 36. Defendant in close relationship with person with mental disability 1 37. Defamation 1 Division 3 — Extension by courts 38. Court may extend time to commence actions in cases of fraud or improper conduct 1 39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959 1 40. Court may extend time to commence defamation actions 1 41. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian 1 42. Court may extend time to commence action by person with a mental disability, with guardian 1 43. Jurisdiction and procedure 1 44. Further matters for court's consideration on extension applications 1 Division 4 — Extension or shortening by agreement 45. Agreement to extend or shorten limitation period 1 Division 5 — Extension by confirmation 46. Meaning of confirmation 1 47. Limitation period extended by confirmation 1 48. Formal requirements for acknowledgments 1 49. Who has benefit of confirmation 1 50. Who is bound by confirmation 1 51. Effects of certain kinds of confirmation 1 Division 6 — Extension of limitation periods — other matters 52. Persons with mental disability under 18 when cause of action accrues — most beneficial limitation period applies 1 53. Limitation period in case of death of certain persons if cause of action accrues to certain other persons 1 54. Arbitration — extension of limitation period 1 Part 4 — Accrual of particular causes of action Division 1 — Accrual of certain causes of action other than to recover land 55. Personal injury — general 1 56. Asbestos or silica dust related diseases 1 57. Survival of certain actions 1 58. Contributions between tortfeasors 1 59. Debts repayable on demand 1 60. Successive wrongs to goods 1 61. Equitable interests 1 62. Future interests of beneficiaries under trusts 1 63. Matters referable to arbitration 1 64. Arbitral awards 1 Division 2 — Accrual of certain causes of action to recover land 65. Adverse possession 1 66. Dispossession or discontinuance 1 67. Deceased in possession 1 68. Grantor in possession 1 69. Future interests in land 1 70. Forfeiture 1 71. Rent wrongly paid 1 72. Tenancies 1 73. Beneficial co-owners of land 1 Part 5 — Effect of expiration of limitation period 74. Time to commence actions may be extended despite extinguishment of rights 1 75. Extinguishment of right and title to land 1 76. No title by adverse possession against Crown 1 77. Future interests in land 1 78. Provisions in case of land held on trust 1 Part 6 — Miscellaneous 79. Burden of proof 1 80. Grounds in equity upon which to refuse relief preserved 1 81. Counterclaims — commencement 1 82. Joint causes of action 1 83. Joint liability 1 84. Formal entry and claim 1 85. Other beneficiaries 1 86. Limited right to recover tax 1 87. Limited operation of certain court orders as to refund of tax 1 88. Arbitrations — commencement 1 Part 7 — Transitional provisions Division 1 — Provisions for Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 89. Terms used 1 90. Application of section 6A 1 91. Previously barred causes of action 1 92. Previously settled causes of action 1 Notes Compilation table 1 Defined terms Western Australia Limitation Act 2005 An Act to provide for time limits for commencing civil legal proceedings and arbitrations, and for related purposes. Part 1 — Preliminary 1. Short title This is the Limitation Act 2005. 2. Commencement This Act comes into operation on the day on which it receives the Royal Assent. 3. Interpretation (1) In this Act — action means — (a) any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise; or (b) an arbitration under an arbitration provision, but does not include proceedings for certiorari, mandamus, prohibition, habeas corpus or quo warranto except in sections 28, 86 and 87, in which it includes proceedings for certiorari, mandamus, prohibition or quo warranto; arbitral award means the resolution or determination by an arbitrator of a difference or matter referred to arbitration under an arbitration provision; arbitration provision means — (a) a provision of an agreement to refer present or future differences to arbitration, whether an arbitrator is named in the agreement or not; and (b) a provision of any written law requiring or permitting the determination of any matter by arbitration or relating to such an arbitration; commencement day means the day on which this Act comes into operation; defendant means a person against whom an action is brought or proposed to be brought; extension application means an application under section 38, 39, 40, 41 or 42; future interest means an estate in reversion or remainder or other vested or contingent interest in property which is yet to entitle immediate possession of the property; guardian, in relation to a person who is under 18 years of age when a cause of action accrues to the person (person A), means a person — (a) who at law has responsibility for the long‑term care, welfare and development of person A before person A reaches 18 years of age; and (b) for whom it is practicable, having regard to the person's relationship with person A, to commence an action on behalf of person A; guardian, in relation to a person with a mental disability (person A), means a person who — (a) is either a guardian of person A or the administrator of person A's estate, or both; and (b) has, under the guardianship order, the administration order, or the provisions of the Guardianship and Administration Act 1990, as is relevant to the case, the function of considering the appropriateness of commencing an action on behalf of person A, and in this definition the terms "administrator", "administration order", "guardian" and "guardianship order" have the respective meanings that they have in the Guardianship and Administration Act 1990 section 3(1); income includes interest on a judgment and other interest, and includes rent, annuities and dividends, but does not include arrears of interest secured by a mortgage and lawfully treated as principal; land includes — (a) corporeal hereditaments and rentcharges and any estate or interest in those things whether freehold or leasehold and whether at law or in equity; and (b) the interest, pending sale of land (including incorporeal hereditaments) held on trust for sale, of a person having an interest in the proceeds of sale, but otherwise does not include incorporeal hereditaments; mental disability, in relation to a person, means a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia) an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person's property; mortgage includes a charge or lien on real or personal property for securing money or money's worth but does not include a possessory lien on goods nor a binding effect on the property arising under court order to seize and sell or seize and deliver the property; mortgagee includes a person claiming a mortgage through an original mortgagee; mortgagor includes a person claiming property subject to a mortgage through an original mortgagor; personal injury includes a disease, impairment of a person's physical condition, and mental disability; personal representative means a person who, for the time being, is an executor or an administrator of a deceased person's estate; plaintiff means — (a) a person bringing, or proposing to bring, an action; or (b) a person acting on behalf of a person mentioned in paragraph (a); principal money, in relation to a mortgage, means all money secured by the mortgage, including arrears of interest lawfully treated as principal, but does not include other interest; rent includes a rent service and a rentcharge; rentcharge means an annuity or other periodical sum of money charged on or payable out of land, but does not include a rent service or interest on a mortgage of land; tax includes a fee, charge or other impost; trust has the meaning given to that term in the Trustees Act 1962 section 6(1); trustee has the meaning given to that term in the Trustees Act 1962 section 6(1) and includes a personal representative. (2) In this Act a reference to the accrual of a cause of action is a reference — (a) to the accrual of the cause of action to a person (person A) to whom the cause of action accrues; and (b) where relevant, to the accrual of the cause of action to a person through whom person A claims. (3) For the purposes of this Act, a person (person A) claims through another person (person B) in respect of property or a right if person A is entitled to the property or right by, through or under person B or by the act of person B, but a person entitled to property or a right under a special power of appointment is not to be taken to claim through the appointor. (4) In this Act a reference to a cause of action to recover land includes a reference to a right to enter into possession of the land. (5) In this Act, in respect of land which is a rentcharge — (a) a reference to the possession of land is a reference to the receipt of the rent; and (b) a reference to the time of dispossession or discontinuance of possession of land is a reference to when rent first becomes overdue. (6) For the purposes of this Act — (a) adverse possession of land occurs when possession of the land is taken by a person in whose favour the limitation period can run; (b) possession of a rentcharge occurs when possession of the land the subject of the rentcharge is taken by a person, other than the person entitled to the rentcharge, who does not pay the rent; (c) adverse possession of land as against a landlord occurs, in the case to which section 71 applies, when a person wrongfully claiming to be entitled to the land subject to the lease receives the rent; (d) adverse possession of land held by joint tenants or tenants in common, as against a tenant (tenant A), occurs when another tenant (tenant B) takes possession of more than tenant B's share, not for the benefit of tenant A. (7) If an arbitration provision is, or includes, a provision of any written law, this Act has effect subject to the provision of the written law. 4. Application of limitation periods under this Act (1) The limitation periods provided for under this Act apply only to causes of action that accrue on or after commencement day. (2) This section is subject to sections 7 and 8. 5. Actions other than personal injury actions do not revive (1) An action cannot be commenced on or after commencement day if the action could not have been commenced immediately before commencement day because of an enactment that is repealed or amended by the Limitation Legislation Amendment and Repeal Act 2005. (2) This section is subject to sections 6 and 6A. [Section 5 amended: No. 3 of 2018 s. 9.] 6. Personal injury actions — accrual, limitation periods (1) Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues. (2) If, under the relevant section, the cause of action accrues before commencement day, the applicable limitation period in that case is that which would have applied before commencement day, whether or not that period has expired. 6A. Special provisions for child sexual abuse actions: no limitation period (1) In this section — child means a person under 18 years of age; child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse; child sexual abuse action means an action on a child sexual abuse cause of action; child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person. (2) Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action. (3) The following provisions do not apply in respect of a child sexual abuse action — (a) the Crown Suits Act 1947 section 6 (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 8); (b) the Limitation Act 1935 section 47A (as applying under the Limitation Legislation Amendment and Repeal Act 2005 section 4); (c) section 5 of this Act. (4) This section applies regardless of whether the action is brought in tort (including trespass), in contract, under statute or otherwise. (5) This section does not limit — (a) any inherent, implied or statutory jurisdiction of a court; or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. Note for this subsection: For example, this section is not intended to limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible. (6) A cause of action referred to in the definition of child sexual abuse cause of action does not include a cause of action, action on which could not be maintained but for the Fatal Accidents Act 1959 or the Law Reform (Miscellaneous Provisions) Act 1941. (7) The Minister must carry out a review of the operation and effectiveness of this section and Part 7 as soon as is practicable after the 3rd anniversary of the day on which the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 section 10 comes into operation. (8) The Minister must prepare a report based on the review and, as soon as is practicable after the report is prepared, cause it to be laid before each House of Parliament. [Section 6A inserted: No. 3 of 2018 s. 10.] 6B. Special provisions for subsequent action in respect of subsequent dust disease: no limitation period (1) Despite anything in this or any other Act, no limitation period applies to a subsequent action for subsequent damages in respect of a subsequent dust disease (as those terms are defined in the Civil Liability Act 2002 Part 2 Division 5). (2) This section applies regardless of whether the action is brought in tort (including trespass), in contract, under statute or otherwise. [Section 6B inserted: No. 32 of 2024 s. 9.] 7. Special provisions for certain personal injury actions relating to childbirth (1) In this section — cause of action (childbirth) means a cause of action for damages relating to a personal injury to a person that was incurred — (a) in the course of the person's mother giving birth to the person; or (b) immediately after, and arising from, the person's mother giving birth to the person, whether the birth was by way of natural childbirth or a medical procedure. (2) An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and — (a) 6 years have elapsed since commencement day; or (b) the limitation period that would have applied but for this section has expired. (3) This section has effect subject to Part 3 but — (a) sections 30 and 31 do not apply; and (b) sections 32 and 41 do not apply if the person has reached 15 years of age at commencement day. (4) For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day. 8. Special provisions for certain defamation actions (1) Section 15 applies to the publication of defamatory matter on or after commencement day unless subsection (2) provides otherwise. (2) Section 15 does not apply to a cause of action relating to the publication of defamatory matter that accrues on or after commencement day (the "post‑commencement action") if — (a) the post‑commencement action is one of 2 or more causes of action in proceedings commenced by the plaintiff; (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); (c) one or more of the other causes of action in the proceedings accrued before commencement day (a "pre‑commencement action"); and (d) the post‑commencement action accrued no later than 12 months after the day on which the earliest pre‑commencement action in the proceedings accrued. 9. Limitation periods under other written laws (1) This Act (except sections 6A and 28(3) and (5)) does not affect the operation of a limitation provision in another written law, or anything done under such a provision. (2) In subsection (1) — limitation provision includes — (a) a provision that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action; (b) a provision prescribing the time within which an action can be commenced (including a law providing for the extension or shortening of that time); (c) a provision in respect of the limitation or exclusion of liability or the barring of a right of action if an action is not commenced within a particular time limit. [Section 9 amended: No. 3 of 2018 s. 11.] 10. Application to Crown (1) Subject to subsection (2) and to sections 19(2) and 76, this Act binds the Crown. (2) This Act does not apply to an action by the Crown — (a) for the recovery of a tax or interest on a tax; or (b) in respect of the forfeiture of a ship. Part 2 — Limitation periods Division 1 — Preliminary 11. Limitation periods under this Part are extendable etc. under Part 3 (1) Divisions 2 and 3 have effect subject to Part 3. (2) Subsection (1) is subject to section 28(5). 12. When actions commence (1) In this Part a reference to the commencement of an action is a reference to the issue in the appropriate court of a writ or other originating application in relation to the action. (2) Nothing in subsection (1) affects the operation of section 88. Division 2 — General limitation period 13. General limitation period — 6 years (1) An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued. (2) Subsection (1) does not apply to an action if Division 3 provides for a different limitation period for that action. Division 3 — Limitation periods for particular causes of action 14. Personal injury, Fatal Accidents Act 1959 actions — 3 years (1) An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued. (2) An action under the Fatal Accidents Act 1959 for damages relating to the death of a person cannot be commenced if 3 years have elapsed since the death. 15. Defamation — one year from publication An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. 16. Trespass to the person etc. — 3 years An action for — (a) trespass to the person; (b) assault; (c) battery; or (d) imprisonment, cannot be commenced if 3 years have elapsed since the cause of action accrued. 17. Contribution between tortfeasors — 2 years An action for contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 section 7 cannot be commenced if 2 years have elapsed since the cause of action accrued. 18. Deeds — 12 years An action on a cause of action founded on a deed cannot be commenced if 12 years have elapsed since the cause of action accrued. 19. Recovery of land — 12 years (1) An action to recover land cannot be commenced if 12 years have elapsed since the cause of action accrued. (2) Despite subsection (1), an action to recover land may be commenced at any time if it is brought — (a) by the Crown or a person claiming through the Crown; and (b) on a cause of action which accrues to the Crown. 20. Money secured on real property or on real and personal property — 12 years An action to recover principal money secured by a mortgage of real property or real and personal property whether — (a) from any person, whether as principal, surety or otherwise; (b) by way of the appointment of a receiver of the mortgaged property or of the income or profits of the mortgaged property; (c) by way of the sale, lease or other disposition or realisation of the mortgaged property; or (d) by way of any other remedy affecting the mortgaged property, cannot be commenced if 12 years have elapsed since the cause of action accrued. 21. Interest secured on real property or on real and personal property (1) In this section — action means an action to recover interest secured by a mortgage of real property or real and personal property whether — (a) from any person, whether as principal, surety or otherwise; (b) by way of the appointment of a receiver of the mortgaged property or of income or profits of the mortgaged property; (c) by way of the sale, lease or other disposition or realisation of the mortgaged property; or (d) by way of any other remedy affecting the mortgaged property. (2) An action cannot be commenced — (a) after the occurrence of the only or later of such of the following events as are applicable — (i) the elapse of 6 years since the cause of action accrued; (ii) in the case where a mortgagee under a prior mortgage is in possession of all or any of the property comprised in the mortgage securing the interest when the cause of action accrued, and after that time discontinues possession, the elapse of one year since the discontinuance; or (b) if the limitation period provided for under section 20 for an action between the same parties on a cause of action to recover the principal money bearing the interest has expired. 22. Interest secured on personal property (1) In this section — action means an action to recover interest secured by a mortgage of personal property whether — (a) from any person, whether as principal, surety or otherwise; (b) by way of the appointment of a receiver of the mortgaged property or of income or profits of the mortgaged property; (c) by way of the sale, lease or other disposition or realisation of the mortgaged property; or (d) by way of any other remedy affecting the mortgaged property. (2) An action cannot be commenced — (a) after the occurrence of the only or later of such of the following events as are applicable — (i) the elapse of 6 years since the cause of action accrued; (ii) in the case where a mortgagee under a prior mortgage is in possession of all or any of the property comprised in the mortgage securing the interest when the cause of action accrued, and after that time discontinues possession, the elapse of one year since the discontinuance; or (b) if the limitation period for an action between the same parties on a cause of action to recover the principal money bearing the interest has expired. 23. Possession — 12 years An action to recover from a mortgagor possession of real property or real and personal property secured by a mortgage cannot be commenced if 12 years have elapsed since the cause of action accrued. 24. Foreclosure — 12 years An action to foreclose the equity of redemption of real property or real and personal property secured by a mortgage cannot be commenced if 12 years have elapsed since the cause of action accrued. 25. Redemption — 12 years An action to redeem mortgaged property (whether real or personal) in the possession of a mortgagee cannot be commenced if 12 years have elapsed since the occurrence of the only or later of such of the following events as are applicable — (a) the most recent possession by the mortgagee of the property in respect of which the action is brought; (b) the receipt by the mortgagee of the most recent payment of principal money or interest secured by the mortgage from the person wishing to redeem the property. 26. Accounts — limitation period for the basis of the duty to account applies An action for an account cannot be commenced if the limitation period for the cause of action that is the basis of the duty to account has expired. 27. Equitable actions (not analogous to other actions) (1) An equitable action cannot be commenced after the only or later of such of the following events as are applicable — (a) the elapse of 6 years since the cause of action accrued; or (b) the elapse of 3 years since time started running, on equitable principles, for the commencement of the action. (2) In this section — equitable action means an action — (a) in which the relief sought is in equity; and (b) for which (had a limitation period not been provided for under subsection (1) or section 13) the limitation period would not be determined in equity by analogy to the limitation period for any other kind of action. 28. Tax mistakenly paid — 12 months or as provided under other Act (1) An action to recover, or in relation to the recovery of, money paid by way of tax or purported tax under a mistake (either of law or fact) cannot be commenced if 12 months have elapsed since the payment. (2) Subsection (1) does not apply if another Act provides for a longer limitation period for commencing the action. (3) Despite subsections (1) and (2) and anything to the contrary in another Act, if money paid by way of tax or purported tax is recoverable because of the invalidity of an Act or provision of an Act, an action to recover, or in relation to the recovery of, that money cannot be commenced if 12 months have elapsed since the payment. (4) Subsection (3) does not apply to an action for the recovery of money that, assuming that the Act or provision of an Act imposing or purporting to impose the tax had been valid, would nevertheless have represented an overpayment of tax, if the Act provides for the refund or recovery of the money within a period longer than 12 months from the payment. (5) An order cannot be made under this or any other Act enabling or permitting an action to which subsection (3) applies to be commenced after the expiry of the period mentioned in that subsection. 29. Arbitration — limitation period for corresponding civil proceeding applies An arbitration for a difference or matter under an arbitration provision cannot be commenced if the limitation period that would apply under this Act to the bringing of a civil proceeding in a court for the resolution or determination of the difference or matter has expired. Part 3 — Extension or shortening of limitation periods Division 1 — Extension for persons under 18 years when cause of action accrues 30. Limitation periods applicable to persons under 15 when cause of action accrues (1) If a person is under 15 years of age when a cause of action accrues to the person, an action on that cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued. (2) Subsection (1) does not apply if Part 2 Division 3 provides for a longer limitation period for commencing the action. 31. Limitation periods applicable to persons between 15 and 18 when cause of action accrues (1) If a person is 15, 16 or 17 years of age when a cause of action accrues to the person, an action on that cause of action cannot be commenced if the person has reached 21 years of age. (2) Subsection (1) does not apply if Part 2 Division 2 or 3 provides for a longer limitation period for commencing the action. 32. Suspension of time while person under 18 is without guardian (1) If — (a) a person is under 18 years of age when a cause of action accrues to the person; and (b) during any time after the accrual but before the person reaches 18 years of age the person is without a guardian, the time during which the person is without a guardian does not count in the reckoning of the limitation period for commencing an action on the cause of action. (2) Despite subsection (1), an action on the cause of action cannot be commenced — (a) if the person has reached 21 years of age; or (b) in the case where Part 2 Division 2 or 3 provides for a longer limitation period for commencing the action, if that limitation period has expired. (3) This section is subject to section 33. 33. Defendant in close relationship with person under 18 when cause of action accrues (1) If — (a) a person is under 18 years of age when a cause of action accrues to the person (person A); and (b) during any time after the accrual but before person A reaches 18 years of age a defendant is a person in a close relationship with person A, an action on that cause of action cannot be commenced if person A has reached 25 years of age. (2) Subsection (1) does not apply if Part 2 Division 3 provides for a longer limitation period for commencing the action. (3) In subsection (1) — defendant includes a person for whom a defendant is vicariously liable; person in a close relationship, in relation to person A, means — (a) a person (person B) who at law has responsibility for — (i) the long‑term care, welfare and development of person A before person A reaches 18 years of age; or (ii) the day to day care, welfare and development of person A before person A reaches 18 years of age; or (b) a person (person C) whose relationship with person A or person B is such that it is in the circumstances reasonable — (i) for person A or person B not to commence an action against person C; or (ii) for person A not to wish to divulge the conduct or events in respect of which an action against person C would be founded. 34. Defamation Sections 30, 31, 32 and 33 do not apply to an action relating to the publication of defamatory matter. Division 2 — Extension for persons with mental disability 35. Suspension of time while person with mental disability is without guardian (1) If — (a) a person is suffering a mental disability at any time after a cause of action accrues to the person; and (b) during the time in which the person is suffering the mental disability the person is without a guardian, the time during which the person is without a guardian does not count in the reckoning of a limitation period for commencing an action on the cause of action. (2) Despite subsection (1), an action on the cause of action cannot be commenced if