18.26While most submitters supported the need for guidance, responses to the question about whether pecuniary penalty statutes should expressly deal with the limitation issue fell into two categories.
18.27One group generally favoured the Limitation Act 2010 approach of a six-year primary limitation period. Reasons included:
- the reformed Limitation Act simplifies and clarifies the law; and
- ad hoc limitation periods are undesirable unless clear policy-based distinctions are justified.
18.28Meredith Connell’s view is that pecuniary penalties are appropriately assimilated into money claims under the Limitation Act 2010, and the firm does not favour varying limitation periods unless this is necessary. The submission noted that “importantly, the new provisions incorporate a ‘late knowledge period’ in a manner that reflects the 2001 amendments to the Commerce Act”.
18.29The second group of submitters favoured a case-by-case approach, suggesting the six-year primary limitation period is not an appropriate default. Reasons included:
- the need for market certainty about whether certain commercial conduct is lawful or not;
- loss of evidence over time through records management (periodic destruction of records), replacement of IT systems and staff turnover;
- fairness and the impact on business of ongoing exposure to potentially large liability for a long period;
- relying on the Limitation Act risks confusion;
- a desire to match the limitation period to that applying to criminal liability for the same conduct; and
- the fact that the Limitation Act does not cover non-money liability orders.
18.30The Law Society submitted that the standard Limitation Act provisions are not suitable for most pecuniary penalty cases, and the limitation period for money claims of six years plus a late knowledge extension of three years is too long for most cases. The New Zealand Bar Association submitted that limitation periods should include a long-stop provision that is appropriate to the circumstances, and favoured a maximum longstop of 10 years, with a shorter longstop period of five years for some breaches, such as those under the Unsolicited Electronic Messages Act 2007.