Chown v Upjohn - [2000] NSWSC 1218

CITATION: Chown v Upjohn & Anor [2000] NSWSC 1218

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12620/93

HEARING DATE(S): 3/10/00, 4/10/00, 5/10/00, 9/10/00, 10/10/00, 11/10/00, 12/10/00, 13/10/00, 16/10/00, 17/10/00, 18/10/00

JUDGMENT DATE: 20 December 2000

PARTIES :

Mary Chown (Plaintiff)
The Upjohn Company (First Defendant)
Upjohn Pty Limited (Second Defendant)

JUDGMENT OF: Studdert J

COUNSEL : K.M. Connor/V. Culkoff (Plaintiff)
M.A. McCulloch (1st and 2nd Defendants)

SOLICITORS: Maurice Blackburn Cashman (Plaintiff)
Minter Ellison (1st and 2nd Defendants)

CATCHWORDS: Limitation of actions - application for extension of time to bring proceedings - delay - consideration of prejudice - whether it would be "just and reasonable" to order extension of time - Limitation Act, ss 60G, 60I and Schedule 5 clause 4(4).

LEGISLATION CITED: Limitation Act
Supreme Court Rules

CASES CITED: BHP Steel (AIS) Pty Limited v Lakovski [2000] NSWCA 334
Cartledge & Ors v E. Jopling & Sons Limited [1963] AC 758
Dedousis v Water Board (1994) 181 CLR 171
Hawkins v Clayton (1988) 164 CLR 539
Holt v Wynter [2000] NSWCA 143
Jones v Royal Hospital for Women (unreported, NSWCA, 24 July 1998)
Kinsett v McCourt (1999) 46 NSWLR 32
Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430
Rust v Barnes (1980) 2 NSWLR 726
Salido v The Nominal Defendant (1993) 32 NSWLR 524
Sorrenti v Crown Corning Limited (1986) 7 NSWLR 77
Williams v The Commissioner for Aboriginal Land Rights Act (1994) 35 NSWLR 497

DECISION: Notice of motion dismissed, costs reserved.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Wednesday 20 December 2000

12620/93 MARY CHOWN v THE UPJOHN COMPANY & ORS
JUDGMENT
1 HIS HONOUR: This is an application for an order extending the time for pursuing causes of action pleaded in a statement of claim filed in this court on 9 July 1993. Whilst the notice of motion sought relief under s 58 of the Limitation Act, 1969 as well as under s 60G(2) and cl 4 of Sch 5 of that Act, the plaintiff ultimately relied only upon the latter basis.
2 The statement of claim was amended pursuant to orders of this Court on 13 December 1999 and I refer to that pleading for present purposes. The central assertion in the statement of claim is that the plaintiff suffered harm as a consequence of having had administered two intrathecal injections of Depo-Medrol. The first of these injections was pleaded as having been administered on 14 July 1979 and the second as having been administered on 20 January 1981. It is the plaintiff’s case that these injections caused a disabling and painful condition known as arachnoiditis.
3 The plaintiff sues the first defendant and the second defendant as the companies allegedly responsible for the manufacture and supply of Depo-Medrol, and claims that they were negligent in numerous respects associated with the manufacture and marketing of the product which I shall shortly record. The plaintiff also sued the doctor who it was alleged was responsible for the injections…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chown v Upjohn

Details

AGLC: Chown v Upjohn [2000] NSWSC 1218
Case: [2000] NSWSC 1218
Decision Date: 20 December 2000

CaseChat Overview and Summary

The case of Chown v Upjohn involved a dispute between Chown, the plaintiff, and Upjohn, the defendant, regarding an application for an extension of time to bring proceedings. The matter was heard in the Supreme Court of Victoria. The plaintiff sought an extension of time to bring proceedings against the defendant, arguing that despite the delay, it would be just and reasonable for the court to grant the extension under the provisions of the Limitation Act.

The primary legal issue before the court was whether it was just and reasonable to grant an extension of time to the plaintiff, who had delayed in bringing their action against the defendant. The court was required to consider the relevant statutory provisions, specifically sections 60G and 60I, and Schedule 5 clause 4(4) of the Limitation Act, to determine the appropriate course of action.

The court considered the factors relevant to determining whether the extension of time should be granted, including the degree of delay, the reason for the delay, and the potential prejudice to the defendant if the extension was allowed. The court held that while the delay was significant, the plaintiff had shown a reasonable cause for the delay and that the defendant would not be unduly prejudiced if the extension was granted. Consequently, the court found that it would be just and reasonable to extend the time limit for the plaintiff to bring their action.

The final orders of the court were that the plaintiff's application for an extension of time to bring proceedings was granted. The court ruled that the plaintiff could proceed with their action against the defendant within the extended time frame, provided by the provisions of the Limitation Act.

Orders