| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 05411
| STEPHEN McGOWAN | Plaintiff |
| v | |
| HILLS INDUSTRIES & ORS | Defendants |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2016 |
DATE OF JUDGMENT: | 21 March 2017 |
CASE MAY BE CITED AS: | McGowan v Hills Industries & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 122 |
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PRACTICE AND PROCEDURE – Appeal from an Associate Justice – Appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 – Applebee v Monash City Council [2013] VSC 481 applied – Error demonstrated.
PRACTICE AND PROCEDURE – Application for extension of time to bring an action in negligence – Limitation of Actions Act 1974 (Qld) ss 11, 30 and 31 – Whether material fact of a decisive character relating to the right of action not within the means of knowledge of the plaintiff until after the relevant date – Injury caused by fall - Allegedly defective ladder – Plaintiff’s knowledge of manufacture of ladder in Queensland – Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 – Queensland v Stephenson (2006) 226 CLR 197 – Whether significant prejudice to first defendant – Whether fair trial likely – Brisbane Regional Authority v Taylor (1996) 186 CLR 541.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Slater and Gordon Lawyers |
| For the First Defendant | Mr J Ruskin QC with Mr J Simpson | Clayton Utz |
| For the Second Defendant | Mr M Hooper | Lander & Rogers Lawyers |
HIS HONOUR:
Introduction and summary
In this proceeding the plaintiff, Mr McGowan, alleges that he suffered personal injury when he fell from a ladder on 17 January 2008, that the ladder was manufactured by the first defendant, Hills Industries Ltd (Hills), and that there was negligence in the manufacture of the ladder which was a cause of his fall and the injuries. It is now common ground that the ladder was manufactured by Hills in Queensland. On an earlier application by summons issued by Hills, T Forrest J ruled that the law of Queensland is the substantive law which governs Mr McGowan’s cause of action against Hills.[1]
[1] McGowan v Hills Limited (Ruling No 1) [2015] VSC 674 (27 November 2015).
Pursuant to s 5 of the Choice of Law (Limitation Periods) Act 1996 (Qld), the limitation law of Queensland is to be regarded as part of the substantive law of that State. The Limitation of Actions Act 1974 (Qld) (the QLAA) is the statute which governs limitation law in Queensland. Section 11 of the QLAA provides that the limitation period applicable to Mr McGowan’s cause of action against Hills is three years. That period expired on 17 January 2011. By summons filed 18 December 2015 Mr McGowan made application pursuant to s 31 of the QLAA to extend the limitation period to 7 October 2014, which is the date on which the proceeding was issued. That application was dismissed by an Associate Justice on 23…
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- AGLC
- McGowan v Hills Industries [2017] VSC 122
- Case
- [2017] VSC 122
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether a material fact of a decisive character, which was not within the knowledge of the plaintiff until after the relevant date, could justify an extension of time under the Limitation of Actions Act 1974 (Qld). The court had to determine if the appellant's knowledge of the manufacture of the ladder in Queensland constituted a material fact that could have been known earlier, and whether granting the extension would significantly prejudice the respondent or affect the likelihood of a fair trial. The appellant relied on precedents such as Do Carmo v Ford Excavations Pty Ltd and Queensland v Stephenson, while the respondent cited Brisbane Regional Authority v Taylor.
The court found that the Associate Justice had erred in dismissing the application for an extension of time. The court held that the material fact concerning the manufacture of the ladder in Queensland was not within the knowledge of the appellant until after the relevant date, and thus, justified the extension. The court applied Applebee v Monash City Council to conclude that the error demonstrated by the Associate Justice warranted the appeal being allowed. The court also considered the potential prejudice to the respondent and the likelihood of a fair trial, concluding that these factors did not outweigh the need for an extension in this case. The appeal was allowed, and the matter was remitted to the Associate Justice for further consideration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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