Legal Research
Cases
McGowan v Hills Industries

McGowan v Hills Industries

Case [2017] VSC 122 21 March 2017

Appeal

Limitation Periods

Admissibility of Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

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

---

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

---

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.

---

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…

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 McGowan v Hills Industries

Details

AGLC: McGowan v Hills Industries [2017] VSC 122
Case: [2017] VSC 122
Decision Date: 21 March 2017

CaseChat Overview and Summary

The appeal before the court involved McGowan, the appellant, and Hills Industries, the respondent. The dispute arose from a negligence claim related to an allegedly defective ladder that caused injury to McGowan. The matter was heard initially by an Associate Justice of the Supreme Court and subsequently appealed under rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015. The appellant contended that the Associate Justice had erred in dismissing the application for an extension of time to bring the action. The respondent argued that the application was invalid as the material fact that the ladder was manufactured in Queensland was known to the appellant at the relevant date, and thus, the extension should not have been granted.

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