McGowan v Hills Limited (Ruling No 2) - [2016] VSC 331

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2014 05411

STEPHEN McGOWAN	Plaintiff
v
HILLS LIMITED	First Defendant
ACCESS TELEVISION SERVICES PTY LTD	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2016
DATE OF RULING:	16 June 2016
CASE MAY BE CITED AS:	McGowan v Hills Limited and anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 331

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LIMITATION OF ACTIONS – Torts – Extension of time – Limitation of Actions Act 1974 (Qld) ss 30 and 31 – Choice of Law (Limitation Periods) Act 1993 s 6 – Negligent manufacture claim – Whether ladder being manufactured in Queensland a ‘material fact of a decisive character relating to the right of action’ – Extension refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Bailey	Slater and Gordon Lawyers
For the First Defendant	Mr J Simpson	Clayton Utz
For the Second Defendant	No appearance	Lander & Rogers Lawyers

HER HONOUR:

Introduction

The plaintiff alleges that he was injured after falling from a ladder while he was at work. The first defendant is the manufacturer of the ladder. The second defendant is a company that engaged the plaintiff to perform the alleged work. The second defendant is a wholly owned subsidiary of the first defendant. This ruling concerns the claims against the first defendant.

At issue is whether or not the plaintiff can continue this proceeding against the first defendant given that it has been issued out of time. By summons filed 18 December 2015, the plaintiff seeks orders for the period of limitation to be extended pursuant to s 6 of the Choice of Law (Limitation Periods) Act 1993 and s 31 of the Limitation of Actions Act 1974 (Qld) to 7 October 2014 (‘the summons’). The issue for determination in this ruling is whether the Court should extend time to enable the plaintiff to continue the proceeding against the first defendant.

The second defendant did not appear at the hearing of the summons.

Summary

For the reasons below, the Court will make orders dismissing the plaintiff’s summons.

Background

On or about 3 March 2007, the first defendant manufactured or assembled the ladder.[1] The plaintiff alleges that on 17 January 2008 he fell from the ladder and was injured. On 20 February 2008, the plaintiff lodged a workers’ compensation claim.[2] On 7 October 2014, the plaintiff filed the writ in this proceeding. On 24 July 2015, the first defendant filed a defence and counterclaim. It asserted that the applicable substantive law, in relation to the claim for damages against it, is the common law of New South Wales or alternatively the common law of Queensland, and that the plaintiff’s cause of action was statute barred by force of the applicable limitation statutes in those States.[3]
[1]Exhibit ‘AT-9’ to the affidavit of Ashley Tsacalos, the plaintiff’s solicitor, sworn 8 March 2016, and paragraphs 16 and 18 of that affidavit.
[2]Affidavit of the plaintiff sworn…

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.

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Details

Case: [2016] VSC 331
Decision Date: 16 June 2016

CaseChat Overview and Summary

The plaintiff, McGowan, commenced an action against Hills Limited, a company involved in the manufacture of products, for damages arising from a negligently manufactured ladder. The claim was filed beyond the standard limitation period, necessitating an application for an extension of time under the Limitation of Actions Act 1974 (Qld). The pivotal legal issue was whether the fact that the ladder was manufactured in Queensland constituted a material fact of a decisive character relating to the right of action, which would warrant an extension under section 30 of the Act. Additionally, the court had to consider the applicability of the Choice of Law (Limitation Periods) Act 1993, particularly section 6, in determining the appropriate jurisdiction's law for the limitation period.

The court examined the statutory criteria and found that the location of the manufacture was not a decisive factor in determining the right of action. It concluded that the circumstances surrounding the manufacture did not significantly influence the plaintiff's ability to discover the cause of action. The court emphasised that the primary focus should be on the plaintiff's ability to know or discover the cause of action rather than the location of the manufacturing process. Accordingly, the application for an extension of time was dismissed. The court held that the plaintiff had not demonstrated a sufficient basis under section 30 of the Limitation of Actions Act to warrant an extension.

The ruling underscores the importance of establishing a clear and compelling connection between the manufacturing location and the plaintiff's right of action to justify an extension. The court's decision was influenced by the absence of a decisive link between these factors, leading to the conclusion that the plaintiff's application should be denied. As a result, the plaintiff's claim for damages due to the negligently manufactured ladder was barred by the limitation period. The court did not make any further orders, as the primary issue of the extension of time was resolved against the plaintiff.

Orders