State of New South Wales v McMullin, Brian

The State of New South Wales has appealed against the decision of Wilcox J, who dismissed the State's motion for the summary dismissal of proceedings brought by Brian McMullin and Leone McMullin. The respondents' claims are based on events occurring before 15 March 1995, which is significant because it is when the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW) ("the 1994 NSW Act") commenced. The application by the State for summary dismissal of the proceedings against it was founded on s 31 of the 1994 NSW Act. The respondents' argument was that s 31 of the 1994 NSW Act was not intended to have a retrospective effect and thus could not be invoked in relation to causes of action that had accrued before its commencement. The State's appeal was based on three grounds: first, that s 31(1) was procedural in character, not substantive, and therefore presumed to operate retrospectively; second, that s 31(1) contained an indication that it was intended to apply to losses or injuries sustained before its commencement; and third, that the presumption against retrospectivity did not apply to s 31(1) because the respondents' damage occurred between 1989 and 1994, and the respondents instituted proceedings on 3 May 1995.

The court dismissed the appeal, finding that s 31(1) was substantive in character and that the presumption against retrospectivity applied. The court held that s 31(1) operated to extinguish the cause of action, not merely to bar the remedy, and that there was no indication in the legislation that it was intended to apply to losses or injuries sustained before its commencement. The court also found that s 31(2) did not serve as a "quid pro quo" to justify an implication that s 31(1) was to operate retrospectively. The court held that there was nothing in the present context to displace the ordinary presumption that an extinguishment provision, as s 31(1) was, would apply only to causes of action arising after its commencement. The court dismissed the appeal, with costs.