Murray Darling Basin Authority v Doyle’s Farm Produce Pty Ltd [2021] NSWCA 191

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Murray Darling Basin Authority v Doyle's Farm Produce Pty Ltd [2021] NSWCA 191 Hearing dates: 27 August 2021 Decision date: 27 August 2021 Before: Bathurst CJ; Bell P; Leeming JA Decision: 1. Stand over the hearing of the application to 17 September 2021. 2. Reserve all questions of costs. 3. Noting that this is an appropriate matter for the ordering of a separate question to be determined by this Court, direct the parties to approach the primary judge (or in the event of her Honour's unavailability some other judge as directed by the Chief Judge at Common Law) with a view to making orders for the determination of a separate question pursuant to UCPR r 28.2 and the removal of that question to this Court pursuant to UCPR r 1.21. 4. Note that the respondents intend to distribute notices pursuant to s 78B of the Judiciary Act 1903 (Cth), to the extent necessary, so as to permit the hearing of the separate question on 17 September 2021 to proceed. 5. Direct the parties to supply such updated written submissions and further materials in advance of the hearing on 17 September 2021 as they see fit, in accordance with a timetable to be agreed by them or in default of agreement by Bell P. Catchwords: PROCEDURE – interlocutory appeal from decision striking out paragraphs of defence – decision based on whether defendant was a "public or other authority" for purpose of Part 5 of Civil Liability Act 2002 (NSW) – appropriateness of determining question on strike out application or by way of separate question – directions made for formulation and determination of separate question Legislation Cited: Civil Liability Act 2002 (NSW), Part 5 Civil Procedure Act 2005 (NSW), s 56 Judiciary Act 1903 (Cth), ss 78B, 79 Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 14.28, 28.2 Cases Cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Doyle's Farm Produce Pty Ltd as trustee for Claredale Family Trust v Murray Darling Basin Authority [2021] NSWSC 369 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 Category: Procedural rulings Parties: Murray Darling Basin Authority (First Applicant) The Commonwealth of Australia (Second Applicant) Doyle's Farm Produce Pty Ltd (ACN 119 734 539) as trustee for Claredale Family Trust (First Respondent) John Gerard Doyle (Second Respondent) Coobool Downs Pastoral Co Pty Ltd (ACN 002 806 617) as trustee for the Dunn Family Trust (Third Respondent) Rodney James Dunn (Fourth Respondent) Valerie Jeanette Dunn (Fifth Respondent) Representation: Counsel: S M Nixon SC, T Prince (Applicants) N C Hutley SC, S H Hartford Davis, M O Pulsford (Respondents)