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) Solicitors: Ashurst (Applicants) Banton Group (Respondents) File Number(s): 2021/00128140 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2021] NSWSC 369 Date of Decision: 13 April 2021 Before: Adamson J File Number(s): 2019/150651 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: This interlocutory appeal has been brought from the decision of a Judge sitting in the Common Law Division striking out various paragraphs of a defence to a representative proceeding brought by the respondents. The decision turns on whether the first applicant, the Murray Darling Basin Authority, is entitled to allege that it is a "public or other authority" for the purpose of Part 5 of the Civil Liability Act 2002 (NSW). Her Honour produced a substantial judgment, very promptly, holding that it was appropriate to utilise the strike out procedure under UCPR r 14.28, rather than stating a separate question, in circumstances where the point was treated as a pure question of law that was unaffected by any facts: Doyle's Farm Produce Pty Ltd as trustee for Claredale Family Trust v Murray Darling Basin Authority [2021] NSWSC 369. Her Honour found that the Authority and its delegates were not able to rely upon the various provisions in Part 5. Her Honour dealt with the matter as a question of construction, declining to resolve the constitutional question raised in the alternative by the respondents that Part 5 was not made applicable by s 79 of the Judiciary Act 1903 (Cth). The Attorney-General for the State of South Australia intervened in relation to that question, and was heard in writing and orally. 2. The Authority and the Commonwealth applied for leave to appeal by summons filed on 24 June 2021. The application for leave was listed concurrently with the appeal, in accordance with the parties' joint preference. In their written submissions, the applicants advanced broadly speaking two arguments: they challenged the appropriateness of the respondents being permitted to determine the issue on a strike out as opposed to a separate question, and they challenged the correctness of the conclusion that the Authority should not be permitted to rely on Part 5. 3. At the outset of the hearing of the appeal, all members of the Court indicated concerns with hearing and determining the application for leave as presently constituted. There was a relatively arid question whether her Honour had erred as a matter of discretion in acceding to the plaintiff's application to deal with the matter on a strike out. The price of success on this threshold point might be a grant of leave conditioned upon the applicants' consenting to the determination of the point by way of one or more separate questions, and that would only lead to cost and delay. We also expressed concern that there be a sound procedural basis for the determination of the substantive question, namely, whether the Authority could rely on the provisions of Part 5; cf Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9. We indicated that there was apparent advantage to all parties if there were a final determination of the latter question, in a way that would bind the parties and the group members. We referred to what had occurred in South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301, another representative proceeding in which an application for leave to appeal was brought from a strike out application, where the Full Court stood over the appeal for the purpose of the primary judge identifying a separate question: see at 324-326. 4. Neither Mr Hutley SC, who appeared with Messrs Hartford Davis and Pulsford for the respondents, nor Mr Nixon SC, who appeared with Mr Prince for the applicants, had any opposition to that proposal. It is one which accords with s 56 of the Civil Procedure Act 2005 (NSW). The real issue between the parties is whether the Authority should be permitted to defend the proceedings based on the provisions of Part 5 of the Civil Liability Act. That was an issue sufficiently important to warrant the intervention by the South Australian Solicitor-General in proceedings in the Common Law Division of this Court. That issue is best resolved on a final rather than interlocutory basis. The parties will not be especially advantaged by this Court's views as to the appropriateness of the procedure adopted by the respondents, opposed by the applicants and acceded to by the primary judge, to get to the stage of addressing that question. 5. Another benefit of that course is that the exchange of written submissions in this Court has led to the emergence of a question whether there is some evidence that bears upon one aspect of the dispute (as framed in the applicants' reply, it is whether a permit issued under a NSW Act or a document issued by the Basin Officials Committee was the source of the Authority's obligation to comply with the Lake Victoria Operating Strategy). That point, which may well not have been raised at first instance, will be accommodated by the course we have proposed. 6. We saw no reason to doubt that the parties would not readily be able to craft questions which could be stated for resolution by this Court. The exchange of written submissions that has already occurred will facilitate that process. We also regard this as an appropriate case for the questions ordered to be determined separately to be removed to this Court pursuant to UCPR r 1.21. As Mr Hutley SC observed, if there is evidence, it will be uncontroversial documentary evidence of small compass. 7. So as not to delay the resolution of this issue, we indicated that the Court as presently constituted would hear the argument on the separate question on 17 September 2021, a date which was suitable to counsel. Mr Hutley SC indicated that his clients (a) intended to reagitate the questions not determined by the primary judge and (b) would distribute appropriate notices under s 78B of the Judiciary Act. An adjourned hearing date of 17 September 2021 will permit adequate notice to be given to the Attorneys General. 8. Finally, we note that the whole of the proceeding at first instance, and the whole of this application for leave to appeal, is a matter in federal jurisdiction, by reason of the presence of the Commonwealth as second defendant and second applicant. In accordance with what was held in Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 and Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21, there may be a question whether some of the provisions in Part 5 on which the Authority wishes to rely are only made applicable by reason of s 79 of the Judiciary Act and, if so, whether some other federal law "otherwise provides". That will be a point which the parties may address in their further submissions. 9. For those reasons, as envisaged at the hearing earlier today, the Court makes the following orders: 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. ********** Amendments 28 September 2021 - Coversheet - "M C Pulsford" changed to "M O Pulsford" in representation details DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2021