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

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

The real issue was whether the Authority should be permitted to defend the proceedings based on Part 5 of the Civil Liability Act 2002 (NSW), and that issue was sufficiently important and procedurally significant that it should be resolved on a final basis by a separate question removed to the Court of Appeal, rather than by determining the interlocutory appeal as presently constituted. The Court therefore stood over the application and directed steps for formulation and removal of a separate question.

Jurisdiction
Australia
Judgment Date
27 August 2021
Procedural Posture
Interlocutory Appeal From a Decision Striking Out Paragraphs of a Defence in a Representative Proceeding / Application for Leave to Appeal Listed Concurrently With the Appeal; Hearing Stood Over and Directions Made for Determination of a Separate Question
Outcome
Application stood over; directions made for formulation and removal of a separate question; costs reserved.
Legal Topics
['strike Out of Defence' 'separate Question' 'removal to Court of Appeal' 'public or Other Authority Under Part 5 of the Civil Liability Act 2002 (nsw)' 'judiciary Act S 78 B Notices' 'judiciary Act S 79']
['civil Procedure' 'civil Liability' 'federal Jurisdiction'] ['strike Out of Defence' 'separate Question' 'removal to Court of Appeal' 'public or Other Authority Under Part 5 of the Civil Liability Act 2002 (nsw)' 'judiciary Act S 78 B Notices' 'judiciary Act S 79']

Case Brief

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Procedural Posture

Interlocutory Appeal From a Decision Striking Out Paragraphs of a Defence in a Representative Proceeding / Application for Leave to Appeal Listed Concurrently With the Appeal; Hearing Stood Over and Directions Made for Determination of a Separate Question

Legal Issues

  1. 1 ['Whether 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).' 'Whether the issue should be determined on a strike out application or by way of a separate question.' 'Whether Part 5 of the Civil Liability Act 2002 (NSW) is made applicable by s 79 of the Judiciary Act 1903 (Cth), and whether some other federal law otherwise provides.']

Ratio Decidendi

The real issue was whether the Authority should be permitted to defend the proceedings based on Part 5 of the Civil Liability Act 2002 (NSW), and that issue was sufficiently important and procedurally significant that it should be resolved on a final basis by a separate question removed to the Court of Appeal, rather than by determining the interlocutory appeal as presently constituted. The Court therefore stood over the application and directed steps for formulation and removal of a separate question.

Court Disposition

Application stood over; directions made for formulation and removal of a separate question; costs reserved.

Orders

  • ['Stand over the hearing of the application to 17 September 2021.' 'Reserve all questions of costs.' "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...