Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority

The application for leave to appeal

1. Also before the Court is the original application for leave to appeal. Given the way the issues have been reformulated, and the filing of a notice of contention, its fate depends solely on the fate of the substantive question dividing the parties.
2. It is not necessary to summarise the parties' submissions on the exercise of jurisdiction to strike out part of a pleading in circumstances where the issues gave rise to significant legal complexity. However, I would note that courts at first instance have a range of powers to resolve parts of litigation prior to trial, including orders for strike out, summary judgment, reserving questions and the determination of separate issues ahead of trial. Often, the certainty of delay and the spectre of interlocutory appeals is a good reason tending against the early determination of a non-dispositive point such as the present (by which I mean that irrespective of the outcome the litigation will proceed) in advance of trial. No doubt a judge at first instance should be cautious about acceding to an application to order the determination of a separate question, and perhaps especially in a negligence action: see Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [52] and [168]-[170]. But every case turns on its own facts. Much will turn on the length of time required to determine the separate question, and the impact of its resolution on the balance of the litigation: see Todd Hadley Pty Ltd v Lake Maintenance (NSW) Pty Ltd [2019] NSWCA 262 at [15]-[16] and [41]-[46] (Bell P) and [117]-[119] (Simpson AJA). Here the question is essentially legal, and will be unaffected by evidence, and will inevitably arise, and will not give rise to difficulties associated with the same judge who has made findings of contested fact later hearing all or parts of the proceeding, and, significantly, will have a direct bearing upon the evidence that all parties will need to adduce in order to establish, or refute, the breaches of duty which are central to the litigation.

The proceedings and the pleading

1. The proceedings brought by the plaintiffs are representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW). The group members are persons who conducted irrigated farming in the NSW Central Murray region for all or part of the period between 1 July 2016 and 30 June 2019. The Authority is the first defendant and the Commonwealth the second defendant. Both defendants are represented by the same firm and have filed a single defence.
2. The Commonwealth admits that it is vicariously liable for any personal liability of certain persons whom it employed and to whom the Authority delegated some of its functions under s 199 of the Water Act 2007 (Cth).
3. The plaintiffs allege that the Authority or its delegates owed them a duty of care which it breached by releasing water from the Menindee Lakes and the Hume and Dartmouth Dams in the periods between 4 October 2017 and 27 December 2017; and 5 September 2018 and 2 January 2019. The group members' land alleged to have been affected is land in New South Wales.
4. The functions of the Authority on which the plaintiffs' allegations of negligence are based fall into two categories. They are "River Operations Functions", which arise under the Agreement and s 18E(1) of the Water Act, concerning the operation and maintenance of works associated with the upper River Murray storages, and which include a power to give directions to release water from the upper River Murray storages, and "Environmental Water Functions" under ss 18E(1) and 172(1)(a)(i), (e) and (f) of the Water Act concerning the co-ordination and delivery of environmental water in order to achieve environmental objectives. The two functions overlap.
5. The Authority alleges that it delegated its power to release water to its Executive Director and denies that it is responsible for the exercise of that power by its delegate. The three delegates mentioned in the pleading were two (successive) Executive Directors (River Management Division), and the Senior Director, River Operations. The Commonwealth has admitted, for the purposes of this proceeding, that the delegates' acts were done in the course of their employment, and that if any delegate is liable to the plaintiffs, the Commonwealth would be vicariously liable.
6. The defence filed on 11 December 2020, which gave rise to the present dispute, denied that a duty was owed, and denied that it was breached if there was a duty. Both at the level of duty and at the level of breach, the Authority sought to rely on ss 42, 43A, 44 and 46 of the Civil Liability Act 2002 (NSW).

Part 5 of the Civil Liability Act

1. Part 5 of the Civil Liability Act is headed "Liability of public and other authorities". Section 40 is the application provision. It provides: "40 Application of Part (1) This Part applies to civil liability in tort. (2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action. (3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B."
2. Section 41 is a definition provision. In its entirety, it provides as follows, although it may be noted that the critical paragraphs of the definition of "public or other authority" are (e) and (e1): "In this Part - exercise a function includes perform a duty. function includes a power, authority or duty. public or other authority means - (a) the Crown (within the meaning of the Crown Proceedings Act 1988), or (b) a Government department, or (c) a public health organisation within the meaning of the Health Services Act 1997, or (d) a local council, or (e) any public or local authority constituted by or under an Act, or (e1) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person's public official functions, or (f) a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions), or (g) any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this Part."
3. In light of some of the parties' submissions, it is convenient to summarise the whole of this short Part.
4. The substantive provisions in Part 5 are 42-46. Of these, s 45 applies only to roads authorities. It was enacted to alter what was held in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29. It may be put to one side.
5. The remaining five sections are 42, 43, 43A, 44 and 46. They operate in quite different ways. They are far from free from drafting difficulties and obscurities, as has been observed in a number of court decisions and by a number of commentators, notably M Aronson, "Government Liability in Negligence" (2008) 32(1) Melbourne University Law Review 44. Speaking generally, ss 42 and 46 are explicitly addressed to the principles whereby a duty of care is established. Section 42 is also in part directed to the courts (and thereby in accordance with Rizeq v Western Australia is inapplicable save by reason of s 79 of the Judiciary Act - this is explained below). The section provides: "42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies - (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."

The Judiciary Act and the Constitution

1. Section 64 of the Judiciary Act provides: "Rights of parties In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."
2. If the Authority is the Commonwealth for the purposes of s 64, then the plaintiffs contend that the provisions of Part 5 do not apply, either because of s 109 of the Constitution, or s 79(1) of the Judiciary Act. The latter provides: "The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
3. There can be no doubt that the proceedings are in federal jurisdiction. The critical words are "except as otherwise provided by the Constitution or the laws of the Commonwealth", which are customarily elided as "otherwise provide".
4. Section 109 of the Commonwealth Constitution provides that "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid". It is well settled that "invalid" here means that "the State law remains valid though it is rendered inoperative to the extent of the inconsistency, but only for so long as the inconsistency remains": Western Australia v Commonwealth (1995) 183 CLR 373 at 465; [1995] HCA 47.

The nature of the Authority

1. The first stated object of the Water Act 2007 (Cth) is "to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest". The Basin States are defined to mean New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. The four States which are Basin States have referred legislative power to the Commonwealth, pursuant to s 51(xxxvii) of the Constitution, and the operation of aspects of Parts 1A, 2A, 4, 4A, 10A and 11A of the Act in each State is based in part upon that referral: s 9A(1). In particular, ss 18B and 18E are within Part 1A. However, I would accept Mr Hutley's submission that the extent to which the Authority and its delegates were exercising functions conferred by federal law which was partly sourced in a referral of power from New South Wales is not to the point for the purpose of determining whether it is "the Commonwealth". Even insofar as the legislative power to enact a federal statute is ultimately sourced in a referral, the federal statute remains one which is sustained by a head of power under s 51 of the Constitution, and is in no sense any the less a law of the Commonwealth while the referral remains extant.
2. The Authority was established as a body corporate by s 171 of the Water Act 2007 (Cth), upon the commencement of that Act. Section 176 provides that the Authority is a corporate Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth). The predecessor of the Authority, the Murray-Darling Basin Commission, co-existed with the Authority until the commencement of the Water Amendment Act 2008 (Cth), whereupon the Commission's assets and liabilities were transferred to the Authority.
3. The Murray-Darling Basin Agreement is reproduced as Schedule 1 to the Act. Its parties are the Commonwealth and the Basin States. It established the "Ministerial Council", which is empowered to give directions to the Authority. The Ministerial Council must generally act unanimously, thereby giving a measure of negative control to each Basin State.
4. The Authority's members are appointed by the Governor-General on advice from the Commonwealth government, and its staff are employed pursuant to the terms of the Public Service Act 1999 (Cth).
5. The Authority's funding is a little complex. Insofar as it exercises functions under s 172 of the Water Act, it is funded solely by the Commonwealth, in annual amounts of tens of millions of dollars ($59.7 million for 2016/2017 rising to $94.2 million for 2018/2019). Insofar as it exercises the functions, powers and duties in s 18E of the Water Act which relate to functions, powers and duties conferred by the Agreement, then funding is provided by "Contracting Governments", including (as to around 30%) New South Wales.

The reasons of the primary judge

1. The primary judge concluded at [41] that neither the Authority nor its delegates were a "public or other authority" within the meaning of s 41. Her conclusion was based on the following considerations. 1. By parity of reasoning with the approach taken by the High Court to the definition of "public authority" in Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 466-467; [1992] HCA 52, in which the Federal Airports Corporation was regarded as outside the scope of "public authority" in the Environmental Planning and Assessment Act 1979 (NSW). 2. An expressio unius argument, to the effect that other provisions of the Civil Liability Act, namely, ss 5M(7) and 5N(6) ("written law of the State or Commonwealth"), s 6P(5) ("Corporations Act 2001 of the Commonwealth") and s 26L(3) ("enactment of the State or the Commonwealth"), referred expressly to the Commonwealth. 3. The principle that a State statute is not intended to bind the Crown in right of other polities in the Federation unless the contrary intention is explicit (her Honour cited Long Forest Estate Pty Ltd v Singh [2020] VSC 604 at [171] (Dixon J)). 4. The text of s 41, limiting the "Crown" to the Crown in right of New South Wales, and thereby displacing s 4(1) of the Civil Liability Act which more broadly provides that the Act was to bind "the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities". 5. Considerations of unlikelihood of purpose. Her Honour said at [37] that: "It is difficult to conceive of a rational legislative purpose which would confine the conferral of certain protections to the Crown in right of New South Wales but grant such protections to any Government department or public official, whether Federal or from another State or Territory. Yet this is the consequence of the interpretation for which Mr Nixon contended on behalf of the defendants. Thus, on the defendants' construction, the Department of Immigration would have the protection of Part 5 but the Commonwealth would not, although Commonwealth Departments have no separate legal personality from the Commonwealth. Absurd outcomes are to be avoided when construing a statute." Her Honour added at [38]: "If s 41 is given the construction for which the plaintiffs contended, the legislative purpose is evident: it confers protection on public authorities created by New South Wales law (and funded by revenues generated by the New South Wales Government) with a view to limiting their liability to those who might be injured by their conduct. It is difficult to understand what interest the New South Wales Government would have in protecting the polities of the other States or Territories or the Commonwealth from the liability to which other persons would be subject. I reject Mr Nixon's submission that Part 5 is focussed on torts committed in New South Wales and that therefore as long as the public authority (of whatever polity) operates in New South Wales, it is entitled to the protection of Part 5." 1. An argument from surplusage. Her Honour said that most, if not all, of the other subparagraphs of s 41 would appear to be entirely otiose if a broad reading were given to ss 41(e) and (e1). When the subparagraphs are read in context, as illuminated by the purpose identified in the Ipp Report, it was said to be evident that the subparagraphs (e) and (e1) were to be read as being confined to New South Wales public authorities and those public officials who were exercising authority and functions conferred by New South Wales. Her Honour concluded that the relevant nexus was the polity (New South Wales authorities), not the territory (public authorities of whatever polity committing torts in New South Wales).

The order in which the parties' submissions should be addressed

1. The submissions were of a high quality. They divided into submissions on construction (directed to the answers of questions 1 and 2) and submissions on the construction and interrelationship between Part 5 and s 64 of the Judiciary Act and the operation of s 109 of the Constitution and s 79 of the Judiciary Act. Three points may be noted at the outset before turning to the order in which those submissions should be addressed.

The limited significance of determining whether the Authority is the Commonwealth

1. First, either the Authority is the Commonwealth for the purposes of s 64 (as the parties agree) or it is not (as the Solicitor-General for South Australia contends). But the answer to that question does not greatly reduce the issues arising on this hearing. That is so for two reasons. 1. There is evidently a single "matter" - the justiciable controversy between the parties - based on whether the release of water or the failure to release water at relevant times amounted to an actionable breach of a duty of care owed to the plaintiffs. That matter is one within the meaning of s 75(iii) of the Constitution, which conclusion is entirely independent of the status of the Authority, but is a consequence of the second defendant being the Commonwealth. The status of the Authority does not affect the federal character of the jurisdiction the Court is exercising. 2. The second is that even if the Authority is not the Commonwealth, its delegates are. Those three individuals were employed by the second defendant, which accepts it is vicariously liable for any torts committed by them in this proceeding. Thus if Part 5 is applicable to the delegates as a matter of construction, the claimed conflict between Part 5 and s 64 of the Judiciary Act will arise and require resolution. It may very well be the case that the plaintiffs' main claim is against the Authority rather than its delegates. Nonetheless, the resolution of the issues arising on the questions reserved is unaffected by whether or not the Authority is the Commonwealth.

The operation of s 79(1) of the Judiciary Act and s 109 of the Constitution

1. Secondly, some explanation should be given as to how s 64 of the Judiciary Act is sought to be deployed, for it is a little more complex than it may seem.
2. There is a single matter within federal jurisdiction. The Supreme Court of New South Wales is exercising the judicial power of the Commonwealth in order to quell the justiciable controversy between the parties as to whether the tort of negligence is established. Insofar as State law commands the court as to the manner of its exercise of federal jurisdiction, the State law is only applicable if a federal law (such as s 79 of the Judiciary Act) so provides. On the other hand, insofar as State law is determinative of the rights and duties of persons as opposed to the manner of exercise of jurisdiction, the State law will apply of its own force. The distinction between State laws governing the exercise of jurisdiction and State laws determinative of the rights and duties of persons may be seen in the joint judgment in Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [30] and derives from the reformulation of basal principle in Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23. No doubt subsequent decisions will elucidate the practical application of that distinction, which may be less straightforward than it first appears (in performing that task, assistance is apt to be derived from Edelman J's concurring reasons in the same decision). As his Honour observed in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; 94 ALJR 51 at [229], it is possible for a law to be neither exclusively determinative of the rights and duties of persons nor exclusively concerned with the manner of exercise of jurisdiction. After all, every time a court exercises jurisdiction, parties' rights and duties are apt to be affected.
3. The parties' submissions eschewed any engagement with that distinction, because they agreed that nothing turned upon it. The plaintiffs contended that if Part 5 were to apply directly, then it would be inconsistent with s 64 of the Judiciary Act and pro tanto inoperative by reason of s 109 of the Constitution. Alternatively, if Part 5 were only to apply by reason of being picked up by s 79 of the Judiciary Act, then s 64 was a federal law which "otherwise provided" with the result that Part 5 was not applicable. Either way, the result was the same: the Authority could not rely on the provisions of Part 5, and the paragraphs of its defence which did so should be struck out as being bad in law. The Authority denied any conflict between Part 5 and s 64, but did not disagree with the way in which s 64 and s 109 would apply if there were conflict.

The relationship between s 64 of the Judiciary Act and the Crown Proceedings Act

1. Thirdly, in the course of writing these reasons, I have become conscious that perhaps an unduly narrow approach has been taken by focussing on the interrelationship between the State law which speaks to public and other authorities and gives them special status in relation to the law of negligence, and the federal law which (speaking very generally) places the Commonwealth on the same level as ordinary subjects.
2. There was nothing especially novel about s 64 when it was enacted in 1903. It reflected a colonial tradition and indeed an Australian innovation which had been in place for some decades, which preceded similar innovations in the United Kingdom by many decades, and contrasted with the 11th amendment to the United States Constitution. One way in which this may be seen is by comparing s 64 of the Judiciary Act and s 5(2) of the Crown Proceedings Act 1988 (NSW). Those statutes respectively provide: "In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject" and "Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."
3. Section 5(2) is a substantial re-enactment of ss 3 and 4 of the Claims against the Government and Crown Suits Act 1912 (NSW). The earlier legislation was to substantially the same effect, save that rather than joining the polity to the litigation, provision was made in s 3 for appointing a "nominal defendant" in a claim against the "Government of New South Wales", and s 4 provided: "The petitioner may sue such nominal defendant at law or in equity in any competent court, and every such case shall be commenced in the same way, and the proceedings and rights of parties therein shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side as in an ordinary case between subject and subject."
4. Those provisions in turn reflected ss 3 and 4 of the colonial Claims against the Government and Crown Suits Act 1897 (NSW) and ultimately ss 2 and 3 of the Claims against the Colonial Government Act 1876 (NSW). Similar legislation was enacted by most of the Australian colonies. The history of these colonial innovations was described in Professor Finn's Law and Government in Colonial Australia (Oxford University Press, 1987), pp 141-159. The drafter of the Judiciary Act, Sir Samuel Griffith, will have been most familiar with the Queensland statute, the Claims against Government Act 1866 (Qld) (29 Vic No 23), which had in fact been the model for the 1876 New South Wales statute. The legislation was directed to an end that may seem quaint to 21st century lawyers, namely, the ability to sue the Crown in tort and contract. The Privy Council in Farnell v Bowman (1887) 12 AC 643 at 649 explained how the colonial governments "as pioneers of improvements are frequently obliged to embark in undertakings which in other countries are left to private enterprise", with the result that: "If, therefore, the maxim 'the king can do no wrong' were applied to Colonial Governments in the way now contended for by the appellants, it would work much greater hardship than it does in England."

Question 3 can and should be deferred until questions 1 and 2 are answered

1. Question 3 does not arise if questions 1 and 2 are answered negatively. It does not necessarily follow that the analyses are distinct. Not uncommonly there may be a link between a question of construction and a constitutional question. One reason for that is that a valid construction should be preferred to one leading to invalidity: ACMA v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66]. The approach to be taken in such a case is inevitably iterative: commence with construction, assess whether so construed the statute contravenes a constitutional constraint, and if so, consider whether it can be read down or whether a different construction should be preferred: see Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [72] and Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142 at [26]. But it was not suggested that the New South Wales Legislature lacked legislative power to apply Part 5 of the Civil Liability Act to the Authority, even if it were regarded as the Commonwealth, and there is no reason to think that it does.
2. The upshot of the foregoing is to confirm that question 3 need not, and should not, be answered unless either the Authority or its delegates are a "public or other authority" within the meaning of Part 5 of the Civil Liability Act. Unless they are, the third question does not arise. The third question has a constitutional dimension, and should not be addressed until and unless there exists a state of facts making it necessary to do so.

The parties' submissions on questions 1 and 2

1. There would be unnecessary length and unavoidable repetition if a full summary of the parties' submissions were followed by my reasoning. Accordingly, I shall shortly summarise their essence, with the dispositive section which follows elaborating some of the nuances.
2. The Authority's principal submissions were as follows. 1. The Authority emphasised the express extension to bodies not created by New South Wales statutes. Section 41(c) applied to "affiliated health organisations", which were defined (by s 62 and Sch 3 of the Health Services Act 1997 (NSW)) to include Catholic Healthcare Ltd (in respect of certain hospitals) and the Uniting Church in Australia (in respect of the War Memorial Hospital at Waverley). Further, the regulation making power in s 41(f) and (g) extended to non-government Catholic schools (which in fact has been the case). It followed that it was wrong to proceed on the basis that s 41 comprehended entities created by or having functions conferred by New South Wales law. 2. Insofar as the primary judge pointed to the unlikelihood of Part 5 protecting another polity's authority which it funded, the Authority noted that New South Wales provided substantial funding to the Authority, as well as being obliged to indemnify the Commonwealth for a share of any losses. 3. The Authority submitted that s 41 was merely a definition provision, and thus in order to apply s 12 of the Interpretation Act it was necessary to read the definition into the substantive law and identify the relevant nexus of the substantive law so read with New South Wales. This the primary judge had neglected to do, so it was put. Read in that way, the Authority said that the application provision in s 40(1) suggested that "the single connecting integer with New South Wales required by Pt 5 is that the tortious liability in question is governed by the law of New South Wales", invoking Wanganui-Rangitikei Electric Power Board (NZ) v Australian Mutual Provident Society (1934) 50 CLR 581 at 601; [1934] HCA 3. The Authority maintained that the construction upheld by the primary judge imported an additional territorial nexus with New South Wales whereas paragraphs (c), (f) and (g) of the same definition did not do so. 4. The Authority complained that reasoning based on the ordinary presumption that one polity does not intend to bind another was not apposite. Here the question was the ambit of the class of entities which could take a benefit conferred by Pt 5. 5. The Authority submitted that it was a logical fallacy to conclude from the narrow definition of Crown in paragraph (a) that each of the following limbs were so limited, especially where paragraphs (c), (f) and (g) did not need to be government emanations at all. The Authority submitted that whatever the reason for the limitations on (a), it did not overcome the collective force of the other considerations which "support an approach requiring a single territorial nexus with New South Wales, namely that Pt 5 applies to civil liability in tort governed by the law of New South Wales". 6. The Authority said that the relevant nexus with paragraph (e1) was necessarily geographical, rather than political. 7. The Authority denied that surplusage in its construction carried much weight, on the basis that the section was replete with surplusage on any construction (noting the complete overlap between "the Government of New South Wales" and "a Government department"). 8. Finally, on the construction upheld by the primary judge, the Authority submitted that in relation to exercising the Release Power, which was conferred by the Agreement to which New South Wales was a party, and the operations of Lake Victoria, which were regulated by a permit granted under a New South Wales statute, parts of its pleading fell within s 41(e1).

Consideration

1. The submissions are numerous, but each does not carry equal weight. Some may be discounted immediately. For example, I see no reason to depart from the caution which ordinarily accompanies expressio unius arguments; cf George v Federal Commissioner of Taxation (1952) 86 CLR 183 at 206; [1952] HCA 21. It is much better to start with the language which Parliament has enacted, rather than draw inferences based on words which it has not employed.
2. Contrary to the Authority's submission, the application provision in s 40 is not to the point. Section 40 speaks to a different subject matter. Section 40 provides that the whole of the Part applies to civil liability in tort, extended to certain claims in contract, and subject to s 3B. While s 40 speaks to the type of liability affected by the provision of Part 5, it does not shed light on, for example, what bodies are "roads authorities" to which s 45 applies. Nor does it shed light on the scope of "government or other authority" to which ss 42, 43, 43A, 44 and 46 apply. Another way of seeing this is that either Part 5 does or does not apply to an action in negligence against a Commonwealth authority exercising functions in New South Wales (such as Airservices Australia or the Commissioner of Taxation) but the answer to that question is not determined by s 40. I accept Mr Hutley's submission: "[O]n any view, the legislature has chosen to limit the operation of Part 5 to persons or organisations, to use the neutral terms, which fall within one or other of the paragraphs of that definition. And s 40, whatever its effect upon the operation of the Act, can't assist in that construction exercise. In other words, one has to confront that there has been a choice to limit the operation of these provisions to public or other authorities, and that's not assisted by looking at the extension of the legislation under s 40."
3. Contrary to the plaintiffs' submissions, the submission concerning surplusage has scant weight. The section abounds with surplusage. For example, every local council in (d) is a public or local authority constituted under an Act in (e). Examples could readily be multiplied. No inference can safely be drawn favouring a construction which avoids overlap between the paragraphs of s 41.
4. The Authority did not abandon reliance on s 41(e), but the main way in which it contended that it was a "public or other authority" was via paragraph (e1). The Authority was right to place only muted reliance on paragraph (e). It will be convenient to deal with this first. 1. Paragraph (e) of s 41 falls to be construed against the backdrop of conventions governing how New South Wales statutes refer to other statutes. 2. Section 65 of the Interpretation Act 1987 (NSW) permits references to New South Wales statutes to be made "by the word 'Act' alone". Section 66(2) prescribes a different way of referring to federal legislation: "A Commonwealth Act may be cited - (a) by its short title (or name), or (b) in such other manner as is sufficient in a Commonwealth Act, together with a reference to the Commonwealth." 1. It will be seen that paragraph (e) does not accord with s 66(2). Yet elsewhere where the Civil Liability Act refers to federal legislation, it adheres to the practice stated in s 66(2) (for examples "written law of the State or Commonwealth" in s 5M or "by or under an enactment of the State or the Commonwealth" in s 26L). 2. I am conscious of the Authority's submission that s 43A refers merely, when defining "special statutory power", to a power that is conferred "by or under a statute". I acknowledge that that slightly diminishes the force of the submission, although the reason is to be seen in the fact that s 43A was enacted in response to a construction given to s 43 confining it to breach of statutory duty, in a provision which did not apply unless the definition of "public or other authority" was satisfied. 3. The Authority's contention that "constituted by or under an Act" extends to a law of the Commonwealth is identical to that rejected in Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 467; [1992] HCA 52. There the question was whether the Federal Airports Corporation was a "public authority" for the purposes of the Environmental Planning and Assessment Act 1979 (NSW) where the relevant limb of the definition ("a public or local authority constituted by or under any Act") was materially identical. The High Court said that "[i]n view of these provisions it is impossible to bring the FAC within the statutory concept of 'public authority' in the State Act". So too in the present case. The fact that the reference in s 41(c) to public health organisations extends to some bodies not created by New South Wales legislation does not diminish the force of the foregoing considerations. 4. The considerations of purpose summarised in relation to the Authority's main submission based on paragraph (e1) to which I shall come confirm that conclusion. 5. I conclude that paragraph (e) of the definition is not available to support the Authority's construction.

Conclusion

1. It follows that questions 1 and 2 should be answered "No". For the reasons given above, it is inappropriate to answer question 3.
2. The issue now having been determined on a final basis, there is no occasion to grant leave to appeal from the interlocutory decision striking out certain paragraphs in the defence. In each proceeding, there is no reason for costs not to follow the event.
3. Accordingly, I propose these orders: In 2021/00128140: Dismiss the summons seeking leave to appeal with costs. In 2021/251093:
4. Answer the questions reserved as follows: 1. Is the First Defendant a "public or other authority" within the meaning of s 41 of the Civil Liability Act 2002 (NSW)? No. 2. Are the delegates of the First Defendant a "public or other authority" within the meaning of s 41 of the Civil Liability Act 2002 (NSW)? No. 3. If the answer to either Question 1 or 2 is "yes", would the application of Part 5 of the Civil Liability Act 2002 (NSW) in this proceeding be inconsistent with s 64 of the Judiciary Act 1903 (Cth), for the purposes of (i) s 79 of the Judiciary Act 1903 (Cth); or (ii) s 109 of the Constitution (Cth)? Does not arise.
5. Order the defendants to pay the plaintiffs' costs of and occasioned by the separate questions.

Amendments 18 October 2021 - Coversheet - Attorney-General for South Australia (Intervener) added

[43] - "or the law of the Commonwealth" changed to "or the laws of the Commonwealth"

[45] - "the Authority and its delegates was exercising" changed to "the Authority and its delegates were exercising"

[48] - "staff" changed to to "members"; "and are employed" changed to "and its staff are employed"

[50(2)] - "State of Commonwealth" changed to "State or Commonwealth"

[62] - "Colonial Government" changed to "Colonial Governments"

[69(2)] - "Uniting Church of Australia" changed to "Uniting Church in Australia" 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: 18 October 2021