Eden Construction Pty Limited v State of New South Wales

Background 1 On 25 July 2003, the applicant ('Eden') filed a summons in the Supreme Court of New South Wales Technology and Construction List containing the following claims, literally reproduced: '1. An order for damages; 2. An order for damages pursuant to Section 82 of the Trade Practices Act 1974; 1. A declaration that the Defendant is in Breach of Section 46 of the Trade Practices Act 1974; 2. A declaration that the Defendant is in Breach of Section 45(2) of the Trade Practices Act 1974; 3. A declaration that the Plaintiff is to be removed from the Defendant's performance review list; 3. An order for interest pursuant to section 94 Supreme Court Act 1970 from March 2002 at the rate of 9% pa and thereafter continuing to the present date; 4. An order for costs.' 2 Subsequently on 26 August 2003, Eden filed in the same List of the Supreme Court of New South Wales an amended summons containing the same claims.

Separate questions for determination 13 The parties have mutually agreed that the following separate questions be determined pursuant to Order 29 Rule 2 of the Federal Court Rules, in relation to two of the projects by way of example: '1. In respect of the Dubbo Overflow Ponds project referred to in the Schedule to the Further Amended Summons, was the conduct of the Respondent alleged in the Schedule in respect of that project conduct in the carrying on of a business, within the meaning of section 2B of the Trade Practices Act 1974 (Cth)? 2. In respect of the Moruya Heads Sewerage Transportation Systemproject referred to in the Schedule of the Further Amended Summons, was the conduct of the Respondent alleged in the Schedule in respect of that project conduct in the carrying on of a business, within the meaning of section 2B of the Trade Practices Act 1974 (Cth)?' I will therefore direct the parties to prepare short minutes of order which progress the matter for the hearing and determination of those separate questions, and will leave to the parties to consider whether any of the matters to which I have earlier referred bear upon those questions, and if so, to what extent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

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