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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:
10. Stand over the hearing of the application to 17 September 2021.
11. Reserve all questions of costs.
12. 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.
13. 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.
14. 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.