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

The New South Wales Court of Appeal considered an interlocutory appeal brought by the Murray Darling Basin Authority against a decision of the primary judge. The primary judge had struck out certain paragraphs of the Authority's defence in proceedings brought by Doyle's Farm Produce Pty Ltd. The central dispute concerned whether the Murray Darling Basin Authority constituted a "public or other authority" for the purposes of Part 5 of the *Civil Liability Act 2002* (NSW).

The Court was required to determine the appropriateness of resolving the question of whether the Authority was a "public or other authority" on an application to strike out parts of the defence, or whether it should be determined as a separate question. This involved considering the procedural mechanisms available for such a determination and the proper course for the litigation to follow.

The Court reasoned that it was appropriate to determine the question as a separate issue. Accordingly, the Court directed the parties to approach the primary judge to seek orders for the determination of a separate question pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The Court further directed that this separate question be removed to the Court of Appeal pursuant to rule 1.21 of the Uniform Civil Procedure Rules 2005 (NSW). The hearing of the appeal was stood over to 17 September 2021, with all questions of costs reserved. The Court also noted the respondents' intention to provide notices under section 78B of the *Judiciary Act 1903* (Cth) to facilitate the hearing of the separate question.