FEDERAL COURT OF AUSTRALIA

Lin v Rail Corporation New South Wales [2011] FCA 261

THE COURT ORDERS THAT:

1.    Judgment be given for the first respondent in relation to the whole of the proceedings against it.

2.    The applicant pay the costs of the first respondent of the proceedings and its notice of motion filed on 23 November 2010.

3.    Judgment be given for the second respondent in relation to the whole of the proceedings against it.

4.    The applicant pay the costs of the second respondent of the proceedings and its notice of motion filed on 24 November 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Sarah Lin, as she is known, brought these proceedings in 2010. She sued first, her former landlord of a kiosk from which she conducted a newsagency business on the city bound platform of Waverton Railway Station, secondly, a newspaper publisher and, thirdly, a competitor of her newsagency business. The first respondent, Rail Corporation New South Wales, her landlord, was called State Rail Authority of New South Wales at the relevant times in the period between October 1998 and April 2003, and I will refer to it simply as “State Rail”. The publisher was the second respondent, Fairfax Media Publications Pty Ltd. The third respondent was a competitor which operated under a business name “North Sydney Newsagency”.

2    Each of State Rail and Fairfax filed notices of motion seeking judgment in the proceedings summarily in favour of each of them pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). State Rail sought orders in the alternative that the amended application be dismissed or permanently stayed under O 20 r 5 of the Federal Court Rules. Fairfax sought an order in the alternative that the amended application be struck out under O 11 r 16. North Sydney Newsagency played no part in the hearing of the motions.

The Background to these Proceedings

3    Ms Lin entered into a written tenancy agreement for the kiosk with State Rail on 10 October 1998. The tenancy agreement was a lease for a period of one month and thereafter from month to month at a rent of $363.64 per month. The permitted use of the kiosk was the sale of “newspapers, snacks, fresh flowers, cigarettes, refreshments (including fruits), magazines, artcrafts, sarongs and films”. Ms Lin’s lease was terminated by State Rail giving one month’s notice on 10 March 2003 expiring on 9 April 2003. By then Ms Lin was over $3,000 in arrears with her rent. State Rail locked her out of the kiosk on 15 April 2003. Ms Lin contended that North Sydney Newsagency was selling newspapers, magazines and other products at a supermarket on land leased from State Rail near the street entrance to Waverton Railway Station.

4    On 30 April 2003 Ms Lin filed a claim against State Rail in the retail lease division of the Administrative Decisions Tribunal of New South Wales. That tribunal dismissed her claim in early May 2003 for want of jurisdiction.

5    On 1 October 2003, Ms Lin began proceedings against State Rail in this Court that were allocated to Wilcox J as docket judge (the 2003 proceedings). She alleged that first, it had engaged in unconscionable conduct in contravention of s 51AC of the Trade Practices Act 1974 (Cth) and, secondly, State Rail had breached the Retail Leases Act 1994 (NSW). Her claim sought damages.

6    On 29 October 2003 State Rail filed a notice of motion seeking orders that the 2003 proceedings be dismissed under the then provisions of O 20 r 2 as disclosing no reasonable cause of action or as being frivolous, vexatious or an abuse of the process of the Court.

7    On 13 November 2003, Wilcox J heard and decided that motion. He ordered that the application be struck out and that Ms Lin pay State Rail’s costs: Lin v State Rail Authority of New South Wales [2003] FCA 1345. He held that the Court did not have jurisdiction over State Rail under s 51AC or Pt IVA of the Trade Practices Act because it was a body representing the Crown in right of the State of New South Wales. His Honour considered that because Ms Lin’s proceeding was based almost entirely on s 51AC and that claim was not maintainable, the application should be struck out. However, on 6 August 2004 Finn, Mansfield and Gyles JJ allowed Ms Lin’s appeal in part: Lin v State Rail Authority of NSW (2004) 209 ALR 577. The Full Court affirmed Wilcox J’s decision that s 51AC did not apply to State Rail, but they remitted the proceedings to his Honour because there was a real question whether Ms Lin’s lease fell within an exception to the Retail Leases Act. Ms Lin sought special leave to appeal against the Full Court’s decision. On 8 April 2005 Gummow and Kirby JJ refused her application saying, as to the claim under s 51AC, that there were “no prospects of success in respect of [that] ground”: Lin v State Rail Authority of NSW [2005] HCA Trans 197.

8    On 5 August 2005 Wilcox J decided adversely to Ms Lin a separate question as to her ability to bring proceedings against State Rail under the Retail Leases Act. He then ordered that the 2003 proceedings be dismissed with costs: Lin v State Rail Authority of New South Wales [2005] FCA 1137.

9    Ms Lin filed a notice of appeal and the appeal was fixed for hearing by the Full Court on 14 February 2006. In the meantime, on 2 December 2005, she filed, in the appeal, a notice of motion that she would move the Full Court on 14 February 2006 for orders that State Rail’s motion of 29 October 2003 be dismissed, it pay her costs of that motion and her application be remitted for further hearing. Ms Lin also filed in support of that motion an affidavit she had sworn on 5 December 2005 in which she deposed that on 29 September 2005 the High Court had held in McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646 that a statutory provision stating that a body was representative of the Crown was insufficient to extend the statutory immunity of the Crown. She asserted in that affidavit that her case was relevantly similar and that her claim based on s 51AC should be reinstated.

10    Heerey, Dowsett and Conti JJ heard the appeal on 14 February 2006 and on 22 March 2006, they ordered that it be dismissed with costs: Lin v State Rail Authority of NSW [2006] FCAFC 42. No orders were made in respect of the motion.

The Nature of Ms Lin’s Claims in these Proceedings

11    In her amended application filed on 19 October 2010 Ms Lin made four claims for damages. First, she claimed that State Rail had breached the lease registered under the Real Property Act 1900 (NSW) between it and North Sydney Newsagency. This was because, she alleged, the terms of cl 23 of registered memorandum S78957 forming part of that lease (cl 23) prohibited the lessee from doing what it had done by selling, or permitting the sale of, newspapers, magazines and similar products in the supermarket. Ms Lin contended that she could bring proceedings for breach of contract against State Rail based on its lease of the kiosk to her predecessor. That lease had also been registered under the Real Property Act and it contained a clause, (cl 18.3 of registered memorandum U994824), (cl 18.3) that required State Rail to pay compensation to its tenant if State Rail failed to take all reasonable steps to prevent, or put a stop to, anything within its control that caused significant disruption of, or had a significant detrimental effect on, the tenant’s trading in the kiosk. Ms Lin claimed that State Rail’s failure to enforce cl 23 of its lease of the supermarket against the supermarket or North Sydney Newsagency to prevent it selling newspapers, magazines and goods similar to those that she sold in the kiosk was a breach of cl 18.3 of the lease between State Rail and the previous tenant of the kiosk. She claimed that this had caused her to suffer economic loss and was a breach by State Rail of her lease. Ms Lin alleged that these matters entitled her to sue State Rail for breach of contract in its lease of the kiosk to her.

12    Secondly, Ms Lin claimed that State Rail owed her a common law duty of care to take action to prevent the lessee of the supermarket from breaching the prohibition in cl 23 against sale of newspapers and magazines and that State Rail’s failure to do so was a breach of that duty. Thirdly, she claimed that State Rail had engaged in conduct that was unconscionable in contravention of s 43 of the Fair Trading Act 1987 (NSW), in its then form and s 51AB of the Trade Practices Act. Those sections relevantly provided that a supplier should not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that was, in all the circumstances unconscionable. Finally, Ms Lin claimed that State Rail’s conduct was a breach of Art 17(2) of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in December 1948, namely, that “No one shall be arbitrarily deprived of his property”.

13    Ms Lin’s claims against Fairfax were for damages in the sum of $200,000 by reason of its alleged contravention of s 51AB of the Trade Practices Act (which mirrored s 43 of the Fair Trading Act) pursuant to s 82 and for negligence on a basis that is not easily discernible from the application.

The Arguments on the Motions APART FROM THE CLAIM BASED ON aRT 17(2) OF THE uNIVERSAL dECLARATION

14    Each of Fairfax and State Rail argued that the proceedings should be dismissed under s 31A(2) of the Federal Court of Australia Act because Ms Lin’s claims had no reasonable prospect of success. Both RailCorp and Fairfax argued that Ms Lin’s claims were statute barred since any damage that she sustained must have occurred, if not wholly, in part, by the time her lease was terminated and she was unable to continue operating her newsagency business from the kiosk. They relied on the fact that on 17 April 2003 Ms Lin requested Fairfax to suspend the operation of her account with it and cease delivery of publications because of the difficulties she was experiencing as demonstrating that by that time, at the latest, she had suffered damage and thus all her causes of action had accrued. They argued that Ms Lin had not identified any subsequent new event or different damage to justify a conclusion that these proceedings had been brought within six years of that event or damage.

15    RailCorp argued that Art 17(2) of the Universal Declaration of Human Rights did not create any cause of action under domestic law in Australia. RailCorp also argued that Ms Lin was estopped from bringing her claims in contract, negligence, under the Fair Trading Act, and the Universal Declaration for the reasons given by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602-603. Fairfax also contended that the amended application should be struck out as disclosing no reasonably arguable cause of action against it.

16    Ms Lin argued that no limitation period applied because first, the motion that she filed in December 2005 had not been adjudicated by the Full Court and that these proceedings were in some way a continuation of her earlier proceedings or that motion. She contended that it was now possible for her to litigate, in these proceedings, her claim against RailCorp under the Trade Practices Act because the first Full Court’s dismissal of her ground of appeal against Wilcox J’s 2003 judgment was no longer good law following McNamara 221 CLR 646. She also relied on the failure of the second Full Court to dismiss or deal with her motion based on McNamara 221 CLR 646 as an independent ground to support her contention that she was now free to sue RailCorp for the contravention of the Trade Practices Act she had alleged in the 2003 proceedings. She argued that s 63(2) of the Limitation Act 1969 (NSW) had the effect of extending the limitation periods for the duration of the 2003 proceedings so that time did not run between October 2003 and March 2006. Ms Lin also argued that her claims against RailCorp and Fairfax were private property of which she could not be deprived without compensation by reason of Art 17(2) of the Universal Declaration.

Consideration

17    In my opinion, these proceedings are misconceived and Ms Lin’s claims against RailCorp and Fairfax have no reasonable prospects of succeeding. First, Ms Lin’s claims are statute barred. These proceedings were commenced more than six years after the time of accrual of each cause of action. Secondly, Ms Lin’s claims against RailCorp under the Trade Practices Act had ceased to exist when they merged in the decision of Wilcox J to dismiss them in 2003. That decision remained undisturbed. Indeed, it was affirmed by the Full Court in 2004 and the High Court refused special leave to appeal from that determination for the reason that an appeal had no prospect of success. In the event that it survived those orders, the Trade Practices Act claim was merged in Wilcox J’s 2005 order. Thirdly, Ms Lin has no cause of action available to her under Art 17(2) of the Universal Declaration. I will deal with each of these arguments in turn.

Consideration - Limitation

18    Under s 14(1) of the Limitation Act a cause of action founded on contract or tort is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrued to the plaintiff or applicant. Under s 82(2) of the Trade Practices Act an action for compensation for loss or damage suffered by conduct of another person done in contravention of a provision of Pt IVA (in which s 51AB appears) could be commenced at any time within six years after the day on which the cause of action that relates to the conduct accrued. Section 68(2) of the Fair Trading Act was to similar effect.

19    In Ms Lin’s affidavit of 19 October 2010, she said that after she took over the platform kiosk in October 1998 she “… soon found [the supermarket] commenced selling magazines from North Sydney Newsagency which seriously affected the business of the bookstall”. She then said that she contacted officers of State Rail to complain and sought that it transfer the lease of her premises to inside the area where the station ticket office was. Ms Lin said in that affidavit that in June 2001 she ascertained that the supermarket was a tenant of State Rail and realised that her rights to sell newspapers and magazines had been violated by North Sydney Newsagency which was selling the same products in the supermarket. She claimed that she then immediately contacted all publishers concerning the activities of North Sydney Newsagency in the supermarket and that all other publishers, apart from Fairfax, accepted her assertions that the supermarket could not sell the products which her lease entitled her to sell. She then said:

“Due to the increasing economic and non economic pressure from [the supermarket] from 2000 to 2003 the applicant had repeatedly contacted RailCorp seeking resolutions.”

20    Ms Lin said that in February 2002 State Rail had a meeting with her “due to the extreme financial hardship of the bookstall” (meaning the kiosk). And she said in her affidavit:

“Due to the persistently illegal conduct of [the supermarket] and North Sydney Newsagency the bookstall became unable to pay the rent. On 10 March 2003 RailCorp terminated the lease of the bookstall for rental arrears of $3,040.17 and locked up the bookstall on 15 April 2003. The account of the bookstall with Fairfax and other publishers were suspended pending the resolution of the problem.” (emphasis added)

21    This evidence demonstrates that the substantial, if not all, damage which Ms Lin claimed to have suffered had occurred prior to 15 April 2003. Even if she incurred loss or damage after that date, her causes of action in respect of her lease with State Rail and conduct on which she now sues had accrued by then for the purposes of the limitation provisions that I have set out above. Additionally, by 1 October 2003, Ms Lin was aware of her right to take proceedings against State Rail since she commenced the 2003 proceedings in this Court on that day.

22    The loss and damage that Ms Lin claimed to have sustained from the conduct complained of consisted of loss of income and profit from sales of newspapers, magazines and other products which, on her argument, the supermarket or North Sydney Newsagency was selling at premises nearby her kiosk in breach of the terms of cl 23 of the registered memorandum affecting the supermarket’s lease. The other form of loss or damage which she claimed to have suffered was the loss of her ability to earn future profits from the operation of the kiosk by reason of its closure. She claimed that this was due in part to her being unable to run her business in such a way as to be able to afford to pay the rent, again by reason of the asserted breaches of State Rail and Fairfax.

23    On any view, Ms Lin’s economic interest was to operate the kiosk in such a way as to maximise, first, sales of the products which she was authorised to sell there and, accordingly to earn profit from those sales. Accepting her case at its highest, that economic interest was infringed because the supermarket made or permitted sales of competing products during the whole period in which Ms Lin’s lease was in place up to and including the date of its termination as she asserted in her affidavit of 19 October 2010 from which I have quoted above. And, by the time Ms Lin suspended her account with Fairfax on 17 April 2003, it is certain that she had suffered damage. This is because, at the very least, she was no longer able to sell her products in the kiosk in accordance with what previously had been her rights under her lease and her agreement with Fairfax.

24    If State Rail were in breach of its obligation under Ms Lin’s lease of the kiosk in some way because it had permitted or not prevented sales of competing products to occur from the supermarket, Ms Lin had suffered loss or damage from that breach during the period up to and including the date of termination of her lease. Likewise, if State Rail owed her a duty of care to prevent her suffering such loss or damage, she had also suffered actual damage from the breach of that duty by no later than the date of termination of her lease. The same applies to Ms Lin’s claim to have suffered loss or damage by reason of any unconscionable conduct that could be found against State Rail for failing to prevent its other tenant, the supermarket, making or permitting sales of the competing products.

25    In addition, Ms Lin’s claims that State Rail owed her an obligation in contract or a duty in tort to cause the supermarket to adhere to the terms of cl 23 of the registered memorandum affecting its lease were misconceived. State Rail had the right, as landlord of the supermarket, to waive compliance with that condition or indeed to agree to remove its operation from the terms of the supermarket’s tenancy. The terms of the supermarket lease did not give a stranger to that lease, in the position of Ms Lin, any entitlement to require State Rail to enforce its contractual rights against the supermarket. And, State Rail had no obligation under its lease with Ms Lin to do so. Nor did State Rail have a legally enforceable duty to Ms Lin as a tenant, under a different lease, to enforce any rights it had against the supermarket as its tenant. State Rail was entitled to enforce or not enforce its rights against third parties as it chose. Ms Lin was not able to point to any clause in her lease with State Rail or any other basis in law why she was entitled to have State Rail enforce the terms of its lease of the supermarket, far less that it owed her a duty of care to do so.

26    At the time of termination of her lease, Ms Lin’s loss or damage was actual, not contingent. There was no contingency that, in the future, might occur before she could be any more certain to have suffered loss or damage, than she was at the time that the lease was terminated and she was no longer able to occupy the kiosk. There is no policy reason for concluding that any of her causes of action for damages had not by then accrued. I am satisfied that no contingency existed in April 2003 that would have made it just or reasonable to expect Ms Lin to wait for it to be fulfilled before she could commence proceedings to recover on the claims she has made in these proceedings. All her claims for loss and damage had accrued by no later than the time her lease was terminated and she asked Fairfax to suspend supplying her. Those claims were actual, and in no way contingent as at 17 April 2003: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 532-533 per Mason CJ, Dawson, Gaudron and McHugh JJ.

27    Accordingly, each of the causes of action that Ms Lin has sought to pursue in these proceedings against RailCorp and Fairfax was commenced more than six years after it had accrued, at latest, on 17 April 2003. Indeed, it is very likely that the causes of action in contract, tort and under the Trade Practices Act and Fair Trading Act had accrued well before that date.

28    Ms Lin also argued that the present proceedings are in some way a continuation of the 2003 proceedings because the second Full Court left unadjudicated her notice of motion of December 2005. She also argued that because the motion was unadjudicated and these proceedings were a continuation of it, she still had the right to join Fairfax, even though such joinder would otherwise have been outside the limitation period. I reject that argument. The claim against Fairfax is a new cause of action that was not raised in the 2003 proceedings or the associated appeals. That claim was statute barred in 2010 because it had been commenced more than six years after it had accrued: see also Skiwing Pty Limited t/as CafÉ Tiffany’s v Trustco Australia Ltd (Stockland Property Management Limited) (2009) ALR 339 at 350 [54]-[57] per Buchanan J and the cases there cited.

29    Nor does s 63(2) of the Limitation Act assist Ms Lin. That section applies where, before the expiration of the limitation period fixed by, or under, that Act for a cause of action to recover any debt, damages or other money, an action is brought on that cause of action. In such a situation s 63(2) provides that the subsequent expiration of the limitation period does not affect the right or title of the plaintiff or applicant to the debt, damages or other money for the purposes of the action or so far as the right or title is established in the action.

30    The end result of the 2003 proceedings was that Wilcox J and two Full Courts dismissed Ms Lin’s claims. The 2003 proceedings decided that no cause of action on which she relied `existed. Those proceedings ended. Section 63(2) does not apply to independent proceedings brought over four years after the determination of earlier proceedings that had been brought on the same or similar causes of action.

Consideration of Ms Lin’s arguments based on McNamara

31    When Wilcox J held that the proceedings under the Trade Practices Act could not be maintained against State Rail, he dismissed those proceedings. Following the first Full Court decision, the remainder of the 2003 proceedings was remitted to Wilcox J so that he could determine the issue under the Retail Leases Act. His Honour dismissed Ms Lin’s 2003 proceedings on a final basis in 2005. The effect of the decision of the first Full Court to remit part of the matter to Wilcox J may have the effect of undoing the res judicata effected by his Honour’s earlier dismissal of the proceedings on 13 November 2003, however, it is not necessary to decide that issue and I will not do so. The decision of the first Full Court left undisturbed the issue estoppel on the Trade Practices Act claim. Thus, when Wilcox J dismissed the 2003 proceedings on 5 August 2005 there was a res judicata of all of Ms Lin’s causes of action that she had claimed against State Rail in those proceedings, namely that she had none of the rights she claimed.

32    I am of opinion that Wilcox J’s determination that Ms Lin had no claim under the Trade Practices Act for unconscionable conduct created a res judicata in respect of her cause of action under s 51AC in the sense explained by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-533. Ms Lin’s right, or cause of action, that she claimed in the 2003 proceedings under ss 51AC and 82 of the Trade Practices Act passed into judgment, in the order Wilcox J made on 5 August 2005 dismissing the proceedings to the extent that it remained extant after his 2003 order. Accordingly, the order of 5 August 2005 dismissing the proceedings caused Ms Lin’s cause of action under ss 51AC and 82 to merge in that order and it ceased to have an independent existence. That order had the consequence that her rights to bring any proceedings against State Rail for unconscionable conduct under s 51AC had become merged into the order. The right she claimed in the 2003 proceedings had ceased to exist: Blair 62 CLR at 532. The 2003 decision had been affirmed by the Full Court, leaving that part of Wilcox J’s decision untouched. Even if the partial remittal temporarily suspended the operation of the res judicata on the Trade Practices Act claim, Wilcox J’s final dismissal of the proceedings in 2005 once again resurrected the merger of Ms Lin’s claim for damages under s 82 of the Trade Practices Act by reason of State Rail’s alleged breach of s 51AC. So long as that judgment stands, it is not competent for her to bring further proceedings in respect of the same cause of action: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510 per Deane, Toohey and Gaudron JJ; see also at 507 and Anshun 147 CLR at 597.

33    It is hardly surprising that the second Full Court did not deal with Ms Lin’s motion filed in December 2005 to dismiss State Rail’s 2003 motion seeking summary dismissal of her proceedings. That is because the first Full Court had upheld the summary dismissal of that cause of action by Wilcox J and Ms Lin’s motion required no further consideration. The second Full Court necessarily must have rejected her attempt to revisit the matter. Even if it did not, the order dismissing all her claims remains undisturbed and so they are merged in that order. The claim under the Trade Practices Act no longer exists.

34    Moreover, the decision in McNamara 221 CLR 646 did not affect the res judicata created by the decision of Wilcox J to dismiss Ms Lin’s claim under s 51AC of the Trade Practices Act. First, each of Ms Lin and State Rail (RailCorp) was bound by that decision. It was an order of a superior court of record that is valid and binding unless and until set aside. It cannot simply be ignored: DMW v CGW (1982) 151 CLR 491 at 507 per Mason, Murphy, Wilson, Brennan and Deane JJ; Re Macks; Ex parte Saint (2000) 204 CLR 158. Nor is it possible for a single judge in my position to ignore the order of Wilcox J dismissing the claims in the 2003 proceedings under the Trade Practices Act. That order was affirmed by the Full Court of this Court. Because Ms Lin’s rights under ss 51AC and 82 merged in Wilcox J’s order of dismissal, they no longer have any independent existence. She is not able to resurrect them because the effect of the Court’s orders is that they do not exist. For these reasons I am of opinion that Ms Lin’s claims under the Trade Practices Act are untenable.

Universal Declaration of Human Rights

35    The government of Australia has acted to protect the rights of all its citizens by recognising international standards for the protection of universal human rights and fundamental freedoms through its acceptance of the Universal Declaration of Human Rights as noted in the preamble to the Native Title Act 1993 (Cth). That recognition, however, only creates, in the absence of legislation to the contrary, a legitimate expectation that a decision-maker will act in a particular way and does not necessarily compel him or her to act in that way. The expectation is not a binding rule of law and is not an enactment of the Parliament of the Commonwealth or any other parliament in this country. As Mason CJ and Deane J said in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 any other view would be to incorporate the provisions of an unincorporated international convention into our municipal law by the back door. Such an approach to creation of rights and interests would be antithetic to the concept of the rule of law as operating through the creation of rights and obligations by elected representatives of the Australian people in their parliaments.

36    In my opinion there is no basis to suggest that Art 17(2) of the Universal Declaration has the operation here claimed by Ms Lin. The article is directed against arbitrary action by government (either through the executive, legislative or judicial branches) that deprives a person of his, her or its rights. It is not directed towards the private conduct of persons who are in contractual or other relations from acting in particular ways. If State Rail or Fairfax committed any legal wrong against Ms Lin, she would have had a cause of action through which she could vindicate that claim in due course of law. However, if no such cause of action against State Rail or Fairfax under domestic Australian law arose from the conduct she complains of, it does not follow that she has been deprived arbitrarily of her property.

37    Ms Lin’s rights under her lease with State Rail and her contract with Fairfax were part of the congeries of rights and obligations that governed the relationships of the respective parties to those contracts. Those congeries included the rights each contract gave each party to terminate the relationship. Ms Lin failed to identify the nature of the proprietary right of which she had been allegedly deprived arbitrarily.

38    A statutory limitation period in which to bring proceedings is not an arbitrary deprivation of property or rights. Rather, it is a legislative means of determining the period of time in which claims may be enforced, and after which the right to bring, or the threat of, litigation will no longer exist. International conventions recognise time bars or limitation periods as an ordinary and appropriate way to regulate the entitlement of persons with a claim to approach the Courts to vindicate it. Thus, for nearly a century international conventions regulating the rights of persons engaged in international trade involving carriage of goods by sea and carriage of persons and goods by air have had time bars: Arts 3(6) and (6bis) of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading done at Brussels on 25 August 1924 as amended by the Protocol amending that Convention done at Brussels on 23 February 1968, known as the Hague-Visby Rules, given the force of law with modifications by s 7 of the Carriage of Goods by Sea Act 1991 (Cth) and Art 29 of the International Convention for the Unification of Certain Rules Relating to International Carriage by Air done at Warsaw on 12 October 1929, known as the Warsaw Convention given the force of law in Australia by ss 11 and 21 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

39    In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-554 McHugh J explained the rational utility of limitation periods. As he said (at 553):

“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.”

40    Ms Lin has not demonstrated that she has been deprived of any property arbitrarily to provide a foundation for any claim based on Art 17(2), even assuming that that provision gave her a legally enforceable right. That is because she had no property consisting of a presently existing cause of action for damages or other legally cognisable claim that she could maintain against either State Rail or Fairfax. In my opinion, her claim based on Art 17(2) has no reasonable prospects of being successfully prosecuted against RailCorp or Fairfax.

Other ARGUMENTS

41    It is not necessary for me to decide whether an estoppel of the kind raised in Anshun 147 CLR 589 applies to any or all of Ms Lin’s claims against State Rail. Nor is it necessary to examine Ms Lin’s claims to see if they are legally coherent. It will be apparent from my attempt to describe them that those claims are not straightforward.

Test under s 31A

42    The expression “no reasonable prospect” in s 31A of the Federal Court of Australia Act ought not be paraphrased: Spencer v Commonwealth (2010) 241 CLR 118 at 141 [58] per Hayne, Crennan, Kiefel and Bell JJ. However one might view Ms Lin’s claims, it is plain that they have been brought too late for the purposes of any limitation provision and must fail. Exercising the caution which is necessary before concluding that a litigant should be summarily prevented from pursuing a cause of action, I am nonetheless satisfied that the proceedings should be dismissed because there is no likelihood that Ms Lin will be able to prosecute them successfully: see also Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited (2006) 236 ALR 720 at 731 [44]-[46].

43    None of Ms Lin’s claims is fairly arguable. Regrettably she did not take up the urgings of Wilcox J in 2003, and following, that she engage the services of a lawyer. I also sought to assist her in that regard by appointing counsel under O 80 of the Federal Court Rules. Counsel took up the engagement but, having given Ms Lin advice, ceased to act for her. Ms Lin is an obviously intelligent and capable person, but unfortunately has misconceived the legal avenues for redress open to her.

44    It follows that Ms Lin has no reasonable prospect of succeeding in prosecuting her claims in these proceedings against RailCorp or Fairfax within the meaning of s 31A(2) of the Federal Court of Australia Act. Indeed, the proceedings are foredoomed to fail and for that reason are an abuse of the process of the Court: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.

45    In my opinion the proceedings should be dismissed as against Rail Corp and Fairfax under s 31A(2) of the Federal Court of Australia Act and on the basis that they are an abuse of the process of the Court because they are foredoomed to fail. Ms Lin should pay the costs of RailCorp and Fairfax of the proceedings and their motions.

Associate:                        Dated:    24 March 2011