FEDERAL COURT OF AUSTRALIA

Lin v Rail Corporation New South Wales [2011] FCA 546

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 11 April 2011 be dismissed with costs.

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    This judgment deals with an application for leave to appeal against a decision of a judge of this Court on 24 March 2011 (Lin v Rail Corporation New South Wales [2011] FCA 261 (“2011 judgment”)). In the 2011 judgment Rares J summarily dismissed an application filed by the present applicant on 4 June 2010. His Honour did so relying on s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) and because the proceedings were an abuse of process as they were “foredoomed to fail” (Federal Court Rules O 20 r 5). The 2011 judgment was an interlocutory judgment (as to s 31A(2) see s 24(1D)(b) of the Federal Court Act; as to O 20 r 5 and dismissal of proceedings as an abuse of process generally see Re Luck (2003) 78 ALJR 177 at [9]). Leave to appeal against the 2011 judgment was therefore required (Federal Court Act, s 24(1A)) and was properly sought. The application for leave to appeal was made outside the time limited by the Federal Court Rules (O 52 r 10). An extension of time must therefore be granted if the application for leave to appeal is to be entertained. For reasons to be explained, assuming an extension of time (which was not opposed) should be granted, leave to appeal should be refused with costs.

Procedural history

2    A brief procedural history is set out in the 2011 judgment (at [1]–[10]) in the following way:

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.

3    It is relevant to note, at this point, that dismissal of the whole of the proceedings by Wilcox J on 5 August 2005 (and dismissal of the appeal against that order on 22 March 2006) had the effect that any interlocutory motions in those proceedings merged in the final order. There did not remain any outstanding matter with which the Court should, or might, deal in the 2003 proceedings or later. That is relevant to a contention now advanced by the applicant that her motion filed in the appeal on 2 December 2005 remained outstanding and required attention in the proceedings commenced by her in 2010. That contention is without any substance.

4    In the 2011 judgment, Rares J outlined (at [11]–[13]) the general nature of the proceedings commenced in 2010. Some of the causes of action depended on alleged rights arising under the Real Property Act 1900 (NSW) or common law duties said to be based on those alleged rights. Some of the relief claimed was based on the Trade Practices Act 1974 (Cth) (particularly s 51AB) and on corresponding provisions in the Fair Trading Act 1987 (NSW) (particularly s 43). A further claim was that the first respondent to the present application (then called State Rail Authority of New South Wales) had breached Article 17(2) of the Universal Declaration of Human Rights (“the Declaration”), proclaimed by the General Assembly of the United Nations on 10 December 1948, by arbitrarily depriving the applicant of her property.

5    The fatal flaw in the application filed in 2010 was identified by Rares J at [17] of the 2011 judgment: “Ms Lin’s claims are statute barred.” That conclusion was not affected by the applicant’s reliance on Article 17 of the Declaration, (2011 judgment at [38], [40]). Accordingly (2011 judgment at [42], [44]), Rares J concluded that the applicant’s claims should be dismissed because they had no reasonable prospects of succeeding against either respondent (Federal Court Act, s 31A(2)) and because they were an abuse of the process of the Court (Walton v Gardiner (1993) 177 CLR 378 at 393).

Extension of Time

6    Although care must be taken not to take too rigid an approach to the assessment of what may be sufficient reasons in a particular case to grant an extension of time (see Jess v Scott (1986) 12 FCR 187 at 195–196) a statement by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9 about the way to assess applications for extensions of time has received general approval in this Court (see e.g. Parker v The Queen [2002] FCAFC 133 at [6]–[7]). Among the factors stated by Wilcox J to be relevant were the following:

    The Court must be positively satisfied that it is proper to extend time;

    It is necessary that an applicant for an extension of time give an acceptable explanation for the delay;

    Mere absence of prejudice to other parties if an extension of time is granted is not enough to justify the grant of an extension;

    It is proper to take the merits into account when assessing an application for an extension of time.

7    Subsequently, it has been stated in this Court that an extension of time in which to seek leave to appeal under O 52 r 10 should be assessed against no lesser standard than an application for an extension of time to appeal as of right under O 52 r 15(2) – namely, special reasons must be shown (see e.g. Deighton v Telstra Corporation Limited [1997] FCA 1568, Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; Gleeson v Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2011] FCA 437 at [4]).

8    Little attempt was made to explain the delay in filing the application for leave to appeal. No attempt was made to show that there were special reasons for the delay. Rather, the applicant insisted that the 2011 judgment was final, not interlocutory, and that an extension of time was not required. This argument betrayed a misunderstanding of the nature of the 2011 judgment. A mistake of this kind by an unrepresented litigant would be insufficient in many cases to justify an extension of time. However, an extension of time was not opposed in the present case and will make no difference to the fate of the application for leave to appeal. I will, therefore, make no ruling about that aspect of the proceedings and will assume that an extension of time is appropriate.

The proposed appeal

9    The application for leave to appeal was supported by two “affidavits” sworn by the applicant which set out the nature of the challenges she wished to make to the 2011 judgment. They were supplemented by oral submissions at the hearing of the application for leave to appeal. Four contentions may be identified:

1.    Rares J failed to recognise that “Australian Property Law” is not confined by the Limitation Act 1969 (NSW) (“the Limitation Act”). In answer to a question during oral submissions the applicant identified “Australian Property Law” as some form of common law right but was no more specific.

2.    Rares J mistakenly referred to s 63 of the Limitation Act when rejecting the applicant’s arguments (see the 2011 judgment at [16], [29], [30]), whereas the applicant had relied on s 73 of the Limitation Act which had the effect that s 14 of the Limitation Act did not bar her claims.

3.    Rares J failed to recognise the “sales right” of the applicant in property and wrongly denied the application of Article 17 of the Declaration.

4.    As the applicant’s motion filed on 2 December 2005 in the 2003 proceedings (referred to in the 2011 judgment at [9] – set out earlier) had not been dealt with, that part of the 2003 proceedings remained in existence in accordance with O 20 r 6 of the Federal Court Rules, was not statute barred and should have been dealt with.

10    None of these challenges to the 2011 judgment have any prospect of success on appeal if leave to appeal was granted.

Limitation period

11    Section 14(1) of the Limitation Act, s 72(6) of the Fair Trading Act and s 82(2) of the Trade Practices Act each had the effect of barring the commencement of proceedings more than six years after a cause of action arose. In the case of the Limitation Act, the causes of action which were limited included actions in contract and tort; in the case of the Fair Trading Act and the Trade Practices Act the limitations applied to actions for damages for conduct in contravention of those Acts. Rares J found that any cause of action upon which the applicant relied had arisen prior to 15 April 2003 (when the applicant was physically excluded from her business premises) and that, in any event, as the prior proceedings had actually been commenced on 1 October 2003, the applicant was clearly aware of her rights to seek relief by at least that time. In fact, his Honour found that the applicant’s own evidence was that her lease had been terminated on 10 March 2003 (2011 judgment at [20], [23]) and any loss of which she might complain should be regarded as an alleged actual (rather than contingent) loss from that date (2011 judgment at [26]). The fact that some claims for relief or causes of action were not raised in the 2003 proceedings (see the 2011 judgment at [28]) does not alter the operation of any of the limitation provisions.

12    In the proceedings before Rares J, the applicant argued that s 73 of the Limitation Act had the effect that the limitation period prescribed by s 14 did not apply. Rares J did not deal with this contention. His Honour mistakenly thought the applicant had relied on s 63 of the Limitation Act. Section 63 of the Limitation Act provides (so far as relevant to this contention):

(1)    Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person’s successors, extinguished.

(2)    Where, before the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to the debt damages or other money:

(a)    for the purposes of the action, or

(b)    so far as the right or title is established in the action.

13    Rares J’s misunderstanding of the applicant’s contention is not surprising. Although s 63 of the Limitation Act had no application to the proceedings commenced in 2010 a possible basis for its suggested application may be seen in the applicant’s (erroneous) contention that the 2003 proceedings remained alive for some purposes. Section 73 of the Limitation Act, on the other hand, has no possible application in this case. Section 73 of the Limitation Act provides:

(1)    Where a court:

(a)    removes an arbitrator or umpire,

(b)    restrains a party or an arbitrator or umpire from proceeding with an arbitration, or

(c)    sets aside an award in an arbitration,

the court may at the same time or within six months afterwards, whether or not the limitation period fixed by or under this Act for the bringing of an action or for the commencement of an arbitration with respect to the difference or matter under arbitration has expired, order that the whole or any part of the time between the date of the commencement of the arbitration and the date of the order under this section do not count in the reckoning of the limitation period.

(2)    Where, after the expiration of a limitation period fixed by or under this Act, a court makes an order under this section, the prior expiration of the limitation period has no effect for the purposes of this Act.

14    This provision had no application to the proceedings commenced by the applicant in 2010. It is one of a number of provisions in the Limitation Act which postpone the limitation bar in defined circumstances (in the case of s 73, where an agreement or Act provides for an arbitration which is interrupted or delayed due to a court order). Section 14(1) of the Limitation Act applied in the present case to any action in contract or tort.

15    The actions upon which the applicant proceeded in reliance upon the Fair Trading Act and the Trade Practices Act were each subject to a statutory limitation prescribed in each act. Rares J appears to have assumed that the general limitation in s 68(2) of the Fair Trading Act would have applied in the present case, but it appears to me that the operative limitation (in relation to s 43) is to be found in s 72(6) of the Fair Trading Act. That does not change the substantive position. The limitation was effective in this case. As to any cause of action which might arise under the Trade Practices Act, no argument was advanced on the present application to overcome the effect of s 82(2) of the Trade Practices Act.

16    It follows from the existence of the limitations in s 14(1) of the Limitation Act, s 72(6) of the Fair Trading Act and s 82(2) of the Trade Practices Act that no arguable error has been identified in the conclusion stated by Rares J in the 2011 judgment that the whole of the 2010 proceedings were statute barred. There is, in my view, no prospect of disturbing this conclusion on appeal if leave to appeal was granted. Neither of the applicant’s first two contentions would provide a basis to grant leave to appeal.

Universal Declaration of Human Rights

17    The applicant did not identify the common law right said by her to be represented by “Australian Property Law” but her broad contention is that a statutory limitation period would be contrary to Article 17(2) of the Declaration as it would result in the arbitrary deprivation of her property.

18    In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (“Teoh”) Mason CJ and Deane J (with whom Toohey J and Gaudron J in substance or in terms agreed on this issue) said (at 286):

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

19    The Declaration is not part of the municipal law of Australia, although its acceptance by the government of Australia may, in appropriate circumstances, aid in the construction of a statute or subordinate legislation which is ambiguous (Teoh at 287). Article 17 of the Declaration could not have the effect or operation suggested by the applicant, whatever its terms. The actual terms of Article 17 of the Declaration have no apparent relevance, in any event, to the proceedings commenced by the applicant in 2010. Article 17 provides:

(1)    Everyone has the right to own property alone as well as in association with others.

(2)    No one shall be arbitrarily deprived of his property.

20    As Rares J pointed out in the 2011 judgment (at [36], [38]), Article 17 does not bear upon the contractual relations of the applicant with either of the respondents, nor have any effect on a statutory limitation upon a statutory right of action. The applicant’s reliance on Article 17 of the Declaration was misconceived. That contention provides no independent reason to permit an appeal to be argued.

Residue of proceedings

21    The applicant relied on O 20 r 6 of the Federal Court Rules to argue that her notice of motion filed in the 2003 proceedings on 2 December 2005 (while an appeal was pending) remained outstanding for hearing and determination. Order 20 rule 6 deals with the residue of proceedings not wholly determined by an order under s 31A of the Federal Court Act or O 20 r 5. Order 20 r 6 provides:

Residue of proceedings

6 (1)    Subrule (2) applies if, in a proceeding commenced before 1 December 2005:

(a)    a party applies for:

    (i)    a judgment under rule 2; or

    (ii)    an order for stay or dismissal under rule 4; and

(b)    the proceeding is not wholly determined by judgment or dismissal or is not wholly stayed.

(2)    The proceeding may be continued for a claim or part of a claim not disposed of by judgment or dismissal and not stayed.

(3)    Subrule (4) applies if, in a proceeding commenced on or after 1 December 2005:

(a)    a party applies for:

    (i)    an order for stay or dismissal under rule 5; or

    (ii)    a judgment under section 31A of the Act; and

(b)    the proceeding is not wholly determined by judgment or dismissal or is not wholly stayed.

(4)    The proceeding may be continued for a claim or part of a claim not disposed of by judgment or dismissal and not stayed.

22    Order 20 r 6 had no application to any part of the proceedings commenced by the applicant in 2010 because the whole of those proceedings was dismissed by Rares J. Order 20 r 6 did not apply either to any part of the 2003 proceedings which, as Rares J pointed out, had been dismissed in their entirety. As earlier observed, the notice of motion filed on 2 December 2005 in those proceedings did not survive the dismissal of the applicant’s appeal on 22 March 2006. Accordingly, the applicant’s fourth contention provides no reason to grant leave to appeal.

Conclusion

23    There is no substance in any of the arguments advanced by the applicant. There is no prospect that an appeal could succeed if leave to appeal was granted. The application for leave to appeal must be dismissed. No reason has been advanced why, notwithstanding that the applicant is unrepresented, the ordinary rule as to costs should not apply. The application for leave to appeal will therefore be dismissed with costs.

Associate:

Dated:    25 May 2011