Lin v State Rail Authority of NSW

[2005] HCATrans 197

[2005] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S309 of 2004

B e t w e e n -

SARAH LIN

Applicant

and

STATE RAIL AUTHORITY OF NSW

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 APRIL 2005, AT 9.20 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a tenant of the respondent in respect of premises located at Waverton railway station, from which she conducts a kiosk.  The applicant commenced proceedings in the Federal Court claiming breaches of the Trade Practices Act 1974 (Cth) and the Retail Leases Act 1994 (NSW). The respondent successfully applied to have the proceedings struck out. An application for leave to appeal was heard by the Full Court of the Federal Court and was partially successful.

The applicant seeks special leave to appeal on two grounds. The first ground concerns the application of s 51AC of the Trade Practices Act. The Full Court of the Federal Court rightly refused leave to appeal on the ground that the primary judge was correct to hold that s 51AC of the Trade Practices Act had no application to the respondent because it is a statutory body representing the Crown so described by s 4(2)(b) of the Transport Administration Act 1988 (NSW). See also s 2B(1) of the Trade Practices Act.  There are no prospects of success in respect of the first ground.

The second ground on which special leave to appeal is sought concerns the application of the Retail Leases Act. At first instance the primary judge held that the Court had no jurisdiction to deal with that claim “at least in the absence of an arguable proper claim in federal jurisdiction”. [AB 5] The Full Court ordered that leave to appeal be granted on the grounds that there (i) was a real question to be tried as to whether or not the applicant's lease fell within the exclusion in s 6(1)(a) of the Retail Leases Act and (ii) if the exclusion did not apply, then there was a real question as to whether the claim was one that the Federal Court could entertain.  Accordingly the Full Court ordered that the matter be remitted to the primary judge. 

The applicant in this Court appears to argue that the Full Court should have gone on to decide the two questions posed.  This argument is misconceived.  The Full Court of the Federal Court was dealing only with an application for leave to appeal.  There are no prospects of success on the second ground.

Accordingly special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing with costs this application for special leave.

I publish the disposition signed by Justice Kirby and myself.

AT 9.23 AM THE MATTER WAS CONCLUDED