Lin v State Rail Authority of New South Wales [2004] FCA 161

FEDERAL COURT OF AUSTRALIA

Lin v State Rail Authority of New South Wales [2004] FCA 161 SARAH LIN v STATE RAIL AUTHORITY OF NEW SOUTH WALES N 1996 of 2003 ALLSOP J 10 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1996 of 2003

BETWEEN: SARAH LIN

APPLICANT

AND: STATE RAIL AUTHORITY OF NEW SOUTH WALES

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 10 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be referred to a Full Court.

2. Subject to any further direction by a Judge of the Court the application for leave to appeal and the appeal are to be heard at the same time.

3. The matter be stood over to the next call-over for Full Court matters.

4. Costs of the application for leave to date be costs in the leave application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1996 of 2003

BETWEEN: SARAH LIN

APPLICANT

AND: STATE RAIL AUTHORITY OF NEW SOUTH WALES

RESPONDENT

JUDGE: ALLSOP J

DATE: 10 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 In this matter, the applicant seeks leave to appeal from orders made by a Judge of this Court, sitting at first instance, in which the application of the applicant was struck out, with the applicant to pay the costs of the respondent. The facts of the matter, broadly, can be seen in the reasons of the primary judge dated 13 November. His Honour took the view that the asserted jurisdiction of the Court under the Trade Practices Act 1974 (Cth) was contrary to the provisions of the Trade Practices Act, in respect of the matters pleaded, the respondent being the Crown in the right of New South Wales. If that were the only issue I would not hesitate to refuse leave. It appears to me that his Honour's decision, in that regard, was probably correct, if I may respectfully put it that way. However, his Honour also struck out the totality of the claim, the balance of the claim being asserted in non-pleaded form by a litigant in person under the Retail Leases Act 1994 (NSW). His Honour said that the Court had no jurisdiction to deal with that claim, presumably on the basis that it is an Act of the New South Wales Parliament. 2 All I need say at this level in an application for leave is that a real question arises as to the correctness of his Honour's approach, given the principles laid down by the Full Court of this Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, on the assumption, as appears to be the case, that the claim under the Trade Practices Act, though flawed, was made genuinely and non-colourably. In those circumstances, the matter before the Court was made in federal jurisdiction, and to the extent it applies, the Retail Leases Act 1994, though an Act passed by the New South Wales Parliament, is a surrogate federal law by reason of the operation of s 79 of the Judiciary Act 1903 (Cth). 3 In those circumstances, there must be strong argument to conclude that if s 79 of the Judiciary Act picks up the Retail Leases Act, this Court would have jurisdiction to entertain a claim thereunder. A significant question may arise as to whether the New South Wales Act, as a surrogate federal law, is picked up because of the purported exclusive jurisdiction to a non-judicial tribunal for the resolution of disputes under the Act. 4 Most powerfully in favour of the respondent's position before me in this matter is the question as to whether the claim under the Retail Leases Act, if the Act applies, is hopeless by reason of the nature of the lease - being, apparently, on one view, a monthly lease with a holding-over provision. It is not entirely clear from the material that is before me that Ms Lin is not making a claim founded, whether in equity or estoppel, based on the history of the relationship between the parties so as to overcome the excision in the Retail Leases Act from the purview of the Act of leases under six months. 5 The learned primary judge, if I may respectfully put it this way, wisely recommended to Ms Lin that she seek legal advice. If it be the case that there is no argument around the one-month lease provision, then all this argument about jurisdiction and the like is probably for nothing. However, that was not the basis upon which Ms Lin had her right to approach this Court struck out. In a sense, what the respondent wishes me to do is deal with this matter analogously to a notice of contention, in circumstances where that is not how the primary judge dealt with the matter. 6 Though I regret what will be the escalation of costs in this matter, I think, in all the circumstances, Ms Lin, having been deprived of her approach to this Court by an approach which I think is, in one respect, arguably wrong, that matter ought be corrected if it be wrong. It will be for the Full Court to decide whether, on the material before it, the kinds of submissions as to futility put by the respondent are properly raised. Sitting as a single judge, and given the issues canvassed by the learned primary judge, in my view, notwithstanding my reluctance in relation to the question of costs, I think the matters are of sufficient significance and arguability for the matter to be heard by the Full Court. 7 That does not mean that I propose to grant leave to appeal. I propose to refer the application for leave to appeal to a Full Court, with a direction that, subject to any different direction by the Judge handling the Full Court list, or the Full Court itself, that the parties prepare to argue the matter when it is listed on the basis both of the leave application and, if leave be granted, the full appeal. 8 My formal orders are that I refer the application for leave to appeal and the appeal, should the leave be granted, to the next available Full Court sittings. Secondly, I indicate to the parties that my associate will remit the file, together with these reasons, to the judge handling the Full Court list. 9 I note that on the last occasion Ms Lin asked for a Chinese interpreter. One has been provided. Ms Lin has displayed, in my view, in written submissions and orally, before me, a sufficient familiarity with the English language, that I do not think it necessary for the Court to pay for an interpreter for her. I might have a different view if she were to be subject to searching cross-examination in the English language. But I think, for what is being dealt with in this application, Ms Lin's English is more than adequate. 10 The costs of the matter thus far in the application for leave are to be costs in the leave application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .