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.