Lin v State Rail Authority of New South Wales

REASONS FOR JUDGMENT WILCOX J: 1 This is an application to strike out a proceeding commenced on 1 October 2003 by Ms Sarah Lin. The proceeding is brought against State Rail Authority of New South Wales ('State Rail'). Ms Lin appears in person. She has been assisted by an interpreter; however, her English is fairly good. 2 The claim made by Ms Lin is for damages for contravention of s 51AC of the Trade Practices Act 1974 (Cth) ('Trade Practices Act'). The essence of her claim is set out in an affidavit sworn by Ms Lin on 29 September 2003, which was relied upon by her in relation to the strike out application. 3 It appears from her affidavit that Ms Lin was a tenant of State Rail in respect of premises at Waverton railway station. The tenancy agreement is in evidence. The tenancy apparently commenced on 10 October 1998 and was from month to month. The relevant premises were 13.8 square metres, as shown on a plan attached to the tenancy agreement. As I understand it, the premises consisted of a kiosk on platform one of the station. The tenancy agreement provided that the purpose of the tenancy should be the sale of '[n]ewspapers, snacks, fresh flowers, cigarettes, refreshments (including fruits), magazines, artcrafts, sarongs, films'. 4 At some stage, Ms Lin discovered that newspapers and magazines were being sold by a competitor from premises within the Waverton railway station complex. I gather the competitor's premises were near the entrance of the station, at a higher level than the location over which she had tenancy rights. Apparently State Rail had given a head lease over 94A Bay Road Waverton, an area known as 'Peter's Four Square Supermarket' ('Peter's Supermarket'). At relevant times, the head lease was held by a company called Wasada Pty Limited ('Wasada'). Apparently, there was a sub-lease of shop 3 in Peter's Supermarket to a Mr Peter Lefman, who operated North Sydney Newsagency, and it was from that shop that newspapers and magazines were being sold. Ms Lin complained about Mr Lefman's activities to the Rail Estate section of State Rail. 5 There is in evidence a letter from Mr Gary Chao, Property Manager of the Rail Estate section of State Rail, to M W Bugden of Wasada, dated 30 July 2001. In this letter, Mr Chao noted the receipt by State Rail of 'a representation from one of its Lessees, Waverton Railway Station Bookstall, against the above mentioned Sub-lessee regarding the right to sell newspapers and magazines'. The letter goes on: 'Please see attached documentation which indicates that Ms Sarah Lin of the Waverton Bookstall has the exclusive right to sell newspapers and magazines within State Rail's property at Waverton. Sarah Lin requests that Peter's Supermarket is refrained from selling newspapers and magazines. As Peter's Supermarket is a Lessee of your company (a Sub-lessee of State Rail), could you please investigate this matter further and advise State Rail of your findings at the earliest opportunity.' 6 The next letter in the material tendered today is a letter from Mr John Blow, Property Manager of the Rail Estate section of State Rail; presumably Mr Chao's successor in that position, to Ms Lin, dated 8 April 2002. In his letter, Mr Blow referred to a meeting on 28 February 2002, and three subsequent telephone conversations, regarding the sale of newspapers and magazines by Peter's Supermarket. Mr Blow went on to discuss information from the Newsagents Association of NSW & ACT about deregulation of the industry. After dealing with that matter, he said: 'More importantly, I reviewed the Head Lease of 94A Bay Road to Wasada Pty Limited and noted that there is a provision prohibiting the sale of newspapers, books, periodicals etc from the premises. The same provision is contained in the Sub-Lease of Shop 3 to Peter Lefman. I therefore wrote to Wasada on 4 April 2002 requesting that they arrange for Peter's Supermarket to cease selling newspapers and magazines immediately and am awaiting their response.' 7 The next letter is dated 25 July 2002. It is addressed to Ms Lin and refers to a further meeting held on the preceding day, involving the writer of the letter, Mr Blow. The letter confirmed the following matters: '1. You advised the sale of newspapers and magazines by Peter Lefman (trading as Peter's Supermarket) at 94A Bay Road was a breach of their lease and you would be seeking legal advice. You also advised that you would be referring the matter to the Retail Tenancies Tribunal for mediation and are prepared to go to court. 2. SRA advised it would not subsidise your rental or provide compensation for your claimed loss of business. 3. Peter Lefman has been selling newspapers since 1990 and SRA is not in a position to ask him to stop selling these now. 4. You were aware when you purchased the business in 1998 that Mr Lefman was selling newspapers. 5. You advised that Mr Lefman commenced selling magazines in 1999, 12 months after you purchased the business. SRA will write to Wasada Pty Ltd, the Head Lessee of 94A Bay Road, requesting that Mr Lefman cease selling magazines. With regard to contacting the supplier of the magazines, this is a matter for you, not SRA.' There was then discussion about the possibility of Ms Lin taking over a dry cleaner's business. 8 The letter did not explain why Mr Blow was of the opinion that State Rail was not in a position to ask Mr Lefman to cease to sell newspapers. The lease given by State Rail to Wasada is in evidence. Clause 23 of the lease states: 'The Lessee shall not offer for sale from or within the demised premises any of the following lines: (a) Newspapers, books, periodicals, postage and duty stamps; (b) Tobacco, cigars, cigarettes, matches and smokers' requisites; (c) Chocolates (in blocks and tabs only), packet confectionary, Aspros, A.P.C. powders, photographic films, razor blades, playing cards, stationery (including pens, pencils and erasers), toothpaste, tooth brushes, soap, combs and lottery tickets.' I note that this clause expressly refers to newspapers. 9 It seems that Mr Blow did not maintain the opinion that he expressed in July 2002. However, there was further delay before he did anything about trying to prevent Mr Lefman from selling newspapers. On 18 December 2002, a formal notice was signed by Mr Blow. It was addressed to Wasada. The notice referred to clause 23, and also clause 35, of the lease. Mr Blow alleged breach by Wasada of the covenants in both these clauses. The notice said: 'State Rail hereby gives you notice and requires you to remedy the breaches by ceasing or causing the cessation of the sale of newspapers and magazines from the premises.' 10 On 19 December 2002, Henry Davis York, lawyers acting for State Rail, wrote a letter to Wasada enclosing a notice, presumably that notice, and demanding rectification of the breaches within a reasonable time. The letter said: 'What is reasonable time is a question of law. State Rail considers one month from the date of this letter to be a reasonable time.' 11 The lawyers went on to state that, if the breaches were not rectified within that time, State Rail reserved its right to terminate the head lease. However, according to Ms Lin's evidence, newspapers and magazines continued to be sold from Peter's Supermarket. No action was taken by State Rail to prevent that conduct. Ms Lin fell behind in her rent, she says, because she could not compete with a competitor who was better placed to secure the sales; presumably as passengers entered the station. Her tenancy agreement was terminated because of non-payment of rent. 12 It will be apparent from what I have set out that there is, at least on a prima facie basis, room for serious concern about the way in which Ms Lin was treated by State Rail. I appreciate that there may be other documents relevant to the case. However, the documents that are before me strongly suggest that State Rail failed to take any action to enforce the terms of its lease to Wasada, despite knowledge of Ms Lin's position and her numerous complaints about her inability to compete with somebody who was apparently acting in breach of the restrictions under the lease it had taken from State Rail. 13 The claim before the Court is based almost entirely on s 51AC of the Trade Practices Act. When the matter was first before me, on 30 October 2003, I pointed out to Ms Lin that the claim had technical legal aspects. I mentioned the possibility that the relevant provisions of the Trade Practices Act would not be available to her because of the status of the respondent as a government owned entity. I urged her in the strongest of terms to seek legal advice about the matter. She has not done this. 14 The respondent filed a notice of motion to strike out Ms Lin's application on the basis that her claim does not disclose a cause of action. Mr A P Coleman, counsel for State Rail, has argued that this is so, if only because s 51AC of the Trade Practices Act does not bind his client. There is also a reference in Ms Lin's application to the Retail Leases Act 1994 (NSW). However, I understand that a claim under that Act has already been made to the Administrative Decisions Tribunal of New South Wales and dismissed for lack of jurisdiction: see Lin v State Rail Authority of New South Wales [2003] NSWADT 131. This Court has no jurisdiction to deal with that claim, at least in the absence of an arguably proper claim in federal jurisdiction. 15 Mr Coleman's contention about the Trade Practices Act seems to be correct. 16 Section 4 of the Transport Administration Act 1988 (NSW) constitutes State Rail as a corporation. Sub-section (2) says: 'The State Rail Authority: (a) has the functions conferred or imposed on it by or under this or any other Act, and (b) is, for the purposes of any Act, a statutory body representing the Crown.' 17 Section 2B(1) of the Trade Practices Act provides as follows: 'The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory: (a) Part IV; (aa) Part VB; (b) Part XIB; (c) the other provisions of this Act so far as they relate to the above provisions.' 18 Section 51AC is in Part IVA of the Trade Practices Act, that is, it is in a part of the Act which is not referred to in s 2B(1). 19 I pointed out to Ms Lin that the clear intent of the Parliament was that those provisions of the Trade Practices Act which fall outside the enumerated provisions do not bind the Crown in right of a State or Territory. I suggested once again that she should obtain legal advice. I said I thought it was possible, without expressing any view about the matter, that her claims could be reformulated; for example, so as to take advantage of the Fair Trading Act 1987 (NSW). However, Ms Lin resisted this suggestion and insisted that her claim was within the jurisdiction of the Court. She referred to several cases, none of which was relevant, but relied primarily upon the decision in Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517; (1998) 158 ALR 323. This was a decision of a Full Court of which I was a member. It provides no assistance to the case Ms Lin needs to make in order to resist Mr Coleman's argument. 20 As I have indicated, it seems to me that, at least on the face of the matter, Ms Lin may have a real grievance about the way in which she has been treated by State Rail. In that situation, I would normally be unwilling to strike out an applicant's application, particularly if brought by an unrepresented litigant. However, Ms Lin has steadfastly resisted my urgings that she should obtain some legal advice and reconsider the way in which she puts the case. I am sure she knows what she is doing. She insists upon me deciding the case on the basis of her application as it is currently formulated. That forces me into the position that I have to accede to the argument put by Mr Coleman and to his application to strike out the matter. 21 Even now, Ms Lin would be well advised, in my opinion, to seek legal advice, with a view to taking other action. However, the suggestions I have made to her have not been well received. I must leave it to her to decide what to do. The order of the Court will be that application number N 1491 of 2003 be struck out. Ms Lin must pay State Rail's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.