McCully v Sydney Trains [2021] FCA 562

McCully v Sydney Trains [2021] FCA 562

The application for summary dismissal must be dismissed because the respondents did not establish that the applicant's claim was colourable; the shifting basis for jurisdiction and applicants' conduct indicated an arguable, not fabricated, claim. The interoperation of s 2B and s 6(3) of the Competition and Consumer Act 2010 (Cth) meant the ACL did not apply to the respondents in this case, but the federal jurisdiction attached due to the non-colourable nature of the initial claim.

Parties
First Applicant: Simon McCully; Second Applicant: SJM Rail Pty Ltd ACN 602 632 182; Third Applicant: SJM Rail Signalling Pty Ltd ACN 615 834 190; First Respondent: Sydney Trains ACN 284 779 682; Second Respondent: Len Blackmore
Jurisdiction
Australia
Judgment Date
27 May 2021
Procedural Posture
Application for Summary Dismissal / Interlocutory Application – Summary Dismissal
Outcome
Application dismissed
Legal Topics
Summary Dismissal, Jurisdiction of the Federal Court, Australian Consumer Law, Crown Immunity, Misleading or Deceptive Conduct
Practice and Procedure Competition and Consumer Law Federal Jurisdiction Summary Dismissal Jurisdiction of the Federal Court Australian Consumer Law Crown Immunity Misleading or Deceptive Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Simon McCully

First Applicant

SJM Rail Pty Ltd ACN 602 632 182

Second Applicant

SJM Rail Signalling Pty Ltd ACN 615 834 190

Third Applicant

Sydney Trains ACN 284 779 682

First Respondent

Len Blackmore

Second Respondent

Procedural Posture

Application for Summary Dismissal / Interlocutory Application – Summary Dismissal

Legal Issues

  1. 1 Whether the Court has jurisdiction to hear and determine the Applicants' claims
  2. 2 Whether the immunity provided under s 2B of the Competition and Consumer Act 2010 (Cth) applies to the Second Respondent as an employee of the First Respondent
  3. 3 Whether the Australian Consumer Law is engaged with respect to the Second Respondent's conduct in making use of postal, telegraphic or telephonic services

Ratio Decidendi

The application for summary dismissal must be dismissed because the respondents did not establish that the applicant's claim was colourable; the shifting basis for jurisdiction and applicants' conduct indicated an arguable, not fabricated, claim. The interoperation of s 2B and s 6(3) of the Competition and Consumer Act 2010 (Cth) meant the ACL did not apply to the respondents in this case, but the federal jurisdiction attached due to the non-colourable nature of the initial claim.

Court Disposition

Application dismissed

Orders

  • The Respondents' application seeking summary dismissal of the proceedings is dismissed.
  • The matter is listed for a case management hearing on Thursday, 3 June 2021 at 3.30 pm (AEST), with liberty to the parties to appear by videolink.