The state government could be served a Supreme Court injunction tomorrow to stop the Boxing Day rail line truncation.
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Save Our Rail launched the injunction application on Friday on the grounds that the government does not have an Act of Parliament to support the rail line cut.
“If the state government went and got an Act of Parliament it would cure the legality issue,” Save our Rail vice-president Kim Cross said.
Papers were served on government representatives on Friday afternoon and the hearing will be held in the Supreme Court tomorrow.
“Our legal position is clear – Transport for NSW will not be in breach of section 99A of the Transport Administration Act 1988,” Transport Minister Gladys Berejiklian said in a statement.
Section 99A states that a rail line cannot be closed without Parliament’s approval and that a line is closed “if the land concerned is sold or otherwise disposed of or the railway tracks and other works concerned are removed”.
The government might escape the injunction if it can argue that it does not intend to sell the land at this time.
Alternatively the government might argue that it does not intend to rip up both the tracks and other works from Boxing Day, simply one or the other.
The government is also expected to argue that Section 99B should apply which states that the rail track owner can, if it has the approval of the minister, “close any level crossing, bridge, or other structure for crossing or passing over or under any railway track if both the level-crossing, bridge or other structure and the railway track are owned by the owner”.
Save Our Rail barrister Shane Prince will argue that Section 99B is an invalid defence and that Section 99A should apply in the strictest of terms.
The duty judge is expected to either dismiss the injunction application tomorrow or uphold it and set another date for further hearings, effectively stopping work on Boxing Day.
“[The government] is aware of the operation of the Act, but they’ve made a critical decision not to [get Parliament approval] and rely on the minister’s approval,” Ms Cross said.
“They’ve chosen not to do that because they know they don’t have the balance of power in the upper house.”
Ms Cross said Save Our Rail members hoped for a win.
“It was no mean feat to get a hearing before Boxing Day,” she said.
“That says that the court thinks we have a valid legal argument.”
Ms Berejiklian said the government had a made a decision to get on with the job after 16 years of Labor inaction.