Kalaba v Commonwealth of Australia

[2004] FCAFC 326

FEDERAL COURT OF AUSTRALIA

Kalaba v Commonwealth of Australia [2004] FCAFC 326

PRACTICE AND PROCEDURE - Appeal - Leave To - From interlocutory judgment - Relevant considerations - Leave refused.

PRIVACY - Doubt as to whether Australian law recognises a tort of privacy - Present case does not raise circumstances to raise the argument - Damages and loss too remote.

TORT - Negligence - Alleged breach of duty of care - Failure by Australia Post to deliver post in timely manner - Loss and damage - Complete defence to this claim pursuant to the Australian Postal Corporation Act - Australian Postal Corporation Act (1999) s 34.

Australian Postal Corporation Act 1999 (Cth) s 34

Decor Decoration Pty Limited v Dart Industries Inc (1991) 33 FCR 397 cited
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 referred to
Giller v Procopets [2004] VSC 113 cited

LAZAR KALABA v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN POSTAL CORPORATION
TAD 21 OF 2004

TAMBERLIN, NORTH AND DOWSETT JJ
SYDNEY (ON THE PAPERS)
14 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 21 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LAZAR KALABA
APPELLANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN POSTAL CORPORATION
SECOND RESPONDENT

JUDGES:

TAMBERLIN, NORTH AND DOWSETT JJ

DATE OF ORDER:

14 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application for leave is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 21 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LAZAR KALABA
APPELLANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN POSTAL CORPORATION
SECOND RESPONDENT

JUDGES:	TAMBERLIN, NORTH AND DOWSETT JJ
DATE:	14 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of Heerey J (“the primary Judge”) dismissing under O 20 r 2 of the Federal Court Rules (“the FCR”), a proceeding brought by the appellant (“Mr Kalaba”) against the Commonwealth of Australia (“the Commonwealth”) and the Australian Postal Corporation (“Australia Post”).  The primary Judge decided that the proceeding was without legal foundation, and in dismissing it ordered Mr Kalaba to pay the costs of the respondents.

2. The parties have requested the Court to consider the matter on the papers without the necessity for any oral hearing.

3. We have agreed to this course and have considered the submissions of the parties, the judgment of the primary Judge and the appeal papers.

4. The judgment of the primary Judge is an interlocutory one and it is therefore necessary for Mr Kalaba to obtain leave to appeal.  In order to obtain such leave it is common ground that it is necessary for Mr Kalaba to satisfy the Court that in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal, and that it must further be asked whether substantial injustice would result from a refusal to grant leave to appeal, supposing that decision to be wrong: see Decor Decoration Pty Limited v Dart Industries Inc (1991) 33 FCR 397.

5. It is alleged in the Statement of Claim that Mr Kalaba filed in the High Court that the Commonwealth refused to assist Mr Kalaba’s application for a compensation claim, but later wrongly interfered in Mr Kalaba’s affairs without his consent.  The full terms of the Statement of Claim are set out in the judgment below and it is not necessary to repeat them. 

6. The first claim by Mr Kalaba is that the Commonwealth owed him a duty of care to protect his privacy and not to interfere in or prejudice his claims for compensation and a concentration camp pension in respect of his internment during World War II. 

7. In his reasons the primary Judge examined the relevant authorities and concluded there was in fact an attempt by the Commonwealth to assist Mr Kalaba by inquiring as to records concerning his concentration camp internment, in the course of which there was incorrect reference to the name of the camp by referring to it as “Sirvir” rather than “Sarvar”.  The primary Judge held that the circumstances considered as a whole could not give rise to any breach of privacy. 

8. The primary Judge referred to the authorities concerning the question of whether Australian law recognised a tort of breach of privacy and found that on the present state of the authorities there was no tort of privacy, although he noted that in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [132], three members of the High Court left the possibility open. In a subsequent case before the Victorian Supreme Court, Giller v Procopets [2004] VSC 113 at [187]-[189], the Court held that the law has not developed to the point where an action for breach of privacy is recognised in Australia. The primary Judge was not prepared to foreclose the possibility of an argument that Australian law should recognise a duty of privacy, provided that there were circumstances in which such an argument could reasonably be raised. In his Honour’s opinion, there were no such circumstances in the present case.

9. In addition, the primary Judge found that the damages claimed by Mr Kalaba turned on his imprisonment for five years for two serious offences of arson in 1991 when he set fire first to a lift in a building occupying his solicitor’s office in Canberra, and later to a vehicle outside the Prime Minister’s office.  For these offences Mr Kalaba was charged, convicted, and sentenced by the Supreme Court of the Australian Capital Territory on 27 August 1991.  He served five years in prison.  In the view of the primary Judge, these considerations showed that the damages and loss sought to be recovered were too remote, as they could not be said to flow from the alleged breach of privacy.  This is a further, alternative, cogent reason for his Honour’s rejection of Mr Kalaba’s case as set out in his Statement of Claim.

10. In his submissions on appeal, Mr Kalaba alleges that the lawyers for both the respondents told lies under oath.  In support of the contention that the lawyer for Australia Post told lies, Mr Kalaba refers in the transcript to a summary of the Statement of Claim, and compares it with par 20 of the Statement of Claim itself.  There is a discrepancy.  However, in our view nothing turns on the discrepancy raised by Mr Kalaba since the Statement of Claim was before the primary Judge as he treated it as a basis of the claims.  Nothing has been shown to flow from the alleged mis-statement.  This matter does not support a claim that there was a “fabricated Statement of Claim.” 

11. There is also an incorrect statement in the transcript on the hearing before the primary Judge, wherein, outlining the Statement of Claim, Counsel refers to a period of five months imprisonment although the Statement of Claim referred to five years imprisonment as a consequence of Mr Kalaba’s conviction.  However, the Statement of Claim, which is quoted in full in the judgment, is clear and specific on this point, and there is a later reference in the transcript by Counsel and the primary Judge to Mr Kalaba serving the five year term.  Nothing has been shown to flow from the mis-statement by Counsel regarding the term of imprisonment, as recorded in the transcript.  It can readily be seen that par 26 of the Statement of Claim specifically refers to the five years sentence of imprisonment on 27 August 1991.

12. The claim against Australia Post, framed in negligence for breach of a duty of care, as alleged in par 22 of the Statement of Claim, is that Australia Post is said to have caused loss and damage as a consequence of its failure to deliver correspondence in a timely manner.  In his reasons for judgment the primary Judge relied on s 34 of the Australian Postal Corporation Act 1999 (Cth), which provides that no proceeding lies against Australia Post in relation to any loss by any act or omission, whether negligent or otherwise, in relation to the carriage of a letter or other article by means of the letter service.  This is, and was seen by the primary Judge, to be a complete answer to Mr Kalaba’s claim in negligence.  The present case on the allegations in the Statement of Claim, falls squarely within the defence provided by s 34.  We agree with the primary Judge that on the material before us there is no arguable case to the contrary.  Nothing alleged in the Statement of Claim, or in the appeal papers, could establish any sufficient connection between the breach of duty alleged and the loss claimed of an opportunity to seek compensation for war-time internment, or for imprisonment in the five year period.

13. Having regard to the above reasons, appeal papers and submissions of the appellant, both in chief and in reply, and to the written submissions of the respondents, we are not persuaded that the judgment below is attended by sufficient doubt in the present case to warrant the grant of leave to appeal.  Accordingly, we refuse the application for leave to appeal in this matter and we dismiss the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, North and Dowsett.

Associate:

Dated:             14 December 2004

The Appellant represented himself.
Counsel for the First Respondent:	Peter Bowen
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mathew K Wilkins
Solicitor for the Second Respondent:	Page Seager
Date of Last Written Submissions:	12 November 2004
Date of Judgment:	14 December 2004