Kalaba v Commonwealth of Australia & Anor

[2005] HCATrans 478

[2005] HCATrans 478

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H11 of 2004

B e t w e e n -

LAZAR KALABA

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

AUSTRALIAN POSTAL CORPORATION

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 AUGUST 2005, AT 9.16 AM

Copyright in the High Court of Australia

GLEESON CJ:   In a Statement of Claim filed in this Court on 5 December 2003, it was alleged by the applicant that the first respondent, the Commonwealth of Australia, had breached his privacy.  The applicant alleged that after refusing to assist him with a claim for compensation arising from his confinement during the Second World War in a concentration camp in Hungary, the Commonwealth made inquiries concerning that period of confinement, incorrectly describing the relevant concentration camp as “Sirvir”, as distinct from “Sarvar”.  In so doing, the applicant contended, the Commonwealth wrongly interfered with his claim for compensation.  Against the second respondent, the Australian Postal Corporation, the applicant alleged negligence in the handling of correspondence relating to that compensation claim.

The action thus brought was remitted to the Federal Court, where Heerey J at first instance dismissed the proceedings under O 20 r 2 of the Federal Court Rules.  His Honour noted that there is presently in Australia no tort of breach of privacy, and added that the circumstances alleged by the applicant did not disclose in ordinary terms any breach of privacy.  His Honour also held that s 34 of the Australian Postal Corporation Act 1999 (Cth), which provides that no proceeding lies against the Australian Postal Corporation in relation to any loss by any act or omission, negligent or otherwise, supplied a complete answer to the applicant’s claim in negligence against that body.

The Full Court of the Federal Court (Tamberlin, North and Dowsett JJ) refused leave to appeal from this decision.  In the Court’s view, the judgment of Heerey J was not attended by sufficient doubt to warrant such a grant of leave.  It is from the decision of the Full Court that the applicant now seeks special leave to appeal to this Court.

We have reviewed the judgments of Heerey J and of the Full Court of the Federal Court.  In our opinion, there is no question appropriate to the grant of special leave.  Nor is there any prospect of success in any appeal to this Court.  Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave.

AT 9.18 AM THE MATTER WAS CONCLUDED