Kalaba v The Commonwealth & Anor

[2004] HCATrans 88

[2004] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H4 of 2003

B e t w e e n -

LAZAR KALABA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

AUSTRALIAN POSTAL CORPORATION

Second Defendant

Summonses

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON THURSDAY, 1 APRIL 2004, AT 9.02 AM

Copyright in the High Court of Australia

MR L. KALABA appeared in person.

MR M.K. WILKINS:   If it please your Honour, I appear with MS C.L. BUXTON for the second‑named defendant, who is an applicant.  (instructed by Page Seager)

MR P.A. BOWEN:   Your Honour, I appear for the Commonwealth of Australia, also an applicant in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Who is going first among the applicants?  Is it you, Mr Wilkins?

MR WILKINS:   Yes, it has been agreed between myself and Mr Bowen that I will address you first, your Honour.

HIS HONOUR:   I do not propose to deal with your application to strike out or the demurrer point.  The Commonwealth matter has either to go to a Supreme Court or to the Federal Court.  Given the pressure of this Court’s business, Justices of this Court should not be taken up with dealing with those matters.  The court that hears the remitter can deal with all the interlocutory matters.  So I only want to deal with the remitter issue.  I have read your submissions.  You want the case to go to the Supreme Court.  The plaintiff wants the case to go to the Federal Court.  Is there anything you want to add to your submissions?

MR WILKINS:   There is not, your Honour.

HIS HONOUR:   Thank you.  Mr Bowen, you have filed no written submissions, I think, have you?

MR BOWEN:   We have not filed submissions.

HIS HONOUR:   You rely on the ‑ ‑ ‑

MR BOWEN:   Yes.  We do not mind which court we go to, but I think that the Australia Post matter can only go to the Supreme Court.

HIS HONOUR:   Why is that?

MR BOWEN:   I think it can only go under section 44(1) of the Judiciary Act.  Section 44(2) and section 44(2A) do not appear to apply to Australia Post, which should be treated not as the Commonwealth.

HIS HONOUR:   I understand that, but why can it not go as part of the matter against the Commonwealth?

MR BOWEN:   It could.  The Federal Court would not ordinarily have jurisdiction in this area and would only acquire jurisdiction because of the Commonwealth.  It could go with the Commonwealth.

HIS HONOUR:   Why does the matter not arise under a law of the Commonwealth?  I really should be directing these matters to Mr Wilkins rather than you, I suppose.

MR BOWEN:   Yes.  As I said, my position is we think the Supreme Court is the better court, but we will go to either court.

HIS HONOUR:   Yes.  Mr Wilkins, what do you say about the matter going to the Federal Court, your matter, as part of the Commonwealth matter?  If the Commonwealth matter has to go to the Federal Court, why should your matter not go with it?  Is there any legal impediment?

MR WILKINS:   In my submission, your Honour, the two matters ought go together.  It is not practical to separate the two defendants into two different actions.  The Commonwealth matter, in my submission, can go to the State court under section 44(1).

HIS HONOUR:   There is no doubt about that, but it seems to me, with great respect, that apart from the question of costs that there is nothing that really points to the Supreme Court as the appropriate forum.  If the plaintiff has a cause of action against the Commonwealth, that cause of action must have arisen outside Australia.  I know he alleges in his affidavit that it does not, but he alleges that there was a communication to Geneva and, if there is any breach of duty, that is where the breach must have occurred.

So, as Sir Anthony Mason said in McCauley’s Case, the Federal Court is the natural and appropriate forum for causes of action arising outside Australia.  In addition, this case involves the interpretation of federal law so far as your client is concerned and, again, I would have thought, and Sir Justice Mason said as much in McCauley’s Case, that the Federal Court is the more appropriate forum for determining issues of federal law.

It is true that the plaintiff resides in Tasmania and the defendants’ solicitors are in Tasmania, but the latter matter does not seem to me to be of much concern.  The defendants’ file can easily be transferred to the Australian Government Solicitor on the mainland, if necessary, and if there are any witnesses for the defendants, almost certainly they would be coming from the mainland.  So I do not think there is much going for the Supreme

Court of Tasmania, with great respect.  The only concern I have is whether or not this matter – that if the Commonwealth matter goes to the Federal Court, it can legitimately get jurisdiction over your client.  Have you any submission on that?

MR WILKINS:   In my submission, it can, your Honour.  Section 44(2A) of the Judiciary Act is not exclusive in that it is only the Commonwealth matter that can go.  It states:

Where a matter in which the Commonwealth, or a person suing or being sued . . . is a party –

So it obviously contemplates that there would be other parties and the power given to your Honour is that “upon the application” ‑ ‑ ‑

HIS HONOUR:   Yes, that is the view I took of it.  I was just a little bit taken back by Mr Bowen saying that the Federal Court would not have jurisdiction in respect of your client.  That is true, independently of section 44(2A).

MR WILKINS:   Independently of that section and independently of the defence being raised under the Australian Postal Corporation Act, which has now been raised and I suppose might give the Federal Court jurisdiction it involving a federal statute.

HIS HONOUR:   Yes, because there is a question arising under the federal statute.

MR WILKINS:   Quite so.

HIS HONOUR:   Thank you, Mr Wilkins.  Is there anything further you want to say, Mr Bowen?

MR BOWEN:   No, I understand all that, thank you, your Honour.

HIS HONOUR:   Thank you, Mr Bowen.  Now, Mr Kalaba, you want the case to go to the Federal Court, do you not?

MR KALABA:   Yes, your Honour, I want to just go to the Full Bench of the Federal Court because I was in the Federal Court 13 September 1996, that this mean next court I prefer to go to the Full Bench of the ‑ ‑ ‑

HIS HONOUR:   Well, the case cannot go to the Full Bench straight off.  It goes to the Federal Court and it would be dealt with at first instance by a federal judge in the Federal Court.  If you lose there, you can take your case to the Full Bench, or you can apply to take your case to the Full Bench. 

Anyway, you do not want the case to be heard by the Supreme Court of Tasmania.  You want the case to be heard in the Federal Court.

MR KALABA:   Your Honour, yes.

HIS HONOUR:   Thank you.  I am going to give a judgment in this matter.  Thank you.  You just might take your seat.

MR KALABA:   Thank you.

HIS HONOUR:   I have before me two summonses.  The first is taken out by the second defendant in an action pending in this Court.  It seeks orders that the writ and statement of claim filed by the plaintiff be struck out or, alternatively, that the matter be remitted to the Supreme Court of Tasmania.  In the other summons, the first defendant seeks an order that the matter be remitted to the Supreme Court of Tasmania for hearing.  I might also note that the second defendant has filed a demurrer to the plaintiff’s statement of claim and a notice requiring that the demurrer be set down before a single Justice.

The second defendant in the action is the Australian Postal Corporation; the first defendant is the Commonwealth of Australia.  The plaintiff is Mr Lazar Kalaba.  He commenced proceedings against the defendants in this Court in 2003 by a writ and statement of claim.  In his statement of claim, he alleges that he was imprisoned in Hungary between 1941 and 1942 and that he suffered property damage in that his property was destroyed during the occupation of Hungary by Germany.

His statement of claim alleges that he sought assistance from the Department of Foreign Affairs of the Commonwealth to obtain compensation from the Hungarian Government for his imprisonment in Hungary in 1941 and 1942 and for the destruction of his property.  His statement of claim alleges that when the Commonwealth refused assistance, he ended his relationship with the Commonwealth.

He alleges that, in breach of a duty of care to protect his privacy and not injure his claim for compensation with the Hungarian Government, the Commonwealth contacted the Australian Permanent Mission in Geneva to obtain records of his confinement in a concentration camp.

It would appear that this breach of duty must have occurred outside Australia.  There could be no breach of the duty of care, assuming it existed, until communication was made in Geneva.  It may be that no damage would have occurred to him until some action had been taken by the Australian Permanent Mission in Geneva as a result of the alleged communication by the Commonwealth.  However that may be, it seems to me that the breach of duty must have occurred outside Australia, notwithstanding that in an affidavit filed in these matters the plaintiff alleges that the breaches of duty occurred in the Australian Capital Territory.

In the statement of claim the plaintiff also alleges that, because the second defendant, Australian Postal Corporation, failed to deliver two letters, one dated 21 August 1996 and the second dated 6 December 1996, he lost an opportunity to appeal against a refusal of compensation by the Hungarian Government.  No place where the breach of any duty occurred on the part of the second defendant is identified in the statement of claim, although, as I have pointed out, in an affidavit filed in the summons proceedings, the plaintiff alleges that breaches of duty occurred in the Australian Capital Territory.  In the same affidavit, the plaintiff said that at the time of the negligent acts he lived in New South Wales. 

It is clear that the action against the Commonwealth ought to be remitted either to the Federal Court or to a Supreme Court.  As I indicated at the commencement of these proceedings, it is appropriate, given the volume of this Court’s business, that the court which has the remitter should hear the applications by the Australian Postal Corporation to strike out the writ and statement of claim or, alternatively, to enter judgment for the second defendant on the demurrer. 

Both defendants want the matter remitted to the Supreme Court of Tasmania.  The plaintiff wants the matter remitted to the Federal Court of Australia.  Factors that point to the Supreme Court of Tasmania as the appropriate forum include:  first, the plaintiff resides in Tasmania, both defendants have departments that operate in Tasmania and the defendants’ solicitors reside in Tasmania; second, there is no full‑time Federal Court judge in Tasmania, while the Supreme Court of Tasmania has six judges and a master who could hear the interlocutory matters; third, the scale of costs is apparently lower in the Supreme Court of Tasmania than in the Federal Court of Australia; fourth, the Supreme Court has jurisdiction at common law in respect of the matter against the Australian Postal Corporation and the Federal Court would not have jurisdiction independently of any order made by this Court under section 44(2A) of the Judiciary Act. 

However, other factors point to the Federal Court as being the appropriate forum to remit the matter.  Section 44(2A) of the Judiciary Act enables this Court to remit to the Federal Court a matter where the Commonwealth is a party, even though the Federal Court does not otherwise have jurisdiction in the matter.  So there is no doubt that this Court could remit the action insofar as it concerns the Commonwealth to the Federal Court.  Counsel for the second defendant concedes that the power under section 44(2A) would extend to sending the whole matter to the Federal Court, once the court has power under section 44(2A) to send the Commonwealth part of the case to the Federal Court.

The second factor which points to the Federal Court as being the appropriate forum is that the Australian Postal Corporation operates under federal legislation and the case against it depends on that legislation, which is the Australian Postal Corporation Act 1989 (Cth). Indeed, the Australian Postal Corporation relies on section 34 of that Act as giving them an immunity to defend the plaintiff’s action against them.

Third, as I have mentioned, any breach by the Commonwealth appears to have occurred outside Australia.  In McCauley v Hamilton IslandEnterprises Pty Ltd (1988) 69 ALR 270, Justice Mason thought that the Federal Court was the natural and appropriate forum for causes of action arising outside Australia and the fact that the cause of action against the Commonwealth would appear to have arisen outside of Australia points to the Federal Court as being the natural and appropriate forum. In McCauley’s Case, his Honour also thought that, where the interpretation and application of federal law was involved, it favoured remitter to the Federal Court. 

In my view, the action should be remitted to the Federal Court.  Federal law will be the subject of interpretation and application and, prima facie, I think that ordinarily the Federal Court should be the court to which matters are remitted where questions of federal law are involved.  By doing so, it is more likely that federal statutes will be uniformly interpreted than if actions are sent to State courts, where different courts may have different views about the meaning of federal law.

Secondly, the action against the Commonwealth arose out of Australia and that makes the Federal Court the natural forum.  In addition, if there are any witnesses for the defendants, it seems also certain that they would come from the mainland rather than Tasmania, which seems to have no connection with the case other than the fact that the plaintiff now resides there and so does the defendants’ solicitors.

The only matters that really point to the Federal Court as being inappropriate are the fact that apparently the cost structure is lower in the Supreme Court of Tasmania and that there is no full‑time federal judge in Tasmania.  However, these seem to me to be insignificant factors compared to the factors that weigh in favour of sending the matter to the Federal Court.

Accordingly, the orders that I propose to make are: 

1.        That further proceedings in this action be remitted to the Federal Court of Australia Hobart Registry; 

2.        The action proceed in that court as if steps already taken in the action in this Court had taken place in that court and as if Hobart had been stated in the writ to be the place of trial; 

3.        The Registrar of this Court forward to the proper officer of that court photocopies of all documents filed in this Court; 

4.        The costs of the summons to be costs in the cause; 

5.        The cost of the action to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that court and in the discretion of that court.

I certify that this is a proper matter for the attendance of counsel in Chambers. 

Mr Bowen and Mr Wilkins, is there anything further that I need ‑ ‑ ‑

MR WILKINS:   I have no objection to any of those, your Honour, and suggest no additional orders, your Honour.

HIS HONOUR:  Thank you, Mr Wilkins.  Are you content, Mr Bowen?

MR BOWEN:  I am content with those orders, your Honour, thank you.

HIS HONOUR:  Thank you, Mr Bowen.  Mr Kalaba, you have heard what I have said.

MR KALABA:  Your Honour, I heard everything and I agree with it.

HIS HONOUR:  Thank you.  The Court will now adjourn.

AT 9.28 AM THE MATTER WAS CONCLUDED