Zabalawi, An application by

[2002] HCATrans 464

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S152 of 2002

In the matter of –

An application for leave to appeal by ADIL SAFWAN ZABALAWI against the refusal of leave to issue a proceeding

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 2.50 PM

Copyright in the High Court of Australia

MR A.S. ZABALAWI appeared in person.

McHUGH J:   Yes, Mr Zabalawi.

MR ZABALAWI:   Yes, your Honour, I would like to start my oral argument by referring to the rule of law and in particular to its essential feature that rights are inherent in individuals.  Based on this:  if an individual becomes involved in the…..of application of a certain treaty, then the essential property of his or her rights being inherent does not change and this suggests that application of a treaty should not affect citizens’ basic rights such as the right for a fair trial.

Your Honour, as a result of I would say an improper application of a treaty between Australia and Poland on transfer of legal documents in court cases, I experienced the impact of violations to my basic rights.  In brief, the Treaty in concern was used in 1997 by the Polish Consulate in Sydney to serve on me documents in a case held at a Polish court which point it was increasing the amount of maintenance money for my daughter.  The served documents included also information that I may not, I may not be informed about the result of the case.

KIRBY J:   Is it the fact that by consent orders to which you were a party, the amount of the monthly maintenance has been settled?

MR ZABALAWI:   That is right.  Your Honour ‑ ‑ ‑

KIRBY J:   Why should we be involved in the matter?

MR ZABALAWI:   Exactly, this is the question.  I have in the same time two court cases:  one at the Local Court in Sydney which is the appropriate jurisdiction of the case of maintenance; and another additional case through the Treaty.  I reported to the Department of Foreign Affairs all the details of these circumstances and I explained that the particular way the Treaty was used, what it was, resulted in violations to my rights.  The Department’s response completely avoided the core subject and the subject of the introduced case, your Honours, can be defined as setting the amount of maintenance money to be deducted from the income of the father, an Australian citizen living and working in Australia.

The Attorney-General’s Department viewed the documents of the case and found that the appropriate court for dealing with the subject of the courts was a relevant Australian court.  In its letter dated 27 June 2000 the Attorney-General’s Department described the jurisdiction of the Australian court as:

the appropriate jurisdiction to determine how much maintenance he should pay.

The Department of Foreign Affairs being the only office directly responsible for monitoring the implementation of the Treaty could have prevented the whole complications and violations associated with this matter by simply informing the foreign side on the issue of applicability of the Treaty on case circumstances and on the proper jurisdiction of the case.  Your Honour, the treatment of the Department of Foreign Affairs of this matter has inevitably created a precedence.  It is a precedence endorsing a new category of legal cases which simultaneously belong to both jurisdictions, Australian and foreign courts, making it then acceptable to replace an Australian court by a foreign court in order to arrive at the same fair judgment for the…..

I would say, your Honours, that the law describes my right for a fair trial as inherent as far as I am a citizen.  The law does not exclude the treaties from observing citizens’ rights.  Therefore, it is unlawful for the Department of Foreign Affairs to precipitate implementation of a treaty which breached the jurisdiction of the Australian court, affecting thus the citizen’s right for a fair trial.  That is one aspect of the case.

Your Honours, there is another aspect.  Secondly, the Department of Foreign Affairs ignored the fact that the way the Treaty was applied on me contradicted the requirements set in the Treaty itself in regard to the conditions of service of documents.  Article 3 paragraph (e) of the Treaty requires that: “Service” of legal documents should not be “incompatible with the law” in Australia.  On the subject of service of documents in court cases, Halsbury’s Laws of Australia, volume 20, Chapter 325 under the title “(a) Preliminary Issues” states:

[325-2000]  Service is a basic procedural requirement . . . Service is the process by which parties who are sought to be made liable or affected by the court’s judgment or order are given notice of the claims against them –

Contrary to the requirements of the Australian law regarding service of documents, however, I did not receive any document with the claims of that case which could have contained false accusation about my concern for my daughter or any other unsubstantiated claim and this is a proof, your Honours, that the application of the Treaty on me did not meet the requirement set in the Treaty itself for compatibility with the law in Australia in regard to service of documents.

McHUGH J:   Yes, but what your case does not come to grips with is that you have no cause of action against the Minister.  What is your cause of action against the Minister?

MR ZABALAWI:   The cause of action, your Honour, is that my rights as a citizen were breached.  It is unlawful or, I would say, improper implementation of a treaty.  The Department of Foreign Affairs is fully responsible for monitoring the ‑ ‑ ‑

McHUGH J:   It does not owe you any duty, that is the point and that is why your case has failed.  They do not owe you any duty and they do not owe me any duty.  They are answerable politically, the Minister is answerable to the Parliament, but they do not owe any duty to you that you can sue the Minister for.  That is the point.

MR ZABALAWI:   Your Honour, they have the duty to respect the law.  They did not, they did not respect the ‑ ‑ ‑

McHUGH J:   If they do not respect the law, it may be in some cases that they can be prosecuted but they do not owe you any duty.  You are bringing an action apparently for some form of damages.  You cannot do that unless there is a personal duty owed to you.

MR ZABALAWI:   They have the duty, your Honour, to observe the citizen’s rights in application of the Treaty.

McHUGH J:   They do not owe you any duty to do it.  Now, you may have difficulty understanding that, but they do not owe you any duty that you can enforce in a court of law.

MR ZABALAWI:   Yes, your Honour, am I a citizen or not?  I mean, I am an Australian citizen.

McHUGH J:   Yes, I know you are.

MR ZABALAWI:   And according to the rule of law, my rights should have been respected and my rights were not respected.  I mean, I suffered, your Honour, in a way that I wished that I would die; and to make my sufferings worse, the Department of Foreign Affairs, instead of addressing the problem, it informed me that if I travelled to visit my daughter in Poland, I will be confronted with an unknown court order in the case on arrival which means that the application of the Treaty contradicted the requirements of the jurisdiction of the Australian law, contradicted the requirements of the Treaty itself and breached my rights for family visits because I would not be able to travel to Poland where I would expect on arrival a court order in a case which had no claims and which the court order I was informed that I would not be informed about it.

McHUGH J:   Yes, I know, but what you have to understand is that you cannot bring an action in your own name unless you are owed some duty, to you personally.

MR ZABALAWI:   As a citizen, your Honour, they owe me.

McHUGH J:   No, they do not, that is the point.  Ordinarily, ministers do not owe citizens duties which are enforceable in the courts.  They may in some circumstances, but they just do not generally owe a duty.  They do not owe me a duty, they do not owe Justice Kirby a duty.

MR ZABALAWI:   Yes, your Honour, they owe a duty to respect the requirements of the law and the requirements of the Treaty itself.  If the Treaty was breached, they could have solved the whole problem by informing the foreign side in the Treaty that the case is within the jurisdiction of the Australian court and there is no point in applying this Treaty on the citizen.  I mean, it is their responsibility, your Honours, to monitor the proper implementation of a treaty.

KIRBY J:   That is normally enforced by public law remedies to require the Minister to conform to the law, but you are seeking compensation.  You are seeking, in a sense, a private remedy against the Minister.

MR ZABALAWI:   I suffered, your Honour, because of the  ‑ ‑ ‑

KIRBY J:   You may have, but a lot of people suffer every day.  They say by reason of the fact that they have to go to courts and enforce the public duties of officers of the Commonwealth and others, but the provision of compensation is you have to find some cause of action different from the public law remedy.

MR ZABALAWI:   Your Honour, my family rights were breached, my right for a fair trial was breached by the negligence of the Department of Foreign Affairs.

KIRBY J:   It may be that the law should provide you with money, compensation, but that is a very large question and so far the law has not provided that unless you can prove some private cause of action that you have against the Minister.

MR ZABALAWI:   The improper application of the Treaty.  The Treaty should not have been applied on me altogether.  It breached the jurisdiction of this Court.  It created a new category of legal cases that ‑ ‑ ‑

McHUGH J:   Treaties do not make any law at all unless the Parliament adopts the Treaty.

MR ZABALAWI:   That is right.  Your Honour, I am saying that the Department of Foreign Affairs has implied or assumed a new category, invented a new category of legal cases that belong to both jurisdictions, the Australian court and the foreign court, replacing the Australian court by the foreign court and I lost my right for a fair trial.  This is in the domain and responsibility of the Department of Foreign Affairs to observe the citizen’s rights so that within the application of the Treaty, the citizen’s rights are not violated and all my own ‑ these rights were violated.

The Treaty itself was violated, your Honour.  The Treaty sets rules and conditions how it should apply.  It says that it should not contradict the law of the country which is Australia.  It did contradict the law of the country so it was incompatible with the law of Australia.  In this case, who is responsible, your Honour?  The Department of Foreign Affairs is responsible to monitor the proper implementation of the Treaty and simply to inform the foreign side that this case belongs to the Australian judge and not to a foreign judge.  The foreign judge has no knowledge about my income, about my spending, about the environment in Australia.  It is as if an Australian judge would judge the maintenance obligation of a German citizen.  That would not be logical but the Department said “We don’t care” simply.

So, your Honours, there are very strong grounds.  They are created ‑ this category of legal cases that belong to both jurisdictions at the same time, violating the jurisdiction of the Australian courts, violating my right for a fair trial, violating my right to receive the court order in the case.  Your Honours, let me, if you do not mind, just mention one thing.  I have the legal right for an unobstructed access to a court order in a case which requires from me either to abstain from doing something or to do something within a particular time.  This is within the law in Australia.  At odds with the requirements of the law, the received documents, through this Treaty, imposed on me a hindrance before my right to access that court order and then carried the implication that I should expect that the court order will not be disclosed to my knowledge.  Your Honours, this implementation of the Treaty brought to me a case without claims and a case without a final result.

But, your Honours, there is something very important later on which occurred.  I am extremely hurt in my dignity by the consequences resulting from the improper implementation of the Treaty and the reason is that without any wrongdoing in my life, at a time when I started my 50 years of age 5 years ago, your Honour, a life which I spent in the most dignified, honest and true to the law manner, I was given the heartbreaking blow that the word “criminal”, “of criminal penalties” was added to my family file, and this strictly because I did not respond to that court order in a case brought to my life by the Treaty.  The Treaty ‑ ‑ ‑

McHUGH J:   But Mr Zabalawi, all that has happened is that a Polish court has effected service by reason of the Treaty.

MR ZABALAWI:   Improper service which ‑ ‑ ‑

McHUGH J:   You say it is improper.  Your remedy is in Poland.

MR ZABALAWI:   But in Australia it contradicted the law in Australia.  It contradicted the Treaty.

McHUGH J:   It did not contradict the law in Australia.  How did it ‑ ‑ ‑

MR ZABALAWI:   Your Honours, it contradicted the Article 3 paragraph (e).  It contradicted, your Honour, the law in Australia in this way, that it served me with documents without claims.

McHUGH J:   Without what?

MR ZABALAWI:   Without claims, without application.  I mean, I received an information that I should respond to the Court in a case which has no claims.  I do not know what to respond for and then I was told that the result of the case would not be disclosed to me.  So this is, your Honour, a breach to my dignity later on to be told that “because you did not respond to the court order in a case which we told you are not going to know about it, you have the word ‘criminal’ in your family file”.  Your Honour, this was devastating for me, I wished I would die, better for me than to live this life in a way that my dignity was affected by this improper application of the Treaty.  So please, your Honour, I would like to ask for justice.

McHUGH J:   We can only give justice according to law and you have no cause of action against the Minister or the Commonwealth, it is as simple as that.  You have to be able to point to some cause of action and you do not have one.  That was why the judge who made the order refused to give you leave.

MR ZABALAWI:   The reason, your Honour, was it did not consider the core subject of the application which ‑ ‑ ‑

McHUGH J:   It has nothing to do with subject.  You see, there are a number of problems.  First of all, your statement of claim just does not disclose a cause of action, but ‑ ‑ ‑

MR ZABALAWI:   Your Honour, the legality ‑ my question is the legality of implementation of the Treaty on me.  There is no ground to apply the Treaty on me.  It was wrong to have it applied on me.  I relate to the jurisdiction of the Australian courts.  I relate your Honour to the jurisdiction to the Australian courts.  So the legality of implementation of the Treaty was improper, was under question mark and this, your Honour, was not considered at all in the ‑ ‑ ‑

McHUGH J:   But it has nothing to do with it.  I am sorry, I know it is very difficult for you, Mr Zabalawi, but it really has nothing to do with the case.  You have to find some cause of action and you do not have one.  It is as simple as that.  That is why your claim has failed, why your writ was not allowed to be issued, Justice Callinan directed it not be issued and Justice Gaudron dismissed your application.

MR ZABALAWI:   Your Honour, she dismissed it based on a single assumption, namely that my complaints are matters which flow from the laws of Poland.  This assumption contradicts the fact that the law in Poland has absolutely nothing to do with the Department of Foreign Affairs’ treatment of the matter, agreeing on an improper application of a Treaty on me which contradicted the requirements of the ‑ ‑ ‑

McHUGH J:   The Department owes you no duty in respect of that Treaty, that is the whole point.

MR ZABALAWI:   Exactly.  Their duty is to consider the proper application of the Treaty.

McHUGH J:   No, it is not.  They do not owe you any duty to do that.

MR ZABALAWI:   They owe Australia, your Honour, I am Australian citizen.

McHUGH J:   Assuming you are right they owe a duty to Australia, it is not a duty owed to you, and that is the problem that you have.

KIRBY J:   The duty that they owe is one that is either enforceable legally by way of the public law remedies to keep them within the law or politically by way of complaint to your local member in the Federal Parliament, complaining about the Minister, or maybe a complaint to the Ombudsman or complaints in other public remedies; but it is not for a personal action for damages.

MR ZABALAWI:   But, your Honour, I was damaged, my life was damaged by that ‑ ‑ ‑

KIRBY J:   You might be.  A lot of people are damaged and they do not get money.

MR ZABALAWI:   I lost my right to go to see my daughter because of this Treaty, because of the Department of Foreign Affairs allowing for an improper application of the Treaty.  I lost this right.  It is my right, your Honours.  It is my right to know about the result of a case in which I am a central figure and here I lost this right.  I lost this right.  As a citizen, I find that my rights are breached personally, not in regard to political.  It is not a political matter, your Honour, it is a child maintenance issue which should have been directed to the Local Court in Sydney rather than through a treaty, your Honour.

KIRBY J:   Poland is a democracy and it may be that you can make representations concerning your entitlements to return to Poland ‑ ‑ ‑

MR ZABALAWI:   I am an Australian citizen, your Honour, I am sorry.  I am an Australian citizen.  I believe ‑ ‑ ‑

KIRBY J:   I am just saying to you that the remedies that you have here under our law in Australia are limited remedies and they do not extend to getting you money compensation for the hurt you have.  If every citizen or non-citizen who felt that they had been hurt by the mistakes or errors or misunderstandings by public officials could go to court and sue for money, we would have even more litigation and that just is not the law, I am afraid.

MR ZABALAWI:   It is not money, your Honour.  In my ‑ ‑ ‑

KIRBY J:   That is what you seek in your process, compensation.

MR ZABALAWI:   I said I will leave it to the Court.  I would leave it to the Court to decide on the way to nullify ‑ ‑ ‑

KIRBY J:   We cannot take it.

McHUGH J:   I am afraid your time is up, Mr Zabalawi.  Thank you.

MR ZABALAWI:   Thank you, your Honour.

McHUGH J:   In this matter the application must be dismissed.  The application for leave to appeal has no sufficient prospects of success to warrant the grant of leave.

Adjourn the Court.

AT 3.12 PM THE MATTER WAS CONCLUDED