FEDERAL COURT OF AUSTRALIA Kalaba v Commonwealth of Australia [2004] FCA 763 PRACTICE AND PROCEDURE – application for summary dismissal by defendants –plaintiff prisoner in concentration camp in Hungary in 1941-1942 – claim of breach of privacy by first respondent in asking Australian Mission to the United Nations in Geneva to obtain records of his confinement – whether tort of breach of privacy exists in Australia –claim of breach duty of care by second respondent by failing to deliver mail from Hungarian court – whether met by statutory defence Australian Postal Corporation Act 1989 (Cth) s 34 Federal Court Rules O 20 r 2 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 applied General Steel Industries Inc v Commissioner of Railways (New South Wales) (1964) 112 CLR 125 at 128 to 130 applied Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at [132] cited Giller v Procopets [2004] VSC 113 at [187]-[189] followed Grosse v Purvis [2003] QDC 151 not followed LAZAR KALABA v COMMONWEALTH OF AUSTRALIA AND ANOTHER NO. T10 OF 2004 HEEREY J 8 JUNE 2004 HOBART IN THE FEDERAL COURT OF AUSTRALIA HOBART DISTRICT REGISTRY T10 OF 2004 BETWEEN: LAZAR KALABA PLAINTIFF AND: COMMONWEALTH OF AUSTRALIA & ANOTHER DEFENDANT JUDGE: HEEREY J DATE OF ORDER: 8 JUNE 2004 WHERE MADE: HOBART THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The plaintiff pay the costs of the defendants. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA HOBART DISTRICT REGISTRY T10 OF 2004 BETWEEN: LAZAR KALABA PLAINTIFF AND: COMMONWEALTH OF AUSTRALIA & ANOTHER DEFENDANT JUDGE: HEEREY J DATE: 8 JUNE 2004 PLACE: HOBART REASONS FOR JUDGMENT 1 The plaintiff, Mr Lazar Kalaba, brought an action against the Commonwealth of Australia and Australian Postal Corporation (Australia Post) in the High Court which was subsequently remitted to the Federal Court. Each defendant has applied for summary dismissal under O 20 r 2 of the Federal Court Rules, which provides: "(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally, or in relation to any claim for relief in a proceeding, (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious, or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." 2 The plaintiff's case is set out in his statement of claim filed in the High Court: "1. The plaintiff was at all material times an Australian citizen and was born in Vajska, Yugoslavia on 26th March, 1935. 2. The first defendant is sued pursuant to the Judiciary Act 1903 (Cth), s. 56 and the matter is one within the original jurisdiction of the High Court as involving a claim against the Commonwealth of Australia. 3. The Australian Postal Corporation was at all material times a corporation constituted pursuant to the Australian Postal Corporation Act 1999 (Cth) and is able to be sued. 4. At all material times the Department of Foreign Affairs was part of the executive government of the first defendant. 5. The plaintiff was a prisoner in the Sarvar concentration camp in Hungary during the period 1st May, 1941 to 1 st October, 1942. 6. During the period referred to in paragraph 5 the plaintiff's property was destroyed by the German and/or Hungarian armed forces. 7. In May, 1988 the plaintiff sought assistance from the first defendant to obtain compensation and to claim a concentration camp pension from the Hungarian Government. PARTICULARS OF REQUEST FOR ASSISTANCE (i) The plaintiff supplied the Department of Foreign Affairs with a document containing the plaintiff's full name, date of birth, country of birth and the full names of his parents. (ii) The plaintiff further supplied the Department of Foreign Affairs with details of the concentration camp, 'Sarvar', in which the plaintiff was interned as a prisoner and the dates of the plaintiff's confinement in the camp. 8. In about 1990 the first defendant refused the plaintiff's request for assistance from the first defendant pleaded at paragraph 7 above on the basis that the plaintiff was not an Australian citizen at the time of his confinement. 9. The plaintiff ended his relationship with the Department of Foreign Affairs, and no longer enlisted or required assistance from the first defendant. 10. In 1991, the first defendant involved itself in the plaintiff's affairs by asking the Australian Permanent Mission of the United Nations in Geneva, Switzerland to obtain records of the plaintiff's confinement in a concentration camp incorrectly described by the first defendant's officers or servants as 'Sirvir'. 11. The first defendant owed a duty of care to the plaintiff to protect the plaintiff's privacy and not to injure the plaintiff's claims for compensation and concentration camp pension. 12. The first defendant breached the duty of care pleaded at paragraph 11 herein by contacting the Australian Permanent Mission of the United Nations in Geneva and requesting they contact the United Nations High Commissioner for Human Rights in Geneva. This action occurred without the consent of the plaintiff and breached his right to privacy. 13. On or about 9 July 1993, the plaintiff applied to the Hungarian Government for a concentration camp pension for compensation for destruction of the plaintiff's property during the second World War. 14. On or a about 21 January 1994, the Compensation Department of the Hungarian Government posted a notice to the plaintiff rejecting his application for compensation referred to in the proceeding paragraph. PARTICULARS (i) The Compensation Department stated in the letter referred to in this paragraph that the reason for the refusal of the plaintiff's application was on the basis that the plaintiff was an Australian citizen at the time of application. (ii) The letter from the Compensation Department further stated that the plaintiff had a period of 30 days to appeal to the Capital City Court, Budapest, Hungary against the Hungarian Government's rejection of the plaintiff's application for compensation. 15. The plaintiff obtained a translation of the above letter, which erroneously referred to the requirement to lodge an appeal with the 'Supreme Court of the Metropole' rather than the Capital City Court. The plaintiff was unaware of the error. 16. By letter dated 21st August, 1995 the plaintiff appealed to the Supreme Court of the Metropole against the decision to refuse him compensation. 17. By 6th November, 1996 the plaintiff had not received a reply to his letter referred to in par 16 above, and the plaintiff wrote to the United Nations to enlist the help of that body. 18. On 16th April, 1997 the United Nations acknowledged receipt of the plaintiff's letter of 6th November, 1996. 19. On 23rd July, 1997 the United Nations wrote to the plaintiff and sought further information from him in respect to his claim. 20. On 7th August, 1997 the plaintiff received a letter from the Municipal Court in Hungary dated 22nd April, 1997 dismissing his appeal on the basis he had failed to respond to correspondence from the Municipal Court dated 21st August, 1996 and 6th December, 1996. 21. The plaintiff never received letters dated 21st August, 1996 and 6th December, 1996 referred to above. 22. The failure of the plaintiff to receive the letters referred to in the preceding paragraph was caused by the negligent breach of duty owed by the second defendant to the plaintiff. PARTICULARS The second defendant failed to deliver the relevant correspondence by losing it or permitting it to be disposed of 23. The breach of duty pleaded at paragraph 22 herein caused the plaintiff loss and damage. PARTICULARS OF LOSS AND DAMAGE Loss of opportunity to appeal to the Capital City Court, Budapest, Hungary against the decision of the Hungarian Government to refuse the plaintiff's application for compensation pleaded at paragraph 14 hereof. 24. As a result of the defendants' breaches of duty pleaded at paragraphs 12 and 22 hereof, the plaintiff has suffered loss and damage. PARTICULARS OF LOSS AND DAMAGE (i) Loss of opportunity to make submission to the hearing of the plaintiff's claim in the Capital City Court, Budapest, Hungary, resulting in the failure of the plaintiff's appeal against the decision of the Hungarian Government to refuse the plaintiff's application for compensation pleaded at paragraph 14 herein; (ii) Breach of the plaintiff's privacy. 25. By reason of the negligence of the defendants the plaintiff engaged in a protest in the Australian Capital Territory in 28th May, 1991 at the Law Society Building in Civic and at the Office of the Department of Prime Minister and Cabinet in Barton. 26. By reason of the protest referred to in the immediately preceding paragraph the plaintiff was arrested, charged with setting fire to a building and setting fire to a vehicle and sentenced to 5 years imprisonment on 27th August, 1991. 27. The conviction of the plaintiff was recorded in a false name and false date of birth. 28. The imprisonment of the plaintiff was materially contributed to by the negligence of the defendants pleaded in paragraphs 12 and 22 herein. 29. AND the plaintiff claims damages against each defendant and costs." 3 It will be convenient to deal first with the application of the second defendant, Australia Post. Before doing so I note that summary judgment will only be ordered in very clear cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner of Railways (New South Wales) (1964) 112 CLR 125 at 129 to 130 and 128 to 129. 4 Counsel for Australia Post relies on s 34 of the Australian Postal Corporation Act 1999 (Cth) which provides: "(1) An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered or that may be suffered by a person because of any act or omission, whether negligent or otherwise, by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service. (2) Subsection (1) does not apply if Australia Post provides the sender with a receipt for the article." 5 That provision is, in my opinion, an unanswerable obstacle to so much of Mr Kalaba's claim as is directed against Australia Post. He does not allege that there was a receipt given for the letters in question, being the letters of 21 August 1996 and 6 December 1996. An affidavit sworn on behalf of Australia Post establishes that it is not its practice to issue receipts for articles which are posted in foreign countries. Therefore I uphold the application of Australia Post. 6 Turning to the first defendant, the Commonwealth of Australia, I accept the submission of counsel that in Australia at the moment there is no tort of privacy, although in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at [132] Gummow and Hayne JJ, with whom Gaudron J at [58] agreed, left open that possibility. In a Victorian Supreme Court case, Giller v Procopets [2004] VSC 113 at [187] to [189], Gillard J held that the law had not developed to the point where an action for breach of privacy was recognised in Australia. Senior Judge Skoien of the District Court of Queensland was prepared to find that there is such a tort: Grosse v Purvis [2003] QDC 151, but I think the weight of authority at the moment is against that proposition. 7 Bearing in mind the high level of the test that Dey and General Steel require to be satisfied, if this were a case where there was even a faintly arguable case that there had been an infringement of a right of privacy of a kind entertained elsewhere in the common law world, and particularly by American Courts, I would be reluctant to exercise the power of summary dismissal. The history of the common law shows that sometimes seemingly unlikely claims proceed through the courts and ultimately succeed at the highest level. However, it is instructive to note that in Lenah Game Meats, Callinan J at [323] referred to an article by Professor William Prosser, author of the standard text, Prosser and Keaton on the Law of Torts, which noted that protection for privacy had been afforded in American Courts in four categories of case. "(1) Intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (2) Public disclosure of embarrassing private facts about the plaintiff; (3) Publicity which places the plaintiff in a false light in the public eye; (4) Appropriation for the defendant's advantage of the plaintiff's name or likeness." 8 That categorisation has been subsequently accepted by decisions of the United States Supreme Court. The allegations in the present statement of claim do not remotely approach any of those categories. The most that can be drawn out of them is that the Commonwealth, having first refused Mr Kalaba's request for assistance, subsequently endeavoured to assist him by seeking records about his concentration camp confinement from the United Nations in Geneva and incorrectly described the camp as "Sirvir". 9 On its face, the very worst that one could say about that was that it was a gratuitous attempt to assist the plaintiff, in the course of which an error of description was made. That, in ordinary terms, does not involve any breach of privacy. 10 Further, there is the problem that the damage claim alleged by Mr Kalaba really turns on his imprisonment for serious offences of arson in 1991 when he set fire to a lift in a building occupying his solicitor's office in Canberra, and later set fire to his own vehicle outside the Prime Minister's office. For these offences he was sentenced to five years imprisonment by the Supreme Court of the Australian Capital Territory on 27 August 1991. 11 It is plain that these criminal acts can in no way result in him recovering damage for any alleged torts committed by the defendants, even if those were available at law, which in my opinion they are not. I will make the orders sought by both defendants. The proceeding will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 21 June 2004 Counsel for the Plaintiff : Plaintiff appeared in person Counsel for the First Defendant: P Bowen Solicitors for the First Defendant Australian Government Solicitor Counsel for the Second Defendant: M Wilkins Solicitor for the First and Second Defendants : Page Seager Date of Hearing: 8 June 2004 Date of Judgment: 8 June 2004