FEDERAL COURT OF AUSTRALIA

Rivera v Australian Broadcasting Corporation [2005] FCA 661

JURISDICTION – broadcast of a program by the Australian Broadcasting Corporation concerning law students working at Kingsford Legal Centre – program discussed the applicant’s extradition case – allegation that broadcast was misleading and deceptive conduct – allegation that broadcast was breach of Privacy Act 1988 (Cth) – allegations of defamation and breach of confidence – broadcast exempt from operation of s 52 of Trade Practices Act 1974 (Cth) under s 65A of that Act – acts done by a media organisation in the course of journalism are exempt from the Privacy Act under ss 7(1)(ee) and 7B – no jurisdiction under any federal Act to hear the matter – no accrued jurisdiction to hear the allegations of defamation and breach of confidence

SECURITY FOR COSTS – applicant a citizen of the United States of America (“USA”) - applicant in prison pending extradition to the USA to face trial for murder – person held in gaol against their will is not ordinarily resident in that country – applicant not ordinarily resident in Australia despite desire to remain – applicant has virtually no assets in Australia – security for costs would have shut down applicant’s ability to prosecute his case – security for costs would not have been ordered had there been jurisdiction to hear his application

Trade Practices Act 1974 (Cth), ss 52, 65A

Privacy Act 1988 (Cth), ss 7, 7B, 98

Extradition Act 1988 (Cth), s 12, 19

Federal Court of Australia Act 1976 (Cth), ss 19, 32, 56

Federal Court Rules, Order 28

Fencott v Muller (1983) 152 CLR 570 – referred to

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 – referred to

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 – referred to

Advanced Hair Studio Pty Ltd v T V W Enterprises Ltd (1987) 18 FCR 1 – distinguished

Yorke v Lucas (1985) 158 CLR 661 – distinguished

Barton v Minister for Foreign Affairs (1984) 2 FCR 463 – cited

Jodast Pty Ltd  v A & J Blattner Pty Ltd (1991) 104 ALR 248 – applied

In Marriage of Woodhead (1997) 141 FLR 227 – cited

Brown v Dunn (1893) 6 R 67 – applied

LAWRENCE JOHN RIVERA v AUSTRALIAN BROADCASTING CORPORATION

N 1418 of 2004

HILL J

25 MAY 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The applicant’s motion be rejected.

2.      The application be dismissed.

3.      There be no order as to the costs on the applicant’s motion.

4.      The applicant pay the respondent’s costs on the application and the respondent’s motion.

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

REASONS FOR JUDGMENT

HILL J:

1                     On 30 September 2004, Mr Rivera commenced proceedings in this Court against the Australian Broadcasting Corporation (“the Corporation”) seeking damages against the Corporation and auxiliary relief by way of injunction arising from the broadcast on 14 September 2004 by the Corporation of a television program called “Reality Bites”.  The particular episode was called “Street Practice”.

2                     Mr Rivera was not represented.  Not surprisingly, the statement of claim which he filed did not comply with the ordinary rules of pleading.  In particular, it is not easy to determine from it the precise basis upon which Mr Rivera puts his case.  However, it seems that he claims the Corporation beached s 52 of the Trade Practices Act 1974 (Cth) (“the TP Act”) or alternatively, beached the provisions of the Privacy Act 1988 (Cth) (“the Privacy Act”) or alternatively, the program was defamatory of Mr Rivera or involved a breach of confidential information supplied by him in the circumstances which appear in the statement of claim.

3                     It is important to note here that the statement of facts set out below is taken from the statement of claim and it is not to be assumed that in setting out the facts I am making any findings with respect to them.  For present purposes, I accept that Mr Rivera will be able to prove the facts upon which he says his case depends.

4                     Two motions are presently before the Court.  The first is a motion brought by the Corporation seeking to strike out Mr Rivera’s claim, either on the basis that the Court has no jurisdiction to deal with it, or alternatively, on the basis that the claim is frivolous and has no chance of success.  Additionally or alternatively, the motion seeks an order that Mr Rivera provide security for costs in the event that the proceedings are allowed to continue but are ultimately unsuccessful.  A second motion is one filed by Mr Rivera.  It seeks orders that the Court give judgment in Mr Rivera’s favour or impose a fine upon the Corporation as a result of default by the Corporation in complying with directions made by the Court.

The facts as pleaded

5                     Mr Rivera is a citizen of the United States of America (“the United States”).  He came to Australia some time, it would seem, in 2002 and was arrested on 19 September in that year pursuant to a provisional arrest warrant issued under s 12 of the Extradition Act 1988 (Cth) (“the Extradition Act”).  Prior to his arrival in Australia, Mr Rivera worked for the United States Army in that country and is accused of having murdered a female co-worker whose body was discovered on 23 May 2002, three days after Mr Rivera had left, as he says, for holidays in Holland following which he had then gone to Australia. 

6                     An extradition hearing under s 19 of the Extradition Act was heard by Magistrate O’Shane on 16 December 2002.  The learned Magistrate ordered that Mr Rivera was eligible for surrender to the United States.  An application was then made to the Supreme Court of New South Wales to set aside the extradition warrant.  That application was unsuccessful, as was a subsequent appeal to the Full Court of this Court from the decision of a judge of the Supreme Court of New South Wales.  An application for leave to appeal against the decision of the Full Court was heard by the High Court of Australia on 10 December 2004 and rejected.

7                     Mr Rivera sought legal aid to resist his extradition to the United States.  It seems that the policy of the Australian Government is that legal aid be not made available in extradition cases.  Accordingly his request for legal aid was refused.  This meant that Mr Rivera was forced to look for alternative sources of legal assistance.  He made contact with the Kingsford Legal Centre (“the Centre”), an organisation associated with the University of New South Wales.  Two young men, a Mr Kelly and a Mr Payne, who were law clerks and presumably students at the university, but who worked part time at the Centre, were allocated Mr Rivera’s case by a supervisor at the Centre.  On 29 October 2003, the two men visited Mr Rivera at Long Bay gaol in response to his request for assistance.  In the course of the meeting, Mr Rivera asked the two clerks whether his conversation with them would be confidential.  He indicated that his request extended to confidentiality of documents which he provided them.  They told him that because they were “junior solicitors” the information he provided them would be confidential.  They were not solicitors.  They were not qualified to practice law.  They were, as Mr Rivera was also told, “students”.  Thereafter, the two young men sought assistance for Mr Rivera from various legal aid schemes.  Ultimately, they were unable to find assistance for him. 

8                     It is alleged that the two men gained access to Mr Rivera in the gaol by falsely representing to the prison authorities that they were solicitors  and wished to visit Mr Rivera to provide legal advice to him.  According to Mr Rivera he gave to the two men documents which he claims were privileged and had discussions with them which he says were confidential. 

9                     On 3 February 2004, an agreement was entered into between the Corporation and Hilton Cordell and Associates Pty Limited (“Hilton Cordell”) setting out the terms and conditions under which the Corporation commissioned Hilton Cordell to produce a documentary series entitled “Street Practice”, comprising four episodes.  The series was to be funded by the Corporation by a cash contribution with the Corporation having the rights, inter alia, to exhibit the program and license others to do so.  It is not necessary to set out the terms of the agreement in any detail.  Suffice it to say that in clause 2.12, a clause upon which Mr Rivera relies, the Corporation is to have the right of approval over the rough cut / fine cut and final mix of the program and is entitled to require amendments to it which the producer is required to incorporate, although any additional cost of amendments is to be borne by the Corporation.  It may be accepted that while Hilton Cordell is but a contractor to the Corporation, the Corporation has a deal of control over the end product which it expected to screen and perhaps sell to other networks.

10                  The episode with which the present proceedings are concerned, and which I have watched, dealt with a number of clients of the Centre, of whom Mr Rivera was but one.  That part of the program which concerns Mr Rivera notes at the outset that he had written a letter to the Centre asking for help in fighting his extradition to the United States.  The program then shows Mr Kelly calling Long Bay Gaol and asking for permission to visit Mr Rivera for the purpose of giving him “legal advice”.  It seems clear from the program that the students were asked by the prison authorities whether they were solicitors and they had replied to the effect that they were.  It certainly is clear that the students were under the impression that the gaol authorities believed them to be qualified legal representatives.  What is also clear, is that Mr Rivera knew that they were students, because he was told this by Mr Kelly on the telephone.

11                  The program then moves to the students about to visit Mr Rivera in gaol.  One of the students says:

“And I don’t really think that the gaol wardens are going to let us in if he stinks of alcohol, so maybe we’ll stop off and get some Listerine on the way or something.”

12                  It is suggested by Mr Rivera that at least one of the students was drunk at the time of their first meeting with Mr Rivera.  Ultimately, the students speak of their visit with Mr Rivera.  They note that it is alleged that Mr Rivera had killed a co-worker in California and that there had been a one million dollar reward for Mr Rivera’s arrest.

13                  The program then shows the students discussing the case.  There is a visual image of papers.  These are, so Mr Rivera says, papers which Mr Rivera alleges were a police report he had been supplied with in connection with the extradition proceedings.  It is unclear whether the report was in fact admitted into evidence before Magistrate O’Shane.  If the report were admitted into evidence it would be in the public domain so that no question of a breach of confidentiality could arise.  The program then says that Mr Rivera and his now deceased co-worker had, before Mr Rivera left the United States, missed two days at work in a row.  The audio continues:

“when he returned to work on the third day, he had a black eye and cuts and scratches over his face, indicating a…struggle of some sort, and that DNA was recovered from under the victim’s fingernails matching those of the accused.”

14                 One of the students then says that after the body was discovered, Mr Rivera “may have done a runner”.

15                 The information about scratches and DNA is said to be confidential information which Mr Rivera provided to the two young men. 

16                 On 27 October 2003, Mr Cordell from Hilton Cordell wrote to Mr Rivera at Long Bay Gaol.  In the letter, Mr Cordell introduced himself as a documentary film maker currently making a documentary on the Centre for the ABC.  The letter reads relevantly as follows:

“The film looks at the way Community Legal Centres operate, and in particular, how Kingsford is partly run by young law students from NSW University who are helping disadvantaged people get equal access to the justice system.

I understand you have sought some legal advice from KLC and that KLC staff may be visiting you on Wednesday morning (29^th October) to assist in your case. 

I was hoping to film the interview to illustrate the important legal aid work that KLC undertakes for the community.  I understand, of course, that your case is a sensitive matter.  If you would prefer that I obscure your identity and the details of your case, I would be happy to do so.

I have undertaken considerable filming in the prison system in the past and am currently seeking permission to film this visit from the Department of Corrective Services.  It is currently being considered by the Commissioner.  The Commissioner may also insist that I obscure your identity.

I apologise for the very late notice but hope you agree to this request.  It will be very low key as I will simply observe your interview with a small camera.”

17                  Mr Rivera did not reply to the letter.  He did not give permission to Mr Cordell to film the interview.  It was not filmed.

18                  Finally, it should be noted that in evidence for the purpose of indicating material that was in the public domain, although not for the purpose of indicating the truth of its contents, was an article published in the Sydney Morning Herald of 17 December 2002 under the heading “Murder Suspect Ordered to be Sent Back to US”.  The article relevantly reads as follows:

“An alleged fugitive who is on the United States Most Wanted list and who was arrested in the State’s central west, was ordered yesterday to be extradited to California.

Lawrence Rivera, 31, has been charged with strangling work colleague Kristina Louise Garcia, 26, after she refused a second date.

During the investigation into Ms Garcia’s death, Rivera fled entering Australia in May.

Detectives found him in Australia after evidence he had been pursuing a romance with an Australian woman on the internet.

The former US Army employee was arrested in Orange 13 days after the killing.  He was trying to make a living selling paintings.

Clean cut, but appearing haggard, Rivera constantly marked and read through legal papers while in the dock yesterday.

Magistrate Pat O’Shane declared that he be surrendered.  Rivera intends to seek a review of the case.”

The trade practices claim

19                  It seems to be the allegation that the broadcasting of the program constituted conduct by the Corporation that was misleading and deceptive.  It is not quite clear what the conduct is of the Corporation that is said to be misleading and deceptive.  Presumably, it is the transmission of the program that is said to be the conduct that was misleading or deceptive as it is not suggested that the Corporation actually made the documentary or, for that matter, had any input into it, although they had the power to suggest amendments to the film.  However, it seems to be suggested that the Corporation knew before the program was screened that the program contained information which the students had obtained through deceptive conduct, that is to say, impersonating solicitors and that they had obtained access to the prison by this impersonation as well as obtaining access to material of a confidential value.

Confidential information – privacy

20                  The claim as to confidential information is somewhat clearer.  The allegation is not only that information was provided to the students in confidence, but that the Corporation directed and controlled the making of the program (refer to the agreement clause 2.12 set out earlier) and knew that the program contained information extracted by the students who had falsely represented themselves to be solicitors so that material which was confidential was exposed.  In the result, it is alleged that Mr Rivera suffered injury from fellow inmates.  His case for extradition was also said to have been jeopardised by the disclosure, although exactly how this could be the case (when by this time the proceedings before the Magistrate had been determined and no further evidence could thereafter have been adduced in the extradition proceedings) is not apparent.  The information was, it seems, contained in a police report from the United States, so that it would, presumably, have been information available to be used in any prosecution in the United States which might follow the extradition.

Defamation

21                  It is alleged that the material in the program was defamatory of Mr Rivera in suggesting that he had fled the United States as soon as the body of the co-worker was found.  It is said that the imputation was that Mr Rivera in fact murdered his co-worker and fled, his fleeing being, presumably, some admission of guilt.  However, the facts were, so Mr Rivera says, that he had left the United States prior to the body being found and was on vacation when it was found.

Jurisdiction

22                  It is clear that this Court has only such jurisdiction as may be conferred upon it by an enactment of the Commonwealth Parliament: s 19(1) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”).  By reference to s 32(1) of that Act, the Court has, what is generally referred to as accrued jurisdiction in relation to non-federal issues which may arise as part of a “matter” where jurisdiction is, by statute, conferred upon the Court in regard to that matter.  The question of accrued jurisdiction is the subject of discussion in the High Court in cases such as: Fencott v Muller (1982) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261.  Claims in defamation or claims for breach of confidence of themselves do not involve federal jurisdiction.  They are within the jurisdiction of the State courts.  No jurisdiction is conferred upon this Court directly in respect of such claims.  However, jurisdiction is conferred upon the Court by the TP Act in respect, inter alia, of breaches of that Act.  Jurisdiction is also conferred upon this Court in respect of breaches of the Privacy Act.  If jurisdiction is conferred upon the Court to hear and determine either the trade practices claim or the claim arising under the Privacy Act, then the claims in defamation or for breach of confidence would fall within the accrued jurisdiction of this Court, with the consequence that this Court would have jurisdiction to hear and determine them. 

23                  However, it is submitted by counsel for the Corporation that claims against the Corporation for breaches, either of the TP Act or the Privacy Act, are excluded by each of the Acts by specific provisions so that in consequence, the Court has no jurisdiction conferred upon it to determine the federal matters.  This being the case, it is submitted that there was no jurisdiction in the Court to deal with the claims in defamation and for breach of confidence. 

24                  The submission is correct if it be the case that the Court has no jurisdiction to determine what otherwise would be the federal claims.  It is necessary therefore to consider the exclusions from jurisdiction under these two federal Acts.

25                  Section 65A of the TP Act provides in subsection (1), relevantly:

“(1) Nothing in section 52, 53, 53A, 55, 5A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than:

(a)   a publication of matter in connection with:

(i)                 the supply or possible supply of goods or services;…

            where: …

(v)               the goods or services were relevant goods or services…in relation to the prescribed information provider”.

26                  A publication by a “prescribed information provider” (and the Corporation is a prescribed information provider by virtue of s 65A(3)(a) or (b)) will be a prescribed publication if made in the course of carrying on a business of providing information or the publication was by way of a radio or television broadcast by the prescribed information provider.

27                  Finally, there is a definition of relevant goods or services contained in s 65A(3) as being in relation to a prescribed information provider such as the Corporation: “goods or services of a kind supplied by the prescribed information provider or, a body corporate that is related to the prescribed information provider.”

28                  In short, s 65A(2) exempts from the operation inter alia of s 52 of the TP Act ordinary television broadcasts.  The section was introduced after cases such as Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 where it had been held that the publication of statements in newspapers in the course of reporting news was capable of breaching s 52 if the statements were misleading or deceptive.  The purpose of s 65A of the TP Act was to give protection to publishers and broadcasters from claims, inter alia, that material published or broadcast by them was misleading or deceptive. 

29                  There is a suggestion by French J in Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 14-16 that s 65A might not provide immunity from the operation of    s 52 if statements made by the interviewee proved to be misleading or deceptive because the liability of the television station would then arise, not directly under s 52, but by virtue of the station itself aiding and abetting the breach of s 52 by an interviewee.  There is much to be said for the view expounded by French J in that case.  However, the question does not arise in the present circumstances for two reasons.  First, it does not seem to be suggested that the liability of the Corporation is a derivative liability.  Rather, it is suggested that the liability of the Corporation is an actual liability caused by actual misleading or deceptive conduct of the Corporation.  Second, it is clear that a derivative liability could only arise if there was actual knowledge by the Corporation of the misleading and deceptive conduct: Yorke v Lucas (1985) 158 CLR 661.  That is not pleaded in the present case.

30                  It follows, in my view, that the Court has no jurisdiction to hear the claim brought against the Corporation under s 52 of the TP Act.

Privacy Act

31                  Section 98 of the Privacy Act permits the Court on application to grant an injunction restraining a person from engaging in conduct which constitutes or would constitute a contravention of the Privacy Act.

32                  For present purposes I am prepared to assume that a breach of the Privacy Act has been committed.  That is far from clear to me on the case as pleaded by Mr Rivera.  Indeed, it is not at all clear what it is that is said to constitute the breach.  Be that as it may, once it is assumed that a breach has been committed, the question is then whether the Court has, despite the terms of s 98, jurisdiction to grant to Mr Rivera the relief he seeks. 

33                  The Privacy Act enacts a code of “National Privacy Principles”: Division 3.  It provides as well for a system whereby privacy codes may be approved.  The doing of an act or engaging in a practice which is in breach either of the “National Privacy Principles” or of an approved privacy code that binds the organisation is prohibited: s 16A.  It is submitted on behalf of the Corporation that it is exempt from the application of the Privacy Act in its journalistic activities as a broadcaster, either by virtue of the combined operation of ss 7(1)(ee) and s 7B, or by force of s 7(1)(c) of the Act.

34                  Section 7(1)(ee) provides relevantly that a reference in the Privacy Act to an act done or practice engaged in is a reference to an act done or a practice engaged in by an organisation other than an exempt act or exempt practice referred to in ss 7B and 7C.

35                  Section 7B(4) then provides under the heading “Journalism” that:

“An act done or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:

(a)   by the organisation in the course of journmalism; and

(b)   at the time when the organisation is publicly committed to observe standards that:

(i)                 deals with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and

(ii)               have been published in writing by the organisation or a person or body representing a class of media organisations.”

36                  Counsel for the Corporation stated from the bar table that the Corporation, which clearly was at all relevant times a media organisation as defined and which had made a record which could relate to Mr Rivera in the course of journalism, was publicly committed to observe privacy standards and those standards had been published in writing.  After the hearing, I extended to him the opportunity to tender those standards so that the evidence on the matter would be complete.  It seems that the “ABC Editorial Policy” which deals with such standards has applied at all relevant times since at least the year 2002.  Indeed it is said that there has been an August 2002 edition of that policy and reference is made to it in the submissions.  However, no document other than a print-out of the privacy policy of “ABC On Line” (see www.abc.net.au/privacy.htm) was tendered.  I would permit the Corporation to tender a hard copy of the on line material which will be marked “A” accordingly.  However, while that document would be “published in writing” as required by s 7B (see Acts Interpretation Act 1901 (Cth), s 25) it would not seem to be the general privacy policy of the Corporation to which reference is made in submissions.  It follows that the Corporation has not adduced evidence such as to exclude any acts of the Corporation under s 7(1)(ee).

37                  The alternative submission relies upon s 7(1)(c) of the Privacy Act. 

38                  The starting point of the submission is s 7(1)(a)(i)(C) of the Privacy Act which provides that references in the Privacy Act to acts done or practices will be a reference to an act done or practice engaged in as the case may be of an agency, other than an agency specified, inter alia, in Part 1 of schedule 2 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”).  The Corporation is such an agency.  Section 7(1)(c), then however, reinstates acts or practices of such an agency other than an act done or a practice engaged in, in relation to a “record” in relation to which the agency is exempt from the operation of the FOI Act.  The Corporation is exempted from the operation of the last mentioned act in respect of “documents” “in relation to its program material and its datacasting content”.  The word “record” is defined in s 6 of the Privacy Act to include documents as well as databases and pictorial representations of a person.  The word “documents” is defined in s 4 of the FOI Act to include, relevantly:

“(a)     any of, or any part of any of, the following things:

            …

            (iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

            (v) any article on which information has been stored or recorded, either mechanically or electronically ;

            (vi) any other record or information …”

39                  Hence it would seem that in relation to any information which the Corporation may have collected in regard to Mr Rivera, the Corporation will be exempt from the operation of the Privacy Act for the relevant information if a “record”, as widely so defined, will relate to the program material of the Corporation.  That this result is intended to follow can be seen from the 1988 Explanatory Memorandum relevant to s 7 of the Privacy Act which says that the effect of subclause 7(1) is that, for the purposes of the Bill, reference to acts and agencies are to those done or engaged in by:

“agencies listed in Part II of Schedule 2 of the FOI Act, which are mostly Commonwealth agencies engaged in competitive commercial activities (eg…Australian Broadcasting Corporation…), except in respect of records of their competitive commercial or other specified activities.”

40                  It follows then, that the Court has no jurisdiction under the Privacy Act to grant relief in respect of the acts done or practices engaged in by the Corporation to the extent that those acts or practices would breach the provisions of the Privacy Act. 

Lack of accrued jurisdiction

41                  It follows, because no jurisdiction exists in respect of the matters pleaded against the Corporation, either under the TP Act or the Privacy Act, that claims sought to be advanced before the Court in respect of defamation or alternatively breach of confidence will not form part of a matter in respect of which the Court would have accrued jurisdiction.  This being the case, even if a breach of the Privacy Act might otherwise be established, the Court lacks jurisdiction to give the relief which Mr Rivera seeks.

42                  It might be doubted whether the material in question said to have been supplied in breach of confidence was in fact actionable as such.  First, there is no suggestion that the documentary material to which reference has been made and which is said to include the material, for example, about DNA being under the fingernails of the co-worker, was really confidential material at all.  It appears that that material came from a document that was given to Mr Rivera by the Australian authorities in connection with the extradition proceedings.  It may well have been admitted in evidence before Magistrate O’Shane.  Clearly it would not have assisted the extradition case if the evidence had been admitted by Magistrate O’Shane.  It is unnecessary for me to decide here whether any material supplied by Mr Rivera to the two young men was relevantly confidential information.  It remains open to Mr Rivera to commence proceedings in the Supreme Court for the claims he alleges he has in defamation or breach of confidence.

Security for costs

43                  Because the Court has no jurisdiction to deal with the matters which Mr Rivera wishes to litigate, the appropriate order is that his application be dismissed.  This makes the question of security for costs irrelevant.  However, in the event that the case should proceed further, I propose to deal briefly with the issue of security for costs.

44                 Section 56 of the Federal Court Act provides that the Court may order an applicant to give security for costs of a proceeding in such manner and form as the Court may direct.  The question of security for costs is dealt with in Order 28 rules 3, 4 and 5 of the Federal Court Rules.  Relevantly, it is provided that in considering an application for security for costs, the Court may take into account various factors including, “(a) that an applicant is ordinarily resident outside Australia.”  It is not in dispute that the power in the Court to order security is discretionary and should, as Morling J observed in Barton v Minister for Foreign Affairs (1984) 2 FCR 463 at 468, be exercised “having regard to the facts of each case.”  Security will generally not be ordered against an applicant resident in this country.  This having been said however, there is nothing in law which would prevent the Court in a particular case ordering security to be given if it is in all the circumstances appropriate. 

45                 In determining whether security should be ordered in a particular case, a number of matters have been considered by courts from time to time as relevant.  It should be said however that there is no exclusive list of matters to be taken into account and all relevant circumstances will be considered.

46                 In Jodast Pty Ltd  v A & J Blattner Pty Ltd (1991) 104 ALR 248 to which both sides referred me, I listed the matters which from time to time had been regarded by courts as relevant.  These include:

(2)   The chances of success of an applicant, particularly whether the applicant’s claim is bona fide.

(3)   The quantum of risk that the applicant could not satisfy a costs order.

(4)   Whether a genuine claim might be shut out.

(5)   Whether the impecuniosity of the relevant respondents to the motion arises out of the act complained of.

(6)   Questions of public interest.

(7)   Particular circumstances relevant to a case.

47                  As is obvious in this case, the chances of success are, to say the least, very slim, and this no doubt would operate in favour of an order being made.  On the facts of the present case, the chances of Mr Rivera being able to satisfy a costs order are clearly remote.  He concedes he is a “man of straw”.  It may be noted that Mr Rivera gave no evidence as to what assets he may have had in the United States, as against what assets he had in Australia.  However, his evidence suggested that his assets were, in Australian dollar terms, less than $100.  No cross examination took place concerning his assets.  The implication was that there were no assets outside Australia available to him.

48                  Clearly an order for security for costs would shut out Mr Rivera’s action in this Court entirely.  While the conduct in respect of which Mr Rivera claims was an action of the Corporation, it is not suggested that Mr Rivera’s lack of assets was brought about in any way by this conduct.

49                  The matter that was the subject of some debate with counsel was the question of Mr Rivera’s residence.  There is no doubt that Mr Rivera was a citizen of the United States.  On his own version he left the United States willingly.  It is capable of being inferred that if he were guilty, he left involuntarily.  However, there is nothing in the evidence to suggest he was guilty.  Whatever may be the case, it is clear that Mr Rivera does not wish to return to the United States.  Indeed, he has fought for some time, albeit without success, against being returned to that country. 

50                  It may be accepted that Mr Rivera is not a person who is ordinarily resident in Australia, if that is the relevant question to ask.  Indeed, if his actual residence at the moment is considered, it might be said that he is not ordinarily resident anywhere.  Although Order 28 rule 3 requires the Court to take into account the fact that an applicant is ordinarily resident outside Australia, there is much to be said for the view that the rule really contemplates that the Court takes into account ordinary residence outside Australia as proof that the applicant is not resident ordinarily in Australia.  The place outside Australia where the applicant ordinarily resides is, of itself, of no relevance.  What is really relevant is the absence of residence in Australia.  However, the rule is expressed in the reverse.  It requires there to be taken into account the fact, if it be a fact, that the applicant is ordinarily resident outside Australia.  No doubt, it can be said that a person who is in gaol against his will in a country will not be found to be ordinarily resident there: In Marriage of Woodhead (1997) 141 FLR 227.  Indeed it may well be the case, as I think it is, that presently Mr Rivera is not ordinarily resident in any place.  It can be accepted that Mr Rivera, on the present facts, is not ordinarily resident in Australia for he has no right to live here.  Given that he certainly does not wish to return to the United States, it is difficult to see how it can be found that he is ordinarily resident in that country either.  So far as appears, he has no place of residence there.  Having regard to the evident policy of Order 28 rule 3, his residence, or lack of it in Australia would count in favour of an order for security being made.

51                  Where costs are ordered against a party, it may be assumed that the assets which may be called in aid to satisfy the costs order will be situated in the place where the person ordinarily resides.  While that may be accepted, the relevance to an application for security for costs of the ordinary residence of a person involves more than that.  It involves whether the person is personally amenable to the jurisdiction of the Court to enforce a costs order.  Presence in the jurisdiction involves a person being amenable to the jurisdiction.  Presence outside the jurisdiction has the consequence that an applicant will not be amenable to the jurisdiction of the Court to enforce a costs order.  With respect to counsel for the Corporation, I do not think that any emphasis can be placed upon the fact that Mr Rivera had not in evidence directly dealt with whether he had assets in the United States.  The inference from his affidavit is that he does not.  His failure to give direct evidence, at most, can be said to render more easily drawn the inference which is otherwise available, namely, that he has no assets there: Brown v Dunn (1893) 6 R 67. 

52                  But for one matter, the present is clearly a case where security should be given and at least of such an amount as would enable the Corporation, if successful in the proceedings, to register and enforce the costs order that would ordinarily follow overseas, for example, in the United States (see per Morling J in Barton).  The one matter of concern is that the making of an order against Mr Rivera, who is, at least for the present, resident in Australia, would have the consequence of shutting him out of any relief for acts said to have been committed wrongfully against him by the Corporation.  Against this would need to be weighed the fact that his case, as pleaded, would seem weak, even if the Court did have jurisdiction to hear it.

53                  Had the extradition proceedings still been on foot it may well have been appropriate to adjourn the application for security for costs so that it could be revisited from time to time.  The refusal of the High Court to grant to Mr Rivera special leave means, however, that his avenues to appeal the extradition order have been exhausted.  Of course, it is still possible that the Minister might exercise his discretion not to extradite Mr Rivera.  However, that is not a matter which I can presently take into account.  There is nothing before me to suggest that a favourable exercise of discretion is at all likely.

54                  With some reluctance I would have therefore ordered Mr Rivera to provide security in the amount of, say, $5,000 had I not have been of the view that his application should be struck out for want of jurisdiction.

Mr Rivera’s motion

55                  Little need be said of Mr Rivera’s motion.  On 13 October 2004 at a directions hearing, I made orders, inter alia, that the hearing of the present proceedings be expedited, that Mr Rivera file and serve his statement of claim by 21 October 2004 and that the Corporation file its defence by 28 October 2004, with evidence to be filed by Mr Rivera on 4 November 2004 and by the Corporation on 18 November 2004.

56                  It seems that the Corporation did not file its defence until 4 November 2004, that is to say, a few days late.  It filed no evidence, as indeed it was entitled to do.  It may well be that the Corporation did not intend to rely on evidence other than that filed by Mr Rivera, particularly having regard to its view that the Court lacked jurisdiction to hear the matter.

57                  While, no doubt, it is regrettable that the Corporation was a few days late in filing its defence, the delay is not such as would warrant the Court punishing the Corporation in the way that Mr Rivera seeks in his motion.  The failure was not such as would constitute, a contumelious contempt of Court.  Nor would it be appropriate in the interests of justice that the Corporation be treated as not having at all filed a defence.  The case is not such that judgment could be given by default and I understood Mr Rivera ultimately to accept that.  I would accordingly dismiss Mr Rivera’s application.  However, because the Corporation itself was late in filing its defence, I would make no order for the costs of the Corporation on Mr Rivera’s motion.

Orders on the Corporation’s motion

58                  I would, for the reasons I have already given, dismiss the application on the basis that the Court has no jurisdiction to hear and determine it.  I would order that Mr Rivera pay the Corporation’s costs of its motion and of the application generally other than the costs of Mr Rivera’s own motion.  I make no order as to the costs of Mr Rivera’s motion.

Associate:

Dated:              25 May 2005