FEDERAL COURT OF AUSTRALIA

Worchild v Queensland Television Ltd [2005] FCA 1792

ANDREW WORCHILD v QUEENSLAND TELEVISION LTD ACN 009 674 373

QUD 296 OF 2005

DOWSETT J

11 NOVEMBER 2005

BRISBANE

THE COURT ORDERS THAT:

1. The application filed 23 August 2005 be dismissed.

2. The applicant pay the respondent’s costs of the application, including reserved costs and including the costs of the motion today.

3. The application for leave to appeal to be appeal be declined.

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

REASONS FOR JUDGMENT

1                     On 23 August this year, the applicant filed an application in this Court. He has delivered a statement of claim which purports to raise causes of action in trespass and/or nuisance, and/or invasion of privacy, trespass to chattels, pursuant to ss 52 and 60 of the Trade Practices Act 1974 (Cth) (the “Trade Practices Act”), for “copyright”, breach of confidence, and/or invasion of privacy.

2                     The claim arises out of an incident which occurred in a block of units in which the applicant was living. A fire broke out. A camera-man employed by the respondent attended at the premises. The applicant alleges that he unlawfully entered his flat, and there “surreptitiously” recorded pictures and sound of the applicant. At some stage, the camera-man also overtly filmed the applicant, ‘shining a bright light’ at him. The applicant objected to this conduct and claims that the entry was a trespass, that damage was done to a carpet, and that he was harassed, upset, and offended.

3                     The respondent seeks to strike out the proceedings at this stage. Today, attention has focused upon the claims which might be appropriate to engage the jurisdiction of this Court, namely, the claims under the Trade Practices Act, and the claim of “copyright”.

4                     The claim under s 52 of the Trade Practices Act in its present form cannot be maintained. It arises out of the camera-man’s allegedly “surreptitious” conduct in filming the applicant. Although it is not pleaded, it seems that the camera-man was carrying the camera at his side, whilst, as it is alleged, it was operating. These facts, however, do not appear from the statement of claim. In any event, it is unlikely that a camera-man so holding his camera could, without more, be said to be engaging in misleading or deceptive conduct. No more is pleaded. I am satisfied that, as pleaded, there is no arguable claim raised under s 52 of the Trade Practices Act.

5                     To the extent that there is a claim for breach of copyright, the applicant has not purported to engage any particular provision of the Copyright Act 1968 (Cth) in support of his claim. In those circumstances, it is impossible for the respondent to plead to it, and the claim for breach of copyright must be struck out.

6                     As to the claim pursuant to s 60 of the Trade Practices Act, the applicant has not pleaded that the alleged conduct was in connection with the supply or possible supply of goods or services to a consumer, or the payment for goods or services by a consumer. It is likely that his case is that such supply was the delivery of news or other services by the respondent (which owns a television station) to consumers of such services. However, that has not been pleaded. I indicated to the applicant that he might be able to amend, but he said that he thought that it was rather a matter for particulars. Even if the pleading were amended, there would be a further difficulty in that the conduct of which he complains is not in connection with the supply or possible supply of goods or services to a consumer. It is true that the expression, ‘in connection with’ can have a very wide import. It is also true that the taking of film is undoubtedly a step in the process of supplying news services to consumers, if that is a correct description of what a television station does in its news broadcast. However, in my view, the expression, ‘in connection with’ in s 60 should be read more narrowly as requiring a direct connection between the conduct complained of and the actual supply. In other words, conduct preparatory to supply is not sufficient. Clearly, the section is designed to protect consumers. Any broader interpretation of the section would go beyond that purpose.

7                     There is no arguable matter over which this Court has jurisdiction. In those circumstances, the case ought not to have been brought here. In some cases, the Court has exercised jurisdiction in non-federal matters attached to claims within the jurisdiction of the Court where those latter claims have failed. However, in this case, the applicant’s claims, to the extent that they might appear to be within jurisdiction, are completely without substance. It would be an abuse of process to allow the matter to proceed here.

8                     In those circumstances, the application should be dismissed with costs, including reserved costs, and including the costs of the motion today.

9                     An application has been made for leave to appeal. As I have said, I consider that such claims as could be within the jurisdiction of this Court are simply unmaintainable. In those circumstances, I can see no valid basis for any appeal. It would be a waste of the time of the Full Court if I were to give leave in those circumstances. I decline to do so. The applicant is, of course, at liberty to pursue the non-federal aspects of his claim in the state courts, or at least, I would imagine that he is.

Associate:

Dated: 8 December 2005