Rivera v Australian Broadcasting Corporation - [2005] FCA 661

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1418 OF 2004

BETWEEN:

LAWRENCE JOHN RIVERA
APPLICANT

AND:

AUSTRALIAN BROADCASTING CORPORATION
RESPONDENT

JUDGE:

HILL J

DATE OF ORDER:

25 MAY 2005

WHERE MADE:

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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 661
Decision Date: 25 MAY 2005

CaseChat Overview and Summary

In Rivera v Australian Broadcasting Corporation, the applicant, Mr Rivera, brought a motion seeking to strike out a claim by the Corporation. The claim in question concerns a news broadcast by the Corporation that allegedly defamed Mr Rivera. The Corporation's defence was filed a few days late, and Mr Rivera sought to have the Corporation's claim struck out and to impose a fine on the Corporation for the late filing. Additionally, the Corporation brought a motion seeking to strike out Mr Rivera's claim on various bases, including the lack of jurisdiction and the frivolous nature of the claim. It also sought an order for security for costs.

The legal issues the Court had to decide included whether the late filing of the Corporation's defence was sufficient grounds to strike out the claim and impose sanctions on the Corporation. Another issue was whether the Court had jurisdiction over Mr Rivera's claim and if it was frivolous. The Court also had to consider whether it should grant an order for security for costs.

The Court determined that while the Corporation's late filing was not ideal, it did not warrant the severe consequences Mr Rivera sought. The delay did not constitute a contumelious contempt of Court, and it was not appropriate to treat the Corporation as if it had not filed a defence at all. The Court dismissed Mr Rivera's application and ordered him to pay the Corporation's costs for the motion and the application, excluding the costs of Mr Rivera's own motion. The Court did not order any costs for Mr Rivera's motion.

In conclusion, the Court dismissed Mr Rivera's motion and the application. It ordered Mr Rivera to pay the Corporation's costs for the motion and the application, excluding the costs of his own motion. There was no order as to the costs of Mr Rivera's motion.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HILL J

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 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1418 OF 2004

BETWEEN:	LAWRENCE JOHN RIVERA APPLICANT
AND:	AUSTRALIAN BROADCASTING CORPORATION RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY