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.