FEDERAL COURT OF AUSTRALIA

Snedden v Republic of Croatia (No 2) [2009] FCAFC 132

COSTS – where appeal succeeded on ground raised only at end of oral submissions before primary judge – whether appellant should be awarded costs of the proceedings below

DANIEL SNEDDEN v REPUBLIC OF CROATIA

NSD 126 of 2009

BENNETT, FLICK AND MCKERRACHER JJ

29 SEPTEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The application to vary the costs orders of the proceedings before the primary judge be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The respondent sought an order that the appellant be extradited to the Republic of Croatia.  The appellant appealed a decision of a judge of the Court in which his Honour concluded that the appellant did not have an extradition objection within the meaning of the Extradition Act.  On appeal, the Court made orders that the appeal be allowed and that the respondent pay the appellant’s costs of the appeal.  The appellant now seeks an order that the costs ordered below, that he pay the respondent’s costs, be reversed.  He submits that such an order should be made as, on a successful appeal, the costs should follow the event.  The respondent opposes a vacation of the order for costs made in its favour by the primary judge.

2                          The parties agree that the ground of appeal on which the appellant succeeded was advanced before, but not determined by, the primary judge.  The respondent points out that the successful ground was raised before his Honour only at the end of oral argument and in the context that a significant ground of review was abandoned by the appellant only on the second day of the hearing before his Honour, with consequential waste of costs prior to that time.  The successful ground was not the subject of oral argument before his Honour.  It was not raised in his application for review of the Magistrate’s determination, nor in his detailed written submissions filed prior to the hearing.  It was raised in oral submissions in reply and developed in written submissions filed after the hearing.

3                          It is fair to say that the ground on which the appellant succeeded had to be “excavated” from the material before the primary judge.  In particular, the appellant did not present this ground on the basis of a factor in the imposition of a sentence, as it was presented on the appeal, but as a failure to apply a mitigating factor after sentence to a person who did not fight for the Homeland Army in the war involving the Serbs of the Krajina area of the Republic of Croatia.  We express no view on the availability of an extradition objection in those circumstances.  It was not the basis of the decision in the appellant’s favour on appeal.

4                          In those circumstances, and in the exercise of the discretion in the award of costs (s 43 of the Federal Court Act 1976 (Cth)), we refuse the appellant’s application for the costs of the hearing before the primary judge.

Associate:

Dated:         29 September 2009