FEDERAL COURT OF AUSTRALIA

United States of America v Griffiths [2004] FCA 895

UNITED STATES OF AMERICA v HEW RAYMOND GRIFFITHS AND DANIEL REISS

N 503 of 2004

JACOBSON J

7 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

There be no order as to costs in the proceeding.

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

REASONS FOR JUDGMENT

1                     In this matter I have come to the view that Mr Griffiths is eligible for surrender to the United States on three offences, that is, the offence of conspiracy to infringe copyright and on the offence of copyright infringement and also, on the offence of aiding and abetting the infringement of copyright but only aiding and abetting the person known as Paris Angel: see United States of America v Griffiths [2004] FCA 879.

2                     On the question of costs I have come to the view that the principle stated by Goldberg J in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [22] is of wider application than that which arises purely on an application for bail.  It is true that the approach which his Honour took seems to be centred upon cases where a person is deprived of his or her liberty by force of law.  Accordingly, ordinarily the principle which his Honour states would be limited to cases where a writ of habeas corpus is sought or where a bail application is made.

3                     Nevertheless, Mr Griffiths finds himself in the position that he is doing nothing more than responding to the application for review made by the United States, the effect of which will be to deprive him of his liberty, at least temporarily.  It does therefore seem to me that I have to weigh the question of whether the public interest to which Goldberg J referred outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party.

4                     Nothing has been put before me on the question of discretion, other than the public interest.  However, taking into account the various factors that were put to me in the argument of the case I have come to the view that the principles which provide for the compensation of the successful party ought, in this case, to yield in favour of the principle that Mr Griffiths ought not be deterred from defending the application by the risk of a potential costs order against him.  I have therefore come to the view that I will exercise my discretion against making a costs order. That is to say, I propose to order that there be no costs of the proceedings.

Associate:

Dated:              7 July 2004