FEDERAL COURT OF AUSTRALIA

McCrea v Minister for Customs & Justice  [2004] FCA 1401

COSTS — extradition proceedings — Court’s unfettered discretion — balancing exercise —  whether costs awarded in extradition applications — extradition not determinative factor —liberty of the subject — novel issues — public importance — complex and unusual case —proceedings brought by the Crown —  no order as to costs.

Cabal v United Mexican States (No 6) (2000) 174 ALR 747

MICHAEL McCREA v MINISTER FOR CUSTOMS & JUSTICE OF THE COMMONWEALTH OF AUSTRALIA

V851 of 2003

NORTH J

20 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1. Each side bear its own costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     When I delivered judgment in this matter I reserved the question of costs because it had not been argued before me in the course of the hearing.  Argument has now taken place.  The respondent has applied for his costs of and incidental to the hearing.  The parties accept that the Court has an unfettered discretion in relation to the award of costs but that discretion must be exercised judicially. 

2                     Mr Lithgow who appeared as counsel for the applicant argued that the applicant should not bear the respondent's costs.  He argued that the factors which should influence that decision were that the case involved questions akin to the liberty of the subject, that a number of issues raised were novel, that there was public importance in the determination of the issue concerning the role of comity between nations, and that the case was complex and unusual. 

3                     Mr Cust, who appeared for the respondent, contended there was no reason costs should not follow the success of the respondent.  He submitted that the case concerned statutory interpretation and no allegation of misconduct was directed at the respondent.

4                     The proceeding was a challenge to the respondent’s decision to surrender the applicant for extradition.  That alone cannot be determinative of whether to refuse to award costs against the unsuccessful applicant because, if so, in every extradition case the applicant could bring the proceeding without risk of paying costs if the application failed.  Nonetheless, there are policy considerations attending such applications which deserve careful consideration. 

5                     Those considerations were expressed by Goldberg J in the context of bail applications in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [21] and [22] as follows:

‘…An applicant for bail under s 21(6)(f)(iv) has, as a matter of choice, decided to apply to the court for an order in respect of which the court has a discretion to make. However, that choice is overborne by the fact that the applicant has been incarcerated against his or her will by the power and authority of the State in accordance with the Act. The position in which the applicant for bail finds himself or herself is involuntary. It is inappropriate that a person detained under the provisions of the Act should have to take into account, in determining whether to apply for bail and obtain his or her liberty, whether he or she might be visited with an adverse costs order if the application is unsuccessful. Where the power and authority of the State deprives a person of his or her liberty by force of law, that person ought not to have to pay a price or suffer a disadvantage if his or her application to obtain his or her liberty and freedom, while no formal charge has been laid and no conviction has been recorded, is not successful.

Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained.’

6                      

7                     I have ultimately found against the applicant, but his arguments did not lack substance and were deserving of careful consideration.  The case therefore differs from a case which raises only weak and insubstantial matters. 

8                     Both the nature of the case and the arguments raised are factors which persuade me that it is appropriate to make no order as to costs in this case even though the respondent was successful.  Consequently, the order of the Court is that each side bear their own costs of the proceeding.

Associate:

Dated:    29 October 2004