Johnson v Honourable Daryl Williams [2000] FCA 195 (3 March 2000)

Last Updated: 6 March 2000

FEDERAL COURT OF AUSTRALIA

Johnson v Honourable Daryl Williams [2000] FCA 195

MALCOLM KEITH JOHNSON V THE HONOURABLE DARYL ROBERT WILLIAMS (in his capacity as the Attorney-General of the Commonwealth of Australia) and THE HONOURABLE DUNCAN JAMES COLQUHOUN KERR (in his former capacity as Minister of State for Justice)

S 37 of 1999

JUDGES: SPENDER, EMMETT & FINKELSTEIN JJ

DATE: 3 MARCH 2000

PLACE: ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 37 of 1999

On appeal from a single justice of the Federal Court

BETWEEN:	MALCOLM KEITH JOHNSON Appellant
AND:	THE HONOURABLE DARYL ROBERT WILLIAMS (in his capacity as Attorney-General of the Commonwealth of Australia) and THE HONOURABLE DUNCAN JAMES COLQUHOUN KERR (in his former capacity as Minister of State for Justice) Respondents
JUDGES:	SPENDER, EMMETT & FINKELSTEIN JJ
DATE OF ORDER:	3 MARCH 2000
WHERE MADE:	MELBOURNE (via video-link to Adelaide)

THE COURT ORDERS THAT:

1. The costs of the hearing below be taxed and when taxed 75 per cent of those costs be paid by the Attorney-General.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 37 of 1999

On appeal from a single justice of the Federal Court

BETWEEN:	MALCOLM KEITH JOHNSON Appellant
AND:	THE HONOURABLE DARYL ROBERT WILLIAMS (in his capacity as Attorney-General of the Commonwealth of Australia) and THE HONOURABLE DUNCAN JAMES COLQUHOUN KERR (in his former capacity as Minister of State for Justice) Respondents

JUDGES:	SPENDER, EMMETT & FINKELSTEIN JJ
DATE:	3 MARCH 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 5 January 2000 the Court allowed this appeal with costs, set aside the orders made by the trial judge and ordered that a writ of certiorari issue to the Attorney-General quashing his decision not to withdraw the request for the extradition of the appellant.

2 As regards the costs of the trial below, the respondents asked that the question be remitted to the trial judge. The respondents referred to the following matters in support of the proposed order. When the application to review the decision of the Attorney-General was commenced the appellant relied upon a number of grounds one of which was that the order made by the Home Secretary that the appellant be returned to Australia did not surrender the appellant for the offences with which the Director of Public Prosecutions intended to institute prosecutions and accordingly the Director was precluded from prosecuting the appellant having regard to s 42 of the Extradition Act 1988 (Cth). That section provides in substance and subject to exceptions which are not presently relevant, that a person who has been extradited to Australia may only be prosecuted for the conduct constituting the offences for which he or she has been surrendered or equivalent or lesser offences. It was alleged that if the appellant was surrendered to Australia, he could only be surrendered in respect of five charges, whereas the Director of Public Prosecutions (Cth) intended to prosecute him on 29 charges. Time was taken and costs were incurred in preparing for this ground. As it turned out, all of this effort was wasted, because the appellant abandoned the point either shortly before or on the first day of the trial.

3 In the result, the respondents say that they should not be ordered to pay the appellant's costs in so far as they relate to the abandoned ground and, moreover, the appellant should be required to pay their costs thrown away. The respondents say that the trial judge is in the best position to consider what the appropriate costs order should be.

4 For our part, however, we do not think that it is in the interests of the parties that the matter should be remitted to the trial judge for a further hearing: a hearing that will just add to the expense of this proceeding. We agree that the appellant should not have his costs of the abandoned ground and that he should be required to pay the respondent's costs thrown away, notwithstanding that it is not usual to apportion costs: see Australian Trade Commission v Disktravel [2000] FCA 62. We have examined for ourselves the court file to see what guidance could be found as to the appropriate form of order. We did find the file of some, although it must be admitted limited, assistance.

5 Be that as it may, we think that the appropriate order to make is that the appellant should have 75 per centum of his costs of the hearing below. We accept that this is a rough and ready estimate of what is a fair distribution of the costs. We think that to require the parties to incur the additional expense of a comprehensive taxation is not a worthwhile exercise in this case.

6 Accordingly, the order will be that the costs of the hearing below be taxed and when taxed 75 per cent of those costs be paid by the Attorney-General.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 3 March 2000

Solicitor for the Applicant:	Lempriere Abbott McLeod
Counsel for the Respondent:	Dr M Perry
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 January 2000
Date of Judgment:	3 March 2000