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The cause had been removed to the High Court from the New South Wales Court of Appeal under s 40 of the Judiciary Act 1903 (Cth). The earlier appeal was allowed and the orders of the Supreme Court, made by Graham AJ, were set aside. The costs of the appeal were reserved, and the Court received written submissions from both sides (paragraph 2).

The Attorney-General for the Commonwealth was the appellant. Ronald Tse Chu-Fai was the first respondent and the contradictor in the High Court. The Governor of the Metropolitan Reception and Remand Centre was the second respondent and did not appear.

The Court's formal order is direct: “The first respondent pay the appellant's costs of the proceedings in this Court” (order; also paragraph 1). The reasons identify a difference between that order and Kirby J's view. The other five members of the Court, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, state the order in paragraph 1 without giving reasons for it. Kirby J would have made a different costs order: that the appellant recover only half its costs in the High Court and in the courts below (paragraph 5). His explanation is important as a separate judicial opinion, but it is not the operative order.

The respondent had advanced five grounds said to amount to special circumstances. They included the appellant's unsuccessful argument about the effect of an Executive certificate, the general importance of extradition questions involving Hong Kong, the asserted similarity between the proceedings and criminal proceedings, the burden of costs on an individual, and the possibility that the respondent might have resisted removal of the case to the High Court if the certificate argument had not been advanced (paragraph 3).

Why the court decided this way

The joint reasons do not explain why the Court made its costs order. It would therefore be inaccurate to attribute Kirby J's reasoning to the Court as a whole. The order tells us the result; Kirby J's reasons tell us why he would have made a different order.

Kirby J began with the ordinary position as he understood it. Where a party succeeds on appeal, including in extradition cases, the usual consequence is an order for costs in that party's favour. He referred to Milne v Attorney-General for the State of Tasmania, Oshlack v Richmond River Council, Trimbole v The Commonwealth and Riley v The Commonwealth in connection with that ordinary position (paragraph 2 and footnotes). He immediately qualified it: “there is no inflexible rule requiring that result” (paragraph 2). His approach was that the Court could depart from the usual result where the circumstances and relevant considerations justified doing so.

Kirby J identified the source of the costs power as s 26 of the Judiciary Act 1903 (Cth) and O 71 r 1(1) of the High Court Rules (paragraph 4 and footnote 10). He described the discretion as one to be exercised judicially, with regard to ordinary principles and relevant considerations. The judgment does not set out a comprehensive test for when costs should depart from the ordinary outcome.

The certificate argument was the most important consideration in Kirby J's analysis. The Attorney-General had argued that a certificate he signed and tendered at trial was conclusive, or alternatively highly relevant, to whether Hong Kong was an “extradition country” under s 5 of the Extradition Act 1988 (Cth) (paragraph 3). In the earlier appeal, the Court did not accept that the certificate was conclusive. It found it admissible on a more limited, non-conclusive basis (paragraph 4 and footnote 12).

Kirby J regarded the argument as significant for two connected reasons. First, it raised an important question with constitutional implications and extended the hearings. Secondly, the appellant lost on an important point of general application that it had argued both in the High Court and below (paragraph 4). On that basis, Kirby J considered it unjust to make the respondent bear the costs of having that point determined. This is Kirby J's application of the costs discretion, not an explanation adopted in the joint order.

Kirby J also regarded the procedural history as relevant. He considered that the appellant's reliance on the certificate argument had affected the procedure that brought the cause to the High Court (paragraph 4). The respondent had submitted that, without that argument, he might have opposed removal or the matter might have proceeded on a narrower statutory-construction basis (paragraph 3). Kirby J considered submissions numbered (1) and (5) relevant, at least, but did not find it necessary to endorse every factual possibility advanced by the respondent.

Before and after state of the law

The judgment describes the ordinary costs position as the successful appellant ordinarily receiving costs, including in extradition cases. It refers to prior decisions in support, but this costs ruling does not reproduce or analyse the detailed reasoning in those cases. The careful point to take from Kirby J's discussion is that the ordinary outcome is not an inflexible rule: the Court retains a discretion and may consider circumstances relevant to costs (paragraphs 2 and 4).

The stated statutory and procedural foundations are s 26 of the Judiciary Act 1903 (Cth) and O 71 r 1(1) of the High Court Rules. Section 40 of the Judiciary Act is separately identified as the provision under which the cause was removed to the High Court. The judgment does not suggest that s 40 itself determines the costs issue.

This decision should not be read as establishing a majority rule that an unsuccessful argument about an Executive certificate must reduce a successful appellant's costs. The majority gave no reasons in the supplied text beyond the order. Kirby J considered this certificate argument relevant on the particular facts he described. He emphasised its constitutional significance, the additional hearing time, and the appellant's loss on the point (paragraph 4). The reasons do not say that any one of those features, standing alone, necessarily produces a different costs order.

Nor does the decision alter the underlying law of extradition or the status of Hong Kong under s 5 of the Extradition Act. The substantive ruling on the certificate was made in the earlier decision, which this judgment cites as [1998] HCA 25. This judgment supplies only a brief account of that result for the purpose of explaining Kirby J's costs view: the certificate was not conclusive and was admissible on a more limited basis.

The supplied text contains no later judicial treatment of this costs decision. It is therefore not possible, from this source alone, to describe how later courts have interpreted or applied it.

Key passages with plain-English translation

At paragraph 1, the joint reasons state: “The first respondent should pay the appellant's costs of the proceedings in this Court.” In plain English, the Court made an order requiring Mr Tse Chu-Fai to pay the Attorney-General's High Court costs. The paragraph does not explain the reasoning behind that order.

At paragraph 2, Kirby J says that the usual costs result would ordinarily follow the Attorney-General's success, but “there is no inflexible rule requiring that result.” In plain English, success on appeal will commonly lead to a costs order for the successful party, but the Court can consider whether the circumstances call for a different result.

At paragraph 4, Kirby J says the costs discretion must be exercised “judicially, having regard to ordinary principles and taking into account relevant considerations.” In plain English, the decision is discretionary but not arbitrary. A court must base its costs decision on relevant matters and applicable principles.

At paragraph 4, Kirby J describes the certificate argument as one that “raised an important question with significant constitutional implications” and “extended the hearings.” He notes that the Court accepted the certificate only on a limited, non-conclusive basis. In plain English, Kirby J considered the time spent on a significant argument that the Attorney-General did not win relevant to who should bear the costs.

At paragraph 5, Kirby J says the appellant “should have only half of his costs in this Court and in the courts below.” This was his preferred result, intended to achieve what he considered overall justice. It is important to distinguish that view from the Court's actual order, which awarded the appellant its costs of the proceedings in the High Court.

What fact patterns trigger this precedent

The most direct factual setting addressed is a successful appellant's costs application where the appeal included an important argument on which that appellant did not succeed. In Kirby J's view, the argument's importance, constitutional implications, effect on the length of the hearings, and relationship to the procedure that brought the case before the High Court were relevant features (paragraphs 3–4).

The decision also concerns an appeal in an extradition context, with the underlying statutory question involving whether Hong Kong was an “extradition country” under s 5 of the Extradition Act 1988 (Cth). The costs ruling does not establish that the same result follows in other extradition matters. Kirby J referred to the ordinary costs approach in extradition cases, but stated that there is no inflexible rule (paragraph 2).

The respondent's broader submissions also show the kinds of circumstances put forward for consideration: public importance, an asserted analogy with criminal proceedings, the burden of substantial costs on an individual, and the possible costs consequences of a different procedural route (paragraph 3). The supplied reasons do not establish that those matters were accepted by the Court or that any of them independently warrants a departure from the ordinary outcome.

For precedent analysis, the key qualification is that the actual majority order went the other way from Kirby J's proposed partial recovery. A later case relying on this judgment would need to distinguish between the binding costs order and Kirby J's stated reasons, and should not present his proposed half-costs outcome as the Court's holding.

How later courts have treated it

The supplied judgment does not contain any later cases discussing this costs decision, and it provides no information about subsequent treatment. No claim can responsibly be made from this text that later courts have followed, distinguished, or adopted Kirby J's reasoning.

The judgment itself refers to earlier decisions on the ordinary costs outcome and on costs in extradition matters: Milne, Oshlack, Trimbole and Riley (paragraph 2 and footnotes). It also cites Latoudis v Casey in connection with the respondent's submission about the compensatory purpose of costs in proceedings said to be analogous to criminal proceedings (paragraph 3 and footnote 9). The costs decision records those authorities but does not provide a detailed analysis of their holdings.

It also refers back to the substantive High Court appeal, Attorney-General for the Commonwealth v Tse Chu-Fai [1998] HCA 25. That earlier decision is identified as the source for the limited, non-conclusive treatment of the certificate (paragraph 4 and footnote 12). The present judgment uses that result to explain Kirby J's view on costs; it does not re-decide the certificate issue.

Still-open questions

The most immediate limitation is the absence of majority reasons. The judgment gives the joint order but no explanation of why the five judges considered it appropriate to require the respondent to pay the appellant's costs. It is not possible to infer from the order which of the respondent's submissions the majority accepted or rejected.

The text also leaves unresolved the weight that should be given to an unsuccessful argument in a costs decision. Kirby J identifies several features of this argument as relevant, but does not state a general formula or threshold. In particular, the reasons do not say whether constitutional significance, additional hearing time, or the procedural effect of an argument would each be sufficient on its own to justify a different order.

The respondent's submissions about public importance, the asserted criminal character of the proceedings, and the burden of costs receive no detailed resolution in the joint order. Kirby J's reasons identify submissions numbered (1) and (5) as relevant, at least, but do not set out a comprehensive assessment of every point.

Finally, this costs decision does not determine what effect the certificate has in other extradition cases. It records only the outcome of the earlier appeal as relevant to Kirby J's costs reasoning. The scope of the certificate's admissibility and any broader extradition-law consequences must be checked against the substantive judgment and the legal sources applicable to the matter being considered.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.