Matson v Attorney-General

1. Order No 5 made on 3 March 2021 requiring the Applicant to pay the costs of the First and Second Respondents of and incidental to the proceedings is confirmed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 3 March 2021, I delivered judgment granting the respondents summary judgment dismissing the applicant's Originating Application filed on 4 August 2020: Matson v Attorney-General (Cth) [2021] FCA 161 (Matson 2021). By that application, the applicant had sought relief in a variety of forms directed to precluding the first and second respondents from effecting his extradition to the United States of America. 2 Matson 2021 also dismissed a number of interlocutory applications of the applicant, including an application sent to the Court on 6 January 2021 and filed on 11 January 2021 by which he sought a reopening of the hearing. I had conducted a hearing of that application on 4 February 2021. 3 Matson 2021 also contained my refusal of an application made by the applicant on 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021. 4 As the parties had not been heard on the question of costs, the orders made on 3 March 2021 included a default order that the applicant pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement, but made provision for them to seek a different order. These required a party seeking a different order as to costs to file and serve an outline of submissions by 10 March 2021 and for the other party to file and serve responsive submissions by 17 March 2021. The orders indicated that, subject to any further order, the Court would determine the outstanding issues as to costs on the papers. 5 Order 9 of the orders made on 3 March 2021 stated that the parties did not have leave to file and serve any documents other than the submissions concerning the costs issues. 6 Subsequent to 3 March 2021, events took an unusual turn. 7 The applicant has been detained for some time in the Arthur Gorrie Correctional Centre (the AGCC) in Queensland. He is not detained as a prisoner or on remand but pursuant to a Court order pending his extradition. On 10 March 2021, the AGCC on the applicant's behalf sent an email to the Queensland Registry of the Court and to others which attached the following documents: (a) a letter from the applicant addressed to the District Registrar of the Court in Queensland, to the Associate to the Chief Justice, and to others which concerned these proceedings; (b) a document entitled "Applicant's "Costs" outline of submissions"; (c) the form of an interlocutory application dated 9 March 2021 which the Applicant sought leave to file in these proceedings; and (d) the form of a proposed amendment to the Originating Application in these proceedings. 8 In his letter of 9 March 2021, the applicant said that he sought "leave of the Court to accept for filing" his Interlocutory Application and Amended Originating Application so as to "reopen proceeding QUD254/2020 before [the judgment of 3 March 2021] was perfected and formally entered". 9 The applicant did file the interlocutory application on 9 March 2021 although leave to do so had not at that stage been granted. 10 The orders which the applicant sought in the interlocutory application (apart from the grant of leave to file it) were as follows (maintaining the numbering in the interlocutory application): (2) that all of the orders made on 3 March 2021 be vacated and the judgment in Matson 2021 "be recalled"; (3) the applicant have leave to "reopen" the first and second respondents' application for summary judgment filed on 11 September 2020 before the judgment in Matson 2021 is "perfected and formally entered"; (4) the applicant have leave to file the Amended Originating Application, including a grant of leave to add an additional respondent; (5) the applicant have leave to adduce further evidence; (6) that once "reopened", there be a temporary stay of the first and second respondents' summary judgment application until named respondents have been served; (7) that the Commonwealth arrange and pay for a physical and psychological assessment of the applicant; and (8) that I recuse myself from presiding over Action QUD254/2020 and that a different judge be appointed to hear and determine the interlocutory application filed on 9 March 2021, the Amended Originating Application and the first and second respondents' summary judgment application. 11 The draft Amended Originating Application contained proposed amendments to the applicant's Originating Application despite it having been determined by the judgment delivered on 3 March 2021. 12 On 26 March 2021, I made an order granting the applicant leave, to the extent that leave was necessary, to file and serve the interlocutory application attached to his letter of 9 March 2021. In addition, I made orders imposing a timetable for the filing and service of submissions. 13 By letter dated 30 March 2021, the applicant sought an extension of time for the filing of documents and the listing of the application for an oral hearing. He said, amongst other things, that he sought the opportunity to speak to his legal representatives, Mr Finlayson and Mr Bubendorfer. 14 By letter dated 8 April 2021 to the District Registrar in Queensland, the Associate to the Chief Justice and others, the applicant enclosed a further interlocutory application and copies of affidavits made by him on 4 and 8 April 2021. This interlocutory application, which was not filed, seemed to seek orders of a procedural kind in relation to the interlocutory application filed on 9 March 2021. 15 It is unnecessary to detail the content of these documents further because, by letter to the District Registrar, the Associate to the Chief Justice and others dated 12 April 2021, the applicant sought the leave of the Court "to please withdraw and discontinue my interlocutory applications dated 9 March 2021 and 8 April 2021, in proceeding QUD254/2020". 16 Given that the applicant has withdrawn the interlocutory applications of 9 March and 8 April 2021, this judgment concerns only the issues of costs contemplated by the orders made on 3 March 2021. It should be read in conjunction with Matson 2021. 17 In his submissions concerning costs filed on 9 March 2021, the applicant submitted that the determination of the costs of his unsuccessful originating application should be deferred until after the determination of his interlocutory application of the same date. As that application has been withdrawn, it can be taken that that submission is no longer pressed. 18 The other matters raised by the applicant are his impecuniosity and consequent inability to satisfy any costs order; the perceived injustice to him in being made subject to a costs order in the circumstance of his having been incarcerated for a long period; and the prospect that he may succeed in establishing that, contrary to the view of the former Attorney-General, there is power for the extradition decision made pursuant to s 22 of the Extradition Act 1988 (Cth) to be re-opened - see [176]-[193] of Matson 2021. 19 The applicant submitted that an order should be made that the first and second respondents pay his costs of the proceeding to be taxed in default of agreement. His submissions did not indicate any basis on which an order to that effect could be made. 20 The first and second respondents submitted that the costs order made on 3 March 2021 should not be disturbed. They submitted that the applicant had not identified any basis nor referred to any special circumstances, which would justify the displacement of the ordinary principle that costs follow the event. 21 Section 43(2) of the Federal Court of Australia Act 1976 (Cth) provides that, except as may be provided in another Act, the award of costs is in the discretion of the Court. The Extradition Act does not contain any provision to the contrary. 22 A guiding principle in the exercise of the discretion concerning costs is that, in the absence of some conduct by the respondent justifying a different outcome, the successful party is ordinarily entitled to have its costs paid by the unsuccessful party: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [23]. In the present litigation, the applicant is the unsuccessful party. He failed on all grounds. There is no conduct of the respondents which would make it appropriate not to apply the guiding principle mentioned above. The applicant's impecuniosity is not a reason to deprive the respondents of a costs order in their favour: NT v Sangare at [26]-[33]. Nor is the circumstance that the applicant may wish to pursue some alternative claim in respect of the decision of the former Attorney-General conveyed in his undated letter to the applicant of December 2020 (referred to in Matson 2021 as "the December Letter"). 23 I have considered the exercise of the discretion afresh but am satisfied that an order that the applicant pay the costs of the first and second respondents is appropriate. There is accordingly no need to revise Order 5 made on 3 March 2021. That order is confirmed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.