Newman v New Zealand [2012] FCAFC 139 | Case summary

THE COURT: 1 On 13 September 2012 we allowed an appeal by Mr Allan Newman against an order made by the Supreme Court of Queensland on 24 August 2011 dismissing his application under s 35 of the Extradition Act 1988 (Cth) (Extradition Act) for the review of the warrant of 14 June 2011 whereby a magistrate (Hine DCM) at Brisbane, Queensland ordered that the appellant be surrendered to New Zealand: Newman v New Zealand [2012] FCAFC 133 (the principal judgment). Following submissions made at the time of the delivery of the principal judgement, we reserved to Mr Newman liberty to apply in relation to costs with respect to the proceedings below. He has now sought such costs. These reasons for judgement must be read in conjunction with the principal judgement. 2 Unsurprisingly, it was not controversial that, in respect to the appeal to this Court, costs should follow the event. 3 What has proved to be controversial is whether Mr Newman should have his costs both in the Supreme Court in his application for review under s 35 of the Extradition Act and in respect of his application to a magistrate under s 34 of that Act. 4 On behalf of New Zealand it was submitted that the Court's power under s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) to award costs in respect of all proceedings before it did not extend to the awarding of costs either in respect of the proceedings before the Supreme Court or in respect of those before the magistrate. In support of this submission, reference was made to an observation made by Branson J in Dutton v Republic of South Africa (1999) 162 ALR 625 (Dutton) concerning the extent of the power to award costs conferred by that section. The relief claimed by the applicant in that case included a claim for an order "that the present application for extradition be stayed as an abuse of process unless and until the First Respondent pays the costs of the Applicant in successfully defending the previous extradition applications made by the First Respondent, in relation to the same alleged conduct and the same charges as the present application, in the Magistrates Court proceedings". In support of that claim, the applicant relied on s 43 of the Federal Court Act and the O 62 r 3 and r 5 of the then Federal Court Rules 1979 (Cth). Branson J held that the extradition proceeding before the magistrate was not a "proceeding before the Court" within the meaning of s 43 of the Federal Court Act. Her Honour added, at [37]: This situation did not alter when an application was made to this court, under s 21 of the Act, for review of the order made by the magistrate. Section 43 of the Federal Court Act does not provide a legislative base for a claim for the costs of the failed extradition proceeding. Order, 62 rr 3 and 5 of the Federal Court Rules do not expand the jurisdiction of the Court to award costs, they merely regulate the exercise of the jurisdiction. The Full Court later dismissed an appeal from this judgement: Dutton v Republic of South Africa (1999) 92 FCR 575. 5 Quite properly, New Zealand also made reference to the costs outcomes in other extradition cases which had proceeded to intermediate appellate level. 6 In Bannister v New Zealand (1999) 86 FCR 417 (Bannister), where, like the present case, the appeal to the Full Court came from a State Supreme Court, the order for costs in favour of Mr Bannister on the appeal was in respect of his costs both in the Full Court and in the Supreme Court. No order in respect of costs in the s 34 proceeding before a magistrate was made by the Full Court. There is substance in New Zealand's submission that in Bannister the power to award costs in respect of proceedings in the courts below may just have been uncontroversially assumed and without any reference to Dutton, then but recently decided. So much appears to be the case, having regard to the judgment delivered in Bannister. 7 In New Zealand v Moloney (2006) 154 FCR 250 (Moloney) the Full Court made an order for the payment by New Zealand of Mr Bannister's costs "of and incidental to this appeal and in the courts below". The casting of the order in the plural in respect of the "courts below" is indicative that the s 34 proceeding was assumed to be one before a court. The power to make such an order appears to have been uncontroversially assumed. In that case, the s 35 review proceeding was conducted in the original jurisdiction of this Court. The Federal Court has concurrent original jurisdiction with the State and Territory Supreme Courts in such matters. New Zealand submitted that the costs outcome in Moloney was explicable on the basis that both the review and the subsequent appeal were heard in this Court, to costs in each of which s 43 of the Federal Court Act was applicable. That is true but that would not explain the awarding of costs in the proceeding before the magistrate in that case. 8 In New Zealand v Johnston (2011) 274 ALR 509 (Johnston) an order for costs was made against New Zealand but that order was cast in a way that made it applicable just to the costs of the appeal to the Full Court. Whether or not costs could or should have been awarded in respect of the s 35 review proceeding, which was heard in this Court, or in respect of the initial, s 34 proceeding is not a question which appears to have arisen. 9 The difficulty about New Zealand's submission is that it pays no heed either to the nature of the jurisdiction exercised by the Full Court or to the powers exercisable by the Full Court in relation to that jurisdiction. The remarks made by Branson J in Dutton were addressed to a quite different situation. At least so far as any question of costs in the Supreme Court is concerned, they are wholly distinguishable from the present exercise of appellate jurisdiction by the Court. 10 By s 24(1)(c) of the Federal Court Act, the Court has, materially, power to hear and determine appeals from judgements of a court of a State (other than a Full Court or Court of Appeal) "in such cases as are provided by any other Act". Such provision is made by s 35(3) of the Extradition Act, which provides for an appeal to the Full Court of this Court from a judgment given either in this Court's original jurisdiction or, as in the present case, by a Supreme Court. In the exercise of that appellate jurisdiction, the Full Court may make any of the orders for which s 28 of the Federal Court Act provides. That section is cast in sweeping terms: 28 Form of judgment on appeal (1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; (d) set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding; (f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or (g) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court. (2) It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment. (3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision. (4) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just. 11 One order that would, in terms of s 28(1)(b) of the Federal Court Act, be "fit" for the Court to make is such order for costs in respect of proceedings in the courts (or before the officials) below as those courts (or officials) were empowered to make and should have made had the proceedings been determined before them in accordance with the Full Court's reasons for judgement but also having regard to the way in which the proceedings were conducted in the courts below. 12 When the Supreme Court of Queensland came to exercise the review jurisdiction under s 35 of the Extradition Act, that court was exercising federal jurisdiction with which it was invested by the Commonwealth Parliament in the exercise of the legislative power conferred on it by s 77(iii) of The Constitution. In the circumstances, because the Supreme Court was exercising that invested federal jurisdiction in Queensland, the effect of s 79(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) was that the laws of that State with respect to, materially, procedure were, subject to any contrary provision in The Constitution or another Commonwealth Act, applicable to the s 35 review proceeding. 13 The Supreme Court's power to award costs is, materially, to be found in r 680 and r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Those rules were made by the Governor in Council, with the consent of the Rules Committee, pursuant to the rule making power conferred by s 85 of the Supreme Court of Queensland Act 1991 (Qld) (and see also item 21 in Sch 1 to that Act). Those rules provide: 680 Entitlement to recover costs A party to a proceeding can not recover any costs of the proceeding from another party other than under these rules or an order of the court. 681 General rule about costs (1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. (2) Subrule (1) applies unless these rules provide otherwise. There is no provision to the contrary in either The Constitution or the Extradition Act so far as the application in the Supreme Court review proceeding, via the Judiciary Act, of this costs power. The Extradition Act is silent on the subject of the awarding of costs. 14 As we observe in the principal judgement, at [44], the subject of representative charges was mentioned in the review proceeding before the Supreme Court but it does not appear to have been canvassed at length. Nonetheless, it was mentioned and New Zealand chose to press for extradition nonetheless. In those circumstances, we consider that there is no reason why the default position for which r 681(1) of the UCPR provides should not apply in respect of costs in the Supreme Court. Costs should follow the event. By virtue of the orders made on 13 September 2012 in the principal judgement, that event is now an order in Mr Newman's favour quashing of the surrender warrant. He should therefore have his costs in the Supreme Court. 15 This process of reasoning also reveals why there should be no cause for doubt as to power in relation to the orders for costs in respect of the s 35 review proceeding which the Full Court made in Bannister, Moloney and Johnston. In each instance, the order in respect of costs in respect of the review proceeding was one which the court exercising original jurisdiction could have made. Where that original jurisdiction had been exercised in a Supreme Court, the authority for that court to award costs was derived via the Judiciary Act in a manner analogous to that which we have described above. Where that original jurisdiction had been exercised in this Court, the source of the power to award costs was, coincidentally, the same as that possessed by the Full Court in respect of an appeal itself, ie s 43 of the Federal Court Act. That does not mean that, in the exercise of appellate jurisdiction in respect of costs in the court below in such a case, that the Full Court was doing anything other than making such order as to costs as it thought fit which the court below was empowered to and should have made. 16 The position in relation to costs in the s 34 proceeding before the magistrate is more complex, for reasons which were not explored before us in the submissions made on behalf of New Zealand and Mr Newman. 17 Prior to the High Court's judgment in O'Donoghue v Ireland (2008) 234 CLR 599 (to which we were not referred by counsel) (O'Donoghue v Ireland), there may have been potential for a question to arise as to whether a s 34 proceeding is correctly characterised as a proceeding before a Magistrates Court, as opposed to an administrative proceeding before a magistrate as persona designata. Though O'Donoghue v Ireland concerned the position of a magistrate performing a function under s 19 within Pt II of the Extradition Act, rather than, as here, a magistrate performing a function under s 34 within Pt III of that Act, that provides no material basis for distinguishing the case. O'Donoghue v Ireland establishes that it is constitutionally permissible for State magistrates, by arrangement between the Commonwealth and State executive governments and with their consent, to perform the function of a "magistrate" for the purposes of the Extradition Act and that such a function falls within s 4AAA of the Crimes Act 1914 (Cth). That means that, in terms of that section, the function is one "relating to criminal matters" and is "a function or power that is neither judicial nor incidental to a judicial function or power". In the context of this case, that means that Deputy Chief Magistrate Hine conducted the s 34 proceeding in a personal, administrative capacity, albeit one which was incidentally related to a criminal proceeding in a New Zealand Court. 18 These conclusions have an important consequence in relation to the ability to make any award of costs in favour of Mr Newman in relation to the s 34 proceeding. That is because the power to award costs is a creature of statute. There is no power to award costs in respect of a s 34 proceeding expressly conferred by the Extradition Act. Neither does that Act incorporate by reference with respect to a s 34 proceeding any practice and procedure applicable to a criminal proceeding before a State magistrate at all, let alone one which includes, as does s 158 of the Justices Act 1886 (Qld) (Justices Act), a power to award costs. Subsection 79(1) of the Judiciary Act could not be the source of an incorporation of any such practice and procedure, because that provision is directed to courts, not persons exercising administrative power in a personal capacity. No alternative means by which such practice and procedure was made applicable in a s 34 proceeding was put to us. 19 The consequence is that it is not possible for this Court, in the exercise of the appellate jurisdiction powers conferred by s 28 of the Federal Court Act, to make an award of costs in Mr Newman's favour in respect of the s 34 proceeding before Hine DCM. By analogy with Dutton, s 43 of the Federal Court Act is not an available source of power to make any order of costs in respect of the s 34 proceeding. 20 Mr Newman raised an apprehension as to the ability for a costs order to be made in his favour in the Magistrates Court having regard to the provisions of s 158A of the Justices Act. That apprehension in turn reflected an interrogative note, which was based on the relationship which a s 34 proceeding had with a New Zealand criminal proceeding, voiced by the Court for the parties' consideration as to costs in the s 34 proceeding at the time when the principal judgment was delivered. That section imposes a fetter on a Magistrates Court exercising jurisdiction under the Justices Act on the exercise of the discretion conferred by s 158 of the Justices Act, to award costs on the dismissal of a complaint. New Zealand submitted that the Justices Act was not applicable because the s 34 proceeding was not one made on complaint. Were the practice and procedure for which the Justices Act provides made applicable to such a proceeding by reference, it would be nothing to the point, so far as the engagement of the costs power in s 158 was concerned, that it should, according to Justices Act practice, have been commenced by complaint but was irregular in not being so commenced. 21 Even if, though, the costs power in s 158 of the Justices Act were available, there is nothing in the evidence which would suggest that the extradition proceeding was not brought and continued by New Zealand in good faith, that there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person in Australia or in New Zealand responsible for bringing or continuing that proceeding or that the investigation into the alleged offences was conducted in an inappropriate way. In these circumstances and applied mutatis mutandis to the exercise of any costs discretion under s 158 of the Justices Act, the considerations mentioned in s 158A(2)(a), (b) and (c) of the Justices Act would tell against an award of costs in Mr Newman's favour in respect of the s 34 proceeding. 22 It follows then that, insofar as Mr Newman has applied for costs in respect of the s 34 proceeding, his application must be dismissed. 23 New Zealand resisted the making of any order for costs in respect of the proceedings below. It has enjoyed success in respect of costs in relation to the s 34 proceeding for reasons other than those advanced on its behalf. In these circumstances, the just outcome is that New Zealand should pay Mr Newman's costs in respect of the costs application. 24 We add the following. This case also provides an opportunity to remind the profession of the Court's expectation in relation to submissions with respect to costs where a party proposes to submit that there should be a departure from the usual order that costs follow the event either in respect of the appeal or in the court(s) below. The appropriate time to make such a submission is during the course of the hearing of the appeal. To this might be added the following observations made by Wilcox and Kiefel JJ (Emmett J agreeing) in Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 at [2]: If it had been thought desirable to have the Court's decision on the substantive issue before putting submissions in relation to costs, as is sometimes appropriate in complicated cases, this could and should have been raised with the Court during the hearing. It is inappropriate for a party to say nothing about costs, or any other ancillary matter, during the hearing, await the outcome of the appeal and then ask the Court to vary its orders. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Greenwood and Logan.

Newman v New Zealand

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