Parker, Gregory v Federal Republic of Germany

[1997] FCA 685

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
TASMANIAN DISTRICT REGISTRY               )  No. TG 9 of 1997
  )
GENERAL DIVISION  )

B E T W E E N:

GREGORY PARKER
  Applicant
  - and -

FEDERAL REPUBLIC OF GERMANY
  Respondent

JUDGE:        HEEREY J

DATE:          23 JULY 1997

PLACE:        HOBART

RULING ON COSTS

Section 43(1) of the Federal Court of Australia Act
1976 (Cth) provides: 

43.(1)  Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

The applicant’s application under s 21(1) of the Extradition Act 1988 (Cth) for a review of the Magistrate’s order was a "proceeding before the Court". Hence the Court on such a review has jurisdiction to award costs, there being no provision to the contrary, in any Act other than the Federal Court of Australia Act.  I have already made an order that the respondent pay the applicant’s costs of the substantive application. 

However, I do not think I should award costs on the bail application under s 21(6)(f).  The bail application failed.  It turned on issues quite distinct from those arising on the substantive application.  This is so notwithstanding that the applicant succeeded in showing “special circumstances”.  The fact that a party succeeds on one of a number of issues will not usually be enough to justify an award of costs.

As to the proceedings before the Magistrate, it is accepted that his Worship was sitting as persona designata: Wiest v DPP (1988) 86 ALR 464 at 469. Thus he did not exercise jurisdiction under the Justices Act 1959 (Tas). There being no express provision as to costs in the Extradition Act, it would not have been open to the Magistrate to award costs.  Therefore I do not think it would be appropriate for this Court to make an order as to the costs before the Magistrate.  Put another way, the applicant is entitled to his costs on the review but in other respects is in no worse position as to costs than he would have been had he succeeded before the Magistrate. 

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            23 July 1997

Counsel for the Applicant:	Mr Michael Hodgman QC with Mr Leigh Sealy
Solicitor for the Applicant:	Piggott Wood & Baker
Counsel for the Respondent:	Mr Mark Weinberg QC with Ms L Read
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:
Date of Judgment:	23 July 1997