In this matter Greg Walsh appeared for the applicants who had successfully resisted an application for extradition by New Zealand.
It was argued that costs were discretionary and notwithstanding the fact that the applicants had successfully resisted extradition, they were not entitled to their costs. Madgwick J observed that s43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide and unstructured discretion. His Honour referred to the decision in Latoudis v Casey (1990) 170 CLR 534 in which the High Court had considered the discretion in relation to the prosecution for a summary criminal offence where the Defendant had succeeded. The majority of the High Court had emphasised the compensatory nature of a costs order and the inadequacy, in a criminal law context, with the fact that the charge was laid in the public interest and that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant with a costs order; per Mason CJ at 544; Toohey J at 563 and McHugh J at 569.
Madgwick J ordered New Zealand to pay the applicant’s costs.