Harbour Radio Pty Ltd v Trad

[2015] NSWSC 632

Supreme Court

New South Wales

Medium Neutral Citation:	Harbour Radio Pty Ltd v Trad [2015] NSWSC 632
Hearing dates:	4 March 2015
Date of orders:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	(1)The Notice of Motion is dismissed; (2) Mr Trad to pay Harbour Radio's costs of this motion.
Catchwords:	PROCEDURE – civil – extensive history of defamation proceedings – proceedings in the Supreme Court, the Court of Appeal and the High Court – question of interpretation of order of the Court of Appeal as to costs – whether Court of Appeal intended to confirm orders of trial judge as to costs – validity of certificate of determination of costs – whether certificate should be set aside – whether certificate should be permanently stayed - whether Court has jurisdiction to set aside certificate - application for extension of time to lodge review of costs assessment
Legislation Cited:	Legal Profession Act 2004 Uniform Civil Procedure Rules 2005
Cases Cited:	Frumar v Strata Plan No 36857 [2010] NSWCA 172 Frumar v Strata Plan No 36857 [2006] NSWCA 278; (2006) 67 NSWLR 321. Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31 R v Jones; R v Hili (No 2) [2010] NSWCCA 195 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477
Category:	Principal judgment
Parties:	Harbour Radio Pty Ltd (Plaintiff) Keysar Trad (Defendant)
Representation:	Counsel: Mr M Richardson (Plaintiff/Respondent) Mr A Rogers (Defendant/Applicant) Solicitors: Banki Haddock Fiora (Plaintiff/Respondent) Mitry Lawyers (Defendant/Applicant)
File Number(s):	2015/27467
Publication restriction:	None

Judgment

1. HER HONOUR: On 4 March 2015 the defendant (Mr. Trad) moved on a Notice of Motion filed on 12 February 2015, and amended by Motion filed in Court with leave on 4 March 2015, in which he seeks to set aside a judgment of 29 January 2015. The defendant read and relies upon his affidavit in support of the motion, affirmed on 12 February 2015.

2. The defendant’s motion seeks the following orders:

1. That the Certificate of Determination of Costs Assessment (“the Costs Certificate”) issued on 18 June 2010 by Costs Assessor Peter Scammell in       Assessment No. 20309 of 2010 be set aside.

2. That judgment entered in favour of the Plaintiff on 29 January 2015 in the sum of $290,017.56 be set aside or in the alternative be permanently stayed.

3. That the court grant a stay of enforcement in this matter until the application to set aside the Costs Certificate and the said judgment is determined.

4. [Withdrawn]

5. Costs.

3. The plaintiff, Harbour Radio Pty Ltd (Harbour Radio), opposes the Motion. The plaintiff read and relied upon the affidavit of Mr. Senior of 3 March 2014.

4. Although listed in the midst of a busy Common Law Duty list, I had the benefit of both oral and written submissions from counsel for the parties as to the orders that each submits that the Court should make.

A Brief History of Proceedings

5. These proceedings have some considerable history and it seems likely that that history will expand, with litigation ongoing.

6. The matter commenced on 17 August 2006 when Mr. Trad commenced an action in defamation against Harbour Radio, the operators at the material time of the radio station 2GB, in relation to statements broadcast on 2GB on 19 December 2005.

7. The matter eventually went to trial, and a jury subsequently found that eight imputations were conveyed by the broadcast, each being defamatory.

8. The trial judge, McClellan CJ at CL (as he then was) thereafter upheld defences advanced by Harbour Radio with respect to all imputations found by the jury to have been conveyed by the broadcast. Defences of substantial truth and of qualified privilege were upheld with respect to all imputations. A defence of contextual truth was upheld in part. Mr. Trad’s claim was dismissed by the Supreme Court: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750.

9. Mr Trad appealed to the Court of Appeal. The Court of Appeal concluded that four of the imputations could not be justified as substantially true and that three of the imputations did not fall within the defence of qualified privilege. The defence of contextual truth failed. The relevant imputations were remitted to the Common Law Division for an assessment of damages: Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; 279 ALR 183.

10. Harbour Radio sought special leave in the High Court to challenge the order of the Court of Appeal for remittal to the Common Law Division of the Supreme Court. It argued for error by the Court of Appeal in the way in which the defences of substantial truth and contextual truth had been dealt with.

11. In Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 the High Court held that one of the imputations was covered by the defence of qualified privilege, and remitted the matter to the Court of Appeal to consider the availability of defences of substantial and contextual truth in relation to particular imputations.

12. Order 2(b) of the High Court judgment orders:

2.    Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 22 March 2011, and in lieu thereof order that:

(b)   the orders of the Common Law Division made on 6 August 2009 be set aside.

13. In reference to costs, order 4(c) is in these terms:

4.   Remit the matter to the Court of Appeal for consideration of:

(c)   all questions of costs of proceedings in the Common Law Division and the Court of Appeal.

14. On remitter, the Court of Appeal determined that the defence of substantial truth was made out. The appeal from the orders of the trial judge was dismissed: Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477.

15. In his judgment Basten JA (with whom McColl and Tobias JJA agreed) held, at [72]:

“In the result, the appeal from the judgment of the trial judge should be dismissed. The appellant must pay the respondent’s costs in this court.”

Costs orders

16. In the affidavit of Mr. Senior of 3 March 2015, the extensive history of the costs orders made from the trial proceedings in 2009 to the second judgment of the Court of Appeal are detailed.

17. In written submissions, Mr. Richardson for Harbour Radio summarised the critical orders relevant to costs from the trial to the second appeal as follows:

“a)    The High Court in its Order 2b set aside the orders of the Common Law Division of 6 August 2009. That included an order that Mr Trad pay Harbour Radio’s costs on an indemnity basis from 5 November 2007 (and on an ordinary basis prior to that time).

b)   The High Court then remitted “all questions of costs of proceedings in the Common Law Division and the Court of Appeal” to the Court of Appeal;

c)   The Court of Appeal held at [72], [in the second proceedings], “In the result, the appeal from the judgment of the trial judge should be dismissed. The appellant must pay the respondent’s costs in this court.”

18. The issue between the parties is, at least in part, the interpretation of the orders from the Court of Appeal in Trad v Harbour Radio Pty Ltd (No 2), and what those orders mean with respect to costs.

Certificate of Costs

19. There is also an issue before the Court as to the assessment of costs, and whether or not a certificate of costs should and even can be set aside.

20. At noted above, McClellan CJ at CL made a costs order against Mr Trad ordering that he pay Harbour Radio’s costs up until 5 November 2007 on a party/party basis, and on an indemnity basis thereafter.

21. Following this costs judgment in its favour, on 22 January 2010, Harbour Radio served Mr Trad with an application for assessment of Harbour Radio’s costs. On 9 February 2010, the designated costs assessor, Peter Scammell, requested submissions regarding the bill of costs on or before 25 March 2010.

22. On 10 February 2010, Mr Trad filed a notice of motion seeking orders that there be a stay of the costs assessment pending the determination of the appeal and that the primary judge’s costs order be stayed pending the appeal.

23. On 1 March 2010, Tobias JA heard both Mr. Trad’s motion to stay the assessment and costs order, and a motion by Harbour Radio to dismiss the appeal. On 18 March 2010, he gave judgment ordering that the execution and enforcement of McClellan CJ at CL’s costs order be stayed pending the determination of the plaintiff’s appeal (Trad v Harbour Radio Pty Ltd [2010] NSWCA 41). There was no stay of the assessment of costs. That process was ultimately finalised.

24. On 25 August 2010, Mr Trad received a letter from his then solicitors, informing him of the quantum of costs as calculated by the assessor and advising him that “the enforcement of costs against [him] has been stayed pending decision of the Court of Appeal.” He (understandably) misunderstood this to mean that the whole of the costs issue, including assessment, was in abeyance.

25. On 29 January 2015, with the second appeal determined in its favour, Harbour Radio filed a copy of the certificate of costs, and judgment was entered ordering Mr Trad to pay Harbour Radio the sum of $290,017.56.

26. In an affidavit before this court of 3 March 2015, Mr Trad’s solicitor, Catherine Nguyen, stated that she had not received notification that Harbour Radio proposed to register its certificate of assessment as a judgment prior to 29 January 2015.

Application to set aside the Certificate of Costs and Judgment

27. In his submissions, Mr. Trad asserts that he owes no money to Harbour Radio relevant to the trial before McClellan CJ at CL in the Common Law Division, as they were entered irregularly or illegally and should thus be set aside.

28. Uniform Civil Procedure Rules 36.15(1) and 36.16 govern the court’s power to set aside a judgment.

36.15 General power to set aside judgment or order

(1)    A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

36.16 Further power to set aside or vary judgment or order

(1)    The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)    The court may set aside or vary a judgment or order after it has been entered if:

(a)    it is a default judgment (other than a default judgment given in open court), or

(b)    it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c)    in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3)    In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a)    determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b)    dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A)    If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B)    Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C)    Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4)    Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

29. Harbour Radio’s counsel do not take issue with the Court’s jurisdiction to set aside a judgment, subject to the UCPR.

30. There is a dispute as to whether this Court has jurisdiction to set aside a Certificate of Costs.

31. At issue is whether the judgment regarding costs from the proceedings in the Common Law Division is enforceable against the defendant, given what has fallen from the Court of Appeal in the second appeal proceedings (Trad v Harbour Radio Pty Ltd (No 2)).

32. The question of costs was touched upon only in passing during the hearing before the Court of Appeal. Senior Counsel for Harbour Radio there noted,

“Yes given the complexity of the procedural history, I mean your Honours won’t be surprised that if I end up succeeding completely then I’ll ask for all of my costs. But it’s not hard to imagine that there could be arguments about the history that make it complex. And so what I was proposing in relation to that is that it wait.”

33. Mr Trad’s counsel did not make any submissions relevant to costs at the hearing, although I do not think that anything can be made of that.

34. As noted, the decision of the Court of Appeal was that the appeal from the judgment of the trial judge was dismissed, with Mr. Trad to pay Harbour Radio’s costs in the Court of Appeal.

35. How that order is to be interpreted is in dispute between the parties. There is a question as to whether the reference in the judgment of Basten JA to “in this court” is intended to refer to costs in both the Court of Appeal and the trial court, or solely to the Court of Appeal.

36. In support of the former proposition, counsel drew my attention to R v Jones; R v Hili (No 2) [2010] NSWCCA 195 at [19]:

“Judgments of a court are judgments of the whole court and the concept of an appeal to judges of the same court (or, on one view, at all) is a statutory invention: see Re Jarman; Ex Parte Cook [1997] HCA 13; (1997) 188 CLR 595 at 610. An appeal from a single judge of a court to a full court of the same court does not alter the fact that the jurisdiction, in each case, is still the jurisdiction of the whole court. There are not two courts, one comprising a single judge and one comprising the remainder of the Court, or, more particularly, the members of a full court. The full court exercises, and, relevantly for the current proceedings, the Court of Criminal Appeal exercises, a different jurisdiction to that of a single judge from which an appeal arises, even though the judges on appeal and at first instance may be from the same court: Jarman, supra, at 610 per Dawson J. Of necessity, all appeals are the exercise of a statutory jurisdiction.”

37. (I have had regard to Jones & Hili (No 2) but, for my part, I regard it as unlikely that the Court of Appeal used the phrase “in this court” to refer globally to both the first instance and the appeal courts.)

38. Although counsel for Harbour Radio in these proceedings submitted that it was open to read “this court” as a reference to the Supreme Court including all of its Divisions (of which the Common Law Division is one and the Court of Appeal is another), he contended that the better interpretation of the two sentences at [72] of the second appeal judgment is that, in the first sentence, the Court of Appeal dealt with what happened in the Common Law Division, and in the second sentence, with the costs of the appeal.

39. Harbour Radio was emphatic that the question of costs should be seen through the prism of its ultimate success: the costs orders should stand as, Harbour Radio having been successful, a judgment for costs in its favour followed, as a ‘natural corollary’ of that success. It argued that the Court of Appeal intended for the costs orders of the trial judge in its favour to be restored.

40. Mr Rogers, counsel for Mr. Trad submitted that the order for costs from the Court of Appeal do not encompass those of McClellan CJ at CL. In particular that must be so as the costs do not appear to have been assessed with an indemnity component, as was awarded by the trial judge. On that basis counsel referred the Court to UCPR r 42.2, that costs would be on a party/party basis or generally on the ordinary basis:

"42.2 General rule as to assessment of costs

Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis."

41. Having considered the wording of the orders made by the trial judge, the High Court, and the Court of Appeal, I incline to the view that the orders made by the Court of Appeal in its second judgment should be broadly construed, so as to give effect to the orders of the trial judge, insofar as they may be concluded to remain, and those of the High Court in its remitter.

42. There is no reason to construe the orders of the Court of Appeal as confined only to the order dismissing Mr Trad’s claim against Harbour Radio. That could lead to an outcome that cannot, in my view be correct, that being that the Court of Appeal simply made no orders concerning the issue of the trial costs even though the costs issue was remitted to it from the High Court. Had that been the Court of Appeal’s intention it would have specifically said that such was its intent, and provided reasons for that approach. It must be that, in effectively reinstating the orders of the trial judge, all orders were reinstated, including those relating to costs.

43. I have concluded that, in dismissing the appeal against the orders of the trial judge, the Court of Appeal intended by that order to encompass all relevant orders of the trial judge, including the order for costs.

44. Judgment having been obtained against the defendant for payment of the costs, the application is that the judgment be set aside. Mr Trad asserts irregularity on the part of Harbour Radio in obtaining judgment, I do not see any basis upon which to conclude that the judgment for payment of the costs as assessed, should be set aside. 

Extension of time to lodge review of assessment

45. Sections 367, 372 and 373 of the Legal Profession Act 2004 govern costs assessments. They are as follows:

367 Determinations of costs assessments

(1)    A costs assessor is to determine an application for a costs assessment relating to a bill by confirming the bill or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in the assessor’s opinion, is a fair and reasonable amount.

(2)    The costs assessor may include an allowance for any fee paid or payable for the application by the applicant.

(3)    A costs assessor may not determine that any part of a bill that is not the subject of an application is unfair or unreasonable.

(4)    A costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties if during the course of the assessment the parties notify the costs assessor that they have agreed on the amount of those costs.

372 Determination to be final

A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division.

373 Application by party for review of determination

(1)    A party to a costs assessment who is dissatisfied with a determination of a costs assessor may, within 30 days after the certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) has been forwarded to the parties that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination.

Note : Section 328 (10) provides that a party to a costs agreement may apply to the Manager, Costs Assessment under this section for a review of a determination to make, or not make, an order under section 328 to set aside the costs agreement or a provision of the costs agreement.

(2)    The application must:

(a)    be made in accordance with the regulations (if any), and

(b)    be accompanied by the fee prescribed by the regulations.

(3)    The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.

(4)    The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.

(5)    A party who applies for a review under this Subdivision must ensure that notice of the application is given to the other parties to the assessment not less than 7 days before the application is made or as prescribed by the regulations.

46. As identified above, it is the jurisdiction of the Manager of Costs Assessment to set aside a determination. The act also sets out other avenues of appeal such as taking the certificate to a panel for review (s374 Legal Profession Act 2004) or appeal to the District Court (s384). Though the defendant highlights areas of relief such as mandamus and certiorari, I do not feel that is an appropriate course of action considering the circumstances.

47. Mr. Trad’s counsel has brought two cases to my attention: Frumar v Strata Plan No 36857 [2010] NSWCA 172 and the earlier case of Frumar v Strata Plan No 36857 [2006] NSWCA 278; (2006) 67 NSWLR 321.

48. I do not understand those decisions as supportive of a conclusion that this Court has the jurisdiction to set aside the certificate on this Motion, in the circumstances of this case. There being no application for leave to appeal against the costs assessment, the jurisdiction of this Court does not arise in my view.

49. In any event, although I accept that Mr. Trad misunderstood the status of the costs assessment following the orders made by Tobias JA, the time which has now passed is such as to militate against any extension of time in which to seek a review of the certificate. That process would ordinarily have been undertaken in 2010; to permit further delay whilst the certificate is reviewed in the order of five years after it issued, is not appropriate.

Orders

50. Accordingly, the orders I make are these:

1. The Notice of Motion is dismissed;

2. Mr Trad to pay Harbour Radio's costs of this motion. 

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Decision last updated: 26 May 2015