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

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.
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.

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.
Although listed in the midst of a busy Common Law Duty list, I had the benefit of both oral and written submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 632
Decision Date: 26 May 2015

CaseChat Overview and Summary

Harbour Radio Pty Ltd, a radio station operator, was engaged in a long-running defamation dispute with Trad, a former employee. The case had traversed the Supreme Court, the Court of Appeal, and the High Court, with the latest matter before the Court of Appeal concerning the interpretation of a costs order. The central issue was whether the Court of Appeal had intended to confirm the orders of the trial judge regarding costs. Additionally, the court had to determine the validity of a certificate of determination of costs, whether it should be set aside or permanently stayed, and whether the court had the jurisdiction to set aside the certificate. Moreover, the case involved an application for an extension of time to lodge a review of the costs assessment.

The court considered the extensive history of the case, noting the numerous appeals and cross-appeals that had occurred. The Court of Appeal had issued an order that the parties bear their own costs up to the end of the first appeal, with the successful party in the second appeal to be entitled to costs from the other party from that point onwards. The issue was whether this order confirmed the trial judge's costs orders or not. The court examined the language of the order and the context in which it was made, concluding that the Court of Appeal did intend to confirm the trial judge's orders as to costs. The court also considered the validity of the certificate of determination of costs and found that it was valid and should not be set aside or permanently stayed. Finally, the court granted the application for an extension of time to lodge a review of the costs assessment, allowing the applicant more time to challenge the costs orders.

In summary, the court held that the Court of Appeal's order confirmed the trial judge's costs orders, that the certificate of determination of costs was valid and should not be set aside or permanently stayed, and that the applicant was granted an extension of time to lodge a review of the costs assessment. The court's decision provides clarity on the costs orders in this complex and protracted defamation dispute.

Orders