Trad v Harbour Radio Pty Ltd - [2017] NSWCA 60

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Trad v Harbour Radio Pty Ltd [2017] NSWCA 60
Hearing dates: 13 March 2017
Date of orders: 13 March 2017
Decision date: 29 March 2017
Before: Ward JA
Decision:
1.   Dismiss application by the applicant for leave to cease to act for the appellant in the proceedings.
2.   Direct the applicant to attend to the preparation of the Blue, Black and Orange Appeal Books to be served on or before by close of business Monday, 20 March 2017.
3.   Liberty to the applicant/appellant to apply to Ward JA’s Associate for leave for the applicant to withdraw if appellant instructs new solicitors by 23 March 2017.
4.   Liberty to appellant/respondent to apply to Ward JA’s Associate for consent orders to refer matter for Court-annexed mediation before 23 March 2017 (if agreement be reached for mediation by then).
5.   Costs of today’s proceedings be the respondent’s costs in the cause.

Catchwords: PROCEDURE – parties and representation – legal representation – application pursuant to r 7.29 of the Uniform Civil Procedure Rules 2005 (NSW) by solicitor for leave to withdraw from and cease to act in proceedings on basis of perceived conflict – application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Legal Profession Act 2004 (NSW), s 368(5)
Uniform Civil Procedure Rules 2005 (NSW), r 7.29,
Cases Cited: Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Category: Procedural and other rulings
Parties: Rick Mitry (Applicant)
Keysar Trad (Appellant)
Harbour Radio Pty Ltd (Respondent)
Representation:
Counsel:
D Nathan (Applicant)
Appellant in person
M Richardson (Respondent)
Solicitors:
Mitry Lawyers (Appellant)
Banki Haddock Fiora (Respondent)

File Number(s): 2016/00228048
Publication restriction: Nil

Judgment

WARD JA: This is an application by the solicitor on the record for the appellant, Mr Keysar Trad, for leave to withdraw from and to cease to act for the appellant in proceedings brought by the appellant in this Court against Harbour Radio Pty Ltd by way of appeal in respect of a decision handed down ex tempore by Stevenson J in the Equity Division duty list on 5 July 2016.
The issue that is raised on the substantive appeal is, in effect, as to whether Stevenson J erred in acting upon observations that were made in a decision handed down in this Court in Trad v Harbour Radio Pty Ltd [2016] NSWCA 80. The dispute is as to the efficacy of the filing of a costs certificate issued by a costs assessor on 18 June 2010 and the respondent’s ability to enforce the judgment arising on the filing of the costs certificate pursuant to s 368(5) of the Legal Profession Act 2004 (NSW). In his notice of appeal filed 5 October 2016 the appellant challenges the decision of Stevenson J on the following grounds, first, that his Honour erred in holding that the costs certificate could properly be filed and, second, in considering that his Honour was bound by what the appellant says were obiter observations…

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.

Keep reading for free

Create a free CaseChat account to read Trad v Harbour Radio Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWCA 60
Decision Date: 29 March 2017

CaseChat Overview and Summary

The applicant, a solicitor, sought leave from the Court of Appeal of New South Wales to withdraw from acting for the appellant in proceedings against the respondent, Harbour Radio Pty Ltd. The application was based on a perceived conflict of interest.

The central legal issue before the court was whether the solicitor had established sufficient grounds to be granted leave to cease acting for the appellant, particularly in light of the Uniform Civil Procedure Rules 2005 (NSW) r 7.29, which governs such applications.

Ward JA dismissed the application, finding that the perceived conflict did not meet the threshold required to justify the solicitor's withdrawal at that stage of the proceedings. The court directed the solicitor to continue preparing the necessary appeal books and granted liberty to the appellant to apply for leave to withdraw if new solicitors were instructed by a specified date. Further, liberty was granted for the appellant to apply for consent orders for court-annexed mediation. The costs of the application were ordered to be the respondent's costs in the cause.

Orders

Orders of the court

1. Dismiss application by the applicant for leave to cease to act for the appellant in the proceedings.

2. Direct the applicant to attend to the preparation of the Blue, Black and Orange Appeal Books to be served on or before by close of business Monday, 20 March 2017.

3. Liberty to the applicant/appellant to apply to Ward JA’s Associate for leave for the applicant to withdraw if appellant instructs new solicitors by 23 March 2017.

4. Liberty to appellant/respondent to apply to Ward JA’s Associate for consent orders to refer matter for Court-annexed mediation before 23 March 2017 (if agreement be reached for mediation by then).

5. Costs of today’s proceedings be the respondent’s costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Trad v Harbour Radio Pty Ltd [2017] NSWCA 60
Hearing dates:	13 March 2017
Date of orders:	13 March 2017
Decision date:	29 March 2017
Before:	Ward JA
Decision:	1. Dismiss application by the applicant for leave to cease to act for the appellant in the proceedings. 2. Direct the applicant to attend to the preparation of the Blue, Black and Orange Appeal Books to be served on or before by close of business Monday, 20 March 2017. 3. Liberty to the applicant/appellant to apply to Ward JA’s Associate for leave for the applicant to withdraw if appellant instructs new solicitors by 23 March 2017. 4. Liberty to appellant/respondent to apply to Ward JA’s Associate for consent orders to refer matter for Court-annexed mediation before 23 March 2017 (if agreement be reached for mediation by then). 5. Costs of today’s proceedings be the respondent’s costs in the cause.
Catchwords:	PROCEDURE – parties and representation – legal representation – application pursuant to r 7.29 of the Uniform Civil Procedure Rules 2005 (NSW) by solicitor for leave to withdraw from and cease to act in proceedings on basis of perceived conflict – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Legal Profession Act 2004 (NSW), s 368(5) Uniform Civil Procedure Rules 2005 (NSW), r 7.29,
Cases Cited:	Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Category:	Procedural and other rulings
Parties:	Rick Mitry (Applicant) Keysar Trad (Appellant) Harbour Radio Pty Ltd (Respondent)
Representation:	Counsel: D Nathan (Applicant) Appellant in person M Richardson (Respondent) Solicitors: Mitry Lawyers (Appellant) Banki Haddock Fiora (Respondent)
File Number(s):	2016/00228048
Publication restriction:	Nil