Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Trad v Harbour Radio Pty Ltd [2017] NSWCA 64 Hearing dates: 23 March 2017 Decision date: 23 March 2017 Before: McColl JA at [1], [37];
Basten JA at [2];
Ward JA at [38]Decision: (1) Refuse leave to appeal from the judgment and orders made by Stevenson J in the Equity Division on 5 July 2016.
(2) Order that the applicant pay the respondent’s costs in this Court on an indemnity basis.
(3) Direct the respondent to make such application as it may be advised in relation to seeking an order for costs against any legal representative of the applicant, such application to be made on or before 29 March 2017, by notice of motion, accompanied by affidavit(s) and written submissions.Catchwords: APPEAL – leave to appeal – challenge to validity of costs certificate – whether final or interlocutory order – whether order relating to costs – whether leave to appeal required under Supreme Court Act 1970 (NSW), s 101(2)(e) or (q)
APPEAL – re-litigation of issue determined in previous appeal – issue not determinative of earlier appeal – whether sufficient basis for contention that earlier reasoning was erroneous
JUDGMENT AND ORDERS – costs certificate – costs order forming basis of assessment set aside – costs order reinstated on appeal – whether original costs certificate validLegislation Cited: Constitution (Cth), s 92
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 36.4Cases Cited: Blakey v Latham [1889] 43 Ch D 23
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
Derrawee Pastoral Co Pty Ltd v McConochie [1995] NSWCA 123
El-Saeidy v New South Wales Land and Housing Corporation [2014] NSWCA 172
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44
James v The Commonwealth (1935) 52 CLR 570
Lord Sanchar’s Case (1613) 9 Co Rep 117a; 77 ER 902
R v Drury (1849) 3 Car & K 190; 175 ER 516
Re Culleton (No 2) [2017] HCA 4
Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477Texts Cited: Archbold’s Criminal Pleading, Evidence and Practice, 21st ed (1893), pp 226, 227 Category: Principal judgment Parties: Keysar Trad (Applicant)
Harbour Radio Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
Mr A G Rogers (Applicant)
Mr M Richardson (Respondent)
Mitry Lawyers (Applicants)
Banki Haddock Fiora (Respondent)
File Number(s): 2016/228048 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity Division
- Date of Decision:
- 5 July 2016
- Before:
- Stevenson J
- File Number(s):
- 2016/203503
Judgment
-
McCOLL JA: Justice Basten will deliver the first reasons.
-
BASTEN JA: In 2006, the applicant, Keysar Trad, commenced proceedings for defamation against the respondent, Harbour Radio Pty Ltd. In 2009, the trial judge, McClellan CJ at CL, dismissed the proceedings and ordered that the applicant pay the respondent’s costs in part on an indemnity basis. Harbour Radio sought an assessment of its costs.
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- Case
- [2017] NSWCA 64
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the order of Stevenson J was a final or interlocutory order for the purposes of s 101(2) of the *Supreme Court Act 1970* (NSW), and consequently, whether leave to appeal was necessary. Further, the Court had to consider whether the applicant was attempting to re-litigate an issue already determined in a previous appeal, and if so, whether there was a sufficient basis to contend that the earlier reasoning was erroneous. The central question was the validity of the costs certificate in light of the fluctuating costs orders.
The Court reasoned that the order of Stevenson J was interlocutory, meaning leave to appeal was required. It found that the applicant had not demonstrated that the earlier appeal's reasoning was demonstrably erroneous, particularly as the issue concerning the costs order was not determinative of that earlier appeal. The Court concluded that the applicant had failed to establish grounds for leave to appeal.
Consequently, the Court of Appeal refused leave to appeal from the judgment and orders of Stevenson J. The applicant was ordered to pay the respondent's costs in the Court of Appeal on an indemnity basis. The Court also directed the respondent to make any application it deemed appropriate regarding seeking costs against the applicant's legal representatives by notice of motion, supported by affidavit and submissions, by 29 March 2017.
Orders
Orders of the court
(1) Refuse leave to appeal from the judgment and orders made by Stevenson J in the Equity Division on 5 July 2016.
(2) Order that the applicant pay the respondent’s costs in this Court on an indemnity basis.
(3) Direct the respondent to make such application as it may be advised in relation to seeking an order for costs against any legal representative of the applicant, such application to be made on or before 29 March 2017, by notice of motion, accompanied by affidavit(s) and written submissions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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