Trad v Harbour Radio Pty Ltd

Trad (the applicant) sought leave to appeal from orders made by Stevenson J in the Equity Division on 5 July 2016, which concerned a costs certificate. Harbour Radio Pty Ltd (the respondent) opposed the application. The dispute centred on the validity of the costs certificate, which was issued following an earlier appeal where the original costs order forming its basis had been set aside and then reinstated.

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.