Trad v Harbour Radio Pty Ltd

The appeal before the Court of Appeal of New South Wales concerned the interpretation and validity of costs orders made in proceedings between Mr Trad (the applicant/appellant) and Harbour Radio Pty Ltd (the respondent/defendant). The dispute arose from an earlier judgment where costs orders had been made, which were subsequently set aside on appeal to the High Court. The core of the present appeal involved determining the status of a certificate of costs assessor and whether a new order for costs could be made.

The legal issues before the Court of Appeal included whether a certificate of costs assessor remained valid after the underlying costs order had been set aside pending the outcome of an appeal. Furthermore, the court was required to consider whether it possessed the power to make a new order as to the costs of the trial, particularly in light of the Uniform Civil Procedure Rules 2005 (NSW), r 36.17 (the slip rule), and whether such an order could be made if it was something that ought to have been made at the time of the original judgment. The court also had to determine if a certificate of assessment could form the basis of a new judgment for the same costs if a further order for their payment was made.

The Court of Appeal reasoned that once the original costs order was set aside, the certificate of costs assessor, which was predicated on that order, lost its efficacy. The court found that the slip rule was not applicable in this instance as it was not designed to correct errors or omissions of this nature, but rather to correct minor mistakes or oversights. Consequently, the court determined that it could make a fresh order regarding the costs of the trial. The court allowed the appeal, setting aside the previous orders and substituting them with new orders that specified Harbour Radio pay 50% of Mr Trad’s costs in the Common Law Division. Additionally, the court ordered that Mr Trad pay Harbour Radio’s costs of the trial on an ordinary basis up to 5 November 2007 and thereafter on an indemnity basis. Each party was ordered to bear its own costs of the proceedings in the Court of Appeal.