New South Wales
Court of Appeal
CITATION: Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 HEARING DATE(S): 1 March 2010
JUDGMENT DATE:
18 March 2010JUDGMENT OF: Tobias JA at 1 DECISION: (a) Order that the Notice of Motion filed by the defendant on 6 November 2009 be dismissed.
(b) Order that the plaintiff pay the defendant’s costs of that Motion up to and including 22 February 2010 and that the defendant pay the plaintiff’s costs of the motion thereafter.
(c) Order that the execution and enforcement of Order 2 made by McClellan CJ at CL on 31 July 2009 be stayed pending the determination of the plaintiff’s appeal from his Honour’s decision of 31 July 2009 dismissing the plaintiff’s claim.
(d) Order that each party his or its own costs of the plaintiff’s Notice of Motion filed on 10 February 2010.CATCHWORDS: APPEAL – New South Wales – Supreme Court – When appeal lies – As of right – Appeal from order of primary judge dismissing defamation proceedings – Defendant filed Notice of Motion seeking order that appeal be dismissed as incompetent – Whether claim of plaintiff that appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic – Determination of issue of competence to be made upon the basis that plaintiff will be successful on all grounds – Finding that plaintiff was a person with a seriously compromised reputation founded upon credit and substantial truth findings - PROCEURE – Supreme Court procedure – New South Wales – Stay of proceedings – Primary judge ordered plaintiff to pay defendant’s costs – Defendant had itemised bill drawn up – Plaintiff filed Notice of Motion seeking stay of execution and enforcement of primary judge’s costs order and stay of costs assessment pending determination of appeal – Defendant did not oppose granting of stay of execution and enforcement of costs order – Whether costs assessment should be stayed – No evidence that plaintiff is financially unable to contest defendant’s bill – Agreement of defendant to pay plaintiff’s costs of contesting bill on indemnity basis if appropriate LEGISLATION CITED: Defamation Act 1974
Judiciary Act 1903 (Cth)
Legal Profession Act 2004
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005CATEGORY: Procedural and other rulings CASES CITED: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186
Bracks v Smyth Kirk [2009] NSWCA 401
Broome v Cassell & Co Ltd (No 1) [1972] AC 1027
Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121
Coates v Harbour Radio Pty Ltd & Alan Jones [2008] NSWSC 292
Cole v The Commonwealth [1961] HCA 87; (1961) 106 CLR 653
Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450
Goldsworthy v Radio 2UE Sydney Pty Ltd & Hadley [1999] NSWSC 547
Harrigan v Jones [2001] NSWSC 623; (2001) Aust Torts Reports…
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Details
- AGLC
- Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
- Case
- [2010] NSWCA 41
- Decision Date
CaseChat Overview and Summary
The appeal concerned an order of McClellan CJ in the Supreme Court of New South Wales that dismissed defamation proceedings brought by the plaintiff against the defendant, Harbour Radio Pty Ltd. The defendant sought to have the appeal dismissed as incompetent, arguing that the plaintiff's claim that the appeal involved a matter at issue amounting to $100,000 or more was neither credible nor realistic.
The court was required to determine two primary issues. Firstly, whether the appeal was competent, specifically addressing the monetary threshold for an appeal as of right. Secondly, the court considered the plaintiff's application for a stay of execution and enforcement of the primary judge's costs order, and a stay of the costs assessment pending the determination of the appeal.
In relation to the competence of the appeal, the court found that the plaintiff's claim of a seriously compromised reputation, founded upon findings of credit and substantial truth, rendered the assertion of a monetary value of $100,000 or more credible and realistic for the purposes of establishing an appeal as of right. Consequently, the defendant's Notice of Motion seeking to dismiss the appeal as incompetent was dismissed. Regarding the stay of costs, the court noted the defendant's non-opposition to a stay of execution and enforcement of the costs order. However, the court declined to stay the costs assessment, finding no evidence that the plaintiff was financially unable to contest the defendant's bill, and noting the defendant's agreement to pay the plaintiff's costs of contesting the bill on an indemnity basis if appropriate.
The court ordered that the defendant's Notice of Motion be dismissed. It further ordered that the plaintiff pay the defendant’s costs of that motion up to and including 22 February 2010, and that the defendant pay the plaintiff’s costs thereafter. The court also ordered a stay of execution and enforcement of the primary judge's costs order pending the determination of the plaintiff's appeal. Finally, the court ordered that each party bear their own costs of the plaintiff's Notice of Motion filed on 10 February 2010.
The court was required to determine two primary issues. Firstly, whether the appeal was competent, specifically addressing the monetary threshold for an appeal as of right. Secondly, the court considered the plaintiff's application for a stay of execution and enforcement of the primary judge's costs order, and a stay of the costs assessment pending the determination of the appeal.
In relation to the competence of the appeal, the court found that the plaintiff's claim of a seriously compromised reputation, founded upon findings of credit and substantial truth, rendered the assertion of a monetary value of $100,000 or more credible and realistic for the purposes of establishing an appeal as of right. Consequently, the defendant's Notice of Motion seeking to dismiss the appeal as incompetent was dismissed. Regarding the stay of costs, the court noted the defendant's non-opposition to a stay of execution and enforcement of the costs order. However, the court declined to stay the costs assessment, finding no evidence that the plaintiff was financially unable to contest the defendant's bill, and noting the defendant's agreement to pay the plaintiff's costs of contesting the bill on an indemnity basis if appropriate.
The court ordered that the defendant's Notice of Motion be dismissed. It further ordered that the plaintiff pay the defendant’s costs of that motion up to and including 22 February 2010, and that the defendant pay the plaintiff’s costs thereafter. The court also ordered a stay of execution and enforcement of the primary judge's costs order pending the determination of the plaintiff's appeal. Finally, the court ordered that each party bear their own costs of the plaintiff's Notice of Motion filed on 10 February 2010.
Orders
Orders of the court
(a) Order that the Notice of Motion filed by the defendant on 6 November 2009 be dismissed.
(b) Order that the plaintiff pay the defendant’s costs of that Motion up to and including 22 February 2010 and that the defendant pay the plaintiff’s costs of the motion thereafter.
(c) Order that the execution and enforcement of Order 2 made by McClellan CJ at CL on 31 July 2009 be stayed pending the determination of the plaintiff’s appeal from his Honour’s decision of 31 July 2009 dismissing the plaintiff’s claim.
(d) Order that each party his or its own costs of the plaintiff’s Notice of Motion filed on 10 February 2010.
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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