Trad v Harbour Radio Pty Ltd

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.