Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

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 2010

JUDGMENT OF: Tobias JA at 1

(a) Order that the Notice of Motion filed by the defendant on 6 November 2009 be dismissed. DECISION: (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