Trad v Harbour Radio Pty Ltd [2017] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Trad v Harbour Radio Pty Ltd [2017] NSWCA 64 Hearing dates: 23 March 2017 Decision date: 23 March 2017 Before: McColl JA at [1], [37]; Basten JA at [2]; Ward JA at [38] Decision: (1) Refuse leave to appeal from the judgment and orders made by Stevenson J in the Equity Division on 5 July 2016.

(2) Order that the applicant pay the respondent's costs in this Court on an indemnity basis.

(3) Direct the respondent to make such application as it may be advised in relation to seeking an order for costs against any legal representative of the applicant, such application to be made on or before 29 March 2017, by notice of motion, accompanied by affidavit(s) and written submissions. Catchwords: APPEAL – leave to appeal – challenge to validity of costs certificate – whether final or interlocutory order – whether order relating to costs – whether leave to appeal required under Supreme Court Act 1970 (NSW), s 101(2)(e) or (q)

APPEAL – re-litigation of issue determined in previous appeal – issue not determinative of earlier appeal – whether sufficient basis for contention that earlier reasoning was erroneous

JUDGMENT AND ORDERS – costs certificate – costs order forming basis of assessment set aside – costs order reinstated on appeal – whether original costs certificate valid Legislation Cited: Constitution (Cth), s 92 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 36.4 Cases Cited: Blakey v Latham [1889] 43 Ch D 23 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 Derrawee Pastoral Co Pty Ltd v McConochie [1995] NSWCA 123 El-Saeidy v New South Wales Land and Housing Corporation [2014] NSWCA 172 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 James v The Commonwealth (1935) 52 CLR 570 Lord Sanchar's Case (1613) 9 Co Rep 117a; 77 ER 902 R v Drury (1849) 3 Car & K 190; 175 ER 516 Re Culleton (No 2) [2017] HCA 4 Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 Texts Cited: Archbold's Criminal Pleading, Evidence and Practice, 21st ed (1893), pp 226, 227 Category: Principal judgment Parties: Keysar Trad (Applicant) Harbour Radio Pty Ltd (Respondent) Representation: Counsel: Mr A G Rogers (Applicant) Mr M Richardson (Respondent)