Trad v Harbour Radio Pty Ltd

Defamation Act 1974 Judiciary Act 1903 (Cth) LEGISLATION CITED: Legal Profession Act 2004 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005

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 CASES CITED: Goldsworthy v Radio 2UE Sydney Pty Ltd & Hadley [1999] NSWSC 547 Harrigan v Jones [2001] NSWSC 623; (2001) Aust Torts Reports 81-621; [2001] ACL Rep 145 NSW 35 Jeray v Blue Mountains City Council [2009] NSWCA 415 John Fairfax & Sons Pty Ltd v Kelly (1987) 8 NSWLR 131 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13 Ozpinar v Assaily [2001] NSWCA 23 Tingle v Harbour Radio Pty Ltd & Casey (No 4) [1999] NSWSC 461; (1999) Aust Torts Reports 81-510 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118

PARTIES: Keysar Trad Harbour Radio Pty Ltd

COUNSEL: A: Mr C Evatt / Mr Rasmussen R: Mr Richardson

SOLICITORS: A: Turner Freeman Lawyers, Sydney R: Banki Haddock Fiora Lawyers, Sydney

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER: McClellan CJ at CL

LOWER COURT MEDIUM NEUTRAL CITATION: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40380/09

Thursday 18 March 2010 KEYSAR TRAD v HARBOUR RADIO PTY LIMITED Judgment on Notices of Motion 1 TOBIAS JA: Mr Keysar Trad (the plaintiff) was defamed by Radio Station 2GB (2GB) in a broadcast that went to air on the morning of 19 December 2005. He sued Harbour Radio Pty Ltd (the defendant), the proprietor of 2GB, under the Defamation Act 1974 (the Act). At the trial pursuant to s 7A of that Act the jury found the following pleaded imputations were conveyed by the subject broadcast and were defamatory of the plaintiff: (a) the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;

(b) the plaintiff incites people to commit acts of violence;

(c) the plaintiff incites people to have racist attitudes;

(j) the plaintiff deliberately gives out misinformation about the Islamic community;

(k) the plaintiff attacks those people who once gave him a privileged position. 2 The defendant by its defence pleaded truth pursuant to s 15 of the Act in respect of imputations (a), (b), (c), (d), (h) and (j). It did not press that defence in relation to imputation (a) and did not plead truth with respect to imputation (k). The defendant also relied on the defence of contextual truth pursuant to s 16 of the Act. Other defences were relied upon, some of which were upheld by the primary judge and in respect of which the defendant conceded that the plaintiff's appeal against his Honour's findings with respect to those defences was at least arguable. 3 On 31 July 2009 McClellan CJ at CL ordered that the proceedings be dismissed with costs: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750. Relevantly for present purposes he found that the defendant had established the defence of truth with respect to imputations (b), (c), (d) and (g). His Honour upheld the defence of contextual truth with respect to the balance of the imputations. 4 On 14 October 2009 the plaintiff filed a Notice of Appeal which set out 15 grounds of appeal. Relevantly, it challenged his Honour's findings that imputations (b), (c), (d) and (g) were substantially true. There was also a challenge to the other defences found by his Honour in favour of the defendant. 5 The Notice of Appeal was accompanied by an affidavit as to the value of the plaintiff's claim sworn by his solicitor, Terence Louis Goldberg, on 13 October 2009. At paragraph 7, Mr Goldberg deposed that the plaintiff's counsel, Mr C Evatt and Mr R Rasmussen, had expressed the opinion that should he succeed in his claim, he could reasonably expect a verdict in excess of $100,000, an opinion shared by Mr Goldberg. 6 The defendant responded to this affidavit by filing a Notice of Motion on 6 November 2009 seeking an order that the appeal be dismissed as incompetent upon the ground that Mr Goldberg's affidavit failed to comply with r 51.22(2)(b) of the Uniform Civil Procedure Rules 2005 (the UCPR) which required the plaintiff, as the appellant, on filing his notice of appeal, to serve an affidavit that identified the restriction on an appeal as of right and that "sets out the material facts on which the appellant … relies to show that the restriction does not apply." 7 The relevant restriction is that provided for by s 101(2)(r) of the Supreme Court Act 1970 which provides that an appeal only lies to this Court as of right from an order "(i) that involves a matter at issue amounting to or of the value of $100,000 or more". 8 It was common ground that Mr Goldberg's affidavit of 13 October 2009 did not comply with UCPR 55.22 as it failed to disclose facts that supported the proposition that an appeal lay as of right. It is well established that it is insufficient for the deponent of such an affidavit to merely state a belief that the relevant amount is involved: Ozpinar v Assaily [2001] NSWCA 23 at [14] per Powell JA, with whom Sheller JA and Rolfe AJA agreed; Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 at [46], [47], [53] and [57] per Rolfe AJA, with whom Powell JA and Ipp AJA agreed; Bracks v Smyth-Kirk [2009] NSWCA 401 at [37]-[41] per McColl JA, with whom, relevantly, Allsop P and Young JA agreed. 9 Faced with this difficulty the plaintiff filed a further affidavit by Mr Goldberg sworn 25 February 2010 that purported to comply with UCPR 55.22(2)(b). The defendant accepted that the affidavit so complied in that it went beyond stating a mere belief or a mere opinion as to the quantum of the plaintiff's claim, but it nevertheless submitted that the facts and matters it disclosed could not, on the balance of probabilities, persuade the Court that the plaintiff was likely to recover in excess of $100,000 if his appeal succeeded. 10 On 15 October 2009 the primary judge made formal orders that there be judgment for the defendant and that the plaintiff pay the defendant's costs until 5 November 2007 on a party/party basis and thereafter on an indemnity basis. It would appear that the defendant then had an itemised bill of its costs drawn up pursuant to s 332 of the Legal Profession Act 2004. The total amount of that bill is $316,771.51. On 22 January 2010 the defendant's solicitor made application pursuant to s 353 of that Act for an assessment of the whole of the costs the subject of the bill. 11 The assessment of the defendant's costs was assigned to Mr Peter Scammell, Solicitor and Costs Assessor. By letter dated 9 February 2010 he advised the parties that the assessment had been assigned to him by the Supreme Court and that pursuant to s 359 of the Legal Profession Act, before making any determination, he was required to give the parties a reasonable opportunity to make submissions in writing with respect to the bill. He directed that he receive those submissions no later than 25 March 2010. 12 The plaintiff's response was to file a Notice of Motion on 10 February 2010 seeking orders that, first, there be a stay of the costs assessment pending determination of the appeal and, second, that the execution and enforcement of the primary judge's costs order made on 31 July 2009 be stayed pending the determination of the appeal. 13 That application was accompanied by an affidavit of Foezullah Dewan, the solicitor with the carriage and conduct of the matter on behalf of the plaintiff, in which he deposed as to the effect the enforcement of the costs order would have upon the plaintiff with respect to his appeal. It would be fair to say that the plaintiff did not seriously press the reasons advanced by Mr Dewan for the granting of a stay. However, ultimately the defendant's opposition to the granting of a stay rested upon the ground that the plaintiff did not have an arguable case in support of his challenge to the primary judge's findings of substantial truth with respect to imputations (b), (c), (d) and (g). 14 Thus the defendant agreed that, because of practical considerations, it would not oppose the granting of a stay with respect to the execution and enforcement of the primary judge's costs order. However, it submitted that the costs assessment itself should not be stayed.

(a) The relevant test 15 Although at one point the defendant submitted that the test was whether it was likely that, if wholly successful, the plaintiff would recover damages in the sum of $100,000 or more, it is clear from the authorities that that suggested test sets too high a threshold. This was ultimately conceded by the defendant who then referred to the decision of the High Court (Dixon CJ, Windeyer and Owen JJ) in Cole v The Commonwealth [1961] HCA 87; (1961) 106 CLR 653 at 656 where in a joint judgment the Court relevantly said: "… But to deny a new trial in which it is sought to recover damages or greater damages than already awarded is to deny finally the only remedy for the purpose and therefore does prejudice the plaintiff in respect of his claim for the greater amount of damages. If that claim can be considered to involve £1,500 it should follow that an appeal against the order lies as of right. … Prima facie, therefore, the case falls within the principle regarded by the Court as the basis of pars. (1) and (2), provided, however, that the plaintiff can show a foundation for the allegation that the excess she claims does involve more than £1,322 by at least £1,500. … In the present case it is plain enough, however, that what the plaintiff really seeks to establish by a new trial is a bona fide claim to damages which might readily be assessed at £1,500 more than £1,322. We may take it, therefore, that in the present case the plaintiff's initial figure on which she founds her prejudice is susceptible of reasonable support . It is necessary, however, to return to the words of s.35(1)(a)(1) and (2). Why cannot it be said that an order refusing a new trial upon which damages might be assessed at an amount exceeding by £1,500 the amount recovered on the first trial is not given or pronounced in respect of [the] matter at issue amounting to or of the value of £ 1,500? …" (Emphasis added) 16 Section 35(1)(a)(1) of the Judiciary Act 1903 (Cth) with which the High Court was there dealing, is relevantly in the same terms as s 101(2)(r)(i) of the Supreme Court Act. The test adumbrated by their Honours appears to be one which requires only an answer to the question: might damages be assessed at an amount exceeding $100,000? 17 The issue was further considered by this Court (Priestley JA and Sperling J) in Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450 where their Honours observed: "11. What then is meant by 'at issue' on appeal? The legislature cannot have meant whatever variation from the judgment below might be claimed on appeal. Were that so, an appellant appealing against quantum of damages would have an appeal as of right merely by claiming $100,000 more or less (as the case may be) than the damages assessed below, irrespective of merit. The phrase 'as issue' must be construed as meaning truly at issue or, inversely, not unrealistically at issue . 12. It follows that an appellant, appealing against quantum of damages, has an appeal as of right if there is a realistic prospect of changing the result by $100,000 or more . Otherwise leave is required." (Emphasis added) 18 Finally, in Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13, Handley JA, with the agreement of Hodgson JA and M W Campbell AJA, stated the test in the following terms at [8]: "There is no evidence of the value of this claim and no substance in the challenge to this part of the Judge's decision. The cross-claimant's right of appeal in this respect is valueless, and cannot establish or contribute towards a credible claim that the appeal involves an amount of $100,000 or more … The cross-claimant's appeal in this respect is not 'susceptible of reasonable support': Cole v The Commonwealth [1961] HCA 87; (1961) 106 CLR 653, 656." 19 It may well be that the differences in the terminology adopted in the three authorities to which I have referred is only semantic. An appropriate combination of the various statements which I have emphasised from those authorities would support the proposition in the present case that it is necessary for the plaintiff to establish that, given the imputations found by the jury and their defamatory nature, his claim to damages, if successful on appeal, in an amount of $100,000 or more is at least credible in that, all things being equal, damages might be assessed, not unrealistically, at that level.

(b) The essential elements of the defendant's submissions 20 The defendant accepted for present purposes that the plaintiff was required to establish that there was realistic support for the opinion that the plaintiff could expect to recover in excess of $100,000 should all of the findings of the primary judge on liability be overturned. It was conceded that for this purpose it was necessary to assume that all of them would in fact be overturned so that the assessment of the plaintiff's claim for damages should be taken at its highest. 21 Notwithstanding this concession, it was submitted that given his Honour's finding (at [155]) that the plaintiff was a person with a seriously compromised reputation and given the serious credit findings adverse to the plaintiff which the primary judge had made, often based upon undisputed statements made by the plaintiff on other occasions, it could not be said that the plaintiff could reasonably expect to recover in excess of $100,000 in the event his appeal succeeded (presumably in whole or in part). I shall return in more detail to this submission below. 22 Further, I was referred to a number of decisions relating to the quantum of damages which had been assessed with respect to radio broadcasts of which only one exceeded $100,000, the others ranging from $65,000 to $90,000. I shall discuss those decisions later in these reasons.

(c) The primary judge's comment on damages 23 Given that the primary judge had upheld each of the defences pleaded by the defendant and, in particular, the defence of substantial truth with respect to imputations (b), (c), (d) and (g), it was unnecessary for his Honour to deal with the question of damages. Thus at [155] his Honour remarked as follows: "… Because there are a number of issues which I have determined in favour of the defendant which may be the subject of argument in the event of any appeal and which, depending upon the outcome of those arguments could affect the quantum of damage, it would not be sensible for me to explore that issue further. I have in mind that if any of my findings in relation to truth were overturned and my findings in relation to qualified privilege were successfully appealed, particularly my finding in relation to malice, this would inevitably affect the quantum of damage but in different ways. Furthermore, it is apparent from my findings in relation to the issues of truth that any discussion which I embarked upon with respect to damages would commence from my view that the plaintiff is a person with a seriously compromised reputation." 24 I have already referred (at [21] above) to the defendant's reliance upon his Honour's finding that the plaintiff was a person with a seriously compromised reputation. However, in my opinion when the last sentence of the paragraph that I have recorded above is read in context, it is clear that his Honour's view with respect to the plaintiff's reputation was based first, upon his credit findings which admittedly were damning and second, upon his findings with respect to the substantial truth of imputations (b), (c), (d) and (g). Nevertheless at [9] his Honour acknowledged that as the imputations found by the jury made plain, the defamation of the plaintiff "was serious". Of that there can be no doubt; in fact I would regard his Honour's comment as somewhat of an understatement.

(d) Is the appeal competent? 25 The defendant relied upon the fact that it had pleaded, by way of mitigation of damages, that the plaintiff was a person with a bad reputation. It is apparent that the primary judge would have upheld that plea given the findings that he had made. But once those findings are ignored for present purposes, then the determination of whether the plaintiff's appeal is or is not competent commences with a clean slate for it cannot be said that if his Honour's findings as to substantial truth are set aside on appeal, it necessarily follows that there could still be a finding of bad reputation. 26 In this regard the defendant made the following three submissions. First, there was evidence about what the plaintiff had written and said that was not really in dispute and which thus enabled his Honour to make an evaluative judgment in terms of what was in effect agreed material, for the purpose of determining the defence of substantial truth of the relevant imputations. Second, there was evidence of what the plaintiff had written or said which was in dispute and which related in particular to whether he had retreated from the views or expressions of opinion which he had previously articulated prior to the publication of the broadcast. Third, with respect to the last-mentioned category of evidence his Honour had made a series of serious credit findings including findings that the plaintiff had been dishonest in giving his evidence. 27 So far as the last two categories are concerned, the fact that there was disputation in relation to the matters in question gives rise to the potential that those findings may be set aside on appeal. However, with respect to the first category, the defendant submitted that there was no chance of an appeal against those findings succeeding. 28 The problem with this last submission is that first, it ignores the concession correctly made that the determination of the issue of competence must be made upon the basis that the plaintiff will be successful on all grounds in his appeal. In other words, as I have noted at [20] above, the issue of competency must take the plaintiff's case on appeal at its highest. Second, a reading of his Honour's judgment reveals that in a significant number of cases his Honour made findings which went both to the defence of substantial truth as well as to the plaintiff's credit based on what were value judgments upon which minds might legitimately differ and thus were capable of being the subject of a successful appeal. 29 Thus, for instance, the primary judge made a number of findings, which were relevant to the issues of both truth and the plaintiff's credit, to the effect that the plaintiff was endorsing what his Honour regarded as the repugnant views of Sheikh Hilali in circumstances where the plaintiff had not expressly endorsed those views but had failed to positively or publicly condemn them. These findings raise the question of whether, in the particular circumstances, the failure of the plaintiff to so condemn the Sheikh's views necessarily implied, because it was not express, that the plaintiff positively endorsed them. 30 Those findings or, as the defendant submitted, value judgments by the primary judge, albeit based upon statements written or expressed by the plaintiff which were not in dispute, are capable of challenge on appeal. I have not, of course, formed even a prima facie view as to whether any arguable case the plaintiff has with respect to those findings has any particular prospects of success. The only point I wish to make is that an enquiry as to the strengths or otherwise of the primary judge's adverse findings with respect to the plaintiff's case has no part to play in determining whether his appeal against those findings is or is not competent. 31 This is particularly so where the competency of an appeal is challenged as such a challenge has the practical effect of the court not having available to it the appellant's written submissions in support of his grounds of appeal and from which the question of whether an arguable case exists might be more easily determined. As was remarked on behalf of the plaintiff in the course of argument in the present case, once the competency of his appeal was the subject of objection there was no point, until that issue is resolved in the present proceedings, in preparing and filing his written submissions in accordance with r 51.37(1)(a) of the UCPR. However, it may be noted in passing that there is no rule that excuses compliance with that rule where an objection to competency is filed pursuant to r 51.41(1). 32 This brings me to the defendant's submission that recent cases where the plaintiff has sued with respect to a radio broadcast have not resulted, with one exception, in an award of damages exceeding $100,000. Five decisions were relied upon. That in which an award in excess of $100,000 was made was Coates v Harbour Radio Pty Ltd & Alan Jones [2008] NSWSC 292 which involved three broadcasts relating to Mr John Coates, the President of the Australian Olympic Committee who pleaded imputations of cover up, bullying and incompetence. The trial judge rejected defences of truth, comment and contextual truth and there was no plea of bad reputation in mitigation. His Honour awarded total damages in the sum of $360,000 comprised of an award of $100,000 for one broadcast and $130,000 for each of the other two. 33 The second case was that of Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186. The relevant broadcast accused the plaintiff of being a malingerer, fraudulently obtaining a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps and receiving a disability pension even though he was well enough to work. There was only one broadcast. The trial judge rejected defences of truth and contextual truth, qualified privilege and comment although this Court on appeal found the defence of comment established with respect to two of the three imputations. The trial judge awarded damages in the sum of $65,000 which was not disturbed by this Court in respect of the surviving imputation, namely, fraudulently obtaining a disability pension. Again, there was no plea of bad reputation in mitigation. 34 The third case was Harrigan v Jones [2001] NSWSC 623; (2001) Aust Torts Reports 81-621; [2001] ACL Rep 145 NSW 35 in which there was a single broadcast, the imputation being that the plaintiff was a biased rugby league referee. The trial judge rejected defences of qualified privilege and comment and awarded damages in the sum of $90,000. Again there was no plea of bad reputation in mitigation. 35 The fourth decision relied upon was that of Goldsworthy v Radio 2UE Sydney Pty Ltd & Hadley [1999] NSWSC 547 in which a Sydney barrister sued for comments made regarding his defence of a man charged with murder. There was one imputation that survived a s 7A trial and the defences, namely, that the plaintiff was a heartless person. The trial judge awarded damages in the sum of $75,000, there being no plea of bad reputation in mitigation. 36 The final decision relied upon by the defendant was that of Tingle v Harbour Radio Pty Ltd & Casey (No 4) [1999] NSWSC 461; (1999) Aust Torts Reports 81-510. Mr Tingle, a parliamentary representative of the Shooters Party, pleaded the imputation that he had bragged about the political strength and financial position of his Party while knowing both to be untrue. An award of $75,000 was made which included aggravated damages awarded in respect of the conduct of the cross-examination of the plaintiff. There was no plea of mitigation of bad reputation. 37 As in the case of criminal appeals against sentence where it is common to refer to sentences imposed upon other accused persons for the same offence, decisions such as those to which I have referred above must be considered with particular care as no two cases are the same. However, one comparison can in my view be legitimately made in the present case and that is that imputations (b), (c), (d) and (g) are, in my view, significantly more serious than the imputations the subject of the decisions relied upon by the defendant. 38 I accept that in each of those decisions the plaintiff was a person of good reputation but for present purposes, one has to assume the same with respect to the plaintiff. Equally, the fact that there was no plea of bad reputation in mitigation in any of those decisions is of no weight notwithstanding that there is such a plea in the present case given the assumption that one must make for the purpose of determining the issue of competency. 39 This is particularly so in the present case where the primary judge's finding at [155] that the plaintiff was a person with a seriously compromised reputation, was clearly founded upon his Honour's credit and substantial truth findings which are the very matters that will be challenged upon the plaintiff's appeal. Accordingly, I do not consider that the five decisions relied upon by the defendant are particularly helpful. If anything, they favour the plaintiff. 40 Finally, the defendant submitted that the chance of the plaintiff obtaining any significant award with respect to hurt feelings should not be given much weight given that he did not give evidence. Nevertheless evidence was given by his wife and daughters as to his adverse reaction to the broadcast and which his Honour referred to at [9] and [10] of his judgment. 41 It is well established that the particular reaction of a plaintiff to the publication of defamatory matter may be proved by any relevant admissible evidence including that of persons to whom the plaintiff spoke of the reaction or who otherwise observed the reaction: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (Beazley, Giles and Santow JJA) at [1362]. It is true that their Honours there observed that evidence of witnesses other than the plaintiff with respect to his reaction to the publication of defamatory matter may not make out a case of such grave injury to feelings as might have been made out if the plaintiff had given evidence. But, as their Honours noted, the weight of that evidence must be found without it being discounted from its true weight because the plaintiff could have, but did not, give evidence of injury to feelings. 42 However, as the defendant accepted, injury to hurt feelings comprises only one of the elements that go to make up the totality of a plaintiff's compensatory damages when his reputation is traduced by a serious defamation. Thus, he is also entitled to damages for the social disadvantages that result, or may be thought likely to result, from the wrong that has been done to him. The law has long recognised that the vindication of the plaintiff is an essential part of the remedy in a defamation action. As was observed by Lord Hailsham LC in Broome v Cassell & Co Ltd (No 1) [1972] AC 1027 at 1071, the damages awarded must be sufficient "to convince a bystander of the baselessness of the charge". The plaintiff is entitled to be compensated for his damaged reputation and he is injured in that reputation simply because he has been publicly defamed: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150; see also John Fairfax & Sons Pty Ltd v Kelly (1987) 8 NSWLR 131 at 143 per McHugh JA. 43 The primary judge, it seems to me, also recognised at [155], that the quantum of damages that might be awarded to the plaintiff would be affected by the overturning of his findings particularly in relation to truth and malice. This is no doubt the case. As I have already noted, his Honour accepted that the imputations were serious and, as I have observed, possibly more serious in the context in which they were made than those the subject of the five decisions upon which the defendant relies. (e) Conclusion on competency 44 In my view the nature of the imputations which the jury found were defamatory and, in particular, imputations (b), (c), (d) and (g), are such that, in the event that the appeal succeeds, and the defences to those imputations fail, in my opinion the claim of the plaintiff that the appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic. For the foregoing reasons I would therefore find that the appeal is competent.

The stay application 45 As I have indicated, ultimately the defendant agreed not to oppose the granting of a stay with respect to the execution and enforcement of the primary judge's costs order although it submitted that there should be no stay of the assessment of the defendant's itemised bill of costs. 46 The relevant principles applicable to a stay application were referred to by this Court (Kirby P, Hope and McHugh JJA) in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 693-695. Particular reliance was placed by the defendant upon the following passage from the joint judgment at 695: "Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment." 47 In Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121, Beazley JA, sitting as the referrals judge, observed (at [15]) that the comment by the Court in the passage which I have recorded above, indicates that there is no necessary requirement that the Court determine whether there is an arguable case on the appeal although it may be relevant in determining whether it is appropriate to grant a stay. Her Honour then remarked: "In the present climate, where legal practitioners have a statutory obligation not to bring proceedings that do not have reasonable prospects of success: the Legal Profession Act 2004, s 347, this particular consideration may be one that the courts can approach with less scrutiny. It will depend upon the circumstances of the particular case. The court will always be concerned to ensure that its processes are not used inappropriately, for example, by permitting a defendant from keeping a successful plaintiff out of the fruits of his/her litigation victory by seeking a stay in respect of a hopeless appeal. … The primary consideration in the court's determination will be whether the applicant for the stay has discharged the onus of demonstrating that there is a proper basis for the stay." 48 I respectfully agree with her Honour's remarks. In particular, the relevance of whether the appellant has an arguable case may well turn on whether the appeal is merely for the purpose of keeping a successful plaintiff out of the fruits of his/her victory by seeking a stay in respect of what is a hopeless appeal. That situation does not apply to the present case where the defendant was successful. Nor, in my opinion, can it be said that the purpose of the appeal is to keep the defendant from assessing its costs and enforcing the primary judge's order that the plaintiff pay them. 49 As I have indicated, the defendant accepts that a stay confined to the enforcement of the primary judge's order for costs would not be inappropriate. However, it wishes to pursue the assessment of its bill of costs and is prepared to take the risk of the cost of so doing in the event that ultimately the appeal succeeds and the primary judge's order for costs is reversed. 50 In this respect the defendant relied upon the following statement from the judgment of Hodgson JA (also sitting as the referrals judge) in Jeray v Blue Mountains City Council [2009] NSWCA 415 at [8] where his Honour relevantly said: "… I am not satisfied that the case is made out that it would impose undue hardship on the applicant for the cost[s] assessment to proceed. I think there is some force in [the] contention on behalf of the first and second respondents that if they are prepared to take the risk of incurring the costs of the assessment with a view to reducing the delay in being able to pursue costs if the application for leave to appeal or the appeal itself fails the balance in my opinion does favour the second and third respondents in that respect." 51 It is noteworthy that his Honour, having at [4] stated that a principle usually applied in relation to applications for a stay pending an appeal is that one thing that the applicant needs to do is to show arguable grounds of appeal, then observed at [5] that to some extent the necessity to make that assessment was avoided in the case with which he was dealing because of the approach taken by the respondents in not opposing a stay, at least as regards enforcement of any costs order. That comment is equally applicable to the present case. 52 However, one matter that Hodgson JA did not consider in Jeray was that the party upon whom a bill of costs is served is entitled to contest the assessment of those costs and that that exercise will inevitably involve that party in some considerable expense which, in the present case, it was suggested the plaintiff was unable to bear. However, there was no direct evidence to support such a finding. In particular, there was no evidence of the plaintiff's financial position: nor was there any evidence as to the likely cost of his solicitor or some other costs expert being engaged to contest, where appropriate, any of the items contained in the defendant's bill of costs. 53 Furthermore, the defendant accepted that if the plaintiff's appeal was successful and the primary judge's order for costs reversed so that the defendant was ordered to pay the plaintiff's costs of the trial, then such an order would or could encompass the costs of the plaintiff in contesting the defendant's bill of costs if so advised. It would be appropriate to make such an order in the event that the appeal is successful. 54 Furthermore, although the defendant accepted and agreed that the assessment process from the plaintiff's perspective could be an expensive exercise, it agreed that in the event that the primary judge's cost order was reversed so that the plaintiff became entitled to the costs of contesting the defendant's bill, those costs should be paid on an indemnity basis. I record that agreement for future reference, if it becomes relevant. 55 Given that there is no evidence before me that the plaintiff is financially unable to contest the defendant's bill of costs and given the agreement of the defendant to pay those costs on an indemnity basis if that becomes appropriate, in my view a stay of the assessment process should not be granted.

Conclusion 56 In summary, I am of the opinion that the plaintiff's appeal is competent with the result that the defendant's Notice of Motion filed on 6 November 2009 should be dismissed. As to the question of the costs of the motion, in my view those costs should be paid by the plaintiff up to and including 22 February 2010 and by the defendant thereafter. This is due to the necessity for the motion to be adjourned on that date by Giles JA to 1 March 2010 (when it was heard by me) as a consequence of the defective affidavit of Mr Goldberg sworn 13 October 2009 which was notified by the defendant's solicitor to the plaintiff's solicitor by letter dated 22 October 2009. Nothing was done by the plaintiff to remedy that situation until the filing of Mr Goldberg's affidavit sworn 25 February 2010. 57 As to the plaintiff's Notice of Motion for a stay filed on 10 February 2010, the plaintiff has partly succeeded on that motion in that it is entitled to an order in terms of paragraph 1 but not in terms of paragraph 2. As each party has been partially successful on that Notice of Motion, in my view there should be no order for costs with respect to it. 58 I would therefore make the following orders:

(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 that date dismissing the plaintiff's claim.

(d) Order that each party pay his or its own costs of the plaintiff's Notice of Motion filed on 10 February 2010. **********

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