Trad v Harbour Radio Pty Ltd

Procedural background

1. The proceedings were brought by Keysar Trad, who alleged that he had been defamed by statements made in the course of a broadcast on 19 December 2005 on Radio 2GB, operated by Harbour Radio Pty Ltd. The trial was heard by McClellan CJ at CL (and a jury) in May 2009. On 31 July 2009 judgment was delivered, dismissing the plaintiff's claims in their entirety, and ordering that the plaintiff pay the defendant's costs. That order was sought to be varied on the basis that an offer of compromise made by the defendant on 5 November 2007 had not been accepted. The offer being on terms more favourable to the plaintiff than the judgment, the defendant sought an order that from 5 November 2007 the costs be assessed on an indemnity basis. That order was made on 6 August 2009 and entered on 10 August 2009.
2. Mr Trad appealed to this Court from the judgment and orders at trial. Mr Trad also sought interlocutory orders staying the assessment and enforcement of the costs order. On 1 March 2010, Tobias JA heard that application and ordered that the execution and enforcement of the costs order against Mr Trad be stayed pending determination of the appeal. [2] He declined to stay the assessment process. Because there was some doubt as to when the stay terminated, it is appropriate to set out the order: 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.
3. The orders were in fact made on 6 August 2009, not 31 July, but nothing turns on that point. The stay would have lifted if the appeal were dismissed; it would have ceased to operate if the appeal were upheld and the costs order set aside.
4. Mr Trad was partly successful on his appeal to this Court, judgment being delivered on 22 March 2011. [3] The orders, so far as relevant, were as follows: (1) Appeal allowed in part; (2) Set aside the orders made by McClellan CJ at CL on 31 July 2009; (3) Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k); … (6) Costs of the first trial to be determined by the judge who assesses damages.
5. Subject again to the inaccuracy with respect to the date of the orders made below, order (2) would have been sufficient to end the stay imposed by Tobias JA because it set aside the costs order made by the trial judge. However, the matter did not stop there. Both parties appealed to the High Court.
6. The High Court dismissed the cross-appeal by Mr Trad, but upheld Harbour Radio's appeal with respect to imputation (c), and remitted to this Court the question whether the defence of contextual truth was made good with respect to imputations (h) and (k), other imputations being substantially true. [4] In allowing the appeal, and despite the remittal order, the High Court itself made the following order: 2 Set aside the orders of the Court of Appeal … made on 22 March 2011, and in lieu thereof order that: (a) the appeal to that Court be allowed; (b) the orders of the Common Law Division made on 6 August 2009 be set aside.
7. In short, the High Court repeated order (2) made by this Court, with the result that no costs order remained on foot. What was remitted to this Court was part only of the appeal brought by Mr Trad, in accordance with the following order: 4. Remit the matter to the Court of Appeal for consideration of: (a) the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k); (b) any questions of remitter to the Common Law Division for assessment of damages if the Court of Appeal holds that a defence of contextual truth does not apply in relation to imputations (h) and (k); (c) all questions of costs of proceedings in the Common Law Division and the Court of Appeal.
8. The effect of the second judgment in this Court on remitter was to uphold the defences with respect to the remaining imputations, thereby obviating any need for remittal to the Common Law Division for assessment of damages. [5] The Court made the following orders on 23 December 2013: (1) Appeal dismissed. (2) Appellant to pay the costs of the respondent in this Court.
9. On the assumption that "this Court" in order (2) referred to the Court of Appeal, it was clear, if unfortunate, that this Court on the remittal failed to deal with the costs of the trial. As there was nothing to be remitted to the Common Law Division, there was no opportunity for the costs of the trial to be in the discretion of the judge conducting further proceedings in the Division, as contemplated when the matter was first before this Court.
10. It was also unfortunate that neither party (and in particular Harbour Radio) invited this Court to address the costs of the trial. In the course of the hearing, senior counsel for Harbour Radio (Richard McHugh SC) noted that there was some difficulty in putting submissions as to damages before knowing the basis of any liability. He was asked by the Court whether he adopted the same position with respect to costs. He replied: [6] "MCHUGH: Yes given the complexity of the procedural history, I mean your Honours won't be surprised that if I end up succeeding completely then I'll ask for all of my costs. But it's not hard to imagine that there could be arguments about the history that make it complex. And so what I was proposing in relation to that is that it wait."
11. That was a reasonable position to take at that stage; but there was no subsequent application.
12. Before turning to the most recent developments, it is necessary to backtrack to record the steps taken by the parties with respect to the assessment of costs. Following the trial judgment, Harbour Radio prepared a bill of $317,000 (in round figures). On 22 January 2010 it served on Mr Trad a copy of the bill, together with an application for assessment. The assessor directed that submissions be received no later than 25 March 2010. Mr Trad then filed the notice of motion referred to above, seeking a stay of the assessment process and enforcement of the costs order. The assessment process not having been stayed, on 12 April 2010 objections were filed by Mr Trad and on 13 May 2010 Harbour Radio filed its response. On 18 June 2010 the assessor determined the costs in the sum of $285,430 and issued a certificate to that effect. The assessor also issued a second certificate, covering the cost of the assessment in an amount of some $4,000. (It will be convenient to refer to "the assessment certificate" as encompassing both.) At that stage the stay precluded any further steps being taken to obtain or enforce a judgment for that amount.
13. Harbour Radio appears to have assumed that the stay imposed by Tobias JA was lifted by the second judgment of this Court. On 29 January 2015 it filed the assessment certificate in the Supreme Court registry. A judgment or order of the Court was issued on the same day, requiring payment of the full amount of the assessed costs (and the costs of the assessment), being, in round figures, $290,000.
14. The judgment or order was served on Mr Trad who, on 12 February 2015, filed a notice of motion seeking to have it set aside. On 26 May 2015 Wilson J dismissed the motion (the primary judgment).
15. A notice of intention to appeal was served but not filed. On 14 August 2015 Mr Trad (without applying for an extension of time) filed a summons seeking leave to appeal from the judgment of Wilson J. He also sought a stay of enforcement of the order pending determination of his application for leave to appeal. An interlocutory stay has not proved necessary. So far as the extension of time is concerned, the service of the notice obviated any complaint of prejudice through lack of notice and, the application being within time if the notice of intention had been filed, the extension should be granted.

(a) whether order made as to costs of trial

1. The first question which arises on Mr Trad's application is whether there is an extant order allocating responsibility for the costs of the trial. There is no doubt that the order made by the trial judge was set aside, first by this Court, and finally by the High Court. The question is, therefore, whether this Court made any further order on the remittal.
2. Although there was a dispute before Wilson J as to the meaning of "this Court" in order (2) of the second judgment, it was clearly intended (as Wilson J accepted) to refer to the Court of Appeal and not to include the costs of the trial. However, Harbour Radio argued that the first order, purporting to dismiss the appeal, encompassed the reinstatement of the orders made by the trial judge. Arguably the order dismissing the appeal was foreclosed by the order of the High Court allowing the appeal to this Court. In any event, the High Court having itself set aside the orders of the trial judge, it was not open to this Court to treat them as still on foot.
3. Because the High Court remitted to this Court the question of the costs of the trial, it was open to this Court itself to make the order which had been made by the trial judge. However, no such order was made. The orders made by this Court on 23 December 2013 were not apt to deal with the costs of the trial. The reasoning of Wilson J to the contrary may best be described as generous, but cannot be accepted. It follows that, at the date Harbour Radio sought to obtain a judgment for the costs of the trial, there was no order supporting such a judgment and the judgment must be set aside.
4. Accordingly, Mr Trad should have a grant of leave to appeal, the appeal should be allowed and the judgment and order of 29 January 2015 should be set aside.

(b) motion for new order

1. On 7 December 2015, Harbour Radio filed a notice of motion seeking to have the orders made on 23 December 2013 amended to restate the order as to costs made by the trial judge. Harbour Radio submitted that such an order could be made pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), known as the "slip rule".
2. Part 36, Div 4 of the UCPR deals with the "setting aside and variation of judgments". Rule 36.17, headed "Correction of judgment or order ('slip rule')", is in the following terms: If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
3. Rules in similar terms have existed for a long time. The rule uses language which is open to a broad or a narrow construction. One construction is that there has to be a "slip" on the part of the court, as a result of which its intention is not fully or correctly expressed in the orders made. That is the narrow reading. The broad reading allows that the accidental slip or omission, which gives rise to an error, may be that of a party (or of the court). The latter construction has been accepted as conventional by the High Court: see L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2], [7] followed in Commonwealth of Australia v McCormack [8] and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2]. [9] Although the line of authority was concerned with the High Court rules, the English authorities relied on demonstrated that there was no intention to restrict the principles so as not to be applicable in intermediate courts of appeal or, indeed, any court having a power expressed in similar terms.
4. The costs of the trial having been within the express terms of the remitter by the High Court, the omission must be put down to inadvertence. Whether the inadvertence resulted from the submissions on behalf of Harbour Radio noted above (seeking to reserve its position until liability was determined) or simply an oversight on the part of the Court is beside the point. On either view, the matter not having been resolved, the slip rule is engaged.
5. While the engagement of the power may not depend on whether it was one party, both parties, or the parties and the court, or the court alone which was inadvertent, in some circumstances that issue may be relevant to the exercise of the discretionary power either to vary existing orders or to add a further order. In the present case there was simply a failure to deal with the costs of the trial, a matter which had been expressly remitted to this Court by the High Court. If that matter is now dealt with, there will be no inconsistency with any order already made and no variation of the existing orders would be required.
6. While Mr Trad did not accept that the slip rule could be invoked to make a new order, he made no submission that any order other than that made by the trial judge would be appropriate, if the power existed. Indeed, that would arguably be the only appropriate order, unless the original order had been challenged on the appeal as inappropriate even if the appeal were otherwise unsuccessful, which it was not. This reasoning leads to the conclusion that the order which should have been made at the conclusion of the second appeal was that made by the trial judge, awarding costs of the trial in favour of Harbour Radio.
7. The only possible reason for this Court not to make an order as to the costs of the trial may be the delay in bringing the matter back to the Court. On the one hand, that delay has not caused prejudice in terms of the content of the order; on the other hand, steps have been taken in the meantime which should not have been taken until a further order was obtained. The latter element of prejudice can be dealt with by a particular costs order in relation to the registration judgment. Otherwise, there is no prejudice and the Court should now order that Mr Trad pay the costs of the trial, to be assessed on the ordinary basis up to 5 November 2007 and thereafter to be assessed on an indemnity basis.

(c) validity of assessment certificate

1. At the time that Harbour Radio sought to register the assessment certificate so as to create an enforceable judgment of the Court, there was no order for costs on foot. The next question is whether some step should be taken with respect to the assessment certificate.
2. Mr Trad sought from the primary judge an extension of time within which to review the assessment of costs. Wilson J thought that the time had long passed when Mr Trad could seek "a review of the certificate". [10] Mr Trad submitted that the status of the assessment process depended on the status of the costs order. That is, pursuant to the terms of the Legal Profession Act 2004 (NSW), as in force in 2010, the power to assess costs payable as a result of an order made by a court depended on the existence of such an order. Accordingly, once the order was set aside, the person seeking an assessment of those costs was no longer a person "who is entitled to receive … costs as a result of an order for the payment of an unspecified amount of costs made by a court", within the terms of s 353(1).
3. In this Court, Mr Trad submitted that once the order was set aside the assessment of costs and the resultant certificate also fell away, presumably in the sense that, having no basis in any extant costs order, each became a nullity.
4. This issue has some practical significance in the sense that, if the assessment certificate is still available to be enforced, immediately this Court makes an order for payment of costs to be assessed on the same basis as proposed by the trial judge, the certificate could be registered.
5. In practical terms, Mr Trad's submission is unattractive: nothing which has happened since the order of the trial judge was set aside has affected the costs of the trial, the basis of their assessment, or the process of assessment. To carry out the same process again would appear to be an exercise in futility if the same result were to be obtained, although with the unfortunate consequence that further costs would be incurred, or it might lead to a different result, which would tend to bring the process of assessment into disrepute.
6. There are, however, countervailing considerations. First, if the Court had made an order which differed in part from that made by the trial judge, the process of assessment would need to be repeated and a new certificate issued. Secondly, while Harbour Radio was willing to incur the costs of assessment, despite the risk that it might lose the benefit of the expenditure if Mr Trad's appeal had ultimately succeeded, even in part, that meant that Mr Trad would have been forced to incur the costs of a review at a time when the order itself was under challenge. (An application for review was required to be made within 30 days after the certificate had been forwarded to the parties. [11] )
7. This last matter had not gone unremarked when the first stay application was addressed. In declining to stay the assessment, Tobias JA noted that the party seeking the assessment (Harbour Radio) was "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." [12] He also considered the fact that service of the bill on the other party "will inevitably involve that party in some considerable expense". [13] Tobias JA referred to a submission that Mr Trad was unable to bear the expense, but said that there was no evidence to support a finding to that effect. He further noted the acceptance by Harbour Radio of the proposition that if the order as to the costs of the trial were to be reversed on appeal, Mr Trad would be entitled to recover the costs of the assessment process on an indemnity basis. [14] What was not foreseen was the possibility that the order made by the trial judge would be set aside but would not be replaced by an order reversing the result.
8. In fact, Mr Trad did not seek to review the assessment certificate. In his application before Wilson J, Mr Trad sought an extension of time within which to review the determination of the costs assessor. However, no legal basis for such an order was identified, nor did the evidence provide any factual basis for the exercise of any such power, if it existed. There was, for example, no hint that Mr Trad had been advised that there were grounds for review, but that an application for review would entail further costs, or that an application could or could not be made later. The primary judge was correct to reject this claim.
9. If a costs order is made which requires an assessment, the assessment certificate can be filed and is taken to be a judgment for the amount of the unpaid costs. Thus, at the relevant times, s 368(5) of the Legal Profession Act provided: 368 Certificate as to determination … (5) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
10. Mr Trad sought to rely upon the decision of this Court in Frumar v The Owners of Strata Plan 36957 [15] as to the operation of the various provisions in the Legal Profession Act and the Civil Procedure Act 2005 (NSW) dealing with the effect of filing an assessment certificate under s 368(5) of the Legal Profession Act. However, Frumar had nothing to say about the circumstances before this Court. In order to understand the significance of the judgment, it is necessary to refer first to the decision of this Court in Doyle v Hall Chadwick. [16]
11. The applicant in Doyle was a solicitor seeking to protect a judgment entitling him to payment of his costs by the respondent. He submitted that, the judgment based on the assessment certificate having been entered, and there being no right of appeal from it, a challenge to the underlying assessment was not available. The submission appeared to be based on a principle that "the certificate then merges into the judgment and can no longer be set aside". [17] Hodgson JA dismissed that submission on the basis that it was inconsistent with the statutory regime for appeals. He stated: [18] "Further, in my opinion, there is no difficulty in giving effect to this legislative intention. It is well recognised that there are judgments that are not based on any decision of the Court of which they are taken to be judgments, but have some other basis; and such judgments may be set aside or varied if that basis is defeated or varied."
12. Hodgson JA then referred to judgments entered by consent, being "mere creatures" of an agreement, and judgments arising from the registration of a certificate of judgment from another jurisdiction, in each case the judgment being liable to be set aside or varied if the certificate on which it was based was set aside or varied. [19] He concluded that the judgment provided for under the Legal Profession Act was of the same kind.
13. In Frumar, the reasoning of Handley AJA went a little further. He said that "[a] filed certificate is not a judgment, but is deemed to be one for enforcement purposes." [20] Reference was then made to the terms of s 133 of the Civil Procedure Act, which provides that "[a] judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules." [21] Section 133(2) then provides that "[t]his section extends to … any adjudication … of which a certificate may be filed or registered in the court". Rule 36.10 of the UCPR deals with the filing of a cost assessor's certificate. When Frumar was decided, the rule further provided that "the registrar may enter judgment for the amount of the costs that have not been paid". That language was removed, with effect from 10 December 2010, following a remark in Frumar that so much of the rule as authorised the entry of judgment "must be doubtful", given the terms of the Legal Profession Act 1987 (which had already been repealed by the time Frumar was decided).
14. The passage relied upon for present purposes was the statement that entry of judgment on a filed certificate "makes the certificate enforceable as a judgment but otherwise does not alter its legal effect." [22] Accordingly, once a court set aside the certificate, the judgment was deprived of its only legal foundation and a new certificate would not confer retrospective validity on the earlier judgment. [23] So much may be accepted, but the application of the principle to the present case required a finding that the certificate had been (or should be) set aside. There is no question in the present case of retrospectively reviving the effect of the former judgment, on the basis of a new assessment certificate.
15. There are statements in Frumar to the effect that, despite the deeming effect of s 368(5), filed certificates "are not judgments of the court", [24] but that was not the language of Hodgson JA in Doyle. It is frequently the case that a statutory deeming operates for a particular purpose and not for other purposes; however, in circumstances where a certificate is "taken to be a judgment of that court" it is no more helpful to say that it is not a judgment of the court, than it is to say that it is a judgment of the court without specifying the purpose. A provision identifying the scope of a statutory term is better characterised as definitional than as deeming, in the sense of treating something as that which it is not. [25]
16. The Court was also taken to a passage in Zepinic v Chateau Constructions (Australia) Ltd (No 2) [26] referring to the effect of entry of judgment on a filed certificate as explained in Frumar and Doyle. However, the issue in Zepinic was also far removed from the present case.
17. On a proper analysis of the circumstances, the assessment was not a nullity. There was a costs order in place at the time the application for assessment was made; the order remained in place until long after the assessment process was completed. Rights of review (by a review panel) and appeal as to a matter of law (s 384) were not availed of. As it turned out, the circumstances in which the certificate could be registered did not arise and have not yet arisen.
18. It is true that an assessment cannot be sought except in relation to an order of a court which will fix the subject matter of the assessment and the basis upon which the assessment is to be undertaken. However, it is not correct to say that the certificate is set aside when the order is set aside. It is not unknown for orders made by a trial judge to be set aside by this Court and reinstated by the High Court. So far as a costs order is concerned, if the assessment has already been carried out, there is no authority of which this Court is aware which would require the assessment to be undertaken again when the order is reinstated, merely because for a period its operation was contingent.
19. As a matter of principle, it is possible to draw a distinction between an order which is reinstated by the removal of an intermediate order which overturned the first order, as compared with the setting aside of the first order and the making of a further order in identical terms. However, so far as the assessment process is concerned, there is no purpose in drawing such a distinction. To the extent that Mr Trad challenged the ongoing validity of the assessment certificate as available for filing in the event that the Court made precisely the same order as had been made by the trial judge, with respect to the costs of the trial, the challenge should be rejected.
20. Because the Court proposes to make an order in the same terms as that made by the trial judge, the certificate relied upon with respect to the judgment which is to be set aside, will be available for filing as an assessment of the costs the subject of the further order. Even if the process of filing could not occur more than once with respect to a single certificate, once the judgment is set aside (on the basis that there was no order supporting the certificate at the date it was filed in the registry) that will not place an obstacle in the path of the second filing. The ultimate consequence of having the earlier judgment set aside may be the saving of an amount of interest which would otherwise have accrued on the unpaid judgment debt.

Costs

1. There remains a question as to the appropriate costs order with respect to these satellite proceedings. In dismissing Mr Trad's motion, Wilson J ordered that he pay Harbour Radio's costs of the motion. Those orders should be set aside. Mr Trad has been successful in setting aside the judgment resulting from the filing of the assessment certificate, but not the assessment certificate itself. So far as appears from the submissions and the judgment of Wilson J, the bulk of the matter before her concerned the validity of the judgment based on the registration of the certificate, the challenge to the assessment certificate having been added by way of an amendment to the notice of motion. In those circumstances, it is appropriate that Mr Trad obtain 50% of his costs of the motion before the primary judge.
2. In this Court, the matter was complicated by the motion filed by Harbour Radio on 7 December 2015 seeking a new order for the costs of the trial in the same terms as that made by the trial judge. That formed an alternative, and ultimately successful, basis for resolving the substantive issue as to the costs of the trial, if it were held that the order of this Court made in December 2013 did not cover those costs. Harbour Radio was entitled to such an order on either of two bases; first, on the basis that there had been an inadvertent omission to seek such an order and, secondly, on the basis that part of the subject matter of the proceedings before this Court in December 2013 remained unresolved. Thus, although Mr Trad succeeded in relation to the existence of the judgment with respect to the costs of the trial, he failed on the basis that an order will now be made in the same terms. He also failed on the question of the validity of the assessment certificate, although, as below, it constituted a minor part of the oral argument and the written submissions. The appropriate course is to make no order as to the costs of the proceedings in this Court, on the basis that each party should pay his or its own costs.

Orders

1. The Court should make the following orders: (1) The applicant be granted an extension of time up to 18 August 2015 within which to serve his application for leave to appeal. (2) Grant leave to appeal and direct that within seven days the appellant file his draft notice of appeal dated 14 August 2014. (3) Allow the appeal and set aside the orders made by Wilson J on 2 March 2015; in place thereof: (a) set aside the judgment entered on 29 January 2015; (b) order that Harbour Radio pay 50% of Mr Trad's costs in the Common Law Division. (4) On the motion filed by Harbour Radio, order that the plaintiff pay the defendant's costs of the trial to be assessed on the ordinary basis up to 5 November 2007 and thereafter on an indemnity basis. (5) Each party pay its own costs of the proceedings in this Court.
2. WARD JA: I agree with Basten JA.

Endnotes

1. Harbour Radio Pty Ltd v Trad [2015] NSWSC 632 ("primary judgment").
2. Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 ("stay judgment").
3. Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 (Tobias, McColl and Basten JJA).
4. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44.
5. Trad v Harbour Radio Pty Ltd [2013] NSWCA 477 (McColl JA, Basten JA, Tobias AJA).
6. Tcpt, CA 10/04/13, p 42(25).
7. (1983) 151 CLR 590 at 594-595 (Mason ACJ, Wilson and Deane JJ),
8. (1984) 155 CLR 273 at 277 (Murphy, Wilson, Brennan, Deane and Dawson JJ).
9. (1988) 62 ALJR 151 at 152 (Toohey J).
10. Primary judgment at [49].
11. Legal Profession Act, s 373(1).
12. Stay judgment at [49].
13. Stay judgment at [52].
14. Stay judgment at [53]-[54].
15. [2010] NSWCA 172 (Handley AJA, Macfarlan JA agreeing).
16. [2007] NSWCA 159 (Hodgson JA, Mason P agreeing with respect to this part of the reasoning, Campbell JA also agreeing).
17. Doyle at [48].
18. Doyle at [49].
19. Doyle at [50]-[52].
20. Frumar at [38].
21. Civil Procedure Act, s 133(1).
22. Frumar at [42].
23. Frumar at [46] and [62].
24. Frumar at [8] (Giles JA) and [38] (Handley AJA).
25. "Current Topics: 'Deemed' - an Overworked Drafting Expression?" (1977) 51 ALJ 229 (JG Starke QC ed).
26. [2013] NSWCA 227 at [76] (McColl JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2016