Trad v Harbour Radio Pty Ltd

Issues

1. The applicant's submission is that once the costs order was set aside by this Court (on 22 March 2011), the basis for the costs assessment was removed and in the language of the appellant's submissions in reply, "[t]he costs certificate lost all validity at that time."
2. There is both a substantive and a procedural basis for rejecting that submission. Subject to one preliminary issue, it is convenient to deal with the procedural basis first.
3. The preliminary issue concerns the right of Mr Trad to commence this matter by way of an appeal. Pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW), leave is required to appeal from "an interlocutory judgment or order in proceedings in the Court". Leave is also required to appeal from "a judgment or order in proceedings of the Court with respect to the taxation or assessment of costs", pursuant to s 101(2)(q).
4. For the purpose of both these provisions, it is necessary to characterise the relief sought by Mr Trad. The primary claim was for a declaration that the costs certificate issued on 18 June 2010 "cannot be filed in the office or registry of any court so as to be taken as a judgment …." There is no challenge to the entitlement of Harbour Radio to recover its costs of the trial; the only challenge is to the enforceability of the costs certificate issued on 18 June 2010. On one view, the issue between the parties is limited to the validity of a particular document, namely, the costs certificate. A determination of that issue would involve a final judgment. On the other view, obtaining a costs certificate is merely a step in the enforcement of the judgment and thus a working out of the costs order. A determination as to the validity of the costs certificate will not provide final relief in respect of that underlying matter.
5. As explained by Handley JA in Derrawee Pastoral Co Pty Ltd v McConochie, [1] differing views have been taken as to whether judgments which may require "further proceedings, even of an elaborate kind, … for their working out" are final or interlocutory. However, it has long been established in the UK that "where a final judgment has been pronounced in an action, and subsequently an order has been obtained for the purpose of working out the rights given by the final judgment, that order has always been deemed, and rightly deemed, to be interlocutory." [2] A recent example in this Court may be found in El-Saeidy v New South Wales Land and Housing Corporation. [3]
6. A costs order requiring assessment does not take effect until the date when the relevant costs assessor's certificate is filed. [4] The preferable view is that any relief sought with respect to the assessment of costs and the effect of a costs certificate is a working out of the costs order and is treated for the purposes of s 101 of the Supreme Court Act as interlocutory. Accordingly, leave was required.
7. Even if that reasoning were wrong, it is clear that the proceedings in the Supreme Court from which this purported appeal was brought involved a judgment with respect to the assessment of costs. That is so even if it is only the validity of the certificate which is in issue. However, the present claim does not relate only to the validity of the certificate, but challenges the validity of the underlying assessment which has resulted in the issue of the certificate.
8. There are, therefore, two grounds upon which leave is required; without leave, the proceedings are incompetent. However, in the course of the hearing, counsel for Mr Trad made an oral application for leave; the matter should be dealt with on the basis of that application and a concurrent hearing in the event that leave were to be granted.

Relitigation of issue determined on a previous appeal

1. As the applicant acknowledges, the basis of the present application was determined against it by this Court in an appeal in 2016, in which the applicant was partly successful. [5] The respondent contends that the applicant "brazenly seeks to resuscitate an issue already litigated before the Court of Appeal" and decided adversely to him. In reply, Mr Trad says that while part of the reasoning is indeed against his present claim, that part of the reasoning was not essential to the outcome and did not result in any form of relief. He relies upon the judgment of the High Court in James v The Commonwealth. [6]
2. Mr James had, in earlier proceedings, challenged Commonwealth legislation which bound him in relation to his business of preparing and selling dried fruits interstate. On the earlier occasion the challenge included the proposition that the Commonwealth was bound to comply with s 92 of the Constitution. The Court decided the proceedings in Mr James' favour, but on another ground; it rejected the submission that the Commonwealth was bound by s 92. The question in the later case was whether Mr James could reagitate his argument that the Commonwealth was bound by s 92. The Court held that he could; however, it is clear that that case lies in a far different category from the present case. As Dixon J noted, [7] the Court had, on two occasions, declared that s 92 did not bind the Commonwealth and although it had not been necessary for the decision of the earlier case, it had been highly relevant to the matter in hand and the question whether the Court was right in that regard was a matter which could only be determined by the Privy Council. It was obvious that the Court was minded to grant Mr James an opportunity to have that matter agitated in the Privy Council where he could challenge the decisions of the High Court. It therefore allowed the issue to be raised again.
3. However, to assess the respective positions of the parties in the present case, it is necessary to explain how the issue arose in 2016. That, in turn, requires reference to some further procedural history.
4. Following the trial, the applicant appealed to this Court, which accepted his claims that the trial judge had erred in dismissing three particular defamatory imputations. This Court therefore set aside the orders made by the trial judge including the costs order. Harbour Radio obtained special leave to appeal to the High Court which found error in the judgment so far as it was favourable to the applicant. The High Court disposed of one imputation but remitted to this Court the further consideration of the other two imputations to consider a defence of contextual truth. [8] On the remittal, this Court upheld that defence and rejected the remaining two imputations with the result that the appeal was dismissed.
5. Ordinarily, that would have been sufficient to leave the orders of the trial judge including the costs order unaffected. However, that was not so in the circumstances of this case. The High Court, in allowing the appeal by Harbour Radio, had not merely set aside the orders of this Court but also set aside the orders of the trial judge. There was, therefore, no extant order as to the costs of the trial unless and until this Court made a further order in that respect. That was not done in the judgment on the remittal in 2013. [9]
6. Following the final dismissal of Mr Trad's appeal in 2013, Harbour Radio assumed that orders made by Tobias JA staying enforcement of the costs order had terminated with the final determination of the appeal. It therefore took steps to file the certificate as a preliminary step to enforcing the costs order.
7. Mr Trad challenged the validity of the judgment thus obtained. Although unsuccessful before a judge in the Common Law Division, he was successful on appeal in the case of Trad (2016). The present dispute turns on the reasoning in that judgment.
8. The order of this Court made on 18 April 2016 set aside "the judgment entered on 29 January 2015", that being the judgment obtained by Harbour Radio as a result of filing the costs certificate. That judgment could have been set aside on either of two bases, namely that the original costs order made by the trial judge having been set aside, (a) this Court had not reinstated that costs order or made an order replacing it, or (b) the costs certificate resulting from the assessment was itself invalid. (There was perhaps a third basis subsumed within (a), namely that if the question of costs of the trial had not been finally disposed of, the appeal had not been finally determined and the stay ordered by Tobias JA in 2010 remained in place.)
9. This Court accepted 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." [10]
10. It was then necessary to consider a motion by Harbour Radio seeking to amend the orders made on 23 December 2013 by reinstating the order as to costs made by the trial judge pursuant to the "slip rule". [11] If an order had been made in those terms, on one view, the filing of the certificate in January 2015 would have been validated by the backdated order for costs unless the existing costs certificate was invalid and itself invalidated. On the other view, if the costs order were not backdated but the assessment certificate was valid, it would have become enforceable immediately the new costs order was entered.
11. This Court held that the assessment certificate was not invalidated merely by setting aside the underlying costs judgment. The costs judgment had been in place when the assessment was made and the certificate issued; as the Court explained: [12] "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."
12. In Trad (2016) the Court noted the submission made by Mr Trad with respect to the costs certificate in the following terms: "[32] 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. [33] 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."
13. After considering various authorities relied upon by the parties, the Court reached the following conclusion: "[46] 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. … [47] 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. [48] 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. [49] 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."
14. The proposition that where an applicant seeks relief on two bases and the Court rejects one basis but accepts the other, everything said with respect to the rejected basis is obiter, is not consistent with basic principle. While it is true that such reasoning does not determine whether or not the orders sought should be made, it will determine that the order should only be made on one basis. If that basis were to be rejected on appeal, the order would fall. If the order had been made on both bases, rejection of one would not result in the order being set aside. If one basis is not dealt with, it might be necessary for the final appeal court to remit the matter to the court below.
15. There is no doubt that the alternative submission was dealt with as a substantial issue in the case, even though the answer was not determinative of the outcome. Accordingly, the respondent was correct to describe the present proceedings as an attempt to relitigate that which had already been determined against the applicant.
16. The proceedings from which the appeal was brought were heard by Stevenson J in the Equity Division Duty List on 5 July 2016. The applicant's summons was dismissed with costs. Stevenson J stated at [11]: "The thesis underlying this application is that the Court of Appeal erred in making the findings that I have set out concerning the continuing availability of the certificate. It is not open to me as a trial judge, let alone as a duty judge, to entertain any such submission. The Court of Appeal has published a unanimous and considered judgment which contradicts the basis upon which Mr Trad seeks to move for relief today."
17. That reasoning was correct, as was the ultimate order dismissing the summons. Assuming Mr Trad has an appeal as of right, it should be dismissed.

Correctness of reasoning as to continuing effect of costs certificate

1. On the assumption that the reasoning set out above was not determinative of any order made and was therefore not a matter which had been decided by the Court, it is nevertheless reasoning from which this Court would not depart unless satisfied that it was erroneous. Apart from the bare assertion that the reasoning was wrong, the only basis for alleging error was a statement in Commissioner for Railways (NSW) v Cavanough. [13] Cavanough concerned an officer appointed under the Government Railways Act 1912 (NSW) who was deemed to have vacated his office if convicted of a felony. Mr Cavanough was so convicted, but his conviction was set aside on appeal. He claimed his salary for the period between the date of the conviction and the acquittal on appeal. Somewhat surprisingly, the Court considered there was no condition that his entitlement to a salary was dependent upon actual performance of any duty, and ordered that he be paid for the intervening period.
2. Mr Trad sought to rely on a number of pithy statements taken out of context. Thus the broad statements of principle included the propositions that "[t]he judgment reversed is the same as no judgment", quoting Coleridge J in R v Drury, [14] and that a conviction which has been set aside is "utterly defeated and annulled", referring to Lord Sanchar's Case. [15] However, those statements, as the Court recognised, could not be treated as comprehensive in their terms. [16] The joint reasons in the High Court also said: [17] "Acts done according to the exigency of a judicial order afterwards reversed are protected … And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided." The Court continued, quoting from Archbold, "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void." [18] If that were taken literally, the sentence of imprisonment served pending the determination of an appeal would be a trespass entitling the accused to damages. That is not the law.
3. Further, and more importantly, Mr Trad does not stand in the position of a person who has had a conviction quashed. In fact, on the contrary, he stands in the position of a person whose proceedings have been dismissed at trial, the dismissal being upheld on appeal. It will be quite misleading to say that a person convicted at trial, whose conviction was set aside by a court of criminal appeal, in a judgment reversed by the High Court, stood in the same position as Mr Cavanough during the period which elapsed between the judgment of the court of criminal appeal and the judgment of the High Court. The reasoning in Cavanough is of no assistance in the present case.
4. Nothing else was put in the course of the application which demonstrated error on the part of this Court in Trad (2016).

Conclusions

1. The judgment in the Equity Division was not attended by error. The attempt to relitigate an issue which had been determined in the 2016 appeal, without any demonstration of clear error, does not warrant a grant of leave. As leave to appeal is required in this matter, leave should be refused. The appeal should be dismissed as incompetent. Subject to any submissions in relation to costs, the Court should make the following orders: 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. [The parties made submissions with respect to the costs.]
2. The respondent submits that the applicant should pay its costs to be assessed on an indemnity basis, on the ground that the application for leave to appeal was unreasonable and should not have been brought. The Court has not been taken to any authority, but there is well-known authority which supports the proposition that costs may be ordered on an indemnity basis where proceedings have been brought without reasonable prospects of success. [19] In this case leave has been refused in relation to what is in substance an unreasonable application to reopen a considered and unanimous decision of this Court; in my view, it is appropriate that costs be payable on an indemnity basis.
3. The respondent has also foreshadowed a possible further order against the applicant's legal representatives; it acknowledges that such an application cannot be dealt with today. The Court should make the following orders: 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.
4. MCCOLL JA: I agree with Basten JA's reasons and with his Honour's orders.
5. WARD JA: I also agree with Basten JA's reasons and with the orders his Honour proposes.

Endnotes

1. [1995] NSWCA 123 at p 2.
2. Blakey v Latham [1889] 43 Ch D 23 at 26 (Fry LJ); see also Cotton LJ at 25, referred to in Derrawee at pp 2-3.
3. [2014] NSWCA 172 at [60]-[64] (McColl and Ward JJA).
4. Uniform Civil Procedure Rules 2005 (NSW), r 36.4(2).
5. Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 ("Trad (2016)").
6. (1935) 52 CLR 570.
7. James at 593.
8. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44.
9. Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477.
10. Trad (2016) at [21].
11. Trad (2016) at [23].
12. Trad (2016) at [37].
13. (1935) 53 CLR 220.
14. (1849) 3 Car & K 190; 175 ER 516 at 520.
15. (1613) 9 Co Rep 117a; 77 ER 902 at 906; see Cavanough at 225.
16. See also Re Culleton [No 2] [2017] HCA 4 at [29]-[30] (Kiefel, Bell, Gageler and Keane JJ).
17. Cavanough at 225.
18. Archbold's Criminal Pleading, Evidence and Practice, 21st ed (1893), at 226-227.
19. See, eg, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 (Woodward J). 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: 31 March 2017