Burrows v Houda (No 3)

[2025] NSWDC 77

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burrows v Houda (No 3) [2025] NSWDC 77

Hearing dates:

21 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

See the orders at the end of this judgment

Catchwords:

PRACTICE AND PROCEDURE – plaintiff’s application to cross-vest defamation proceedings from the District Court to the Federal Court of Australia – District Court lacks jurisdiction to make such orders – Notice of Motion struck out with costs – defendant’s application to strike out proceedings for want of prosecution – delays by plaintiff in complying with timetables and in failing to approach the List Judge for a hearing date when directed to do so – proceedings now ready for hearing subject to updating evidence sought by defendant – parties both ready to take a hearing date but defendant concerned at the potential for future delay – hearing date allocated but case management orders for compliance by plaintiff made on a self-executing basis and motion for dismissal stood over to the trial

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56 – 58, 67, 140, 144

Competition and Consumer Act 2010 (Cth), s 18

Defamation Act 2005 (NSW), s 23

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 5, 8

Service and Execution of Process Act 1992 (Cth)

Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:

Bazzi v Dutton [2022] FCAFC 84; 289 FCR 1

Burrows v Houda (No 2) [2021] NSWDC 127

Burrows v Houda [2020] NSWDC 485

Do v Kolsumdet [2023] FCA 592

Kirali v Matthews (No 2) [2022] NSWDC 218

Kirali v Matthews [2023] NSWSC 656

Mahommed v Unicomb [2017] NSWCA 65

O'Shanassy v Turland (No 2) [2025] NSWDC 23

Sarina v O’Shannassy [2019] NSWDC 246

Slater v Smith (No 3) [2021] NSWSC 763

Texts Cited:

Hon Michael Kirby AC CMG, “The Purest Treasure? National Defamation Law Reform in Australia” (1977) 8(2) Federal Law Review 113

Category:

Procedural rulings

Parties:

Zali Burrows (Plaintiff)
Adam Houda (Defendant)

Representation:

Counsel:
Ms Z Burrows (Plaintiff)
Mr C Parkin (Defendant)

Solicitors:
Ms Z Burrows (Plaintiff)
Mark O’Brien Legal (Defendant)

File Number(s):

2020/00213348

Publication restriction:

Nil

Judgment

The proceedings and the parties

1. The plaintiff and defendant are both solicitors. On 21 July 2020, the plaintiff commenced proceedings for defamation for two publications on the defendant’s social media account “Twitter” (now “X”) on 28 July 2019 and 27 May 2020. The proceedings were ready to take a hearing date in October 2022 but, as set out below, there have been delays and disputes over the past two and a half years, which have culminated in the applications I have heard this morning.

2. These are my reasons for making the orders set out at the end of this judgment.

The circumstances leading to the parties’ applications

3. After rulings on pleadings (Burrows v Houda [2020] NSWDC 485; Burrows v Houda (No 2) [2021] NSWDC 127) and completion of all interlocutory steps, the parties were ready for trial so, on 20 October 2022, orders were made for the parties to approach the List Judge to obtain a hearing date.

4. On 23 May 2023, as part of Defamation List management for inactive files, I discovered that the parties had not approached the List Judge or taken any other step in this litigation. The file was completely inactive. I immediately listed the proceedings for 25 May 2023, and directed the parties to explain what had happened. It was not uncommon in the past for defamation actions to become inactive, generally for tactical reasons (see the Hon Michael Kirby AC CMG, “The Purest Treasure? National Defamation Law Reform in Australia”, Federal Law Review, Volume 8 Issue 2, June 1977, pp. 113 – 140) and given, the parties’ professional knowledge, I expected an explanation of this kind.

5. The plaintiff did have an explanation. She told the court that her barrister had passed away and that she herself had very significant health issues, but that the matter was otherwise ready for hearing. On 3 August 2023, I once again granted the parties leave to approach the List Judge for allocation of a hearing date.

6. Once again, the parties did not have these proceedings put before the List Judge for allocation of a hearing date. This time, their failure to do so triggered a court management review date of 15 October 2024 before the Judicial Registrar. The defendant foreshadowed an application for summary dismissal of the action and the plaintiff responded by foreshadowing an application for transfer of these proceedings to the Federal Court pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The matter was stood over before the Judicial Registrar on 21 November 2024 and 2 December 2024, with a further adjournment to 19 December 2024, on which date it came before me.

7. As the law term ended on 20 December 2024, I stood the matter over to 20 February 2025 for directions so that the parties could formulate the orders they sought. On 20 February 2025 at 4:30 AM, the plaintiff sent an email advising she was unable to health reasons to attend court on that day. There was no appearance by the plaintiff or anyone on her behalf and the proceedings were stood over for further directions to 27 February 2025.

The applications before the court on 27 February 2025

8. Conformably with the procedure set out in Practice Note 6 (Defamation List), the parties advised each other and the court that the following applications for orders would be required to be set down for argument:

1. The defendant’s applications for summary dismissal or a stay pursuant to s 67 Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 12.7 or, in the alternative, leave to amend the defence to plead new mitigation particulars.

2. The plaintiff’s applications for transfer of these proceedings from this court to the Supreme Court of New South Wales for the purpose of a further application in the Supreme Court for transfer to the Federal Court of Australia, pursuant firstly to ss 140(1) and 140(3)(i) of the Civil Procedure Act and s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 and, after that order is made by this court, for a further order to be made by the Supreme Court of New South Wales transferring the matter to the Federal Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act.

9. I listed both parties’ applications for hearing on 21 March 2025 and the parties entered into a timetable for the exchange of evidence and submissions. The defendant sought to relist the matter in the Defamation List on 13 and 20 March 2025, complaining that the plaintiff had not complied with the timetable for evidence and submissions, but the plaintiff was not available to attend court. This prevented any ventilation by me, prior to the hearing today, as to what to do concerning the plaintiff’s error in bringing any cross-vesting application in this court, as opposed to the Supreme Court.

The plaintiff’s application to transfer these proceedings

10. The transfer of proceedings between courts is a long and at times complicated procedure, particularly where the courts in question are at the District Court level, as transfers are only at the Supreme Court level. Such applications under cross-vesting legislation are, consequently, rare. The correct procedure is as set out in Slater v Smith (No 3) [2021] NSWSC 763, where the District Court stayed defamation proceedings pending the hearing of the cross-vesting application in the Supreme Court. Any such application need not be limited to cross-vesting issues (see, for example, the application concerning contempt of court brought in Slater v Smith (No 3)).

11. Applications for cross-vesting should not be confused with applications for transfer to another court of a forum conveniens nature, under the Service and Execution of Process Act 1992 (Cth) (“SEPA”). The District Court can, and has, heard such applications (see the observations of Lonergan J in Kirali v Matthews [2023] NSWSC 656, an application for transfer of defamation proceedings in this court). However, there is no question, in these proceedings, of the courts in another State or Territory being the appropriate forum. Similarly to cross-vesting, even when an order under SEPA is obtained from the inferior court, it is still possible for the unsuccessful party to ask the superior court to discharge it (as occurred in Kirali v Matthews, supra, and Kirali v Matthews (No 2) [2022] NSWDC 218).

12. Unsurprisingly, some parties have sought to find shortcuts, although generally without success. In Sarina v O’Shannassy [2019] NSWDC 246, a plaintiff who was concerned at the “complicated and expensive” process (at [8]) wished to transfer his defamation claim from the District Court of New South Wales to the court then known as the Federal Circuit Court. He took the “easier option” (at [8]) of starting in both courts and discontinuing in the District Court once he had been successful in persuading the Federal Circuit Court (which had never heard a defamation action before) that it had jurisdiction. That method may work for other causes of action, but it is risky in defamation proceedings as a party who commences defamation proceedings over the same publication and against the same defendant requires leave to do so under s 23 of the Defamation Act 2005 (NSW).

13. The plaintiff, who appeared before me by telephone due to health problems, acknowledges that she is in the wrong court. She says that she intended to file her Notice of Motion in the Supreme Court and that it was inadvertently lodged in the wrong registry. Mr Parkin submits that I should not accept that explanation because:

1. The application is by way of Notice of Motion in the District Court proceedings, citing the District Court plaint number and referring to the “District” Court on page 1 of this document.

2. Any application of this kind would require a Summons, not a Notice of Motion, to be filed with the appropriate fees paid, and would have been allocated a hearing date by the Registry of the Supreme Court.

3. The plaintiff made it clear, when this matter was before the Judicial Registrar and myself, that she was bringing this application in this court. If she had expected the Supreme Court to be hearing it, she would have taken steps to ensure that the application had a hearing date and would have needed to seek a stay of the defendant’s dismissal application.

14. I make allowances for the plaintiff’s difficulties in the presentation of her arguments due to her health problems, but it was clear to me that at all relevant times she was intending to bring this application in this court. Unfortunately, she has been too ill to appear before me since, so I have not been able to raise this issue with her in open court or explore other options of the kind set out in paragraph 17 below.

This court does not have jurisdiction to make the orders the plaintiff seeks

15. In her Notice of Motion, the plaintiff cites ss 140(1) and 140(3) of the Civil Procedure Act as the relevant sections. Her application, if brought in this court, is misconceived because:

1. Section 140(1) sets out the Supreme Court’s power to make orders, and not to this court.

2. Section 140(3) imposes additional requirements for the transfer if the claim is one for damages for personal injury or death.

16. The District Court may also be required to transfer proceedings to the Supreme Court under s 144 if the District Court lacks jurisdiction. In her correspondence and affidavit, the plaintiff appears to assert that this court does not have jurisdiction to hear her claim under s 18(1) of the Competition and Consumer Act 2010 (Cth) (Affidavit, paragraph 11).

17. Although the parties did not refer to it, Ms Burrows could have considered seeking to raise the argument that succeeded in Mahommed v Unicomb [2017] NSWCA 65, namely that although she had started in the wrong court, the fact that this court did not have jurisdiction to make the orders sought in relation to cross-vesting was sufficient to ground an application that I transfer this application under s 144, whether the parties agreed with such a course or not. In view of the orders I have made setting down these proceedings for hearing in this court, it is not necessary for me to speculate further.

18. The plaintiff also cites factors of a “case management” nature as warranting a transfer:

1. The Federal Court of Australia offers “tight case management”, refers matters to mediation and has a greater reliance on affidavit evidence rather than oral evidence. The plaintiff notes she commenced proceedings on 25 May 2020 against a media defendant which were resolved in this fashion.

2. The Federal Court of Australia “are [sic] likely to have more hearing dates available in the District Court of New South Wales” (Affidavit, paragraph 4(d)).

19. I will deal with each of these arguments in turn.

Jurisdiction

20. The District Court of New South Wales has jurisdiction to hear all of the plaintiff’s claims. What it does not have jurisdiction to hear is the plaintiff’s application for cross-vesting these proceedings. That is an application that should have been brought in the Supreme Court, as the plaintiff acknowledged for the first time this morning.

Case management and mediation

21. The plaintiff submits that these proceedings could be conducted more efficiently in the Federal Court, where she can obtain a mediation, a quicker hearing date and rely on affidavit evidence.

22. Parties seeking mediation or for the hearing to proceed by way of affidavit evidence have only to apply for them in the Defamation List. The plaintiff has never sought any of these orders and, tellingly, she does not do so now.

23. There is no basis in any of the provisions of the Civil Procedure Act for transfer to the Supreme Court on the basis of court efficiency. Such matters may arise in relation to transfers by this court of proceedings from a lower court under s 140(2), but they are not a basis for asking this court for a transfer to a higher court.

The defendant’s concerns about any transfer of these proceedings

24. The defendant is concerned that the plaintiff will simply bring a fresh application for transfer by approaching the Supreme Court of New South Wales and asks me to note the following:

1. The transfer of these proceedings across two courts (if the Supreme Court agrees to do so) or three (if the Federal Court transfers these proceedings to the Federal Circuit and Family Court, which it is likely to do: Do v Kolsumdet [2023] FCA 592) could take many months or up to a year. This kind of further delay in proceedings where the plaintiff herself has been the cause of most of the delays over the past five years must seriously impact any entitlement to damages and is contrary to ss 56 – 58 of the Civil Procedure Act.

2. The damages would, in the defendant’s opinion, fall well below the $100,000 threshold in the Federal Court. The form of the publication closely resembles the matter complained of in Bazzi v Dutton [2022] FCAFC 84; 289 FCR 1 in that the first matter complained of is a link to an article in the newspaper with no hortatory commentary and the second is a “zipper face” emoji; the observations of the Full Court of the Federal Court as to the undesirability of Mr Dutton’s claim being brought in the Federal Court at all are particularly apposite. Readership is, the defendant submits, limited. Even adding in the handful of comments by third parties for which he is liable as publisher, this is a publication at the bottom of the damages scale. The plaintiff’s damages will be further reduced by reason of her settlement with the newspaper that published the article the defendant tweeted. There is also the question of mitigation arising from the disciplinary findings referred to in the proposed amendments to the defence.

3. The defendant is prejudiced not only by the ongoing delays of the plaintiff to date but by the likelihood that these will continue for the rest of the litigation. The plaintiff could not even comply with the timetable in this application.

Concluding remarks

25. I have noted the defendant’s concerns that there will be future cross-vesting applications, but I cannot make orders preventing the plaintiff from doing so. I have, however, noted the defendant’s concerns above, if such an application is brought. His objections would also take into account, given the orders I have made in relation to the defendant’s application, the fact that these proceedings have now been allocated a hearing date.

26. The plaintiff’s Notice of Motion must be struck out and dismissed with costs, which should follow the event.

27. This brings me to a consideration of the defendant’s application for summary dismissal of the proceedings on the basis of a failure to prosecute these proceedings with diligence.

The defendant’s summary dismissal application

28. I have had the benefit of reading, and agree with, Mr Parkin’s Outline of Submissions, in which he has set out the relevant principles of law for dismissal for want of due despatch.

29. As a matter of first impression, the plaintiff’s delay in bringing these proceedings, and in particular her failure to approach the List Judge to obtain a hearing date when she had skilled counsel available to advise if she was uncertain on this process, seems unacceptable. It must be remembered, however, that the plaintiff has been seriously ill for some years with a particular form of cancer which requires surgery and radiation. This court has on many occasions shown generosity and compassion to persons whose ill-health prevents them from conducting proceedings. Recent examples in this court include O'Shanassy v Turland (No 2) [2025] NSWDC 23, where no less than three trial hearings were adjourned, one because of the pandemic and the other two because of the plaintiff’s serious health problems.

30. The plaintiff’s health problems have clearly taken a great toll not only on her physical health but in terms of her ability to get things done. While I accept that she has been conducting matters in other courts, including defamation proceedings in the Federal Court, that does not mean that she is necessarily giving her full and efficient attention to her own defamation action. A saying that I recall used to be favoured by one of the more colourful members of the criminal bar, in times of crisis, was that “the cobbler’s children are the worst shod”. That appears likely here.

31. It was with these concerns in mind that I enquired of the plaintiff whether she could ready herself for a hearing as a four day plus matter in the second half of this year (given that this is a “document case”). The plaintiff responded that she agreed that the case could be conducted in four days plus but that she could not take a hearing date before the end of August.

32. Having previously obtained the permission of the List Judge to do so, and having consulted the court diary, I offered the parties a 5-day hearing commencing Monday 1 September 2025, noting that the case could go into a second week if necessary. Ms Burrows accepted these dates. Mr Parkin said he had no information as to his client’s availability but, in practical terms, the defendant is not a witness to the factual issues in these proceedings, and his involvement in the hearing will largely be to give instructions. He would be free to come and go as often as is professionally necessary and adjournments for this purpose (and also for the plaintiff’s health problems) can easily be “built in” to the management of the trial. The defendant will need orders to enable him to update discovery, interrogatories and particulars in relation to recent events and an order to this effect will need to be made.

Conclusions concerning the defendant’s application for summary dismissal

33. Taking all of the above into account, I consider that the defendant’s application for summary dismissal is premature. It should not, however, be dismissed, so it has been stood over generally over the period up to the trial. In addition, the trial management steps to be taken by the plaintiff should be self-executing in nature. Compliance with those orders can be supervised in the Defamation List.

Costs of the summary dismissal application

34. Mr Parkin asked for costs on an indemnity basis, payable forthwith, in relation to the summary dismissal application.

35. There has been substantial delay by the plaintiff in many aspects of these proceedings. I have not set these out in detail, but there are examples of the plaintiff failing to comply with orders over periods of up to a year (in relation to filing a Reply). Her failure to apply (over a period of one year) to the List Judge a second time for allocation of a hearing date should also be taken into account.

36. An order for the costs of today (including preparation) on an indemnity basis is appropriate, but it should not be assessable forthwith. All other costs should be reserved.

Orders

1. Notice of Motion filed on 20 February 2025 is struck out and dismissed.

2. The plaintiff is to pay the defendant's costs of the Notice of Motion, including that portion of today's hearing relating to the Notice of Motion.

3. The application by the defendant to strike out the proceedings for want of prosecution is deferred pending compliance by the plaintiff with the following orders that are designed to permit these proceedings to be given a Hearing Date for a 4+ day matter on Monday, 1 September 2025:

1. The plaintiff is to provide further and better discovery of documents sought in relation to the proceedings before the Legal Services Commission referred to in paragraphs 117-118 of the amended defence by 4 April 2025, such order to be a self-executing order;

2. The parties are to exchange list of witnesses by 30 July 2025, such order to be a self-executing order in the case of the plaintiff; and

3. The plaintiff is to answer further interrogatories administered by the defendant, such interrogatories are to be answered by 30 July 2025, such order to be a self-executing order.

4. Grant leave to the defendant to further amend his defence by 24 April 2025.

5. Stand the matter over to a Directions hearing before Judge Gibson in the Defamation List on 31 July 2025.

6. The plaintiff is to pay the defendant's costs of today (including preparation) in relation to the application to strike out for want of prosecution, on an indemnity basis, with the balance of costs of this application to be reserved.

Amendments

24 March 2025 - Headnote - typographical error

Paragraph 11 - typographical error

24 March 2025 - Paragraph 12 - typographical error

Decision last updated: 24 March 2025