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Burrows v Houda (No 3)

Burrows v Houda (No 3)

Case [2025] NSWDC 77 21 March 2025

Civil Litigation & Procedure

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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

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

The circumstances leading to the parties’ applications

After rulings on pleadings (Burrows v Houda [2020] NSWDC 485; Burrows v Houda (No 2) [2021] NSWDC 127) and completion of all interlocutory steps,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burrows v Houda (No 3)

Details

AGLC: Burrows v Houda (No 3) [2025] NSWDC 77
Case: [2025] NSWDC 77
Decision Date: 21 March 2025

CaseChat Overview and Summary

In the case of Burrows v Houda, the plaintiff sought to transfer defamation proceedings from the District Court to the Federal Court of Australia, arguing that the District Court lacked the necessary jurisdiction to make such orders. The defendant opposed the application, contending that the District Court had jurisdiction over the matter. Additionally, the defendant filed a motion to strike out the proceedings due to the plaintiff's delays in complying with procedural timetables and failing to schedule a hearing date as directed by the List Judge. The plaintiff, on the other hand, argued that the proceedings were ready for hearing and that both parties were prepared to proceed with a hearing date. However, the defendant expressed concerns about potential future delays, leading to a complex interplay of jurisdictional and procedural issues.

The court was tasked with determining whether the District Court had the jurisdiction to cross-vest the proceedings to the Federal Court and whether the defendant's motion to strike out the proceedings should be granted due to the plaintiff's delays. The court examined the statutory provisions and relevant case law to assess the jurisdictional question, ultimately concluding that the District Court did indeed have the authority to make the orders in question. Regarding the motion to strike out, the court considered the plaintiff's history of delays and their failure to adhere to the procedural directives from the List Judge. Despite the plaintiff's arguments about readiness for hearing, the court found that the defendant's concerns about potential future delays warranted the imposition of compliance measures.

The court ruled that the plaintiff's application to cross-vest the proceedings was without merit, and therefore, the Notice of Motion was struck out with costs. The court also addressed the defendant's motion to strike out, noting the plaintiff's delays but deciding that the proceedings were now ready for hearing, subject to the plaintiff updating the evidence as required by the defendant. To mitigate the defendant's concerns about future delays, the court allocated a hearing date and issued case management orders that required the plaintiff to comply with specific deadlines. These orders were made self-executing, and the motion for dismissal was stood over to the trial to allow for compliance and to ensure that the proceedings could proceed without further interruptions.

ORDERS:
1. The plaintiff's application to cross-vest the proceedings from the District Court to the Federal Court of Australia is dismissed with costs.
2. The defendant's motion to strike out the proceedings is dismissed.
3. The parties are directed to update the evidence as required by the defendant.
4. A hearing date is allocated for the trial.
5. The plaintiff is required to comply with the self-executing case management orders.
6. The motion for dismissal is stood over to the trial to allow for compliance with the orders.

Orders

Orders of the court

See the orders at the end of this judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

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

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 10 of 10 shown

O'Shanassy v Turland (No 2)
[2025] NSWDC 23 Para 29

…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 proble…
Kirali v Matthews
[2023] NSWSC 656 Para 11

…rocess 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 Stat…
Do v Kolsumdet Pty Ltd
[2023] FCA 592 Para 1

…o 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 dela…
Kirali v Matthews (No.2)
[2022] NSWDC 218 Para 11

…ble 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).…
Bazzi v Dutton
[2022] FCAFC 84 Para 2

…ll 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 fac…
Slater v Smith (No 3)
[2021] NSWSC 763 Para 10

…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 applicati…
Burrows v Houda (No. 2)
[2021] NSWDC 127 Para 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.…
Burrows v Houda
[2020] NSWDC 485 Para 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.…
Sarina v O'Shannassy
[2019] NSWDC 246 Para 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…
Mahommed v Unicomb
[2017] NSWCA 65 Para 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-v…

Legislation cited in this decision · 6

Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
5, 8 3 mentions (from Para 6)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 1)
Competition and Consumer Act 2010 (Cth)
18 2 mentions (from Para 16)
Defamation Act 2005 (TAS)
23 2 mentions (from Para 12)
Service and Execution of Process Act 1992 (Cth)
1 mention (from Para 11)
Uniform Civil Procedure Rules 2005 (NSW)
12.7 1 mention (from Para 1)

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