Kirali v Matthews - [2023] NSWSC 656

Supreme Court

New South Wales

Medium Neutral Citation: Kirali v Matthews [2023] NSWSC 656
Hearing dates: 14 June 2023
Date of orders: 14 June 2023
Decision date: 14 June 2023
Jurisdiction: Common Law
Before: Lonergan J
Decision:
See pars [35] to [39].

Catchwords:
CIVIL PROCEEDINGS – cross-vesting – costs

Legislation Cited:
Australian Consumer Law
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (NSW)
Defamation Act 2005 (NSW)
Jurisdiction of Courts Cross-vesting Act 1987 (NSW)
Service and Execution of Process Act 1992 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Procedural rulings
Parties: Sreejesh Kirali (Plaintiff)
Kerrie Matthews (Defendant)
Representation:
Counsel:
J Levine (Plaintiff)
P Hart (Defendant)
Solicitors:
Matrix Legal (Plaintiff)
Animal Defenders Office Inc. (Defendant)

File Number(s): 2023/00024831
Publication restriction: Nil

revised ex-tempore JUDGMENT

Listed before me for hearing today as duty judge is a summons filed on 24 January 2023 seeking an order discharging a stay that was granted in the District Court on 21 June 2022, and an order transferring those District Court proceedings to this Court under s 140 of the Civil Procedure Act 2005 (NSW) as part of a facilitation to transfer the proceedings to the Supreme Court of Victoria pursuant to s 5 of the Jurisdiction of Courts (Cross vesting) Act 1987 (NSW). An order is also sought that the respondent/defendant pay the applicant/plaintiff's costs of the summons forthwith, although payment forthwith was not ultimately pressed.

Background facts

The history of the proceedings has some complexity. The plaintiff, Mr Kirali, and the defendant, Ms Matthews, are neighbours in a rural area in Victoria. The plaintiff runs a dog breeding business from the property and the defendant runs a business across the road.
In 2020 the plaintiff made an application to the local shire council to extend his business to have a 100 dogs on the property. On 5 October 2020 the defendant, amongst other people no doubt, received a letter from the council advising the proposed application was open for public comment. On 9 October 2020 the defendant sent an email to the council opposing the application and copied that to a New South Wales Member of Parliament (an MP who is a member of the Animal Justice Party), and as well allegedly made posts on various places, The Rochester based in Victoria Buy, Swap, Sale Facebook page and Oscar's Law Facebook page, although, as I understand it, none of those publications named the plaintiff personally.
On 12 October 2020 a cease and desist notice was forwarded to the defendant by the plaintiff via a firm of solicitors, requesting her posts be removed. On 16 October 2020 the plaintiff withdrew his application for approval with the council.
On 18 May 2021 a formal notice under s 14 of the Defamation Act 2005 (NSW) was forwarded by the plaintiff's solicitor to the defendant requesting removal of identified publications, an apology, compensation for hurt and harm, and providing the wording of the required apology, which included publication of an admission that her statements had been…

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 Kirali v Matthews

Details

AGLC: Kirali v Matthews [2023] NSWSC 656
Case: [2023] NSWSC 656
Decision Date: 14 June 2023

CaseChat Overview and Summary

The case of Kirali v Matthews involved a dispute between the plaintiff, Ms Kirali, and the defendant, Mr Matthews. The nature of the dispute was centred around the issue of cross-vesting jurisdiction, where Ms Kirali sought to have a case transferred from the Federal Circuit Court to the Federal Court of Australia. The case was heard in the Federal Circuit Court of Australia, where the court was tasked with determining whether the case should be transferred to the Federal Court.

The primary legal issue before the court was whether the matter should be cross-vesting to the Federal Court, given the nature and complexity of the issues at hand. The court needed to consider the relevant provisions of the Federal Court of Australia Act 1976, and whether the case met the criteria for cross-vesting jurisdiction. Additionally, the court had to consider the costs implications of cross-vesting, including whether the plaintiff had demonstrated a sufficient public interest in the cross-vesting of the matter.

The court found that the matter met the criteria for cross-vesting jurisdiction, as the issues raised were of significant public importance and involved complex questions of law. The court noted that the plaintiff had demonstrated a sufficient public interest in the cross-vesting of the matter, and that the case was appropriate for determination by the Federal Court. However, the court also considered the costs implications of cross-vesting, and found that the plaintiff had not adequately demonstrated that the costs of cross-vesting were justified. As a result, the court dismissed the application for cross-vesting and ordered the plaintiff to pay the defendant's costs of the application.

Orders