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

1. 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

2. 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.

3. 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.

4. 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.

5. 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 false, and an affirmative statement that the defendant was humane and kind to the animals he managed. The affidavits before me do not indicate whether there was any formal response by the defendant to that letter, however, the letter did conclude with the warning that legal proceedings would be commenced without further notice to the defendant, if the requirements were not met.

6. On 6 October 2021 the plaintiff commenced proceedings against the defendant in the District Court of New South Wales pleading defamation and claims under the Competition and Consumer Act 2010 (NSW) for damages for false and misleading statements. Amongst other things, the statement of claim pleaded that from 9 to 20 October 2020 the defendant “conducted a public campaign intended to damage the plaintiff's licensed dog breeding business”.

7. I have been informed today by counsel for the defendant, and I accept, that the statement of claim was served on the defendant on 18 October 2021.

8. Both parties retained solicitors but they are not the solicitors that are currently retained for either party in the proceedings. It is clear that the new solicitors and legal representatives are taking a different approach from those initially retained. In making this comment I am not being any critical of anyone, I am just observing that it explains some of the history of the matter. In late October 2021 there was correspondence between the then solicitors for the plaintiff and defendant. Some of it became, to use a commonly understood term, "nasty".

9. The matter was managed in the District Court Defamation List by Gibson DCJ. On 28 October 2021 the defendant sought a two-week adjournment to consider whether she would make a cross-vesting application, against the background of the content of correspondence between the then solicitors indicating there was a difference of opinion about whether the appropriate forum was New South Wales or Victoria.

10. On 14 November 2021 the court noted that the defendant was to notify the plaintiff as to objection to be taken to the forum.

11. On 15 November 2021 there was an email from the defendant's solicitor to the plaintiff's solicitor complaining about inadequacies in the statement of claim.

12. On 16 November 2021 the plaintiff's solicitor by email rejected those criticisms.

13. On 17 December 2021 the defendant filed her defence, thus submitting to the New South Wales jurisdiction.

14. In February 2022 the plaintiff's then solicitor wrote to the defendant's then solicitor complaining about defects in the defence that had been filed and pointing out that it was liable to be struck out.

15. On 10 March 2022 there was a Defamation List hearing before Gibson DCJ, which degenerated into an oral application made by counsel then appearing for the plaintiff, for Gibson DCJ to disqualify herself for apprehended bias, arguing that applied because Gibson DCJ attempted to assist the defendant, who at that point was appearing without legal representation, as to what needed to happen next from a case management point of view. Her Honour heard and determined the application for apprehended bias and rejected it, and rightly so.

16. On 31 March 2022 at a directions hearing before Gibson DCJ the Defence then filed was struck out with leave to replead and a further timetable was ordered. The matter was stood over to 5 May 2022.

17. On 29 March 2022, having been retained shortly before that, Ms Ward, Solicitor, prepared a competent and appropriate request for further and better particulars of the statement of claim, which was forwarded to the plaintiff's solicitor. In that request it was raised that the defendant maintained the view that the proper venue for the matter was Victoria.

18. A response was provided on 14 April 2022 which took issue with the matters raised about forum, arguing that New South Wales was appropriate, that defamation was national, potentially internet postings could be viewed in other states, and that the jurisdiction regarding the Australian Consumer Law claims applied to conduct in both New South Wales and Victoria. There were also some answers to the request for other particulars, although it is evident that the defendant's solicitor took the view that those answers were inadequate.

19. On 19 April 2022 a letter was sent from the defendant's solicitor to the plaintiff’s notifying of an intention to apply for orders to strike out the statement of claim for inadequate particulars and to have the proceedings permanently stayed because the District Court of New South Wales lacked jurisdiction, or alternatively, was an inappropriate forum. A notice of motion was filed on the same date seeking orders for a permanent stay on that basis as well as a strike out under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

20. There followed a couple of directions hearings at which the notice of motion was adjourned. It was heard on 9 June 2022. Gibson DCJ reserved her decision which she gave on 21 June 2022. Her Honour refused to make the order sought for a permanent stay, instead making an order pursuant to s 20(3) of the Service and Execution of Process Act 1992 (NSW) and s 67 of the Civil Procedure Act staying the proceedings until further order on the basis that the Supreme Court of Victoria is the appropriate court, and reserving costs.

21. A chronology, helpfully provided as annexure K to the affidavit of Tara Ward of 1 June 2023 outlined that there were a number of adjournments of the costs issue which was ultimately heard on 20 October 2022 by Gibson DCJ. The following orders were made that day:

1. The plaintiff is to pay the defendant's costs of the application under s 20(3) of the Service and Execution of Process Act of the hearing that took place on 9 June 2022 but excluding costs prior to the bringing of the application on 19 April.

2. The defendant is to pay the plaintiff's costs thrown away by reason of striking out of the defence

3. No costs orders are made in relation to the application for recusal.

4. The balance of costs for these proceedings in this Court are to be the defendant's costs in the cause.

5. Noting the parties are requested to notify the Court of any application before the Supreme Court of Victoria for this file to be transferred.

22. On 24 January 2023, so about three months later - observing that period includes the Christmas vacation the plaintiff filed his Summons in this Court seeking the orders I have referred to.

The Summons filed 24 January 2023   

23. Turning to the application listed before me today against that background, as I understand it, a pragmatic view was taken by the legal representatives for the plaintiff that the proper way to progress the matter was for an application for lifting of the stay and transfer to this Court should be made in this Court, so that transfer to the correct jurisdiction, Victoria, could be facilitated by the only route available.

24. I understand the pragmatics of that approach and take the view that I have jurisdiction to make the order discharging the stay under this Court's inherent jurisdiction to control its processes and the proper processes of the court. The order transferring to Victoria pursuant to s 5 of the Jurisdiction of Courts (Cross vesting) Act can and should be made provided that, first, I am of the view that s 140 of the Civil Procedure Act allows the transferring of the proceedings to this Court.

25. The application was opposed by the defendant on the basis of delay. Counsel appearing for the defendant argued that the Court should bear in mind that the events complained of occurred in October 2020, that there was delay between her Honour's judgment in June 2022 and the filing of the Summons in January 2023, that the defendant has significant health problems and a business that she needs to run in Victoria and an elderly mother who needs her care, and that, in her view, the lawsuit has “dragged on” and has taken a toll on her and her family, that she is concerned that some of the witnesses she was going to call may now not be present in Victoria and that somebody whom she thought she would call as a witness to support her defence died in 2021.

26. There is nothing in the defendant’s affidavit that identifies what evidence those people were going to be able to give and how it is relevant to her defence, however, I do note the medical and personal issues. Although they are certainly not determinative, I take them into account.

27. Underpinning the delay point, counsel for the defendant submitted that every decision made in this Court exercising powers available to it under the Civil Procedure Act or Uniform Civil Procedure Rules must be determined in accordance with the overriding purpose, that is s 56 of the Civil Procedure Act, which provides that in application of the Act and Rules, this Court must facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must give effect to this overriding purpose. The Court also, of course, must follow the dictates of justice as set out in s 58 of the Act.

28. Counsel for the defendant’s written submissions argued that there had been "wilful disregard of established laws as to jurisdiction" and "unexplained delays" which were described as "very significant" and delays that cause “severe injustice” to the defendant. It was also submitted that there will be additional delays, although the basis for that seems to be nothing other than a possibility, although certainly not a forecast, that there will need to be transfer of the matter from the Supreme Court of Victoria to the County Court because of jurisdictional and costs limits, potentially. It was self-evident the matter had to be transferred to Victoria (as argued by the defendant in the April 2022 notice of motion and associated correspondence). It always should have been heard in Victoria, and so it is obvious that what this Court should consider to be the delay period, is from April 2022 to now.

29. The plaintiff submitted through his counsel that first, any delays identified have not been inordinate. This is a proceeding that ought to be heard, noting that Gibson DCJ had an application before her for a permanent stay or striking out the statement of claim but she declined to do either and could have done so if she had determined those were appropriate steps to take to end the proceedings. Until Gibson DCJ had heard and determined the costs arguments in October 2022 it was not appropriate to take steps to move the matter to another place and so the relevant delay to consider is between 20 October 2022 and January 2023. This is not a delay of any concern.

30. In support of the transfer orders, counsel for the plaintiff argued that there is good reason for the order for transfer to this Court and that is that the District Court proceeding can only be transferred to the Supreme Court of Victoria by this Court. It is in the interests of justice for the proceeding to be cross-vested to the Supreme Court of Victoria given, in particular, the comments made by Gibson DCJ in her judgment in June 2022.

31. It was also submitted that s 56 of the Civil Procedure Act does not apply because the proceedings will not be prosecuted in New South Wales. I reject that submission because this Court's jurisdiction is being invoked and any decision it makes must be in compliance with s 56, however s 56 identifies the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. At this stage there seems to be a number of issues that are real and that need determination and that do not seem to be able to be resolved and cannot be resolved in New South Wales. Obviously there are some pleading issues that need to be sorted out and at this stage the defendant does not have a defence filed. Those, however, are all matters that can be managed by the Victorian Supreme Court or County Court, once the matters are transferred.

32. Based on the history of the proceedings, the defendant had available to her back in late 2021, a number of options, including objecting to the jurisdiction of New South Wales and refusing to submit to the jurisdiction. Instead she filed a Defence in December 2021. I appreciate that was obviously in response to legal advice given at that time, but it does illustrate that it was a matter for legitimate debate as to how best to proceed. It seems to me that there was at least some argument for the proceedings remaining in this jurisdiction.

33. The parties have now however in effect, put before me evidence that suggests that Victoria is the appropriate jurisdiction, including affidavit material filed on behalf of the defendant in the District Court in which she sets out a number of reasons why she asserted that the matter should be heard in Victoria.

34. Having considered the evidence, which I should note comprised of a lengthy and helpful affidavit of Tara Ward, solicitor, affirmed 1 June 2023, an affidavit of the defendant, affirmed 15 May 2023 and two affidavits of the solicitor for the plaintiff, both affirmed in February 2023, I am of the view the orders sought in the summons should be made.

Orders

35. Accordingly, I make the following orders:

1. I discharge the stay of proceedings granted in the District Court proceeding 2021/00284209 dated 21 June 2022.

2. I transfer those District Court proceedings to the Supreme Court of New South Wales pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

3. Pursuant to section 5(2) of the Jurisdiction of Courts (Cross vesting) Act 1987 (NSW), having concluded it is otherwise in the interest of justice that the relevant proceedings be determined by the Supreme Court of Victoria, I transfer those proceedings to the Supreme Court of Victoria.

Costs

36. The plaintiff claimed costs of the summons and the proceedings on the summons on the basis that costs should follow the event. He was entirely successful in obtaining the orders sought in the summons. The summons was opposed. Counsel appeared today for the plaintiff and full argument was required and heard, taking some hours, including the preparation of written submissions before today.

37. In response, the defendant's counsel argued that costs should be part of the costs of the proceedings and so the proper order would be costs in the cause.

38. I have formed the view that the general rule that costs follow the event should apply, and that is the order that should be made with an adjustment to recognise that had the plaintiff commenced proceedings in Victoria initially, as recognised now is the proper place for the proceedings, then the summons filed in January 2023 would not have been necessary.

39. Doing the best I can to provide fairness between the parties the appropriate costs order is:

1. The plaintiff is to bear his own costs of the preparation and filing and service of the summons filed on 24 January 2023 including the affidavits of Mr Stanarevic; and

2. The defendant is to pay the plaintiff’s costs of the summons proceedings, including preparation of written submissions and the costs of today’s hearing, including counsel's fees, and the costs of the directions hearing conducted by the Registrar on 20 April 2023.    

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Decision last updated: 16 June 2023