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Kirali v Matthews (No.2)

Kirali v Matthews (No.2)

Case [2022] NSWDC 218 21 June 2022

Stay of Proceedings

Jurisdiction

Costs

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Kirali v Matthews (No.2) [2022] NSWDC 218
Hearing dates: 9 June 2022
Date of orders: 21 June 2022
Decision date: 21 June 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1) Pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA) and s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed pending further order, on the basis that the Supreme Court of Victoria is the appropriate court.
(2) The parties have liberty to bring in Short Minutes of Order reflecting any necessary further steps to be taken in this court, including but not limited to the determination of the issue of costs.
(3) Costs reserved, with liberty to apply.

Catchwords:
PRACTICE AND PROCEDURE - application for stay of proceedings pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) - plaintiff and defendant neighbours in rural Victoria - defendant objects to development proposal made to Council by plaintiff - plaintiff commences defamation proceedings for the defendant’s letter of objection and for her posts on Facebook sites conducted by residents of Victoria - limited publication in New South Wales - balance of probabilities and relevant factors - stay granted

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 67
Competition and Consumer Act 2010 (Cth) Schedule 2 ss 18(1), 20 and 50
Defamation Act 2005 (NSW) ss 11 and 23
Service and Execution of Process Act 1992 (Cth) s 20

Cases Cited:
Aurisch & Anor v Wilson [2022] VCC 720
Coogan & Anor v Southern Publishers Pty Ltd & Ors (Supreme Court of New South Wales, Levine J, 21 June 1996)
Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010
Dutton v Bazzi (No 2) [2021] FCA 1560
Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143
Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44
Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWDC 139
JE v Central Coast Local Health District & Ors [2022] NSWDC 31
Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Maple v David Syme & Co [1974] 1 NSWLR 297
McCready v Bendigo Health [2014] VSC 564
Mirabella v Price & Anor [2018] VCC 650
Mirabella v Price & Anor (Rulings) [2017] VCC 794
Ramsey & Ors v Vogler [2000] NSWCA 260
Sarina & Anor v O’Shannassy [2019] FCCA 732
Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC 1
Wollongong City Council v Papadopoulos [2019] NSWCA 178
Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360

Category: Procedural rulings
Parties: Plaintiff: Sreejesh Kirali
Defendant: Kerrie Matthews
Representation:
Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Ms P Hart

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 (No.2)

Details

AGLC: Kirali v Matthews (No.2) [2022] NSWDC 218
Case: [2022] NSWDC 218
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the matter of Kirali v Matthews, the court was called upon to determine an application for a stay of proceedings in defamation, as well as jurisdictional challenges, brought by the plaintiff against the defendant, who are neighbours in rural Victoria. The plaintiff's claim arises from the defendant's objection to a development proposal made by the plaintiff to the Council, as well as the defendant's posts on Facebook sites conducted by residents of Victoria. The plaintiff contends that the defendant's actions constitute defamation, with limited publication in New South Wales.

The court was required to decide whether the proceedings should be stayed pursuant to section 20 of the Service and Execution of Process Act 1992 (Cth), and whether the NSW Supreme Court had the appropriate jurisdiction to hear the matter. The court was tasked with balancing the probabilities and relevant factors in determining the appropriate court for the proceedings. The court examined the relevant legislative provisions and the precedent established by previous cases, such as the High Court's decision in Re Wakim; Ex parte McNally.

The court held that the appropriate court for the proceedings was the Supreme Court of Victoria, and therefore granted the application for a stay of proceedings pursuant to section 20 of the SEPA and section 67 of the Civil Procedure Act 2005 (NSW). The court found that the balance of probabilities and relevant factors favoured the Supreme Court of Victoria as the appropriate court for the matter, and that the NSW Supreme Court did not have the appropriate jurisdiction to hear the proceedings. The court ordered that the proceedings be stayed pending further order, and that the parties have liberty to bring in Short Minutes of Order reflecting any necessary further steps to be taken in this court, including but not limited to the determination of the issue of costs. Costs were reserved, with liberty to apply.

Orders

Orders of the court

Orders:

(1) Pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA) and s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed pending further order, on the basis that the Supreme Court of Victoria is the appropriate court.

(2) The parties have liberty to bring in Short Minutes of Order reflecting any necessary further steps to be taken in this court, including but not limited to the determination of the issue of costs.

(3) Costs reserved, with liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

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

Most Recent Citation

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

Cases citing this decision · 1 of 1 shown

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

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

Aurisch v Wilson
[2022] VCC 720 Para 24

…in a defamation action where the imputations pleaded (namely conducting a “puppy farm”) were very similar to those here: Aurisch & Anor v Wilson [2022] VCC 720.…
JE v Central Coast Local Health District
[2022] NSWDC 31 Para 43

…inancial hardship and accounts of the distress the litigation causes. I noted some of these factors in JE v Central Coast Local Health District & Ors [2022] NSWDC 31 at [49]. Those factors are added to by the dangers of travel to health-compromised individuals due to the pandemic. Although Mr Rasmussen encourages…
Dutton v Bazzi (No 2)
[2021] FCA 1560 Para 77

…Wales, local courts in Victoria have jurisdiction to hear defamation claims (and I am mindful of the observations of White J in Dutton v Bazzi (No 2) [2021] FCA 1560). All these courts have country sittings.…
Joshan v Pizza Pan Group Pty Ltd
[2021] NSWCA 219 Para 11

…clause of SEPA, which is “a centrally important statute in the administration of justice throughout Australia” ( Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 (“ Joshan ”) at [39]). It provides as follows:…
Young v Royal Society for the Prevention of Cruelty to Animals New South Wales
[2020] NSWCA 360 Para 85

…ng City Council v Papadopoulos [2019] NSWCA 178 (at [48] – [50]) and Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 (at [29] – [34]), Leeming JA deprecated the practice of providing additional submissions without leave. The position may be aggravated where the docume…
Wollongong City Council v Papadopoulos
[2019] NSWCA 178 Para 85

…In Wollongong City Council v Papadopoulos [2019] NSWCA 178 (at [48] – [50]) and Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 (at [29] – [34]), Leeming JA deprecated the practice of providing additional submissions without leave. The position may be aggravated where…
Sarina & Anor v O'Shannassy
[2019] FCCA 732 Para 5

…rs to be in identical form to the claim made by an individual (as opposed to a corporation) which was struck out in Sarina & Anor v O’Shannassy [2019] FCCA 732 at [5] – [7]) for damages and relief under ss 18, 20 and 50 of the ACL, and it was also brought as an alternative to a defamation claim. The same place of…
Mirabella v Price
[2018] VCC 650 Para 23

…case managed in the Defamation List of the County Court throughout, as the headnote to the assessment of damages confirms: Mirabella v Price & Anor [2018] VCC 650.…
Mirabella v Price and Anor (Ruling)
[2017] VCC 794 Para 20

…een brought to transfer defamation proceedings to circuit court venues where appropriate. That is what occurred in Mirabella v Price & Anor (Rulings) [2017] VCC 794 (“ Mirabella ”). The defendant in those proceedings successfully sought a transfer to the Wangaratta Registry of the County Court, relying upon the o…
Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited
[2015] NSWDC 139 Para 35

…Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWDC 139 at [35], Neilsen DCJ considered that, where the subject matter of the proceedings is intimately tied to real property in another jurisdiction, it may…
XX v WW and Middle South Area Mental Health Service
[2014] VSC 564 Para 20

…fully sought a transfer to the Wangaratta Registry of the County Court, relying upon the observations of J Forrest J in McCready v Bendigo Health [2014] VSC 564 at [15]:…
Re Featherston Resources Ltd
[2014] NSWSC 1139 Para 53

…arily co-extensive with what is the more convenient court: Re Featherstone Resources Ltd; Tetley v Weston ( 2014) 101 ACSR 394; [2014] NSWSC 1139 at [53].”…
Street v Luna Park Sydney Pty Ltd
[2009] NSWSC 1 Para 50

…lications in the course of a development application are made in the course of trade and commerce ( Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC 1; see also Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 at [52] - [57]). That is not a question that is relevant to the…
Energetech Australia Pty Ltd v Sides Engineering Pty Ltd
[2005] NSWSC 1143 Para 50

…de and commerce ( Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC 1; see also Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 at [52] - [57]). That is not a question that is relevant to the issue of forum, but it is an indication of a potential issue of some complexity, whic…
Ramsey v Vogler
[2000] NSWCA 260 Para 5

…ace of publication rule applies to this ACL claim, but no particulars of identification or downloading are provided (cf Ramsey & Ors v Vogler [2000] NSWCA 260).…
Hore-Lacy v David Syme & Co Ltd
[1998] VSC 96 Para 1

…tiff can establish downloading by persons knowing his identity. Any jurisdictional issues of concern (such as the pleading of Hore-Lacy imputations ( Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010)) can be dealt with by reference to s 11 of the Defamation Act 2005 (NSW). It is desirable that these proceedings be heard in New Sout…
Lange v Australian Broadcasting Corporation
[1997] HCA 25 Para 49

…[60] as to the likelihood of similar legal principles because there is only one common law of Australia ( Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563), but that the situation is “different” where a Commonwealth or Uniform State statute is concerned, and different again “where the dispute inv…
Border Morning Mail v Hansen
[1989] NSWCA 23 Para 22

…ctions where an application had been brought to transfer proceedings, such as a transfer from Sydney to Albury ( Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 and, in Coogan & Anor v Southern Publishers Pty Ltd & Ors (Supreme Court of New South Wales, Levine J, 21 June 1996), a transfer where Levine J descr…
Sarina v O’Shannassy
[2009] FCCA 732 Para 48

…lex question because of the claim for relief under the Australian Consumer Law, for the reasons explained by Manousaridis J in Sarina v O’Shannassy [2009] FCCA 732 at [4] - [8]. At an earlier stage of the proceedings, Mr Rasmussen flagged an application to rely upon the relevant provisions of the Fair Trading Act…

Legislation cited in this decision · 6

Defamation Act 2005 (TAS)
11, 23 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
67 2 mentions (from Para 12)
Service and Execution of Process Act 1992 (Cth)
20 2 mentions (from Para 1)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 5)
Fair Trading Act 1987 (WA)
1 mention (from Para 48)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
1 mention

Medium Neutral Citation:	Kirali v Matthews (No.2) [2022] NSWDC 218
Hearing dates:	9 June 2022
Date of orders:	21 June 2022
Decision date:	21 June 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA) and s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed pending further order, on the basis that the Supreme Court of Victoria is the appropriate court. (2) The parties have liberty to bring in Short Minutes of Order reflecting any necessary further steps to be taken in this court, including but not limited to the determination of the issue of costs. (3) Costs reserved, with liberty to apply.
Catchwords:	PRACTICE AND PROCEDURE - application for stay of proceedings pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) - plaintiff and defendant neighbours in rural Victoria - defendant objects to development proposal made to Council by plaintiff - plaintiff commences defamation proceedings for the defendant’s letter of objection and for her posts on Facebook sites conducted by residents of Victoria - limited publication in New South Wales - balance of probabilities and relevant factors - stay granted
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 67 Competition and Consumer Act 2010 (Cth) Schedule 2 ss 18(1), 20 and 50 Defamation Act 2005 (NSW) ss 11 and 23 Service and Execution of Process Act 1992 (Cth) s 20
Cases Cited:	Aurisch & Anor v Wilson [2022] VCC 720 Coogan & Anor v Southern Publishers Pty Ltd & Ors (Supreme Court of New South Wales, Levine J, 21 June 1996) Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010 Dutton v Bazzi (No 2) [2021] FCA 1560 Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWDC 139 JE v Central Coast Local Health District & Ors [2022] NSWDC 31 Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Maple v David Syme & Co [1974] 1 NSWLR 297 McCready v Bendigo Health [2014] VSC 564 Mirabella v Price & Anor [2018] VCC 650 Mirabella v Price & Anor (Rulings) [2017] VCC 794 Ramsey & Ors v Vogler [2000] NSWCA 260 Sarina & Anor v O’Shannassy [2019] FCCA 732 Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC 1 Wollongong City Council v Papadopoulos [2019] NSWCA 178 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360
Category:	Procedural rulings
Parties:	Plaintiff: Sreejesh Kirali Defendant: Kerrie Matthews
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms P Hart