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 MatthewsRepresentation: Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Ms P Hart
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- AGLC
- Kirali v Matthews (No.2) [2022] NSWDC 218
- Case
- [2022] NSWDC 218
- Decision Date
CaseChat Overview and Summary
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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