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District Court 21 March 2025

Burrows v Houda (No 3)

[2025] NSWDC 77

Other
PRACTICE AND PROCEDURE PLAINTIFF’S APPLICATION TO CROSS

Citation: Burrows v Houda (No 3) [2025] NSWDC 77
Court: District Court of New South Wales
Date: 21 March 2025
Judge: Gibson DCJ

Background

The plaintiff and defendant are both solicitors. The plaintiff commenced defamation proceedings in July 2020 over two publications made by the defendant on his Twitter (now X) account in July 2019 and May 2020. Following rulings on pleadings in 2020 and 2021, all interlocutory steps were completed and the matter was ready for trial by October 2022.

Despite being directed on two separate occasions to approach the List Judge to obtain a hearing date, the plaintiff failed to do so on either occasion. The file was entirely inactive for extended periods. The plaintiff attributed the first period of inactivity to the death of her barrister and her own significant health problems. The second failure to act triggered a court management review, after which the defendant foreshadowed a dismissal application and the plaintiff foreshadowed an application to transfer the proceedings to the Federal Court.

Two applications came before Gibson DCJ on 21 March 2025: the plaintiff's application to cross-vest the proceedings to the Federal Court (via the Supreme Court), and the defendant's application to strike out the proceedings for want of prosecution.

  • Whether the District Court has jurisdiction to make orders transferring proceedings to the Federal Court under the cross-vesting scheme established by the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and ss 140(1) and 140(3) of the Civil Procedure Act 2005 (NSW).
  • Whether the proceedings should be struck out or stayed for want of prosecution under s 67 of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), given the plaintiff's repeated failures to comply with timetables and court directions.
  • What case management orders, if any, were appropriate to bring the proceedings to a hearing.

Decision

On the cross-vesting application: Gibson DCJ held that the District Court has no jurisdiction to make the cross-vesting orders sought by the plaintiff. The correct procedure, as established in Slater v Smith (No 3) [2021] NSWSC 763, requires that any application to transfer proceedings from the District Court to the Federal Court be made in the Supreme Court, not the District Court. The plaintiff acknowledged she was in the wrong court but claimed the Notice of Motion had been filed in the wrong registry by inadvertence. The court rejected that explanation, finding it was clear at all relevant times that the plaintiff intended to bring the application in the District Court.

On the dismissal application: The court acknowledged the plaintiff's substantial delays, including a failure to file a Reply for close to a year and two separate failures to approach the List Judge for a hearing date as directed. Notwithstanding those delays, both parties were found to be ready to proceed to hearing. The court declined to dismiss the proceedings outright at this stage, instead deferring the dismissal application and allocating a hearing date of 1 September 2025.

To guard against further delay, the court made key compliance orders on a self-executing basis, meaning they take effect automatically if not complied with, without requiring a further court application. The defendant's dismissal motion was stood over to the trial itself, to be revisited if the plaintiff fails to comply.

On costs: The court ordered the plaintiff to pay the defendant's costs of the cross-vesting Notice of Motion. In relation to the dismissal application, indemnity costs for the hearing (including preparation) were ordered against the plaintiff, with the balance of costs reserved.

Orders Made

  • The plaintiff's Notice of Motion filed 20 February 2025 is struck out and dismissed.
  • The plaintiff is to pay the defendant's costs of the Notice of Motion.
  • The defendant's application to strike out the proceedings for want of prosecution is deferred, subject to the plaintiff complying with the following self-executing orders:
  • Further and better discovery of documents relating to Legal Services Commission proceedings (paragraphs 117-118 of the amended defence) by 4 April 2025.
  • Exchange of lists of witnesses by 30 July 2025 (self-executing as against the plaintiff).
  • Plaintiff to answer further interrogatories administered by the defendant by 30 July 2025.
  • Leave granted to the defendant to further amend his defence by 24 April 2025.
  • The matter is stood over to a Defamation List directions hearing before Judge Gibson on 31 July 2025.
  • A hearing date of 1 September 2025 is allocated (estimated 4+ days).
  • The plaintiff is to pay the defendant's costs of today's hearing (including preparation) on the dismissal application on an indemnity basis; balance of costs reserved.

Key Takeaways

  • The District Court confirmed it has no jurisdiction under the cross-vesting scheme to order the transfer of proceedings to the Federal Court. Such applications must be made in the Supreme Court, and any shortcut through the District Court will fail.
  • Cross-vesting applications should not be confused with forum conveniens transfers under the Service and Execution of Process Act 1992 (Cth), which the District Court can and does hear, but which are only relevant where courts in another State or Territory are in issue.
  • A party wishing to transfer defamation proceedings from the District Court to the Federal Court must follow the two-step procedure: first obtain a stay in the District Court, then bring the application by Summons in the Supreme Court, as outlined in Slater v Smith (No 3) [2021] NSWSC 763.
  • Where proceedings are ready for hearing despite a history of plaintiff-side delay, the court may prefer to defer a dismissal motion and impose self-executing compliance orders rather than terminate the litigation entirely.
  • Indemnity costs were ordered against the plaintiff for the dismissal application hearing, reflecting the court's view that the delays and non-compliance warranted a costs consequence beyond the ordinary party-party basis.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), ss 56-58, 67, 140, 144
- Defamation Act 2005 (NSW), s 23
- Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 5, 8
- Uniform Civil Procedure Rules 2005 (NSW), r 12.7
- Competition and Consumer Act 2010 (Cth), s 18
- Service and Execution of Process Act 1992 (Cth)

Cases:
- Burrows v Houda [2020] NSWDC 485
- Burrows v Houda (No 2) [2021] NSWDC 127
- Slater v Smith (No 3) [2021] NSWSC 763
- Bazzi v Dutton [2022] FCAFC 84; 289 FCR 1
- Kirali v Matthews [2023] NSWSC 656
- Kirali v Matthews (No 2) [2022] NSWDC 218
- Sarina v O'Shannassy [2019] NSWDC 246
- Do v Kolsumdet [2023] FCA 592
- Mahommed v Unicomb [2017] NSWCA 65
- O'Shanassy v Turland (No 2) [2025] NSWDC 23