Supreme Court New South Wales Medium Neutral Citation: Fryer v Pritchard [2019] NSWSC 89 Hearing dates: 12 February 2019 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Common Law Before: Kunc J Decision: Notices of motion stayed until further order Catchwords: CIVIL PROCEDURE — Court administration — Case management — Self-represented litigant files multiple notices of motion Legislation Cited: Civil Procedure Act 2005 (NSW) Uncollected Goods Act 1995 (NSW) Cases Cited: Pritchard v Fryer [2017] NSWSC 1752 Pritchard v Fryer (Unpublished, 6 June 2018, Pembroke J) Pritchard v Fryer; Pritchard v Hall [2018] NSWSC 1141 Category: Procedural and other rulings Parties: Gregory Robert Fryer (Plaintiff) Andrew Ronald Pritchard (Defendant) Representation: Counsel: P Sharrock (Plaintiff) A Pritchard (Defendant in person) File Number(s): 2018/282469 (Main proceedings)2018/124156; 2016/90273 (Other proceedings) Publication restriction: No EX TEMPORE JUDGMENT (REVISED) 1. These reasons are being given in what I will call the "main proceedings", which is matter 2018/282469, but I will touch upon motions filed in other proceedings. 2. This judgment concerns yet another chapter in a long running dispute between Mr Pritchard (the defendant in the main proceedings but in practical terms the moving party in the underlying dispute) and Mr Fryer (the plaintiff in the main proceedings) in which Mr Pritchard has been trying to recover guitars or parts of guitars in the possession of Mr Fryer. There have been numerous proceedings in this and other courts in relation to this dispute. 3. I first became acquainted with these matters when I was called upon to resolve various costs applications on 23 July 2018 in several proceedings that had been before Pembroke J (Pritchard v Fryer, 6 June 2018, Pembroke J). In disposing of the applications on that day it became apparent to me that, in the interests of the just, quick and cheap resolution of the issues genuinely in dispute between the parties, it would be necessary to ensure that the pattern of multiple applications in multiple proceedings by Mr Pritchard would have to be stopped to enable the parties to concentrate on preparing for the determination of the real dispute between them. To that end I made orders which had the effect of permitting Mr Fryer to commence these proceedings under the Uncollected Goods Act 1995 (NSW): Pritchard v Fryer; Pritchard v Hall [2018] NSWSC 1141. These are the proceedings which, as far as the Court is concerned, will provide the vehicle for the determination of the real issues in dispute between the parties. 4. I have been case managing these proceedings to get them ready for a hearing before a judge of this Court. I have made it clear to the parties that I will not necessarily be the trial judge. That will be a matter to be determined in accordance with the ordinary listing processes of the Court. 5. Over the period of time that I have given Mr Pritchard to prepare his cross-claim and his evidence in the main proceedings - an extended period of time to accommodate various personal circumstances which Mr Pritchard has drawn to the Court's attention on earlier occasions - Mr Pritchard has filed four notices of motion. When I became aware of that I caused all of those motions to be relisted before me. 6. Mr P Sharrock of Counsel, who appears for Mr Fryer, has submitted that I ought to dismiss all of those motions with costs. I do not propose to do so. In my view the justice of the case will be better served if (with one exception) they are all stayed with costs reserved so that their ultimate outcome can be viewed in the context of the outcome of what I have referred to as the main proceedings. In fairness to Mr Pritchard, who is an unrepresented but nevertheless resourceful litigant, this course will leave open the possibility (in my current view a remote one) that something in one or more of these motions may need to be agitated in the lead up to, or as a result of, the determination of the main proceedings. 7. However, it is necessary that I say something briefly about each of the motions. Notice of Motion in proceedings 2016/90273 filed 30 January 2019 1. This motion contains 22 prayers for relief. They include an application for a further amended order for the examination of Mr Pritchard to be set aside. That examination is proceeding and there is nothing which has been drawn to my attention which would make it appropriate to interfere with it at this time. 2. The motion also includes prayers of the kind to which the Court would never accede, including that the Court "accept" various representations said to have been made by Mr Fryer for the purposes of the examination. In default of the Court making orders of that kind, the motion seeks an order for the referral by the Court of Mr Fryer to the Police in relation to various alleged criminal offences. I have raised in the course of argument with Mr Pritchard his right, if he wishes to do so, to report what he regards as criminal matters to the Police. 3. In similar vein, the motion continues by seeking relief relating to a proposed private criminal prosecution by Mr Pritchard of Mr Fryer. Again, I think that these are orders of the kind that the Court would never make. Even if I am wrong about that, in the absence of clear evidence that Mr Pritchard has reported precisely those matters to the Police and received no satisfaction, it is simply not the kind of relief that the Court will entertain today. 4. Finally the motion seeks what might be described as categories of discovery in relation to the main proceedings. In accordance with the usual practice of this Division, no application for discovery will be entertained until after the close of evidence. It is theoretically possible that Mr Pritchard may have a proper basis for an application at that time, but I have no view on whether or not that will in fact be the case. Notice of motion in proceedings 2018/124156 filed 1 February 2019 1. This motion prays for relief either of the kind which is only available by way of an appeal or which, again, is connected with Mr Pritchard's desire to bring a private criminal prosecution against Mr Fryer. It also seeks a lifting of the stay of these proceedings which I ordered on 23 July 2018 to be in effect pending the determination of the main proceedings. That question can be revisited after the main proceedings are determined. 2. For the reasons given in relation to the preceding notice of motion, I propose to treat this one in the same way. Notice of motion in proceedings 2016/90273 filed 16 January 2019 1. This notice of motion contains 27 prayers for relief. It is primarily devoted to seeking various orders for the separate determination of what are described as questions of fact and law. It seems to me that most, if not all, of those issues will be traversed in the final hearing of the main proceedings. 2. It also seeks orders that a large number of costs orders made against Mr Pritchard in various proceedings be "stayed and set aside". What I apprehend Mr Pritchard seeks to achieve by that can only be done by an appeal, the time for which has clearly passed. 3. Finally, I should say something about the motion insofar as it prays for leave to commence proceedings under s 99 of the Civil Procedure Act 2005 (NSW). A gross sum costs order in the sum of $40,400 was made by Robb J on 14 December 2017 against Mr Pritchard in favour of Mr Fryer: Pritchard v Fryer [2017] NSWSC 1752. I am informed that Mr Fryer has issued a bankruptcy notice in reliance on that judgment and that Mr Pritchard's application to set aside the bankruptcy notice will be before the Federal Court tomorrow. If I may respectfully say so, Mr Fryer has properly consented, having regard to the terms of the order set out in paragraph [25] below, that Mr Pritchard should be permitted to bring such proceedings as he may be advised in the Federal Court to resist the bankruptcy notice. 4. However, Mr Pritchard wants to go further by seeking orders under s 99 in relation to Mr Sharrock, who appeared (and continues to appear) on a direct access basis for Mr Fryer. That section includes: "99 LIABILITY OF LEGAL PRACTITIONER FOR UNNECESSARY COSTS (1) This section applies if it appears to the court that costs have been incurred: (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. (2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following: (a) it may, by order, disallow the whole or any part of the costs in the proceedings: (i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or (ii) in the case of a solicitor, as between the solicitor and the client, (b) it may, by order, direct the legal practitioner: (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs, (c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. (3) Before making such an order, the court may refer the matter to a costs assessor (within the meaning of Part 7 of the Legal Profession Uniform Law Application Act 2014 ) for inquiry and report." 1. I refuse to grant that leave and it will fall within the order for a stay that I will pronounce momentarily. There are three reasons for this refusal. 2. First, while Mr Pritchard informed me from the bar table that he had filed a notice of intention to appeal from Robb J's decision, for reasons particular to himself Mr Pritchard ultimately did not appeal from Robb J's judgment. Leave would have been required for such an appeal, but that is not to the point. For present purposes what matters is that Mr Pritchard could have sought leave to appeal and did not do so. 3. As I explain below, any application now under s 99, assuming it could be made, would be a collateral challenge to undermine Robb J's order. The only proper way to challenge Robb J's order would have been to appeal. The time for that has long passed. 4. Second, Mr Pritchard has confirmed to me that he did not make any application under s 99 to Robb J as part of his defence to Mr Fryer's application for a gross sum costs order. Mr Pritchard is an experienced litigant in person and I regard it as highly significant for the exercise of any discretion the Court may have that Mr Pritchard did not make any such application at the time. In fact, Robb J records (at [27]) that "Mr Pritchard did not make any submission that the amount claimed…was unnecessary or unreasonable". 5. Third, it will be appreciated that an application under s 99 invites consideration of the reasonableness of the legal practitioner's fees. That is precisely the question which Robb J had to consider - albeit in a slightly different juridical context – in determining the gross sum costs application. To realise this is to demonstrate that to permit a s 99 application, if that could be done now, would be to allow a collateral attack on conclusions necessarily made by Robb J in the course of his consideration of the gross sum costs order including, for example, at [29] his Honour's conclusion that "based upon my own experience, I am satisfied that the amount that has been claimed for Mr Fryer's legal costs is reasonable and relatively conservative, and is less by a significant amount than the actual total of those costs". 6. For those reasons, I would not grant leave to Mr Pritchard to file an application under s 99 assuming that were otherwise possible. However, as it is more convenient to deal with the various motions in globo, the fate of that application will be dealt with by the stay of the entire motion which includes that prayer, among many others. Notice of motion in 2016/90273 filed 31 October 2018 1. This motion has been superseded (Mr Pritchard's own language) by the motion referred to in the preceding section that was filed on 16 January 2019. As it has been superseded by that later motion, I will dismiss this motion with no order as to costs so that only its successor needs to be stayed. No more motions without leave 1. On 23 July 2018 in proceedings 2016/63434 I made this order: "(4) Until the determination of the Uncollected Goods Act proceedings or further order of the Court, the plaintiff is restrained from commencing proceedings in any court or tribunal (other than by a claim in the nature of a defence, cross-claim or cross summons in the Uncollected Goods Act proceedings) against any of the defendant, his counsel, Mr P Sharrock, or Mr D Hall, without leave of a judge of the Supreme Court." 1. Mr Pritchard has sought leave in the various motions to which I have referred for leave to bring those motions. His doing so correctly reflects what I had intended to do by the order I made on 23 July 2018, notwithstanding that the order does not expressly refer to motions. 2. I will in these main proceedings make a further order making it clear that Mr Pritchard is not to bring any notice of motion without the leave of the Court. As I am the judge presently case managing these proceedings, that leave should first be sought from me unless I am absent, in which case an application should be made to the Duty Judge. 3. I wish to make it clear again that the Court's intention in making this order (pursuant to its inherent jurisdiction to control its own processes) is to ensure that the parties focus on preparation of the main proceedings. Leave will only be granted to Mr Pritchard in respect of any motion that is genuinely necessary for some proper reason. Orders 1. The orders of the Court are as follows: 1. In proceedings 2016/90273, the plaintiff's motion filed 31 October 2018 is dismissed with no order as to costs. 2. In proceedings 2016/90273, the plaintiff's motion filed 30 January 2019 is stayed until further order of the Court and costs in relation to that motion are reserved. 3. In proceedings 2016/90273, the plaintiff's notice of motion filed 16 January 2019 is stayed until further order of the Court with costs of that motion reserved. 4. In proceedings 2018/124156, the plaintiff's motion filed 1 February 2019 is stayed until further order of the Court, with the costs of that motion reserved. 5. In the main proceedings (2018/282469) the Court orders that: 1. until the determination of these proceedings (referred to in various other orders as the Uncollected Goods Act proceedings) or further order of this Court, the defendant is restrained from filing any notice of motion or from commencing proceedings in any court or tribunal (other than by a claim in the nature of a defence, cross-claim or cross-summons in the Uncollected Goods Act proceedings) against any of the plaintiff, his counsel Mr P Sharrock or Mr D Hall, without either leave of Kunc J or, in his absence, of another judge of the Supreme Court; and 2. all other costs in relation to today's hearing are reserved. 1. For the avoidance of doubt, the order made in paragraph (5) above does not prevent the defendant from bringing such application as he may be advised in the Federal Circuit Court or the Federal Court of Australia in response to any bankruptcy notice or bankruptcy proceedings brought against him by the plaintiff. 2. Liberty to any party to apply on three days' notice by email to the associate to Kunc J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2019