Supreme Court New South Wales Medium Neutral Citation: Pritchard v Fryer (No 2) [2020] NSWSC 344 Hearing dates: 1 April 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Equity Before: Parker J Decision: See [15] Catchwords: CIVIL PROCEDURE – orders of judgement – payment of sum on account of costs as condition of leave to make application for amend - quantum Cases Cited: Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 Category: Procedural and other rulings Parties: Andrew Ronald Pritchard (Cross-Claimant) Gregory Robert Fryer (First Cross-Defendant) Phillip Gregory Sharrock (Second Cross-Defendant) Representation: Counsel: V Shepherd (Second Cross-Defendant) Solicitors: Carter Newell Lawyers (Second Cross-Defendant) In person: Cross-Claimant First Cross-Defendant File Number(s): 2018/282469 Publication restriction: Nil Judgment – EX TEMPORE Revised and reissued 3 April 2020 1. The proceedings are before the Court for the making of orders to reflect the judgment which I delivered on 24 March: Pritchard v Fryer [2020] NSWSC 311. The orders to carry my judgment into effect are agreed between the parties except for two matters. 2. The first is the quantum of the payment which is to be made by Mr Pritchard as a condition of being able to make a further application for leave to amend his Statement of Cross‑Claim as against Mr Sharrock. Mr Sharrock's solicitors sought the sum of $40,000. 3. Counsel for Mr Sharrock tendered the first page of four tax invoices from Mr Sharrock's solicitors recording professional fees and disbursements concerning these proceedings. The invoices were dated 30 August 2019, 31 October 2019, 31 January 2020 and 31 March 2020. The total amount, inclusive of GST, is approximately $77,000. 4. Only the first page of each invoice has been tendered. I understand that the reason for this is that Mr Sharrock's solicitors maintain a claim for privilege over the rest of the bills, which presumably include more detailed descriptions of the work that has been done. 5. I find this difficult to understand because authority establishes that a solicitor's bill only attracts privilege to the extent that it incidentally records instructions and advice: see Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44. It has the result that the Court has only the bare fact of the amounts charged over the period while the notices of motion the subject of my judgment were current. The Court does not know what other work was done on the matter over that period. 6. Having said that, I am only fixing an amount to be paid on account of the costs liability as ultimately to be determined by assessment. The broadest of brushes can be used in fixing the figure. 7. Quite reasonably, Mr Pritchard indicated that he had little information to challenge the figure that was sought. But he did refer to the retainer of counsel, and to the fact that both senior and junior solicitors appear to have been extensively involved in working on these applications. But I do not find that surprising for litigation of this character. 8. A total of six motions eventually were dealt with in my judgment. As I recorded in the judgment, they go back to April last year. The hearing went into a second day, and the court book which was prepared for the application ran into six volumes, plus a supplementary volume. Most of the contents of the court book consisted of material which Mr Pritchard insisted in including in it, and which was of no, or only the vaguest, relevance to the issues which I had to deal with in disposing of the applications. But all of this would have had a cost. 9. In these circumstances, I think it is likely that the costs, on assessment, will probably exceed $30,000, and may do so by a considerable margin. On that basis, I propose to fix the figure to be paid on account of the costs liability at $30,000. Had there been more detail provided of the charges from the solicitors for Mr Sharrock, I might well have fixed the figure at a higher level. 10. The other issue does not concern the form of the orders themselves, but is a separate point raised by Mr Pritchard. He says he wishes to sell certain guitar parts to raise money to meet the amounts which must be paid in as a condition of continuing with the proceedings. He asserts that Mr Fryer and Mr Sharrock have acted in such a way as to interfere with his ability to do so. 11. Mr Pritchard alleges that Mr Fryer and Mr Sharrock have made statements to the effect that, in some way, his guitar parts infringe a trademark or trademarks held by Fender Musical Instruments Corporation, or one of its related companies. Fender is a well‑known manufacturer of electric guitars. 12. Mr Pritchard has written to Mr Fryer and to Mr Sharrock's solicitors requesting that Mr Fryer withdraw certain statements he has allegedly made concerning this alleged infringement, and that Mr Sharrock do likewise. As I understood Mr Pritchard's submission, he seeks to have the Court make an additional order in these proceedings compelling Mr Fryer and Mr Sharrock to withdraw those alleged statements. 13. There is no evidence before me which actually establishes the making of these statements, or what the correct trademark position is. Furthermore, there is no evidence before me of Mr Pritchard's financial position, nor any evidence of what these guitar parts are worth, and accordingly, there is nothing to establish that even if these statements were withdrawn it would make any difference to Mr Pritchard's ability to pay the amounts on account of costs which he must pay pursuant to my orders in order to pursue his claims against Mr Fryer, or Mr Sharrock, or both. 14. The point raised by Mr Pritchard is thus entirely collateral to the debate before me concerning the terms of the orders which ought to be made. I do not propose to add anything to the orders in their agreed form on account of this point raised by Mr Pritchard. 15. The orders of the Court are that: 1. The Notices of Motion filed by the Cross-Claimant (Mr Pritchard) on 9 April 2019, 9 August 2019, 21 February 2020 and 2 March 2020 (Pritchard Motions) be dismissed. 2. Mr Pritchard pay the costs of: (a) the First Cross-Defendant (Mr Fryer) in respect of the Pritchard Motions and his motion filed 12 July 2019 (Fryer Motion) as agreed in the sum of $511.00; and (b) the Second Cross-Defendant (Mr Sharrock) in respect of the Pritchard Motions and his motion filed 1 August 2019 (Sharrock Motion). 3. Prayers 1-8, 12 and 14 and the whole of the pleadings of the First Cross-Claim filed 1 March 2019 (Cross-Claim) be struck out. 4. Leave be granted to Mr Pritchard to file a Motion seeking leave to file an amended Cross-Claim in respect of Mr Fryer returnable before Parker J provided: (a) first that Mr Pritchard pays to Mr Fryer (or as directed by him) an amount of $511.00 on account of Mr Fryer's costs of the Fryer motion, the Pritchard Motions and costs thrown away by reason of the proposed amendment; and (b) that any such amendments be limited to the relief currently claimed in the Cross-Claim and not otherwise struck out in accordance with order 3. 5. Leave be granted to Mr Pritchard to file a Motion seeking leave to file an amended Cross-Claim in respect of Mr Sharrock returnable before Parker J provided: (a) first that Mr Pritchard pays to Mr Sharrock an amount of $30,000 on account of Mr Sharrock's costs of the Pritchard Motions and his costs thrown away by reason of the proposed amendment; and (b) that any such amendments be limited to the relief currently claimed in the Cross-Claim and not otherwise struck out in accordance with order 3. 6. That the Fryer Motion and the Sharrock Motion be otherwise dismissed. ********** 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: 03 April 2020