Fryer v Pritchard - [2019] NSWSC 89

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Pritchard v Fryer (Unpublished, 6 June 2018, Pembroke J)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)

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.
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.
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.
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.
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…

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 Fryer v Pritchard

Details

AGLC: Fryer v Pritchard [2019] NSWSC 89
Case: [2019] NSWSC 89
Decision Date: 12 February 2019

CaseChat Overview and Summary

The plaintiff, Fryer, brought proceedings against the defendant, Pritchard, in the Federal Circuit Court, seeking a declaration of title to certain property and injunctive relief. Fryer appeared in person as a self-represented litigant. The defendant, represented by counsel, filed a notice of motion seeking an order for Fryer to pay the costs of the proceedings on an indemnity basis. The defendant argued that the proceedings were frivolous and vexatious and that Fryer had filed multiple notices of motion which were without merit. The defendant contended that the proceedings should be struck out and that Fryer should be ordered to pay the costs of the proceedings on an indemnity basis.

The court considered whether the proceedings were frivolous and vexatious, and whether Fryer's conduct warranted an order for indemnity costs. The court noted that Fryer had filed multiple notices of motion, some of which were withdrawn, and that the proceedings had not progressed beyond the initial exchange of pleadings. The court also considered the merits of Fryer's claims, noting that the defendant had raised substantial challenges to Fryer's title to the property in question. The court found that Fryer's claims were not frivolous or vexatious, but that his conduct in filing multiple notices of motion had caused unnecessary delay and expense. The court held that Fryer's conduct warranted an order for indemnity costs.

The court ordered Fryer to pay the defendant's costs of the proceedings on an indemnity basis, and dismissed the proceedings as having no reasonable prospect of success. The court noted that the order for indemnity costs was intended to deter Fryer from engaging in similar conduct in future proceedings, and to compensate the defendant for the unnecessary delay and expense caused by Fryer's conduct. The court also noted that the order was not intended to punish Fryer, but rather to ensure that the courts were not used as a forum for frivolous or vexatious litigation.

Orders