Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard
[2018] NSWSC 1136
•19 July 2018
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard [2018] NSWSC 1136 Hearing dates: 19 July 2018 Decision date: 19 July 2018 Before: Sackar J Decision: Motion dismissed – orders made in court
Texts Cited: n/a Category: Costs Parties: Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard (Plaintiff)
Piers Fisher-Pollard (Defendant)Representation: Counsel:
Solicitors:
J Knackstredt (Plaintiff)
P Fisher-Pollard (Defendant, self represented)
Schweizer Kobras (Plaintiff)
P Fisher-Pollard (Defendant, self represented)
File Number(s): 2016/292885 Publication restriction: n/a
Judgment – ex tempore
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Application is made before me today by way of notice of motion dated 5 June 2018 by the defendant Mr Fisher‑Pollard. The notice of motion seeks a stay of certain orders made by me on 4 May and after discussion with him this morning it is clear he would seek a stay of any further orders I may make today. I have been asked in advance of this application to make an order first that the defendant pay a sum of money calculated at $335,279.74 being the amount referable to my judgment on costs which I gave on 6 June 2018. On a mathematical calculation that figure cannot be gainsaid and it is uncontroversial and I have indicated I would propose to make an order to that effect.
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The second order sought this morning is an order that I grant the plaintiff leave to issue a writ of possession, that follows from orders I have previously made in which I ordered that possession be one of the consequences following my judgment which I delivered in April of this year. Accordingly I would grant leave and have already indicated I would do so.
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This is not the first time that Mr Fisher‑Pollard has sought a stay of various orders I have made. As such an application is interlocutory there is no limit on how many applications of this sort that can be made, at least in theory.
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The authorities suggest, however, that if applications of this sort are going to be made over again there needs to be demonstrated some change in circumstances in order for the Court to entertain any additional application. Clearly an exercise of discretion is at the heart of entertaining such an application.
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Mr Fisher‑Pollard has, on numerous occasions in the past, and again today, indicated that he has retained lawyers to assist him formulate grounds of appeal and I presume conduct the appeal in due course. He has filed a notice of intention to appeal but as yet there are no grounds of appeal that have been filed nor have any really been articulated. An item which has arisen from time to time in materials which he has put before the Court by implication, at least, is an argument that I erred in some way in refusing to admit a tape‑recording into evidence of a conversation between himself and his mother. If that is to be the subject of an appeal, so be it, but at the moment apart from reference to it, as I say, there are no grounds of appeal that have been articulated by him let alone by any lawyer retained or assisting him.
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Mr Fisher‑Pollard relies upon two affidavits in support of the application for the stay. One is dated 4 June and the second is dated 3 July. On the other side the plaintiff relies upon an affidavit of Ms Fiona Henderson of 29 June 2018. The two affidavits filed by Mr Fisher‑Pollard certainly identify matters which go to the questions of hardship.
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However, in some respects he seeks to reargue some of the issues which were before me at the trial or, in my view, to put before the Court matters which, are entirely irrelevant to the question of whether I should or should not grant a stay. For example, he argues his mother will not be made a Canadian citizen and/or be granted permanent residency and she will have to return to Australia where he has asserted in his affidavit, especially of 3 July and today in oral submissions he suggests she will be far better off. That may or may not be accurate.
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Ms Henderson deals with the Visa situation in her affidavit. The plaintiff's current visa expires in August 2018 and there will have to be an application for a continuation of that visa in Canada but on the state of the evidence as I presently have it, she is in Canada, she is in care in Canada, and at the moment the material suggests, although Mr Fisher‑Pollard denies this, that his mother appears to me at least to wish to remain there. At least that may well be where she is best off. That is really not a matter which concerns me, on the question of whether I should grant a stay.
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I do not consider that any of the material which Mr Fisher‑Pollard has put before me today in support of the motion can strictly be regarded as new material. Even if it is new and even if some of the material is novel and has not been put before the Court before, I do not regard any of it as warranting the exercise of my discretion to grant a further stay not only of the orders of 4 May but of the two orders that I have earlier identified which I also propose to make today.
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Mr Fisher‑Pollard has informed me that he wishes to pursue an appeal and that he has lawyers working on the matter in Sydney. He has indicated in oral submissions this morning that he has people retained or assisting him in Canada. It would be advisable that he get one of the lawyers who apparently is assisting him to get on their feet sooner rather than later before this Court, not before me but before the Court of Appeal, in order to make an appropriate application so the Court can see for itself that the matter is being dealt with constructively, as a matter of practical reality as opposed to a matter of theory. For the moment, all that I have had from Mr Fisher‑Pollard now is the fact that somewhere somehow some lawyers who are either friends of his or ex‑barristers or something of that sort are assisting him by attempting to get on top of the material.
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The law is relatively straightforward. My judgment is presumed to be correct until reversed on appeal. I gave judgment on 24 April. I made certain orders on 4 May. I propose to make additional orders today.
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In my view, as a matter of discretion I refuse to exercise my discretion and grant any further stay. I have carefully considered what Mr Fisher‑Pollard has put before me today and I have also considered carefully what he has said at some little length but I am not persuaded I should grant a further stay. I propose to make the additional orders today as indicated and that he pay the costs of this motion.
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Amendments
24 July 2018 - paragraph [1] line 6 - should read defendant pay a sum of money - not plaintiff
Decision last updated: 24 July 2018
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