Pritchard v Fryer

[2020] NSWSC 744

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Pritchard v Fryer [2020] NSWSC 744
Hearing dates:	On the papers
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	See par [92]
Catchwords:	CRIME — Public justice offences — Perjury — where leave of the Court is sought to commence criminal proceedings — where the criminal charge sought has not been formulated — where there is nothing that remotely establishes that any of the alleged statements constituted perjury — motion dismissed   CIVIL PROCEDURE — Court administration — Case management — where various forms of relief are sought including case management for an appeal from the Local Court to the Supreme Court — where it would be an improper imposition on the capacity of the Court to devote time to misconceived claims — various prayers dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Oaths Act 1900 (NSW) Uncollected Goods Act 1995 (NSW)
Cases Cited:	Mohareb v Palmer [2016] NSWCA 378 Pritchard v Fryer [2017] NSWSC 1752 Pritchard v Fryer; Pritchard v Hall [2018] NSWSC 1141 Pritchard v Fryer [2019] NSWSC 947 William Wayne Moss v Luke McIlveen [2011] NSWCA 77
Category:	Procedural and other rulings
Parties:	Andrew Ronald Pritchard (plaintiff / applicant) Gregory Robert Fryer (defendant / respondent)
Representation:	Counsel: A R Pritchard (self) (plaintiff / applicant) G R Fryer (self) (defendant / respondent)   Solicitors:
File Number(s):	2016 / 90273; 2018 / 124156

Judgment

1. This is another judgment in the endless litigation between Andrew Ronald Pritchard and Gregory Robert Fryer.

2. I have not been able to work out how many judgments have been delivered by different judges of this Court in different proceedings commenced by the parties. Accordingly, I have not been able to give the title to the proceedings a number to distinguish it from all of the other judgments.

3. As I understand it, the Court has received submissions from the parties in respect of the determination of four notices of motion filed by Mr Pritchard. Those notices of motion have been filed in two separate proceedings in the Court.

Proceedings No 2016/90273

4. One of the proceedings is No 2016/90273 (the 2016 proceedings) which was commenced by Mr Pritchard. On 14 December 2017, I made an order dismissing those proceedings: Pritchard v Fryer [2017] NSWSC 1752.

5. Mr Pritchard has filed two notices of motion in those proceedings. By the first, filed on 28 June 2019, Mr Pritchard seeks orders that, if granted, would authorise him to commence a private criminal prosecution against Mr Fryer. I will explain the orders sought by Mr Pritchard in more detail below.

6. By the second notice of motion, filed on 18 February 2020, Mr Pritchard seeks an order that this notice of motion be decided before the 28 June 2019 notice of motion. The prayers in the notice of motion seek the determination by the Court of 17 different questions described as questions “of fact and law”.

Proceedings No 2018/124156

7. The second of the proceedings is No 2018/124156 (the 2018 proceedings), also commenced by Mr Pritchard against Mr Fryer. These proceedings were commenced by summons in the Common Law Division of this Court, and involve, among other things, an appeal from the Local Court of New South Wales, being also proceedings between Mr Pritchard and Mr Fryer.

8. Mr Pritchard has filed two notices of motion in the second proceedings on the same dates as the notices of motion filed in the first proceedings. The notices of motion seek relief in roughly similar terms to the respective notices of motion filed in the first proceedings.

Private criminal prosecution motions

9. The two notices of motion, which for convenience I will call the private criminal prosecution motions, came before Kunc J on 25 July 2019: Pritchard v Fryer [2019] NSWSC 947. His Honour set out s 338 of the Crimes Act 1900 (NSW) (Crimes Act), which provides:

338 Restrictions on prosecutions for perjury

(1)    A person is not to be prosecuted for perjury except—

(a)    by the Director of Public Prosecutions, or

(b)   at the direction of the Attorney General, or

(c)   by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

(2)   If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court.

(3)   A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.

10. His Honour correctly noted that, because the private criminal prosecution motion in the 2016 proceedings concerned alleged conduct by Mr Fryer in proceedings that were heard by me, I am the “judicial officer who constituted the judicial tribunal” for the purposes of s 338(1)(c) of the Crimes Act. As I was, and am, available to determine that private criminal prosecution motion, it is not impossible or impracticable for Mr Pritchard to comply with subsection (1)(c) for the purposes of subsection (2).

11. The question raised by Mr Pritchard in the private criminal prosecution motion in the 2018 proceedings is different. The alleged perjury by Mr Fryer that Mr Pritchard seeks to make the subject of the private criminal prosecution is said to have taken place before either Magistrate Keogh or Magistrate Shields. As Kunc J recorded at [13] and [14], Mr Pritchard sought directions in the Local Court that his motion for leave to commence a private criminal prosecution against Mr Fryer be heard by the magistrate who was the “judicial tribunal” for the purposes of s 338 of the Crimes Act. For reasons that were not explained to his Honour, Mr Pritchard’s motion in the Local Court was in fact heard, determined and dismissed by Magistrate Greenwood. The 2018 proceedings are an appeal to this Court from that and other decisions of Magistrate Greenwood.

12. Although it is not necessary for me to decide the private criminal prosecution motion in the 2018 proceedings, Kunc J determined that there was at least some apparent utility in my determining both of the private criminal prosecution motions. I agree. His Honour made arrangements that led to the two private criminal prosecution motions being listed for hearing before me on 6 February 2020.

13. On that date, the private criminal prosecution motions were not ready to proceed. Further, Mr Pritchard informed the Court that the Police had not formally advised him whether or not they would institute criminal proceedings against Mr Fryer in accordance with Mr Pritchard’s wishes.

14. I made an order standing the private criminal prosecution motions over to 7 April 2020 before me, for the purpose of making directions for the hearing of the notices of motion if appropriate.

15. As the private criminal prosecution motions had only been stood over for directions, and in order to avoid the difficulties that may ensue from having to conduct a directions hearing by telephone with the two unrepresented litigants, I directed the parties to provide written submissions to the Court to indicate their positions in relation to the two motions.

16. I have received submissions from Mr Pritchard in an email addressed to my associate dated 7 April 2020, Mr Fryer’s response by email of the same date, and Mr Pritchard’s email in reply dated 9 April 2020.

17. Both parties provided submissions on the basis that they were dealing with the merits of the notices of motion. Mr Pritchard advised the Court that the Police had informed him that they would not instigate criminal proceedings against Mr Fryer.

18. Upon consideration of the evidence and submissions it appears to me that it will be proper for the Court now to determine so much of the claims for relief in Mr Pritchard’s notices of motion as can properly be dealt with, on the basis that it is clear that Mr Pritchard is not entitled to the relief that he claims, and where there is no realistic possibility that the provision of additional evidence will change the outcome. It is also appropriate to deal with the notices of motion to the extent that they are misconceived or claim relief that is not properly available.

19. I have dealt with the notices of motion on that basis, and as will be seen, I have dismissed some of the notices of motion and aspects of others; but I have made positive directions as to how the parties should proceed in relation to relief to which they may be entitled, including as to the further information that should be provided.

20. As it has happened, Mr Pritchard has sent to my associate three emails with substantial attachments after the last hearing date, and also after I had substantially finished these reasons for judgment in draft. In the circumstances, I will set out below my reasons in their original form, together with the orders that I consider it will be appropriate for the Court to make. I will take that course because the additional information provided by Mr Pritchard has not caused me to alter any relevant opinion.

21. At the end of these reasons, I will provide some summary material concerning Mr Pritchard’s emails and attachments. I note that Mr Fryer has not responded to the additional material provided by Mr Pritchard.

Other notices of motion

22. I became aware of the two notices of motion filed on 28 February 2020 as a result of Mr Pritchard making submissions about those notices of motion in his 7 April 2020 email.

23. It is probable that those two notices of motion were not formally set down by the Court for hearing by me on 6 April 2020. As the parties have made submissions in respect of the relief claimed by Mr Pritchard in the notices of motion, I will deal with them now.

24. As the two notices of motion filed on 28 February 2020 are apparently intended by Mr Pritchard to be, at least in part, relevant to the determination of his private criminal prosecution motions, it will be convenient to deal with the latter motion in the 2016 proceedings first.

2016 private criminal prosecution motion

25. In the 2016 proceedings, the private criminal prosecution motion seeks the following substantive relief:

3. The Court grant leave to Mr Andrew Ronald Pritchard to issue a Court Attendance Notice to Mr Gregory Robert Fryer for a private criminal prosecution, pursuant to Section 319 of the Crimes Act NSW 1900 in relation to:

(a)   The contents of the letter of Mr Gregory Robert Fryer dated 21 April 2016 sent to Mr Andrew Ronald Pritchard [which letter appears at pages 13 and 14 at Annexure “B” of the Affidavit of Gregory Robert Fryer sworn 15 June 2016 in NSW Supreme Court case number 216/90273]; AND

(b)   The contents of the undated letter of Mr Gregory Robert Fryer purportedly sent to Mr Andrew Ronald Pritchard on 5 May 2016 [which letter appears at pages 15 and 16 of Annexure “B” of the Affidavit of Gregory Robert Fryer sworn 15 June 2016 in NSW Supreme Court case number 2016/90273]; AND

(c)   The Defendant (through his counsel, Mr Sharrock) reading the letter of Mr Gregory Robert Fryer dated 21 April 2016 onto the Court record before His Honour Robb J at the Notice of Motion hearing held on 14 August 2017 in NSW Supreme Court case number 2016/90273.

4. The Court grant leave pursuant to Sections 338(1)(c) and (2) and Sections 334 (a) and (d) of the Crimes Act NSW 1900 to Mr Andrew Ronald Pritchard, to prosecute Mr Gregory Robert Fryer for alleged perjury pursuant to Section 29 of the Oaths Act NSW 1900 and Sections 327 and 339 of the Crimes Act NSW 1900 in relation to the evidence sworn by Mr Gregory Robert Fryer at pages 13 to 16 at Annexure “B” of the Affidavit of Gregory Robert Fryer sworn 15 June 2016 in NSW Supreme Court case number 2016/90273.

26. All of the matters complained of by Mr Pritchard are alleged to have arisen out of the making and use of Mr Fryer’s affidavit of 15 June 2016 in the 2016 proceedings.

27. Prayers 3(a) and (c) refer to Mr Fryer’s 21 April 2016 letter and prayer 3(b) refers to Mr Fryer’s letter sent on 5 May 2016. As those two letters are found at pages 13 to 16 of Mr Fryer’s 15 June 2016 Affidavit, then prayer 4 also is based upon those two letters.

28. In his 15 June 2016 affidavit, Mr Fryer, at par 2, referred to the fact that he had received three notices to produce from Mr Pritchard in the 2016 proceedings and annexed copies of those notices to produce. At par 3, Mr Fryer simply said: “My replies to those Notices to Produce is annexed hereto and marked “B”.

29. The 21 April 2016 letter, after referring to the 2016 proceedings in its subject line, said:

I am in receipt of two Notices to Produce issued by you in the above proceedings.

I will not be responding to those notices for the following reasons:

1.   As explained at the first mention of the matter the pleadings in your case are deficient as to particularity and are “tabula rasa”. As such myself and the Court have no mechanism by which to determine relevance to any fact in issue.

2.    The scope of the documents sought is wide in the extreme.

3.   No witness statements have been filed.

4.    Practice Note 11 Of the Equity Division of the Supreme Court outlines the procedure if you wish to seek an Order for Discovery.

5.    It appears from the list of documents that you are seeking evidence which may be applicable to issues which you have with third parties which are not relevant to this case.

6.    It is an abuse of process to seek discovery by means of the Notice to Produce, especially when your pleadings are vague in the extreme.

Should you wish to agitate these matters, I advise that my costs will be up to the amount of $8,800.00, and that I will be seeking Costs on any interlocutory application.

I note further that I will be seeking Costs against you generally.

I also note that you continue sending me harassing emails when I have advised you of a process of communication. These matters will now be referred to Dee Why Police.

I note that on 6 January 2016 you collected some of your items, with your brother in law Walter assisting.

I note further that you have advised on more than one occasion since January 2016 that you would be attending to collect other items. You did not attend to collect on any such occasion, but now claim in those emails that I am withholding your items.

To put the record straight, you may collect your items by:

1.    Send me a list by post of the items you wish to recover.

2.    I will check that list to see if work has been done, invoiced or paid for.

3.    I will make available any item which has not been worked on for pick up, by appointment.

4.    I will make available any item which has been worked on, invoiced and paid for available for pickup.

I will be claiming a lien over any item for which work/invoice remains unpaid, noting that you already know over $4,000.00 in unpaid invoices.

I will be claiming reasonable storage rates and claiming a lien for storage on any item in my workshop after 1 May 2016. Those rates and conditions, including default disposal, will be notified to you shortly.

A copy of this letter may be produced in evidence to the Court.

30. Mr Fryer referred in his 15 June 2016 affidavit to his 21 April 2016 letter as a communication of his views to Mr Pritchard, and he did not swear as to the truth of any statement made in his letter. It was merely a response to Mr Pritchard’s service on him of the notices to produce.

31. Although some of the statements made by Mr Fryer in this letter may have been contentious, the letter was a statement of Mr Fryer’s position concerning the facts relevant to his legal position and the reasons why he did not intend to respond to the two notices to produce referred to in the letter. The letter was not prepared on the basis that it would ever constitute sworn evidence of the facts referred to in it for the use in court proceedings.

32. Mr Fryer’s undated letter at page 15 of his affidavit, upon which is written in hand writing “sent 5 May 2016”, again referred to the 2016 proceedings, and then said:

I refer to the above matter and enclose by way of service, sealed Notice of Address for service.

I note that you have supplied a third Notice to Produce (for things), however I will not be responding to same for reasons outlined in my previous letter. I repeat that I am not withholding any items, you are free to inspect and collect using the procedure outlined in my previous letter. I look forward to receiving your list, and your collection of said items.

Also in relation to my previous letter, I advise that Dee Why Police are now in possession of copies of your abusive emails, and transcripts of your abusive telephone messages. An event number has been created, and I am assured that if you continue to use the telephone and emails services to harass me, I advise them of same, and they will take action.

A copy of this letter may be produced in evidence to the Court.

33. In the same vein as the earlier letter, this letter does not contain assertions of fact intended to be used as proof in court proceedings.

34. The transcript records that, on the hearing that took place on 14 August 2017, Mr Fryer’s counsel read the 21 April 2016 letter. He did so only to establish what Mr Fryer had communicated to Mr Pritchard as to Mr Fryer’s intended response to the service of the notices to produce.

35. The hearing that took place on 14 August 2017 was substantially concerned only with the adequacy of Mr Pritchard’s pleading. Ultimately, the 2016 proceedings were dismissed because, notwithstanding that he had been given a sufficient opportunity to do so, Mr Pritchard had not pleaded a proper, or indeed intelligible, case against Mr Fryer.

36. The Court’s record of proceedings records that I nominally treated the parties’ affidavits as read, although I stated that I would only act on evidence referred to in the parties’ submissions, and would then consider the admissibility of any evidence to which objection was made. That was an unorthodox approach, but was taken in order to avoid the pointless waste of time in dealing formally with objections given that Mr Pritchard was a self-represented litigant.

37. The point of this observation is to record that Mr Fryer did not ultimately rely upon anything stated by him in either of the two letters as constituting proof for the purposes of the proceedings of any fact stated in the letters.

38. Section 319 of the Crimes Act provides: “A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years”.

39. Section 327 of the Crimes Act establishes the offence of perjury in the following terms:

327 Offence of perjury

(1)   Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.

(2)   A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.

(3)   The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.

(4)   The question of whether any matter is material to a proceeding is a question of law.

40. Section 29 of the Oaths Act 1900 (NSW) (Oaths Act) provides that: “…every person wilfully swearing falsely in any affidavit…shall be deemed guilty of perjury and shall incur and be liable to the same pains and penalties as if the person had wilfully sworn falsely in open Court in a judicial proceeding in the Supreme Court”.

41. The effect of s 339 of the Crimes Act is that any false oath declared by the Oaths Act to be perjury is to be considered to be perjury for the purposes of Part 7 Division 4 of the Crimes Act, so that it is punishable as perjury under that Act.

40. In Mohareb v Palmer [2016] NSWCA 378 the Court of Appeal said:

The legal principles

[31] The elements of the offence of perjury in s 327, each of which must be proved beyond reasonable doubt are as follows: there must be a statement made on oath; the statement must have been made in or in connection with judicial proceeding; the statement must concern a matter which is material to that proceeding; the statement must be false; and the person who made the statement must know the statement to be false or not believe it to be true: see Moss v McIlveen at [18]–[19].

[32] It is well established that the offence of perjury requires proof of deliberate falsehood. Thus in Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ stated, at 373–374, that:

“… honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved.” (footnote omitted)

[33] In R v Liristis [2004] NSWCCA 287; 146 A Crim R 547, Kirby J, Studdert and Hislop JJ agreeing, in considering whether adequate directions had been given to a jury in respect of a count of perjury, stated, at [133]:

“… the Crown was required to prove a deliberate falsehood, that is, the statement was false to the knowledge of the person who made it, at the time it was made. That message is the more easily understood if the contrast is made between a deliberate falsehood and an honest but mistaken belief. The jury should be told that the statement must be ‘purposely, deliberately or intentionally untrue’ (Murphy v Farmer (1988) 165 CLR 19 at 29, per Deane, Dawson and Gaudron JJ). An honest mistake, inadvertence, carelessness or a misunderstanding leading to a statement which is objectively untrue is not enough.

[34] In Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 the High Court, held that the word “false” in the offence in s 229(1)(i) of the Customs Act should be strictly construed as meaning “purposely or deliberately or intentionally untrue”: per Deane, Dawson and Gaudron JJ at 29. So far as is relevant for present purposes, s 229(1)(i) provided for the forfeiture to the Crown of goods in respect of which “any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced”.

[35] Here the appellant contends that the perjury was constituted by an omission. (The respect in which he says this is explained below.) He then relies on the following passages in Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 as establishing that the offence of perjury could be constituted by an omission:

“72 The trial judge observed at [32] that most criminal activity will contravene more than one legislative prohibition and relevantly, in a given area, conduct might constitute perjury and also constitute a contravention of s 319. His Honour considered that this was so in this case. His Honour’s conclusion on this is correct: see Butler v A-G (VIC) (1961) 106 CLR 268; [1961] HCA 32; Pearce v R (1998) 194 CLR 610; [1998] HCA 57; Clarkson v R [2007] NSWCCA 70.

…

76 An offence under s 319 involves the doing of an act or the making of an omission with intent in any way to pervert the course of justice. Intent may be inferred in circumstances where the conduct relied upon as the basis for the offence has an obvious or manifest tendency to pervert the course of justice: R v Rogerson (1992) 174 CLR 268; [1992] HCA 25; Meissner v R (1995) 184 CLR 132; [1995] HCA 91.”

[36] The purport of the appellant’s submission was that if the perjury could also constitute the offence of ‘pervert the course of justice’, and the latter offence could be committed by an omission with intent to pervert the course of justice, it followed that perjury could also be committed by means of an omission.

43. In William Wayne Moss v Luke McIlveen [2011] NSWCA 77 at [5], Whealy JA, with whom Handley AJA agreed, said: “The purpose of a statutory provision of the kind contained in s 338 is to prevent vexatious prosecutions”.

44. The following reasons are sufficient to justify the dismissal of Mr Pritchard’s private criminal prosecution motion in the 2016 proceedings. Mr Pritchard’s application is entirely misconceived. The criminal proceedings that Mr Pritchard seeks the leave of the Court to commence would be vexatious.

45. First, Mr Pritchard has nowhere formulated the criminal charge that he seeks the leave of the Court to prosecute against Mr Fryer with any precision, or indeed, at all. Mr Pritchard has not provided a proper basis to enable the Court to make the judgments necessary before it could give him leave to pursue any private criminal prosecution against Mr Fryer.

46. Secondly, Mr Pritchard has supported his notice of motion by his affidavit affirmed on 27 June 2019. I do not propose to analyse the contents of that affidavit at length. Putting the most favourable complexion possible on the affidavit, it attempts, by reference to aspects of the evidence that largely came into existence after the dates of the letters referred to in the notice of motion, to prove that parts of the claims made by Mr Fryer in the letters were wrong or unsubstantiated. Mr Pritchard seems to have proceeded upon the premise that it is perjury for a party to litigation to state the basis of that party’s case in writing, if the other party is able to demonstrate that any part of the case as stated is false.

47. As I have observed above, the statements made in the two letters were not made on the basis that they would be used as evidence to prove any facts in the proceedings, and they were not used for that purpose by Mr Fryer.

48. Finally, there is nothing in Mr Pritchard’s case in support of his notice of motion that even remotely establishes that any of the statements made by Mr Fryer were known to him to be false or were not believed by him to be true.

49. There is no basis whatsoever for granting Mr Pritchard the leave that he seeks in his notice of motion. Accordingly, the private criminal prosecution motion in the 2016 proceedings will be dismissed.

Other 2016 notice of motion

50. It will be convenient now to consider the 28 February 2020 notice of motion in the 2016 proceedings, which seeks orders of a substantive nature in proceedings that were, as I have explained above, dismissed by me on 14 December 2017.

51. I am satisfied that all of the questions that Mr Pritchard seeks to have answered by this notice of motion concern substantive issues that may have been relevant to the 2016 proceedings, had they been properly pleaded and been prosecuted by Mr Pritchard. The questions are not relevant in any antecedent fashion to the determination of Mr Pritchard’s private criminal prosecution. For example, prayer 3 seeks to have decided the question whether the Uncollected Goods Act 1995 (NSW) requires Mr Pritchard to provide Mr Fryer with a list of Mr Pritchard’s goods in Mr Fryer’s possession, as a prerequisite to Mr Pritchard obtaining the return of those goods. While, in his 21 April 2016 letter, Mr Fryer did ask for a list, the determination of the question is not relevant to any aspect of the private criminal prosecution motion. The same is true of all the other questions.

52. In any event, as is recorded in a number of judgments delivered by the Court, the Court has been informed that Mr Fryer redelivered Mr Pritchard’s property to him and has decided not to pursue his lien or his right to payment.

53. Consequently, an order will be made for the dismissal of Mr Pritchard’s 28 February 2020 notice of motion in the 2016 proceedings.

Summons in 2018 proceedings

54. Mr Pritchard’s summons in the 2018 proceedings seeks the following substantive relief:

1.   The file in Local Court case number 2016/343068 be brought up to this higher Court.

2.   The Court order Mr. Phillip Gregory Sharrock of counsel to comply with all of his obligations under the Legal Profession Uniform Conduct (Barristers) Rules 2015.

3. Pursuant to Section 39 of the Local Court Act NSW 2007, the Supreme Court decide the question of law as to whether Magistrate Greenwood should have heard order 3 sought in the Applicant’s (Plaintiff’s) Notice of Motion filed on 26 February 2018 in Local Court case number 2016/343068, as a consequence of order 2 sought in the Applicant’s Notice of Motion filed 26 February 2018 and Section 338(1)(c) of the Crimes Act NSW 1900.

4. Pursuant to Section 39 of the Local Court Act NSW 2007, the Supreme Court decide the question of law as to whether Magistrate Keogh (having heard the case on three previous occasions including the date on which the Respondent’s affidavit sworn 22 December 2017 was before the Local Court), should have heard order 3 sought in the Applicant’s (Plaintiff’s) Notice of Motion filed on 26 February 2018 in Local Court case number 2016/343068, as a consequence of order 2 sought in the Applicant’s Notice of Motion filed 26 February 2018 and Section 338(1)(c) of the Crimes Act NSW 1900.

5. Pursuant to Section 39 of the Local Court Act NSW 2007, the Supreme Court decide the question of law as to whether the Supreme Court should have heard order 3 sought in the Applicant’s (Plaintiff’s) Notice of Motion filed on 26 February 2018 in Local Court case number 2016/343068, as a consequence of order 2 sought in the Applicant’s Notice of Motion filed 26 February 2018 and 338(1)(c) of the Crimes Act NSW 1900.

6.   An Order that Magistrate Greenwood erred in procedural fairness, by warning/rebuking the Applicant (Plaintiff) for expressing concerns that Mr. Sharrock of counsel had misled the Court, but then refused to allow the Applicant (Plaintiff) to take the Court to the evidence to support the concerns raised by the Applicant.

7.   An Order that Magistrate Greenwood erred in apprehended bias, by warning/rebuking the Applicant (Plaintiff) for expressing concerns that Mr. Sharrock of counsel had misled the Court, but then refused to allow the Applicant (Plaintiff) to take the Court to the evidence to support the concerns raised by the Applicant.

8.   An Order that Magistrate Greenwood erred in pre-judgment, by warning/rebuking the Applicant (Plaintiff) for expressing concerns that Mr. Sharrock of counsel had misled the Court, but then refused to allow the Applicant (Plaintiff) to take the Court to the evidence to support the concerns raised by the Applicant.

9.   The Orders and judgment made by the Local Court (civil) case number 2016/343068 on 22 March 2018 in relation to Order 3 sought in the plaintiff’s (Applicant’s) Notice of Motion filed 26 February 2018, be set aside.

10.   The Orders and judgment made in the Local Court (civil) case number 2016/343068 on 22 March 2018 in relation to Costs be set aside.

11.   That portion of the Costs awarded to the Respondent (Defendant) by the Local Court on 22 March 2018 in Local Court case number 2016/343068 relating to the Applicant’s Notice of Motion filed 26 February 2018 be permanently set aside.

12.   An Order that the Respondent (Defendant) provide to the Applicant (Plaintiff) a detailed stocktake list of all items comprising the Plaintiff’s Goods (including “guitar parts”) delivered by, or on behalf of, the Applicant to the premises of the Respondent, pursuant to Section 65 of the Supreme Court Act NSW 1970 and this Court’s discretionary powers, within 5 days of these orders being made.

13. An Order pursuant to Section 65 of the Supreme Court Act NSW 1970 and this Court’s Discretionary powers, that the Respondent provide to the Applicant copies of all insurance policies taken out since January 2016 by the Respondent over: the Goods and Chattels delivered by, or on behalf of, the Applicant to the premises of the Respondent (the “Goods”). The Respondent is also to provide to the Applicant copies of all communications between the Respondent and his insurance companies relating to the Goods and insurance policies. All documents to be provided within 5 days of these orders being made.

14. An Order pursuant to section 65 of the Supreme Court Act NSW 1970 and the discretionary powers of this Court, that if the Goods are uninsured, not fully or properly insured, or insured for a value (sic) than $250,000.00, that the Respondent provide to this Court an unconditional Bank Guarantee in the sum of $250,000.00 to ensure the safety of the Goods. The Bank GUArantee is to remain in place until either the Respondent properly and fully insures the Goods (for a minimum value of $250,000.00) or until finalisation of any Local Court proceedings pursuant to Part 2 of the Uncollected Goods Act NSW 1995 (including any appeal process).

15. An Order pursuant to Section 65 of the Supreme Court Act NSW 1970 and the discretionary powers of this Court, that the Respondent is invited to file an application in Manly Local Court pursuant to Part 2 of the Uncollected Goods Act NSW 1995, within 7 days of these orders being made, which application (if it is made) is to include the following Orders/matters to be sought by the Respondent and to be decided by the Local Court:

(a)   whether the Goods are “uncollected goods” as defined by Section 5(a) of the Act;

(b)   that the allegedly uncollected goods be sold by public auction; and

(c)    that the “relevant charges” (including all Tax Invoices issued by Mr. Fryer for “work” and for “storage” and the costs of insurance) be paid from the proceeds of sale of the option; and

(d)   that the Local Court make an appropriate Order regarding any excess money or Goods.

16. An order pursuant to Section 66 of the Supreme Court Act NSW 1970 and the discretionary powers of this Court, that if the Respondent opposes Orders 12, 13, 14 and 15 or should the Respondent fail to comply with Orders 12, 13, 14 and 15 (including failing to file an application in the Local Court pursuant to Part 2 of the Uncollected Goods Act NSW 1995, an injunction to stay the payment by the Applicant of all Costs awarded in the following proceedings:

(a)   Local Court case number 2016/343068; and   

(b)   District Court (case number 2016/343068 transfer Local Court proceedings); and

(c)   Supreme Court case number 2017/200426

Including any Writ for Levy of Property and Examination Notice, until such time as the Respondent complies with Orders 12, 13, 14 and 15.

17.   Costs of these proceedings.   

18.   Such other orders as the Court thinks fit.   

Grounds:

19. The Learned Magistrate (Magistrate Greenwood) erred in law by failing to have Order 3 of the Applicant’s Notice of Motion filed 26 February 2018, heard by Magistrate Keogh or otherwise heard by the NSW Supreme Court, as required by Section 338(1)(c) of the Crimes Act NSW 1900.

20.   The learned Magistrate (Magistrate Greenwood) erred in procedural fairness, by failing to read the Crimes Act NSW 1900, specifically Sections 338, 334 and 327.

21.   The learned Magistrate (Magistrate Greenwood) erred in pre-judgment by failing to read the Crimes Act NSW 1900, specifically Sections 338, 334 and 327.

22.   The learned Magistrate (Magistrate Greenwood) erred in apprehended bias, by failing to read the Crimes Act NSW 1900, specifically Sections 338, 334 and 327.

23.   The learned Magistrate (Magistrate Greenwood) erred in procedural fairness and/or apprehended bias and/or pre-judgment, by warning/rebuking the Applicant for raising concerns that Mr. Sharrock of counsel may have misled the Court, but then refused to allow the Applicant to take the Court to the evidence to support the concerns raised by the Applicant.

24.   The learned Magistrate (Magistrate Brender (sic)) was reckless or otherwise erred in procedural fairness and/or apprehended bias and/or pre-judgment, by accepting, on face value, the assertion by Mr. Sharrock of counsel on 6 April 2017 that the Applicant’s goods held in the premises of the Respondent are “fully insured” by the Respondent, without requiring any evidence of same to be provided to either the Applicant or the Court.

2018 private criminal prosecution motion

55. Mr Pritchard’s private criminal prosecution motion in the 2018 proceedings seeks the following relief:

2. This Notice of Motion to be heard in accordance with Section 338(1)(c) of the Crimes Act 1900 (NSW).

3. The Court grant leave pursuant to Sections 338(1)(c) and 338(2) and Sections 334(a) and (d) of the Crimes Act 1900 (NSW) to Mr. Andrew Ronald Pritchard, to prosecute Mr Gregory Robert Fryer for alleged perjury pursuant to Section 29 of the Oaths Act 1900 (NSW) and Sections 327 and 339 of the Crimes Act 1900 (NSW) in relation to the evidence sworn by Mr. Gregory Robert Fryer at paragraph 8 of the affidavit of Mr Gregory Robert Fryer sworn 22 December 2017 in the NSW Local Court case number 2016/343068, specifically that the Plaintiff “has been supplied with inventory is upon request” by the Defendant.

56. Mr Pritchard’s affidavit, affirmed on 27 June 2019 in support of this notice of motion, is word for word identical to his affidavit affirmed in support of his private criminal prosecution motion in the 2016 proceedings. That is so even though the latter motion seeks an order under s 338 of the Crimes Act in respect of evidence given by Mr Fryer in this Court, while the former motion is in support of an appeal to this Court from a decision of a magistrate in the Local Court.

57. In his 7 April 2020 email submissions, Mr Pritchard requested an open-ended leave to file further affidavits in support of his motions. I reject that request. Mr Pritchard has had more than enough time to provide the evidence that he wishes to put before the Court in support of his notices of motion. Mr Pritchard has not identified the new evidence that would be the subject of any further affidavit. The Court does not have proper grounds for further deferring the determination of the notices of motion.

58. The private criminal prosecution motion in the 2018 proceedings does not ask for relief sought, or consistent with the relief sought, by Mr Pritchard in the summons in the 2018 proceedings. Mr Pritchard asks this Court to make an order under s 338(2) of the Crimes Act, when it is evident from prayers 3 to 5 of Mr Pritchard’s summons that Magistrate Greenwood dismissed his application in the Local Court for leave to commence private criminal proceedings against Mr Fryer. Had the application not been dismissed, Mr Pritchard would not have needed to file his summons in this Court.

59. As things stand, there is an extant order of the Local Court dismissing Mr Pritchard’s leave to commence private criminal proceedings against Mr Fryer in respect of evidence prepared for the purposes of that Court. This Court should not, and perhaps cannot, make an order granting leave inconsistently with the Local Court order while that order is still in force.

60. Mr Pritchard’s private criminal prosecution motion should be dismissed because it is premature. It would be necessary for Mr Pritchard to prosecute his appeal, as contained in his summons, and then, only if the appeal succeeded and the Local Court’s order was set aside, the occasion would arise for Mr Pritchard to ask this Court to make the order that he seeks under s 338(2) of the Crimes Act. That should not be done by notice of motion in the 2018 proceedings, but the summons should be amended to seek that relief.

61. Unfortunately, Mr Pritchard has not put before this Court any evidence about what actually happened in the Local Court. It appears from Mr Pritchard’s private criminal proceeding motion in the 2018 proceedings that he complains about a specific statement, allegedly made by Mr Fryer, that Mr Pritchard had been supplied with inventories upon request made by Mr Fryer, at par 8 of his affidavit of 22 December 2017 in the Local Court proceedings. The Court has not been given a copy of that affidavit.

62. That may be unfortunate, because if Mr Pritchard’s desire to prosecute private criminal proceedings against Mr Fryer in relation to what happened in the Local Court proceedings is as misconceived as the equivalent desire in respect of the 2016 proceedings in this Court, then all that has happened and will happen in relation to the aspect of the 2018 proceedings, in relation to the application for leave, will be an expensive and tedious waste of time on the part of the Court and the parties.

56. Mr Pritchard has not put any evidence before the Court concerning the involvement of Magistrates Keogh or Shields in the Local Court proceedings. Nor has he provided any adequate explanation of the role of Magistrate Greenwood.

57. If it is the case that Magistrate Greenwood dismissed Mr Pritchard’s application for leave to commence private criminal proceedings against Mr Fryer under s 338(1)(c) of the Crimes Act, but that magistrate did not constitute the Local Court, then it would seem that Magistrate Greenwood probably made an error of law, because s 338(1)(c) would not authorise Magistrate Greenwood to decide the matter. Only this Court could make an order under s 338(2).

58. The problem is that Magistrates Keogh and Shields are still listed as active magistrates, so that, even if in this Court Mr Pritchard succeeded in obtaining an order setting aside whatever order was made by Magistrate Greenwood, this Court could not make a substitute order under s 338(2) without first being satisfied by evidence as to which, if any, magistrate was the relevant “judicial officer” for the purposes of s 338(1)(c), and then being satisfied that it was impossible or impracticable for Mr Pritchard to apply for leave to the relevant magistrate.

59. It is likely that Mr Pritchard could only prove that it was impossible or impracticable to apply for leave to Magistrate Keogh or Magistrate Shields, as the case may be, by making a competent application to the Local Court and obtaining evidence of a result that established that either magistrate was simply not available for some reason, or that, by reason of the relevant magistrate’s duties, there was an impediment to that magistrate determining the application for leave that could reasonably be described as impracticable.

60. Given the present terms of Mr Pritchard’s private criminal prosecution motion in the 2018 proceedings, Mr Fryer is entitled to an order for its dismissal at this time.

Other 2018 notice of motion

68. The final notice of motion that requires determination is Mr Pritchard’s 28 February 2020 notice of motion in the 2018 proceedings.

69. That notice of motion seeks the following substantive relief:

2.   The Court vacate Order 28(1) made by His Honour Kunc J on 23 July 2018.

3.   Alternatively, the Court grant leave to hear this Notice of Motion pursuant to Order 28(1) made by His Honour Kunc J on 23 July 2018.

4.   Directions for the filing of evidence and submissions for the Summons (Appeal) be made immediately, notwithstanding any Notice of Motion filed by, or requested to be filed by, the Defendant (Respondent).

5.   Any attempt by the Defendant (Respondent) to seek security for costs be disallowed by the Court.

6.   The Court decide the questions of fact and law:

Whether the statements made by Mr. Sharrock (acting on behalf of his client) to the Local Court on 22 March 2018 are false or misleading, by reference to, inter alia:

(a)   the Transcripts at Annexures “A” and “B” of the Affidavit of the Applicant affirmed 5 June 2018; and

(b)   the Applicant’s Affidavit affirmed and filed 5 June 2018 in these proceedings; and

(c)   the Applicant’s Affidavit filed 1 February 2019 in these proceedings.

7. After the questions of fact and law the subject of Prayer 6 above are decided by the Court, the Court grant leave to the Applicant to file a claim pursuant to Section 99 of the Civil Procedure Act NSW 2005.

[Refer: Prayer 4(b) of the Applicant’s Notice of Motion filed 5 June 2018.]

8.   After the questions of fact and law the subject of Prayer 6 above are decided by the Court, the Court make the Orders the subject of Prayers 7 and 8 of the Applicant’s Notice of Motion filed 1 February 2019.

9.   The Court make appropriate orders in relation to the hearing of the substantive matters, as a consequence of this interlocutory application.

70. Order 28(1) made by Kunc J on 23 July 2018, as referred to in prayer 2 of the notice of motion, is – I now realise having come to this point in these reasons for judgment – in the following terms:

28.   In proceedings 2018/124156 the Court orders that:

(1) These proceedings are stayed pending the determination of the proceedings for which leave has been granted in proceedings 2018/63434 and referred to as the Uncollected Goods Act proceedings or further order of the Court.

71. That order was made by Kunc J in his decision in Pritchard v Fryer; Pritchard v Hall [2018] NSWSC 1141. As his Honour explained, he had before him three proceedings instituted by Mr Pritchard and two other proceedings between the parties. Kunc J, with respect, correctly described what he had before him as “a procedural mess”: at [5]. It will be obvious from these reasons for judgment that I am in a similar position. As Kunc J explained at [6], his objective in sorting out the various proceedings was to achieve the result that the claim at the heart of the dispute would be dealt with by the Court, before any other extraneous proceedings.

72. Mr Fryer is a luthier to whom Mr Pritchard had delivered a number of guitar parts and guitars for repair or other work. Mr Pritchard wanted his property returned. Mr Fryer was prepared to return the property, but only after Mr Pritchard paid for the work done; in respect of which Mr Fryer claimed a lien. His Honour observed at [8] that he proposed to achieve the result by making appropriate case management orders that Mr Pritchard would be restrained from commencing or prosecuting any proceedings in the Court save for the principal proceedings.

73. Kunc J dealt with the various proceedings as follows:

1. Proceedings 2018/63434. These proceedings were dismissed and Mr Pritchard was ordered to pay Mr Fryer’s costs in the gross sum of $1,800, inclusive of GST, in respect of a motion dealt with by Pembroke J. Kunc J made an order that Mr Pritchard pay Mr Fryer’s costs in respect of the balance of the proceedings on the indemnity basis. His Honour made an order prohibiting Mr Pritchard from commencing any new proceedings on similar grounds. Finally, his Honour made directions for Mr Fryer to commence new proceedings in the Court under s 18 of the Uncollected Goods Act 1995 (NSW), for the purpose of resolving the real dispute between the parties.

2. Proceedings 2018/151411. These proceedings were dismissed on substantially the same basis as proceedings 2018/63434. However, in this case the gross sum costs order against Mr Pritchard in respect of a notice of motion dealt with by Pembroke J was $3,000, inclusive of GST. Again, an order was made in favour of Mr Fryer for the balance of his costs of the proceedings against Mr Pritchard on the indemnity basis.

3. Proceedings 2016/90273. These proceedings had already been concluded at the time of the hearing before Kunc J. The only order made by his Honour was a gross sum costs order in favour of Mr Fryer against Mr Pritchard in respect of a notice of motion dealt with by Pembroke J for $1,200 inclusive of GST.

4. Proceedings 2018/124156. That is the 2018 proceedings now before the Court. Kunc J described these proceedings as being “almost completely incompetent, subject to the technical possibility of an appeal being available in relation to some costs orders made in the Local Court”. Mr Fryer was represented by Mr Sharrock of counsel before Kunc J. It may be that his Honour was better informed of the true circumstances of the Local Court proceedings than I have been by the parties’ email submissions. Kunc J recorded at [19]: “… Mr Pritchard helpfully accepted that the complaint that is really driving this appeal would almost certainly fall away if the underlying dispute between the parties is resolved”. As I have explained above, the Court has been informed that the underlying dispute was resolved by Mr Fryer returning Mr Pritchard’s property to him and not pursuing his claim for his fees. It appears that Mr Pritchard was not good for his word. As set out above, the only order made by Kunc J was to stay the proceedings.

5. Proceedings 2018/59275. These proceedings introduced a new defendant, Mr Hall. The proceedings were dismissed. It is not necessary to consider them further.

74. As I understand the evidence, Mr Pritchard has not paid any of the costs that Kunc J ordered him to pay. Nor has Mr Pritchard paid the gross sum costs of $40,400 that I ordered him to pay, by order 2 made on 14 December 2017 proceedings 2016/90273, at the time of the dismissal of those proceedings.

75. Mr Fryer has attempted to use this Court’s procedures to obtain payment of the costs to which he is entitled. That included the issue of an arrest warrant for Mr Pritchard by Lindsay J on 21 November 2018, for the purpose of securing his attendance for examination as a judgment debtor. The Court has been told that, notwithstanding Mr Pritchard’s forced attendance before the Court, it has not facilitated payment by Mr Pritchard of the amounts that he owes to Mr Fryer under the various judgments.

76. In the result, Mr Pritchard is not entitled to prosecute the 2018 proceedings until the determination of what Kunc J described as the Uncollected Goods Act proceedings or further order of the Court. On the assumption that I am right in my understanding that Mr Fryer’s claims the subject of the Uncollected Goods Act proceedings have been abandoned, then as a technical matter these proceedings are no longer stayed because, relevantly, the other proceedings have been determined.

77. If that is correct, then the need for the Court to vacate order 28(1) made by Kunc J on 23 July 2018, as sought in prayer 2 of the 2018 notice of motion, does not arise. For a similar reason, the alternative prayer 3 need not be considered.

78. In this context, however, in his email submissions made on 7 April 2020, Mr Fryer submitted that the 2018 proceedings should be stayed until Mr Pritchard has paid all of the costs that this Court has ordered him to pay, as well as a costs order said by Mr Fryer to have been made in his favour by the District Court in proceedings 2016/343068, and by the Local Court in proceedings 2016/343068.

79. As Mr Fryer first made this application informally on 7 April 2020, it will be appropriate for the Court to make case management orders to deal with it, before the Court deals with the substantive claims made by Mr Pritchard in the 2018 proceedings.

80. It may be relevant to Mr Fryer’s application for a stay that, as I have recounted above, Mr Pritchard secured the advantage of having Kunc J make the orders on 23 July 2018, which required Mr Fryer to commence the Uncollected Goods Act claim, on the basis of Mr Pritchard’s statement to his Honour that it would not be necessary to pursue the 2018 proceedings once the Uncollected Goods Act claim had been determined. That will be a matter for evidence.

81. Strictly, it may be that the directions for filing of evidence and submissions for the purpose of the hearing of the claims for relief in the summons in the 2018 proceedings should not be made until after the issue of the stay sought by Mr Fryer has been determined. However, I propose at the end of these reasons, to make a restricted order specifying information that Mr Pritchard will be required to provide to the Court and Mr Fryer, for the purpose of allowing the Court to determine whether Mr Pritchard has an arguable case on his appeal from the Local Court, or whether the summons in that respect should be dismissed.

82. The Court will dismiss prayer 5 of the 2018 notice of motion, as there is no basis for it to pre-empt any application by Mr Fryer for security for costs, before he has made such an application.

83. The Court will also dismiss prayers 6 to 8 of the 2018 notice of motion. For equivalent reasons to those that caused the Court to dismiss Mr Pritchard’s prayers in his motion in the 2016 proceedings for the Court to decide questions of fact and law. Mr Pritchard has not demonstrated any basis for a claim that the determination by the Court of an allegation that Mr Sharrock, acting for Mr Fryer, made any false or misleading statements has any relevant connection with Mr Pritchard’s appeal to this Court from the Local Court, or any of the other relief sought in the summons in the 2018 proceedings.

84. As to prayer 9 in the 2018 notice of motion, the Court will not now make case management orders for the hearing of the relief sought in the summons, save for the limited orders to which I have referred above.

Consideration of 2018 summons

85. I will now return to a consideration of the prayers for relief in the summons, other than those prayers that are directly connected to Mr Pritchard’s appeal to this Court from the Local Court.

86. I do so on the basis that, in a case such as the present, where the parties are self-represented, the Court has power to control the implementation of its procedures to prevent the perpetuation of misconceived claims. This is particularly so in circumstances where otherwise there would be an improper imposition on the capacity of the Court to devote its time to the timely and efficient determination of cases between other parties that are before the Court.

87. First, prayer 2 seeks an order that Mr Sharrock comply with his obligations under the Legal Profession Uniform Conduct (Barristers) Rules 2015. Mr Sharrock would be a necessary party and he has not been joined. The Court could not possibly make an order against Mr Sharrock in the general terms sought. In any event, it has come to the Court’s attention that Mr Sharrock has not renewed his practising certificate and is no longer in practice as a barrister. Prayer 2 of the summons will summarily be dismissed.

88. Prayers 3 to 5 may possibly raise questions of law for which Mr Pritchard has an appeal as of right to this Court. As mentioned, I will make a direction that requires Mr Pritchard to provide specific information to the Court to enable it to understand the basis of these claims.

89. Prayers 6 to 8 will be dismissed. I consider that it is not reasonably arguable that Magistrate Greenwood failed to give procedural fairness to Mr Pritchard, was guilty of apprehended bias, or pre-judged the claim before her, by reason of nothing more than that she warned or rebuked Mr Pritchard for his conduct in the proceedings before her Honour.

90. Prayer 9, seeking the setting aside of the Local Court’s order on 22 March 2018, may remain, as it is sufficiently related to the relief sought in prayers 3 to 5. That is also the case for prayer 10, which relates to the costs order in the Local Court.

91. Prayers 12 to 16 will be dismissed. It will be remembered that Kunc J stayed the 2018 proceedings, until what his Honour called the Uncollected Goods Act claim was determined. All of these prayers raise issues connected with that claim, albeit obliquely in most cases. As the Uncollected Goods Act proceedings are no longer being pursued, there is no basis for these prayers for relief to remain on foot.

Orders

92. For the reasons given above, the Court makes the following orders in the two proceedings now under consideration:

Proceedings No 2016/90273

1. The plaintiff’s notice of motion filed on 28 June 2019 is dismissed.

2. The plaintiff’s notice of motion filed on 18 February 2020 is dismissed.

3. The plaintiff is ordered to pay the costs of the defendant in respect of the determination of the notices of motion referred to in orders 1 and 2.

Proceedings No 2018/124156

1. The plaintiff’s claims in prayers 2, 6 to 8 and 12 to 16 of his summons are dismissed.

2. The plaintiff’s notice of motion filed on 28 June 2019 is dismissed, without prejudice to the right of the plaintiff to apply to amend his summons in the proceeding to seek relief equivalent to that sought in the notice of motion at such time as it may be appropriate for the Court to consider that claim for relief.

3. In respect of the plaintiff’s notice of motion filed on 28 February 2020:

1. The plaintiff’s claims in prayers 2, 3 and 5 to 8 are dismissed.

2. Order that the plaintiff file and serve within 21 days of the making of these orders, an affidavit that provides the following information concerning the relief sought by the plaintiff in prayers 3 to 5 of his summons; the grounds in prayers 19 to 24 of his summons; and prayers 4 and 9 of his notice of motion filed on 28 February 2020:

1. Copy of the affidavit of the defendant sworn on 24 December 2017 in NSW Local Court Case No 2016/343068 (the Local Court proceedings) as referred to in prayer 4 of the plaintiff’s notice of motion filed on 27 June 2019.

2. Copy of any other material or evidence produced by the defendant in respect of which the plaintiff asserts that the defendant committed perjury in or for the purposes of the Local Court proceedings.

3. All evidence on which the plaintiff relies to establish that any material or evidence produced by the defendant referred to in sub-orders (i) and (ii) constituted perjury by the defendant.

4. All documents filed or tendered by the plaintiff or the defendant or issued by the Local Court in the Local Court proceedings relevant to the issue of whether Magistrate Keogh or Magistrate Shields was the judicial officer who constituted the judicial tribunal before which any perjury alleged by the plaintiff to have been committed by the defendant was committed for the purposes of s 338(1)(c) of the Crimes Act 1900 (NSW) (Crimes Act).

5. All documents filed or tendered by the plaintiff or the defendant or issued by the Local Court in respect of the application by the plaintiff in the Local Court for an order granting leave to the plaintiff under s 338 of the Crimes Act to prosecute the defendant for perjury.

6. Any judgment issued by the Local Court in the Local Court proceedings, whether in respect of the parties’ claims for relief or the plaintiff’s claim for leave under s 338 of the Crimes Act to prosecute the defendant for perjury.

3. Order the defendant, if he wishes to apply for a stay of these or any other proceedings in this Court brought by the plaintiff, until the plaintiff has paid to the defendant all amounts payable under any costs order made by this or any other Court against the plaintiff in favour of the defendant, to file and serve within 14 days of the making of these orders a notice of motion and affidavit in support, together with any written submissions the defendant wishes to make, in support of the application.

4. Order the plaintiff, if he wishes to oppose any application made by the defendant in accordance with sub-order (c), to file and serve within a further 14 days his affidavit, together with any written submissions the plaintiff wishes to make, in opposition to the application.

5. Note that the Court will deal with any application by the defendant made in accordance with sub-order (c) on the papers, unless the Court is persuaded by any application made by the parties in their written submissions that it is appropriate for the Court to list the application for oral submissions.

4. Order the plaintiff to pay the defendant’s costs in respect of the prayers for relief in the summons and the plaintiff’s notices of motion in so far as those prayers have been dismissed.

Mr Pritchard’s subsequent emails

93. As I have explained above, Mr Pritchard sent to my associate the following emails and attached materials after the parties delivered the submissions and evidence upon the basis of which I have made the orders set out above.

Email dated 9 April 2020

94. Mr Pritchard made further submissions in response to Mr Fryer’s submissions to the effect that Mr Fryer had made statements that were misleading to the Court.

95. Mr Pritchard also attached documents related to trademarks owned or claimed by Fender Music Australia Pty Ltd (Fender). The first was a letter dated 31 March 2020 from Mr Pritchard to Fender. The letter asserted that Fender does not have any registered trademarks over particular guitar body shapes. Mr Pritchard asked for confirmation that Fender did not object to any guitar bodies owned by Mr Pritchard. The second was a letter dated 29 March 2020 addressed by Mr Pritchard to the solicitors for Mr Phillip Sharrock, a former barrister who had previously represented Mr Fryer. The letter asked for confirmation that Mr Sharrock gives certain notifications concerning Mr Pritchard’s entitlement to own certain guitars without contravening trademarks owned by Fender. Thirdly, Mr Pritchard attached a statement apparently published by Mr Sharrock on 8 June 2017 concerning a piece of music performed by Mr Sharrock and others. The fourth document was a letter written by Mr Pritchard to Mr Fryer on 29 March 2020 that requested that Mr Fryer withdraw his claims that certain guitars owned by Mr Pritchard breached registered trademarks owned by Fender. Fifthly, Mr Pritchard attached an opinion of the United States Patent and Trademark Office dated 25 March 2009, in which the United States corporation related to Fender was apparently the respondent, and which refused registration of certain trademarks. The sixth document is a list dated 5 April 2017 of guitars and guitar-related items owned by Mr Prichard and stored by Fryer Guitars in its workshop. The seventh document is a letter from Mr Pritchard to Fender dated 3 April 2020, which again sought an acknowledgement that certain guitars owned by Mr Pritchard did not infringe trademarks owned by Fender, by reference to the sixth document, and also the eighth document, which was a list of guitars and guitar-related items owned by Mr Pritchard and stored in the Fryer Guitars workshop. Finally, Mr Pritchard attached extracts of ss 148 to 151 of the Trade Marks Act 1995 (Cth).

94. Any background dispute between Mr Pritchard, Mr Fryer, Mr Sharrock and Fender concerning possible trademarks owned by Fender in relation to guitars owned by Mr Pritchard has no relevance to the issues dealt with in these reasons for judgment.

Email dated 2 June 2020

97. Mr Pritchard attached to his email a letter dated 15 May 2020 addressed to a Commander at Dee Why Police Station in which Mr Pritchard made submissions as to why Mr Fryer should be charged by the Police for criminal offences, and supported the submissions by attaching various communications. Mr Pritchard submitted to the Police that a statement made by Mr Fryer in a letter sent on 5 May 2016 that he was not withholding any items from Mr Pritchard was dishonest, false or misleading and dishonest deception of the Court.

98. The submissions that Mr Pritchard has seen fit to make to the Police do not affect the conclusions that I have reached and stated above.

Email dated 15 June 2020

99. Mr Pritchard made a number of obscure submissions concerning an affidavit of Mr Fryer filed on 17 September 2018 in this Court in proceedings 2018/282469 commenced by Mr Fryer against Mr Pritchard, a memoir by Mr Fryer in Local Court proceedings 2016/367860, and a letter dated 26 April 2012 between solicitors in relation to an apparent application by Mr Fryer for an apprehended violence order against Mr Pritchard.

100. In the covering email, Mr Pritchard made numerous assertions leading up to allegations that Mr Fryer had committed perjury, extortion and had attempted to pervert the course of justice.

101. I have read the material, but it does not affect the conclusions that I have reached and expressed above.

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Amendments

23 June 2020 - Par 92 (6)(c) line 2 "defendant" changed to "plaintiff", line 3 "plaintiff" changed to "defendant"

Decision last updated: 23 June 2020