Pritchard v Fryer

[2018] NSWSC 689

Supreme Court

New South Wales

Medium Neutral Citation:	Pritchard v Fryer [2018] NSWSC 689
Hearing dates:	16 May 2018
Decision date:	16 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [7].
Catchwords:	PRACTICE AND PROCEDURE – purported service in a courtroom by a litigant in person who was unaware of the impropriety of such conduct – declaration that service invalid – order for substituted service made to avoid impasse between the parties   COSTS – application for costs on an indemnity basis refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98(4) Uniform Civil Procedure Rules 2005 (NSW) r 10.14
Category:	Procedural and other rulings
Parties:	Andrew Ronald Pritchard (Plaintiff) Gregory Robert Fryer (Defendant)
Representation:	Counsel: Plaintiff in person P Sharrock (Defendant)   Solicitors: None
File Number(s):	2018/124156

Judgment – EX TEMPORE

1. Andrew Pritchard (the plaintiff) filed a summons on 19 April 2018. He seeks relief against Gregory Fryer (the defendant). The summons was returnable before the Registrar today at 9 am.

2. When the matter came before the Registrar earlier this morning, Mr Sharrock of counsel, who appears by leave (direct access) on behalf of the defendant, disputes service on the basis that the plaintiff handed the statement of claim to the defendant in a court room. Mr Sharrock has informed me, and this is not disputed, that the plaintiff purported to serve the defendant by handing him a sealed copy of the summons on 23 April 2018 in Court 11E. Although the rules do not specifically provide that service of a document cannot occur in a courtroom, the common law rule to that effect is well established. Accordingly, Mr Sharrock has submitted that I should not confirm service on 23 April 2018, it having been at least a potential contempt of court for service to be attempted to be effected in that fashion. Mr Sharrock has submitted that the appropriate course is for me to set aside the purported service.

3. I have proposed that one way of dealing with the apparent impasse between the parties is to make an order for substituted service pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 10.14. It would appear to me that this is preferable to the rather undignified alternative of having the plaintiff follow the defendant out of court and serve him as soon as he gets out to Queens Square.

4. I have consulted the parties with a view to obtaining their agreement as to a further return date for the summons. The date of 13 June 2018 has been proposed. It appears to me that that is an acceptable date and takes account of the fact that, although the defendant has had a copy of the summons and full notice of its content of the summons since 23 April 2018, he will only be effectively served today.

Costs

5. The defendant has applied for an order that the plaintiff pay his costs of today. As today's hearing was occasioned by the plaintiff's unwitting breach of the law, it is appropriate that he be obliged to pay the defendant's costs of today. Mr Sharrock seeks costs on an indemnity basis and submitted that such an order would mark the seriousness of the plaintiff’s conduct. It does not appear to me, having regard to what Mr Pritchard has said, that it is appropriate that costs be ordered on an indemnity basis. Accordingly, they will be ordered on the ordinary basis.

6. I note that Mr Sharrock has foreshadowed that an application will be made pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). The defendant is at liberty to make such application in future once the documentary material to support such application is to hand.

Orders

7. For the foregoing reasons, I make the following orders:

1. Declare that the plaintiff’s purported service of the defendant with the statement of claim in Court 11E on 23 April 2018 was invalid.

2. Direct the plaintiff to send an email to the defendant at his email address [address in final orders on file] by 4pm today, with the summons filed on 19 April 2018 attached as an electronic document.

3. Order that service as provided for in order (2) above will be effective service of the statement of claim.

4. Amend the return date of the summons to 13 June 2018.

5. Stand the matter over to the Registrar's list at 9am on 13 June 2018.

6. Order the plaintiff to pay the defendant’s costs on the ordinary basis.

7. Note that the defendant proposes to apply for an order that the costs referred to in (6) above be specified in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW).

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Decision last updated: 17 May 2018