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Pritchard v Fryer

Pritchard v Fryer

Case [2017] NSWSC 1752 14 December 2017

Summary Judgment

Costs

Dismissal of Proceedings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Pritchard v Fryer [2017] NSWSC 1752
Hearing dates: 18 April 2017 and 14 August 2017
Date of orders: 14 December 2017
Decision date: 14 December 2017
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff’s claim is dismissed.
(2) The plaintiff is to pay the defendant’s costs in the gross sum of $40,400.
Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where plaintiff failed to provide a properly pleaded statement of claim.
COSTS — Costs assessment — Determination — Application for gross sum costs order — Where plaintiff abandoned claim for relief sought in summons — Where plaintiff denied leave to file a statement of claim seeking alternate relief.
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(4)(c)
Cases Cited: Hamod v New South Wales [2011] NSWCA 375
Category: Procedural and other rulings
Parties: Andrew Pritchard (plaintiff)
Gregory Fryer (defendant)
Representation:
Counsel: P Sharrock (defendant)

The plaintiff appeared in person.
Solicitors:

File Number(s): 2016/90273

Judgment

This judgment is concerned with the determination of a number of notices of motion filed by the parties. It will only deal with the relief sought in the motions that was the subject of submissions at the hearing. The plaintiff, in particular, sought many orders that will not need to be considered after the primary issues have been resolved. The issues are, in substance, whether the Court should dismiss the plaintiff’s proceedings, or whether it should give the plaintiff a further opportunity to file a statement of claim, after the defendant has been required to provide the plaintiff with certain information. It will also be necessary to consider the costs order that should be made in these proceedings.
At all times the plaintiff, Mr Prichard, has appeared as an unrepresented litigant. The defendant, Mr Fryer, has been represented by a barrister, Mr Philip Sharrock, on a direct access basis.
As will be explained in more detail below, Mr Prichard no longer seeks the relief against Mr Fryer that he initially sought in his summons. The Court has already refused Mr Prichard leave to file one draft statement of claim. On 18 April 2017, the Court ordered Mr Prichard to serve any further draft statement of claim by 16 May 2017. Mr Prichard seeks an order setting aside that order, and a further order giving him an extended time to serve his draft statement of claim. If the Court rejects that claim by Mr Prichard, Mr Fryer seeks an order dismissing Mr Prichard’s claim on the basis that he no longer seeks the relief in his summons, and he has not pleaded any alternative claim for relief.
Mr Fryer also seeks an order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that his costs of the proceedings be paid by Mr Prichard on a gross sum basis. Mr Fryer submitted that Mr Prichard’s conduct would justify the Court in ordering that he pay Mr Fryer’s costs…

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 Pritchard v Fryer

Details

AGLC: Pritchard v Fryer [2017] NSWSC 1752
Case: [2017] NSWSC 1752
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the matter of Pritchard v Fryer, the plaintiff, Pritchard, sought to initiate legal proceedings against the defendant, Fryer, to recover damages for alleged defamatory statements made by Fryer. The proceedings were before the Federal Circuit and Family Court of Australia. The case centred on whether the plaintiff had disclosed a reasonable cause of action in his pleadings and whether the costs incurred should be assessed in a particular manner.

The primary legal issues for the court to determine were whether the plaintiff's initial summons disclosed a reasonable cause of action and whether the plaintiff was entitled to a costs order in the form of a gross sum. The court had to consider the sufficiency of the summons as a pleading and assess the plaintiff's entitlement to seek costs under the circumstances.

The court found that the summons did not disclose a reasonable cause of action as it lacked the necessary particulars to substantiate the claim. Furthermore, the plaintiff had abandoned the claim for relief sought in the summons and had been denied leave to file a statement of claim seeking alternate relief. Consequently, the court dismissed the proceedings for lack of a reasonable cause of action and declined to grant the plaintiff a gross sum costs order, instead assessing costs in the usual manner.

The court's decision effectively ended the plaintiff's attempt to pursue legal action against the defendant and ensured that the costs were not disproportionately awarded to the plaintiff under the circumstances.

Orders