Pritchard v Fryer; Pritchard v Fryer
[2019] NSWSC 947
•25 July 2019
Supreme Court
New South Wales
Medium Neutral Citation: Pritchard v Fryer; Pritchard v Fryer [2019] NSWSC 947 Hearing dates: 25 July 2019 Date of orders: 25 July 2019 Decision date: 25 July 2019 Jurisdiction: Equity Before: Kunc J Decision: Notices of motion adjourned
Catchwords: CRIME - Public justice offences – Perjury – Requirement for private individual to obtain leave to bring proceedings - Crimes Act 1900 (NSW), s 338(1)(c) Legislation Cited: Crimes Act 1900 (NSW)
Uncollected Goods Act 1995 (NSW)Category: Procedural and other rulings Parties: Andrew Ronald Pritchard (Plaintiff)
Gregory Robert Fryer (Defendant)Representation: A Pritchard (Litigant in person – plaintiff)
G Fryer (Litigant in person – defendant)
File Number(s): 2016/90273; 2018/124156 Publication restriction: No
EX TEMPORE Judgment (REVISED)
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This judgment deals with the further case management of an ongoing dispute between the plaintiff in both of these proceedings, Mr Andrew Pritchard, and the defendant, Mr Gregory Fryer. At the moment both gentlemen are unrepresented. However, Mr Fryer has informed the Court that he has applied for legal aid. He asks for an adjournment - to which Mr Pritchard consents - to enable that application to be considered and, in the event of it not being successful, for him to look for pro bono representation.
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That is one of the reasons why the Court will adjourn both sets of proceedings to 25 September 2019 before the registrar. However, it is necessary to provide some further details of why I am adopting this course, not least for the benefit of judicial officers who may have to consider the next steps in these proceedings after me.
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The original dispute between Mr Pritchard and Mr Fryer concerned work said to have been done by Mr Fryer on guitars and guitar parts owned by Mr Pritchard. That dispute has been before the Local Court and this Court on many occasions over a number of years.
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In earlier attempts to case manage these proceedings I made orders which were intended to bring the original dispute concerning the guitars and guitar parts to a final determination. This involved granting Mr Fryer leave to commence proceedings in this Court under the Uncollected Goods Act 1995 (NSW) ("UCA"). The original dispute appears now to have been largely resolved by Mr Fryer returning the guitars and guitar parts to Mr Pritchard and renouncing any claim for payment in respect of work he may have done.
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That renunciation has been given legal effect by Robb J granting Mr Fryer leave to discontinue his proceedings under the UCA. Unfortunately, that is not the end of the matter because Mr Pritchard continues to press a cross-claim in those proceedings against Mr Fryer.
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Another piece of background to what the Court is doing today is that Mr Fryer is the beneficiary of a number of costs orders against Mr Pritchard for a sum in excess of $70,000. Those costs orders include orders made by this Court, against which Mr Pritchard has not appealed.
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In reliance on those costs orders, Mr Fryer has caused a bankruptcy notice to be served on Mr Pritchard. Mr Pritchard has applied in the Federal Court of Australia for that notice to be set aside. I am informed by the parties that Mr Pritchard's application to set aside Mr Fryer's bankruptcy notice has been fixed for hearing before Yates J in the Federal Court of Australia on 18 September 2019.
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Two notices of motion have brought these proceedings back to the attention of the Court today. They are to the same effect but rely upon different facts.
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In proceedings 2018/124156, Mr Pritchard has filed a notice of motion on 28 June 2019 which prays for leave pursuant to section 338(1)(c) of the Crimes Act 1900 (NSW) (the "Act") to bring a private prosecution against Mr Fryer for alleged perjury. The perjury is alleged to have occurred before either or both of Magistrate Keogh or Magistrate Shields in the Local Court ("the alleged Local Court perjury").
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In proceedings 2016/90273, Mr Pritchard has filed a notice of motion on 28 June 2019 for leave under section 338(1)(c) of the Act to prosecute Mr Fryer for perjury alleged to have been committed before Robb J in proceedings in this Court ("the alleged Supreme Court perjury").
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Section 338 of the Crimes Act provides:
"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."
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It is clear from s 338(1)(c) of the Act that Mr Pritchard's notice of motion in relation to the alleged Supreme Court perjury must be heard by Robb J. That is because Robb J is "the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed". Mr Pritchard accepts as much and has informed the Court that he wishes have his notice of motion listed for determination before Robb J.
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The position in relation to the alleged Local Court perjury is less clear. That is because, by notice of motion filed on 26 February 2018 in the Local Court, Mr Pritchard sought precisely the same leave as he now seeks in proceedings 2018/124156. As part of that Local Court notice of motion, Mr Pritchard sought directions that the motion be heard by Magistrate Keogh or Magistrate Shields. This demonstrates that Mr Pritchard understood how s 338(1)(c) of the Act operates. However, for reasons which are not apparent to me at the moment, Mr Pritchard's motion in the Local Court was in fact heard, determined and dismissed by Magistrate Greenwood. Proceedings 2018/124156 are an appeal to this Court from that and other decisions of Magistrate Greenwood.
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Mr Pritchard's application for leave under s 338(1)(c) of the Act in relation to the alleged Local Court perjury has therefore not been determined by "the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed". Mr Pritchard says that he may wish to contend that the events which have happened, as I have described them in the preceding paragraph, are sufficient to demonstrate that it is "impossible or impracticable to apply for leave to prosecute in accordance with subsection (1)(c)" such that the prosecution may be instituted with the leave of this Court pursuant to s 338(2) of the Act. I express no view one way or the other about the merits of that proposition.
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Given that Mr Pritchard's notice of motion in relation to the alleged Supreme Court perjury must be heard by Robb J, there is at least some apparent utility in Mr Pritchard's motion in relation to the alleged Local Court perjury being heard at the same time assuming Mr Pritchard can satisfy the statutory threshold for this Court to consider that application.
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For this reason, I will give Mr Pritchard leave to approach the registrar to obtain a date for the hearing of both of his motions before Robb J. However, I wish to make it perfectly clear that it will be entirely a matter for Robb J as to whether his Honour thinks it is appropriate for him to hear Mr Pritchard's motion in relation to the alleged Local Court perjury.
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Finally, nothing should happen in either set of proceedings until after the hearing before Yates J in the Federal Court of Australia on 18 September 2019. Standing the matters over until after that date will also give Mr Fryer the time he needs to obtain legal representation on one basis or another.
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For these reasons, I will list both matters for directions before the Registrar on 25 September 2019. At that time whatever has happened in the proceedings before Yates J can also be taken into account in the further management of these matters, including the fixing of Mr Pritchard's motions for hearing before Robb J.
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Decision last updated: 25 July 2019
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