Pritchard v Fryer

History of Proceedings

1. The plaintiff commenced proceedings in the Local Court on 16 November 2016 seeking the return of goods held by the defendant to which he claimed an entitlement. The goods comprised guitars of various styles, guitar accessories and guitar parts ("the goods").
2. The defendant manufactures and repairs guitars. In his Defence filed on 13 December 2016, he admitted to holding the goods at his premises. He claims a lien over the goods by reason of unpaid invoices issued to the plaintiff for work done on the goods and for their storage.
3. On 25 January 2017 the proceedings were listed for callover in the Local Court. On that occasion, on the plaintiff's application, leave was granted for him to file and serve an Amended Statement of Claim. The orders made on that date are as follows: 1. Plaintiff to file and serve an Amended Statement of Claim on or before 22 February 2017. 2. The defendant to file and serve his Amended Defence on or before 22 March 2017. 3. Matter listed for mention on 29 March 2017.
4. The plaintiff did not file an Amended Statement of Claim on or before 22 February 2017, or at all.
5. On 20 March 2017 the plaintiff filed a Notice of Motion in the Local Court seeking to set aside the orders made by the Court on 25 January 2017. The following orders were sought: 1. That the Orders made by the Court on 25 January 2017 be set aside. 2. That the defendant provide to the plaintiff a comprehensive inventory of all goods owned by the plaintiff which have been delivered by, or on behalf of, the plaintiff to the defendant, within 7 days of these orders being made. 3. That the defendant provide to the plaintiff a comprehensive inventory of all goods the subject of order 2 above which have been forfeited to the defendant, within 7 days of these orders being made. 4. That the defendant provide to the plaintiff a comprehensive inventory of all goods the subject of order 2 above which have been disposed of by the Defendant, and all details of such disposal, within 7 days of these orders being made. 5. That the defendant serve upon the plaintiff all outstanding tax invoices in connection with the work executed by the defendant for the plaintiff for the period from 1 January 2012 to the date of this Notice of Motion, within 7 days of these orders being made. 6. That the defendant notify the plaintiff in writing of the "terms of the bailment" [refer Section 5(a) of the Uncollected Goods Act NSW 1995] for each and every item of the Goods the subject of order 2 above, within 7 days of these orders being made. 7. That the defendant give access to the Defendant's premises for the plaintiff to inspect the Goods the subject of Order 2 above, within 7 days from the provision of the Inventory the subject of Order 2 above, for litigation purposes and in order for the plaintiff to conduct his own audit of the Goods owned by the plaintiff and to ascertain the condition of those Goods. 8. That the defendant seek to obtain a letter from Fender Music Australia Pty Limited (ACN 613 081 191) ("FMA") granting formal permission from FMA as the registered owner of the registered and common law trademarks allegedly applicable to certain of the Goods the subject of Order 2 above, for the Defendant to use the FMA trademarks in advertisements, catalogues, brochures, point of sale material, banners, or in any other manner offering for sale or selling the Goods bearing the FMA trademarks. The defendant is to seek such permission from FMA within 7 days of these orders being made. 9. That the defendant be invited to file an application in the Local Court pursuant to Part 2 of the Uncollected Goods Act NSW 1995, within 14 days of these orders being made, which must include full pleadings and full particulars for the "relevant charges" [refer Section 10 of that Act]. The application is to include the Goods the subject of all outstanding Tax Invoices in accordance with Order 5 above. 10. That the defendant provide to the plaintiff a sworn statement certifying: (a) that the defendant has not used any MWS Pickup Winding Wire owned by the plaintiff (as identified in Pritchard email dated 5 January 2017) for himself or for any other persons; and (b) that the Defendant will note use any of the MWS Pickup Winding Wire owned by the Plaintiff (as identified in Pritchard email dated 5 January 2017) for himself or any other persons. 11. That should the defendant be unable to obtain the permission from Fender Music Australia Pty Limited as required by Order 8 above within 14 days of these Orders being made, that the court orders that the Goods for which Fender Music Australia Pty Limited own the registered and/or common law trademarks cannot be disposed of by the defendant by public auction or private sale, and instead may only be disposed of by the defendant by being delivered to the plaintiff. 12. An order pursuant to UCPR 28.2, for a declaration that section 26 of the Uncollected Goods Act NSW 1995 does not apply to the Goods the subject of these proceedings, as a consequence of the application of section 19 of that Act. 13. An order pursuant to UCPR 28.2, for a declaration that Part 3 of the Uncollected Goods Act NSW 1995 does not apply to the Goods the subject of these proceedings, as a consequence of the application of section 19 of that Act. 14. Should the defendant fail to comply with, or oppose, order 9 above - and as a result of the questions decided as a consequence of Orders 12 and 13 above - a declaration that: (a) the defendant has thus far failed to deal with the Goods properly in accordance with the terms of the Uncollected Goods Act NSW 1995; and (b) the representations made by the Defendant in his issued Tax Invoices and his letter dated 2 March 2017 - that the Defendant is purportedly dealing with the Goods in accordance with the Uncollected Goods Act NSW 1995 - is a misleading and deceptive representation; and, further (c) the representations made by the respondent in the Aide Memoire prepared by him in relation to Local Court case number 2016/367860 and handed up to the Magistrate on 18 January 2017 - that the Defendant was purportedly dealing with the Goods in accordance with both section 26 and Part 3 of the Uncollected goods Act NSW 1995 - are misleading and deceptive representations. 15. That should the defendant fail to comply with any of the Orders 2 to 10 above, that the plaintiff may apply to the Court for the immediate delivery of all of the goods owned by the plaintiff and which have been delivered to the defendant, and that the plaintiff shall be the sole arbiter of the items that constitute such goods. 16. That the defendant provide an unconditional bank guarantee to the Court in the sum of $100,000.00 to secure the safety of the Goods until final determination of the proceedings. 17. Indemnity costs. 18. Such other orders as this Court deems fit, having particular regard to UCPR 28.4.
6. The Notice of Motion was heard on 6 April 2017. The plaintiff and defendant appeared.
7. The Court made the following orders on that occasion: 1. Amended Statement of Claim, and all affidavits in support of plaintiff's claim, to be filed and served by 27 April. 2. Defence to Amended Statement of Claim, any cross claims, and all affidavits in support of Defence, to be filed and served by 25 May. 3. Defendant's evidence to include a reasonably detailed list of all plaintiff's goods currently held. 4. Note undertaking of defendant that he has not disposed of any of the plaintiff's goods and he will not do so prior to the hearing, reserving all questions of storage charges. 5. Stood over for review on 6/6, and for allocation of a hearing date. 6. Motion otherwise dismissed. 7. Reserve all questions of costs. 8. Note cross claim is not required in law. 9. Note current lien claimed is: • $22,000 storage to 1 Oct 2016; • Further amounts for storage to be quantified and served as part of the evidence. • $36,098 being amounts claimed in an invoice to [illegible].
8. The plaintiff did not file an Amended Statement of Claim on or before 27 April 2017 or at all. Accordingly, the defendant was relieved of the obligation to file and serve any defence or cross-claim or to otherwise comply with the orders made on 6 April 2017.
9. On 6 June 2017 the proceedings were listed for a directions hearing before Keogh LCM in accordance with the orders made on 6 April 2017. There was no appearance for the plaintiff. In circumstances where the plaintiff had not appeared to prosecute his claim; where there was no explanation for his non-attendance; and where he had twice failed to comply with the Court's directions, the defendant submitted he was entitled to an order that the Statement of Claim, as originally filed, be dismissed.
10. In considering the defendant's submissions, the Court admitted into evidence a transcript of a recording left by the plaintiff on the defendant's answering machine on 21 May 2017. That transcript was in evidence before this Court. In the Local Court it was tendered through the defendant. The defendant gave the following evidence: EXAMINATION-IN-CHIEF BY MR SHARROCK Q. Mr Fryer, could you please state your full name, address and occupation for the Court record, please? A. My full name is Gregory Robert Fryer. My address is [the defendant's address]. My occupation is a luthier or guitar repairer. Q. The clerk has just put a document there. Can you tell the Court what that document is and how it came into being, please - sorry, you are the defendant in these proceedings, is that correct? A. Yes. Q. If you could explain that document to her Honour. A. This is a transcript I made of an answering machine message that was left by Mr Pritchard. Q. On what date? A. 21 May 2017. HER HONOUR: You are seeking to tender that? SHARROCK: Yes, in one moment, your Honour. Q. Is it true or not true that you have kept the original recording on your answering machine of that? A. Yes, it is true. EXHIBIT #1 MR FRYER'S TRANSCRIPT OF WHAT WAS SAID TO HIM IN ANSWERING MACHINE RECORDING TENDERED, ADMITTED WITHOUT OBJECTION. HER HONOUR Q. It was clear that Mr Pritchard was well aware of today's date? A. Correct. Q. And he indicated that he wasn't going to take any part in these proceedings? A. Yes. Q. Along with a number of other things that he indicated in that conversation? A. Correct. THE WITNESS WITHDREW
11. The transcript of the answering machine message reads as follows: Alright Greg listen to me very carefully. I'm not going to take any further part in either of the legal proceedings, but I tell you what mate, your car is marked. [It would appear that the other "legal proceedings" to which the plaintiff referred were proceedings commenced in the Equity division of this Court in which the plaintiff sought specific performance of a contract between the plaintiff and defendant for the manufacture of a device to eliminate the hum produced by electric guitars. The plaintiff's Statement of Claim in those proceedings was dismissed and the plaintiff was ordered to pay the defendant's costs on a gross sum basis]. You fucking set out to destroy my life, and you're going to fucking pay for it… [inaudible]. You haven't showed any fucking decency, do you have any idea what you've done to my parents? You are a fucking piece of shit, just give my fucking goods back and let me get on with my life you bastard. You won't do that so you forced me to take action against you. You are a fucking evil cunt and you're going to fucking pay, you will pay buddy. You are a fucking [inaudible], same as Sharrock, Sharrock is fucked as well.
12. After considering the transcript of the answering machine message, Keogh LCM gave the following reasons for dismissing the Statement of Claim: In the circumstances I note that there is no appearance. There is no explanation for [the plaintiff's] non-attendance other than that in fact he does not intend to take any part in these proceedings. Previous directions have not been complied with. Those directions were made on 25 January and 6 April. The current statement of claim does not disclose the cause of action. The statement of claim is dismissed.

Grounds of Denial of Procedural Fairness

1. The plaintiff contends that in dismissing the Statement of Claim, the learned Magistrate failed to afford him procedural fairness on three grounds, particularised in the Summons as follows ("the pleaded failures"): (a) The failure to order the Defendant to provide to the Plaintiff a detailed stocktake list of all of the Plaintiff's items in the possession of the Defendant; (b) The failure to order access for the Plaintiff to the premises of the Defendant to enable the Plaintiff to conduct an audit of the Plaintiff's Goods for litigations purposes; (c) The failure to make Order 8 of the Notice of Motion of the Plaintiff filed in the Local Court on 20 March 2017.

Ground (a)

1. On the hearing of the plaintiff's Notice of Motion on 6 April 2017, Brender LCM ordered that the defendant file an Amended Defence and all affidavits in support of that Amended Defence, by 25 May 2017. The Amended Defence and evidence was only to be filed in response to the filing of an Amended Statement of Claim on or before 27 April 2017. Her Honour also ordered that the defendant's evidence was to contain "a reasonably detailed list of all plaintiff's goods currently held". Had the plaintiff filed an Amended Statement of Claim, the defendant would have been obliged to serve a detailed list of the plaintiff's goods held by him. However, the defendant was relieved of that obligation given the plaintiff's election not to file an Amended Statement of Claim in which a reformulated cause of action based on the detained goods might have been prosecuted.
2. In these circumstances it is difficult to see how any complaint about the Court's alleged failure to order the defendant to provide a detailed stocktake list of the items in his possession is in breach of the Court's obligation to afford to the plaintiff procedural fairness in dealing with the defendant's application that the Statement of Claim be dismissed. Any practical disadvantage that the plaintiff may have encountered in reformulating his claim as a consequence of being unable to properly particularise the goods which he sought to have the defendant return was a practical disadvantage entirely of his own making.

Grounds (b) and (c)

1. As is clear from the learned Magistrate's reasons in [22] above, neither of the matters in grounds (b) and (c) have any relationship with the reasons her Honour gave in dismissing the Statement of Claim. Each of grounds (b) and (c) refer in terms to orders 7 and 8 respectively of the plaintiff's Notice of Motion of 20 March 2017 which was heard on 6 April 2017. The plaintiff appeared on the hearing of that Notice of Motion and, save for the orders made on 6 April 2017 (as set out in [17]), his Honour dismissed the Notice of Motion.
2. Fundamental to her Honour's decision on 6 June 2017 to dismiss the Statement of Claim was the plaintiff's failure to appear on that date to prosecute his claim; his apparent desire (as reasonably ascertained from the transcript of the answering machine message) to take no further part in the proceedings; his failure to comply with the directions of the Court on 6 April 2017; and ultimately that the Statement of Claim, as filed, did not disclose a cause of action.
3. None of the pleaded grounds on the basis of which it is contended that procedural fairness was denied is made out.
4. At the hearing of the Summons the plaintiff contended that there were additional bases upon which he claims to have been denied procedural fairness.

His failure to attend the hearing on 6 June 2017 was due to illness

1. The plaintiff claimed that he did not appear on 6 June 2017 due to ill-health, and that the dismissal of the Statement of Claim in those circumstances denied him procedural fairness.
2. In respect of his claim of ill-health, the defendant deposed, at paragraphs 22 and 23 of his affidavit of 30 August 2017, to the following: 22. Between January 2017 and 6 June 2017, I have been admitted to hospital on three (3) occasions. On all three occasions I have required surgery. Two of the three occasions have been emergency admissions. 23. Additionally, I have suffered from a recurrence of an inflammation of the lungs. I will hand up to the Court a letter from my doctor. Mr. Fryer is aware of this condition, as it first occurred in 2009. I was unable to attend Court on 6 June 2017 as a result of this ill health.
3. Notwithstanding the matters to which the plaintiff deposes, on the hearing of the Summons he did not tender any correspondence or report from his medical practitioner or any other evidence of his ill-health or incapacity on 6 June 2017, whether as a result of hospital admission or otherwise.
4. In any event, the question with which this Court is concerned is not whether the plaintiff was suffering from ill-health and unable to attend the Local Court on 6 June 2017, but whether Keogh LCM, having regard to the information before her, denied the plaintiff procedural fairness in dismissing the Statement of Claim in his absence.
5. There is no evidence before this Court that her Honour knew, ought to have known, or had any reason to suspect that the plaintiff was unwell on 6 June 2017 and that his absence might be explained on that basis. In any event, the possibility that he may have been unwell was considered by her Honour as the transcript of the hearing of 6 June 2017 reflects. HER HONOUR: It would only interest me if in fact [the plaintiff] indicated that he was sick or that you knew that there was some particular difficulty he had but if he didn't have any difficulty and he was just going to indicate, for instance, that he couldn't be bothered attending then he has shown that by not attending. SHARROCK: I usually expect to see an email, preferably with a medical certificate or a death certificate or something, some communication with the Court. HER HONOUR: No, I haven't got - did he indicate he was not well or something like that? SHARROCK: No, it is quite an unprintable communication if it pleases, your Honour.
6. The plaintiff offered no explanation for the failure to adduce evidence in this Court of his ill-health on 6 June 2017. In the absence of such evidence, his evidence that he was unwell on 6 June 2017 carries no weight.

The defendant misled the Court on 6 June 2017 in respect of evidence that he gave concerning a Summons filed in the District Court

1. The plaintiff submitted that the defendant misled the Court on 6 June 2017 by: 1. Failing to inform the Court of the discussions he had with the plaintiff's process server on 5 June 2017; and, 2. Failing to inform the Court that a Summons had been filed in the District Court of New South Wales.
2. On 1 June 2017 the plaintiff filed a Summons in the District Court seeking to transfer the Local Court proceedings to that Court. The proceedings the subject of that application are identified as the Statement of Claim as originally filed, that is, the Statement of Claim in its unamended form as dismissed by Keogh LCM on 6 June 2017.
3. On 5 June 2017 Malcolm Hill, a licensed process server, attempted to effect service of the Summons on the plaintiff. The following is deposed to in Mr Hill's affidavit: 6. I did on 5 June, 2017 receive a return call from the said Gregory Robert Fryer at 7.10 p.m. and the following conversation ensued: - Hello. - Hello it's Greg Fryer here. You left a message for me to call you. - Yes that's right Greg. I have been asked to serve a District Court Summons upon you by Andrew Pritchard. He asked me to give you a call to arrange a time and place for service. - What documents are these? - It's a Summons in the District Court. It is apparently to have some Local Court Proceedings that are running, removed from the Local Court into the District Court. I didn't know you had any Local Court Proceedings with him. I've only ever served you with Supreme Court stuff. - Yes there is a Local Court matter. - Well what would be convenient time and place where I can deliver this summons to you? - Well just at the moment I'm not all that interested in making myself available. The conversation ended shortly thereafter.
4. On the basis of the conversation to which Mr Hill deposes, it can reasonably be surmised that the defendant had some awareness of the plaintiff's intention to transfer the Local Court proceedings to the District Court, and some awareness that the plaintiff had filed a Summons in the District Court to effect that result.
5. While in his evidence before the learned Magistrate the defendant did not refer to the plaintiff's apparent intention to transfer the Local Court proceedings to the District Court, and was not asked by his counsel about his discussions with the process server the previous day, he was under no obligation to disclose his understanding of the plaintiff's intentions. It was for the plaintiff to prosecute his claim, inclusive of advising the Local Court of his intention to bring an application to transfer the proceedings to another court of competent jurisdiction. For reasons that have been previously discussed, the plaintiff had no reasonable excuse for his failure to attend the Local Court on 6 June 2017 and no reasonable excuse for failing to advise the Court of his intentions.
6. It follows that I am not persuaded that the defendant misled the Court in any respect on 6 June 2017.

The defendant continued to issue invoices following the filing of the Statement of Claim in the Local Court

1. Finally, the plaintiff complained that the defendant raised numerous invoices - "at least 16" - in respect of the goods the subject of the claim in the Local Court following the filing of the Statement of Claim on 16 November 2016. He submitted in this Court that the raising of these further invoices prevented him from filing the Amended Statement of Claim pursuant to the grants of leave on 25 January 2017 and 6 April 2017.
2. The plaintiff failed to articulate, in any intelligible way, what bearing the raising of invoices after 16 November 2016 had on the learned Magistrate's decision to dismiss the Statement of Claim on 6 June 2017. The plaintiff repeatedly stated that the invoices were fraudulent and that the raising of fraudulent invoices constituted patent evidence of the defendant's tortious conduct, yet conceded that he did not amend his Statement of Claim to include any pleading in respect of the tort of deceit or to commence proceedings in the District Court to prosecute such a claim. At the time that the Statement of Claim was dismissed the only cause of action was for the return of goods and as her Honour found, it was incompetently pleaded.
3. Not only was the defendant at liberty to raise further invoices following the filing of the Statement of Claim in the Local Court on 16 November 2016, the Notice of Motion heard and determined on 6 April 2017 contemplated that that may occur by reason of the orders made for the filing and service of a cross-claim. The raising of those further invoices did not trespass upon the plaintiff's ability to file an Amended Statement of Claim. Moreover, I am not satisfied that raising further invoices has any relevance at all to the decision of 6 June 2017 which the plaintiff seeks to have set aside and, accordingly, it is of no relevance to the relief the plaintiff seeks.

Findings and conclusions

1. The evidence before me does not establish the pleaded failures to afford procedural fairness to the plaintiff, nor does it support the grounds advanced by the plaintiff at the hearing.
2. A decision to enter judgment adverse to a party in the party's absence is a discretionary judgment obliging the Court to inform itself that the pre-requisites of procedural fairness, including the dictates of natural justice, are met. It is a decision that will only be set aside where the discretion was based upon the incorrect application of principle, was not exercised judicially, or where it can be shown to have resulted in gross injustice. I am not persuaded that errors of this kind infected the Magistrate's decision.

Orders

1. I make the following orders: 1. The Summons is dismissed. 2. The Notice of Motion is dismissed. 3. The plaintiff is to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2018