Before the Court today are several proceedings, all of which concern a dispute between Mr Andrew Pritchard (the plaintiff) and Mr Gregory Fryer (the defendant).
The underlying dispute that has given rise to a plethora of litigation in this and other courts concerns guitars and related equipment (the "Guitars") which are currently held by Mr Fryer. Putting the matter neutrally, Mr Pritchard claims that he is entitled to the return of the Guitars. It is unnecessary for me to set out in these reasons any more about the history or basis of the dispute concerning the Guitars other than to say that the legal mechanism for its ultimate resolution is, by common agreement, the making of an application by Mr Fryer against Mr Pritchard under the Uncollected Goods Act 1995 (NSW) (the "Act").
On 6 June 2018 in Pritchard v Fryer (unpublished), a judgment delivered in three of the proceedings that are before me, Pembroke J dismissed three notices of motion brought by Mr Pritchard against Mr Fryer. At the conclusion of his reasons, his Honour said:
"30. In each of those three applications I order the plaintiff to pay the defendant's costs of the application. It is appropriate to order that the costs be paid on a gross sum basis. That has occurred, I was informed, in every matter in which the plaintiff has failed in this Court and in the Local Court. I have arranged with the Chief Judge in Equity for the defendant's three applications for gross sum cost orders to be heard by Kunc J on 23 July 2018. I stand over each of these proceedings to that date. The defendant should file and serve his evidence in support of the applications for gross sum costs order by 30 June 2018. The defendant should give consideration to whether he should apply for an order declaring the plaintiff to be a vexatious litigant."
That is how three of these proceedings came to be before me today. In the interests of the timely and cost effective administration of justice, two other sets of proceedings to which I have referred (but which were not before Pembroke J) have also been listed before me today. As I will go on to explain, in four of those proceedings Mr Fryer has filed notices of motion seeking the peremptory dismissal, stay or other disposal of those proceedings and orders (whether in the inherent jurisdiction of the Court or under the Vexatious Proceedings Act 2008 (NSW) (the "VP Act")) restraining Mr Pritchard from commencing further proceedings against Mr Fryer in an endeavour to bring to an end what has been described as a torrent of litigation.
I intended to conduct today as an extended directions hearing to bring order to what can only be described, without disrespect to any of the parties, as a procedural mess. As a result of the exchanges between the Court and Mr Pritchard (who appeared for himself) and Mr P Sharrock of Counsel (who appeared on direct access brief for Mr Fryer and also for a Mr Damon Hall, whose role I shall explain in due course) the Court is able to make a number of substantive orders disposing of some of the proceedings and directions to progress what remains. However, it is important to make three things clear about the outcome of today.
First, the overriding intention of the orders that I will in due course pronounce is to bring on for hearing the ultimate dispute between the parties, namely the question of entitlement to the Guitars, through the medium of an application under the Act. Mr Pritchard has made it clear that what he wants in order to bring this disputation to an end is to get the Guitars back. Mr Fryer has indicated, through his counsel, that he accepts that the determination of that issue is the only way in which the litigation between him and Mr Pritchard has any realistic prospect of concluding.
Second, and consistent with the attitude to which I have just referred, Mr Fryer has not pressed today for relief in the nature of a stay of the various proceedings pending Mr Pritchard's payment of various outstanding costs orders. That attitude, if I may respectfully say so, represents an entirely sensible recognition of the fact that only if the ultimate question in relation to the Guitars is determined is there any hope that this litigation will come to an end. However, I wish to make it clear that nothing I am doing today is intended to pre-judge or forestall any later application by Mr Fryer in relation to such rights as he may have by reason of the outstanding costs orders.
Third, and similarly to the preceding point, Mr Fryer has not pressed for orders under the VP Act. However, as will become apparent, in order to keep a tight rein on the dispute between the parties and to ensure that there is only one forum for the resolution of their dispute (unless there is some very good reason otherwise), I propose to exercise the inherent jurisdiction of the Court to confine Mr Pritchard to the proceedings for which I propose to grant leave under the Act. The orders that I will make are intended to ensure that Mr Pritchard commences no other proceedings in relation to his dispute with Mr Fryer without leave of the Court until the resolution of the proceedings under the Act or further order. Those orders are made to facilitate the appropriate case management of the one set of proceedings that will now go forward under the Act to resolve the real issues in dispute between these parties.
It is now necessary for me to say something about each set of proceedings and to give brief reasons for the orders that I will make in each of those proceedings.
[2]
Proceedings 2018/63434
This is one of the proceedings in which Pembroke J disposed of a notice of motion and indicated that a gross sum costs order should be made in favour of Mr Fryer. The Court has received evidence of Mr Sharrock's costs which it regards as satisfactory and, allowing for an appropriate discount (against which Mr Sharrock did not wish to be heard) an order will be made for Mr Fryer's costs to be paid in the sum of $1800 inclusive of GST.
The Court also has before it Mr Fryer's notice of motion filed 11 April 2018 seeking, inter alia, that the summons be dismissed pursuant to UCPR r 13.4 and a notice of motion filed 25 June 2018 seeking, in the alternative to the earlier motion, a stay pending payment of all outstanding costs, or a permanent stay and an order preventing Mr Pritchard from bringing other proceedings. Much of the relief set out in that latter motion is now not pressed in accordance with what I have said in paragraphs [7] and [8] above.
Insofar as the dismissal of the summons is concerned, it is clear from its terms that as a stand-alone claim, the summons would have to be dismissed because it seeks declarations and orders which the Court would simply not make. Nevertheless, the Court accepts that the summons is an attempt to agitate matters which Mr Pritchard wishes to raise in connection with any claim under the Act. I propose to dismiss the summons but in a way that will ensure that Mr Pritchard is entitled to raise those matters in the claim that is to be brought under the Act. Whether the matters to be raised by Mr Pritchard will be raised by way of defence, cross-claim or cross-summons are matters which I have indicated will be discussed at the first directions hearing in the proceedings to be brought under the Act.
In dismissing the summons, I will make a series of orders that are intended to facilitate the bringing of the proceedings under the Act and to deal with the prohibition on Mr Pritchard of bringing other proceedings pending the determination of the proceedings under the Act. The basis for making this lastmentioned order is that I am well satisfied from even the most superficial examination of the various files before me that, rightly or wrongly, Mr Pritchard has demonstrated an extraordinary propensity to file multiple proceedings in connection with his dispute with Mr Fryer about the Guitars. It is in nobody's interests for that propensity to be allowed to continue while the Court gets on with sorting out the real dispute between the parties.
Finally, insofar as the gross sum costs order does not cover Mr Fryer's costs of the proceedings including the two notices of motion referred to in paragraph [11] above, he is to have those costs from Mr Pritchard on the indemnity basis.
[3]
Proceedings 2018/151411
Again in these proceedings, there is an order to be made pursuant to what occurred before Pembroke J on 6 June 2018. I am satisfied on the basis of evidence provided by Mr Sharrock of his costs, and applying an appropriate discount (against which Mr Sharrock did not wish to be heard), that an order should be made for a gross sum costs order of $3000 inclusive of GST.
The summons in these proceedings suffers from the same kinds of vices as in proceedings 2018/63434 to which I have referred above. The Court has before it a motion filed by Mr Fryer on 25 June 2018 seeking, inter alia, the dismissal of these proceedings. The Court will accede to that motion on the basis that, once more, Mr Pritchard is not prevented from seeking to rely on the matters raised in the summons in his response to the proceedings to be brought under the Act.
It will also follow that with the dismissal will come an order that to the extent the gross sum costs order does not cover Mr Fryer's costs of the proceedings (including the motion referred to in the preceding paragraph), he is to have those costs paid by Mr Pritchard on the indemnity basis.
[4]
Proceedings 2016/90273
The only role these proceedings played before me today (because they are otherwise concluded) related to making a costs order pursuant to what had occurred before Pembroke J on 6 June 2018. I am satisfied on the basis of evidence provided by Mr Sharrock of his fees and making an appropriate discount (against which Mr Sharrock did not wish to be heard), an order should be made for Mr Fryer's costs to be paid by Mr Pritchard in the sum of $1200 inclusive of GST.
[5]
Proceedings 2018/124156
These proceedings purport to be an appeal from decisions of the Local Court. The appeal seems to me to be almost completely incompetent, subject to the technical possibility of an appeal being available in relation to some costs orders made in the Local Court. Having regard to the potential complexity of explaining some of the issues that would need to be considered in summarily disposing of the summons, and taking a practical approach to the problem, I do not propose to dispose of these proceedings today. 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.
I note for completeness that the Court also had before it in these proceedings a motion from Mr Fryer filed on 25 June 2018 seeking the summary dismissal of the summons and other forms of alternative relief of the kind which I have canvassed in relation to the earlier proceedings. I am satisfied that the proper course today as a matter of case management is to stay these proceedings pending resolution of the proceedings under the Act or further order.
[6]
Proceedings 2018/59275
These proceedings introduced a new defendant, Mr Damon Hall, who was Mr Fryer's solicitor. As I have already indicated, Mr Sharrock appears for Mr Hall. The Court has before it a motion filed on 14 March 2018 by Mr Hall seeking summary dismissal of the summons or various alternative relief similar to that sought by Mr Fryer in the other proceedings.
As with the summons in the first two sets of proceedings which I have dealt with above, the summons in these proceedings is incompetent because it contains a series of declarations which the Court would never make and in relation to which I am satisfied Mr Hall is not the appropriate party in any event. Again, however, the Court accepts that the matters which the summons seeks to agitate are all matters which are matters that Mr Pritchard may wish to raise in relation to the proceedings that are to be brought under the Act.
After some discussion, Mr Pritchard, if I may respectfully observe, very sensibly accepted the invitation extended to him by Mr Hall through Mr Sturrock to consent to the dismissal of the summons with an order for costs on the indemnity basis, but on the basis that Mr Pritchard would be free to raise the allegations made in the summons in the proceedings to be brought under the Act.
[7]
Orders
The orders in the five proceedings are as follows.
In 2018/63434 the Court's orders and directions are:
1. The plaintiff is to pay the defendant's costs of the motion disposed of by Pembroke J on 6 June 2018 assessed in the gross sum of $1,800 inclusive of GST.
2. The summons is dismissed but without prejudice to the plaintiff's right to raise the issues canvassed in the summons in the proceedings for which the leave is granted in order (5) below (the "Uncollected Goods Act proceedings").
3. Insofar as the defendant's costs of the summons and notices of motion filed 11 April 2018 and 25 June 2018 have not been disposed of by order (1), the plaintiff is to pay the defendant's costs of the summons and those notices of motion on the indemnity basis.
4. Until the determination of the Uncollected Goods Act proceedings or further order of the Court, the plaintiff is restrained from commencing proceedings in any court or tribunal (other than by a claim in the nature of a defence, cross-claim or cross-summons in the Uncollected Goods Act proceedings) against any of the defendant, his counsel Mr P Sharrock, or Mr D Hall without leave of a judge of the Supreme Court.
5. Leave is granted to the defendant under s 18 of the Uncollected Goods Act 1995 (NSW) to commence fresh proceedings in this Court against the plaintiff pursuant to that Act by filing and serving a summons on or before 14 September 2018.
6. The defendant is relieved from paying any filing fee in respect of the summons referred to in order (5).
7. Direct the defendant to file and serve with the summons referred to in order (5) all affidavit evidence (including an inventory of all the goods in question) on which the defendant intends to rely in chief on the hearing of the summons.
8. The summons referred to in order (5) is returnable for directions on 19 October 2018 at 9.30am before Kunc J.
9. There is liberty to the plaintiff and the defendant to apply on three days' written notice by email to the associate to Kunc J.
In proceedings 2018/151411 the Court's orders are:
1. The plaintiff is to pay the defendant's costs of the motion disposed of by Pembroke J on 6 June 2018, assessed in the sum of $3,000 inclusive of GST.
2. The summons is dismissed but without prejudice to the plaintiff's right to raise the issues canvassed in the summons in the proceedings for which leave has been granted in proceedings 2018/63434 and referred to as the Uncollected Goods Act proceedings.
3. Insofar as the defendant's costs of the summons and notice of motion filed on 25 June 2018 have not been disposed of by order (1), the plaintiff is to pay the defendant's costs of the summons and that motion on the indemnity basis.
In proceedings 2016/90273 the Court orders that:
1. The plaintiff to pay the defendant's costs of the motion disposed of by Pembroke J on 6 June 2018 assessed in the sum of $1,200 inclusive of GST.
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.
In proceedings 2018/59275 the Court orders by consent:
1. The summons is dismissed but without prejudice to the plaintiff's right to raise the issues canvassed in the summons in the proceedings for which leave has been granted in proceedings 2018/63434 and referred to as the Uncollected Goods Act proceedings.
2. The plaintiff is to pay the defendant's costs of the summons (including the defendant's notice of motion filed on 25 June 2018) on the indemnity basis.
[8]
Amendments
24 July 2018 - Proceedings 2018/90273 amended to 2016/90273
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Decision last updated: 24 July 2018