FEDERAL COURT OF AUSTRALIA

Pritchard v Fryer, in the matter of Pritchard [2020] FCA 933

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with bankruptcy notice BN 232115 issued on 14 December 2018 be extended to 4.00 pm on 21 July 2020.

2.    The application filed on 30 January 2019 be dismissed.

3.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

1    The applicant, Andrew Ronald Pritchard, applies to set aside a bankruptcy notice (BN 232115) that was issued on 14 December 2018 on the application of Gregory Robert Fryer. The bankruptcy notice was served on Mr Pritchard on 11 January 2019. The bankruptcy notice is based on a judgment debt for costs, in the sum of $40,400, awarded against Mr Pritchard on a lump sum basis in proceeding 2016/90273 (the 2016 proceeding), which he had commenced in the Supreme Court of New South Wales (the Supreme Court) against Mr Fryer.

2    On 14 December 2017, the Supreme Court (Robb J) dismissed Mr Pritchard’s claim in the 2016 proceeding and made the order for costs: Pritchard v Fryer [2017] NSWSC 1752. Although Mr Pritchard filed a notice of intention to appeal, no appeal from the judgment given, and orders made, by Robb J on 14 December 2017 has been instituted.

3    As Toohey J noted in Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310, the Bankruptcy Act 1966 (Cth) (the Act) does not expressly confer power on the Court to set aside a bankruptcy notice: at [311]. However, it is not doubted that the Court has that power. Indeed, its existence is now contemplated by various provisions of s 41 of the Act. As to the exercise of the power, Toohey J said (at 312):

A court hearing an application to set aside a bankruptcy notice is not hearing a petition for sequestration and the provisions of s 52(2), whereby a court may dismiss a petition if satisfied that the debtor is able to pay his debts or that for other sufficient cause a sequestration order ought not be made, cannot be imported into such an application. In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.

4    In the present case, no point is taken as to the regularity of the bankruptcy notice or its service. However, Mr Pritchard relies on the circumstances surrounding the judgment debt and his assertion that he has a cross-claim against Mr Fryer which, he says, exceeds the amount of the judgment debt on which the bankruptcy notice is founded.

Litigation between Mr Pritchard and Mr Fryer

Introduction

5    The underlying dispute to which the judgment debt relates concerns work which Mr Pritchard engaged Mr Fryer, who is a luthier, to perform on Mr Pritchard’s guitars and certain guitar parts, and Mr Fryer’s retention of the guitars and parts because of Mr Pritchard’s alleged failure to pay for the work done. At one time, the dispute also involved a claim for specific performance in relation to Mr Fryer’s alleged failure to supply Mr Pritchard with a hum-cancelling system, which Mr Pritchard understood he had ordered. This seems to have been the subject matter of the 2016 proceeding, at least at the time of its commencement.

6    It is necessary to say something about the 2016 proceeding, and various other proceedings that Mr Pritchard has commenced against Mr Fryer, in order to put in context the submissions which Mr Pritchard made in the present application.

The 2016 proceeding

7    The 2016 proceeding was commenced by summons filed on 23 March 2016. As I have noted, in that proceeding Mr Pritchard sought specific performance of an agreement he alleged between himself and Mr Fryer for the supply, by Mr Fryer, of a hum-cancelling system. The 2016 proceeding was set down for a three-day hearing commencing on 18 April 2017. However, at a pre-trial directions hearing on 15 March 2017, Mr Pritchard informed the then trial judge, Robb J, that he did not wish to proceed with his claim for specific performance. Rather, he wished to make a claim for damages against Mr Fryer. As a result, Robb J ordered Mr Pritchard to serve a draft statement of claim in respect of his claim for damages by 24 March 2017. Mr Pritchard did so. In the draft, he also made allegations against Mr Fryer’s counsel, Mr Sharrock, who he sought to join as the second defendant in the proceeding.

8    At a pre-trial directions hearing on 30 March 2017, Mr Pritchard indicated that he would remove his claim against Mr Sharrock. Robb J ordered Mr Pritchard to serve a notice of motion by 31 March 2017 seeking leave to file the draft statement of claim. The notice of motion was made returnable on 6 April 2017.

9    On 6 April 2017, Robb J vacated the hearing that had been listed to commence on 18 April 2017 and appointed that day as the hearing date of Mr Pritchard’s notice of motion to file the draft statement of claim.

10    On 18 April 2017, Robb J refused Mr Pritchard’s application to file the draft statement of claim. Amongst other things, his Honour found that the statement of claim was unintelligible and did not plead a reasonable cause of action. His Honour nevertheless gave Mr Pritchard a further opportunity to serve a draft statement of claim that was in a form appropriate to be filed. The proceeding was stood over to 30 May 2017 to consider whether leave should be granted to Mr Pritchard to file the contemplated further draft statement of claim.

11    As events transpired, Mr Pritchard failed to attend court on 30 May 2017. He had sent Mr Fryer a text message that said he was “not going to take any further part in either of the legal proceedings”—a reference to the 2016 proceeding and to another proceeding commenced by Mr Pritchard against Mr Fryer in the Local Court of New South Wales (the Local Court). As Robb J recorded, Mr Pritchard also made expletive-laden threats against Mr Fryer and Mr Sharrock.

12    On 30 May 2017, Robb J made a number of procedural directions concerning sundry notices of motion filed in the 2016 proceeding by Mr Pritchard on 16 February 2017, 31 March 2017 and 24 May 2017, and granted leave to Mr Fryer to file a notice of motion seeking an order that the 2016 proceeding be dismissed. The various notices of motion were then fixed for hearing on 14 and 15 August 2017.

13    The succeeding events are best captured by Robb J’s reasons for judgment:

[20]     It is not clear when, and in what circumstances, but Mr Pritchard provided to Mr Fryer and to the Court a further draft statement of claim. This draft also named Mr Sharrock as a second defendant, but it deleted the facts that had been previously alleged to support a claim against him. The most notable feature of the draft was that many of the allegations were described as “incomplete”, and many other aspects had not been completed, which was signified by the use of “**”. After considerable confusion at the hearing, it became apparent that the draft statement of claim being discussed was an earlier version of the document, and that Mr Pritchard had not served any further draft statement of claim in compliance with order 1 made on 18 April 2017.

[21]     At the hearing on 14 August 2017, Mr Pritchard informed the Court that he wanted to file a further statement of claim against Mr Fryer, but he could not do so unless Mr Fryer first provided Mr Pritchard with information that detailed all of the guitars and guitar parts and accessories that Mr Pritchard had delivered to Mr Fryer over time for the purpose of repair and other works by Mr Fryer, who is a luthier. Mr Pritchard said that he had received invoices from Mr Fryer for repair work and storage costs. Mr Pritchard denied that he was liable to pay Mr Fryer the amounts claimed. He said that Mr Fryer was claiming a lien over the goods pending payment. Mr Pritchard also said, without any comprehensible explanation, that he wished to assert various statutory claims against Mr Fryer, such as for misleading and deceptive or unconscionable conduct. Mr Pritchard’s position was that he could not formulate his claim without first being provided with additional information by Mr Fryer. Mr Pritchard did not articulate in an intelligible way why it was that he could not plead his claim without the additional information.

14    After referring to the proceeding that Mr Pritchard had commenced against Mr Fryer in the Local Court, Robb J continued:

[23]     It is neither necessary nor indeed possible for the Court on this application to explain in detail why it has rejected Mr Pritchard’s argument. The reason is largely because the argument was not articulated coherently. I do not accept that Mr Pritchard has been prevented by lack of information from drafting a statement of claim that complies with the rules, assuming that he has a reasonable cause of action capable of being pleaded against Mr Fryer. Furthermore, I am satisfied that at least in large measure the claim that Mr Pritchard wishes to pursue against Mr Fryer overlaps with the existing proceedings in the Local Court.

15    As Mr Pritchard no longer pursued his claim for specific performance, and as he had not been granted leave to file a statement of claim claiming alternative relief (damages) against Mr Fryer, Robb J dismissed the 2016 proceeding.

16    As to costs, Robb J said:

[26]     Mr Fryer is entitled to an order that Mr Pritchard pay his costs of the proceedings. The question is whether those costs should be assessed in the ordinary way, or whether as sought by Mr Fryer the Court should make a gross sum costs order in the amount set out in Mr Fryer’s written submissions.

[27]     Mr Pritchard did not make any submission to the effect that the amount claimed or any part of it related to legal work that had not been done, or was unnecessary or unreasonable, or that any individual amounts or the aggregate were excessive.

[28]     Although the evidence in support of Mr Fryer’s quantification of his legal costs was relatively sparse, in my view it was adequate given the relatively small sum involved, and as I have said, it was not challenged by Mr Pritchard, and Mr Pritchard did not complain that the evidence was inadequate.

[29]     Based upon my own experience, I am satisfied that the amount that has been claimed for Mr Fryer’s legal costs is reasonable and relatively conservative, and is less by a significant amount than the actual total of those costs. (The Court was advised by Mr Sharrock in argument that the costs up to and including the hearing on 14–15 August 2017 amounted to $57,255 including GST).

17    After quoting from Hamod v New South Wales [2011] NSWCA 375 at [813] – [820], Robb J said:

[31]     In my view this is an appropriate matter in which to order Mr Pritchard to pay Mr Fryer’s costs on a gross sum basis. In my view Mr Pritchard’s conduct in the running of his case gives good reason to fear that an assessment of costs in the ordinary way would be protracted and expensive in relation to the amount of costs claimed. I am also satisfied that Mr Pritchard’s conduct has unnecessarily contributed to the costs of the proceedings. Essentially, Mr Pritchard has achieved nothing by these proceedings; he has never demonstrated that he has any arguable claim against Mr Fryer; and he has put Mr Fryer to unnecessary expense and inconvenience.

[32]     As the now President observed in Hamod, the courts have typically applied a discount in assessing costs on a gross sum basis. I am satisfied that the amount of $40,400 (which was supported by the invoices annexed to Mr Fryer’s affidavit dated 9 June 2017, rounded down) represents a more than adequate discount when compared to the $57,255 that Mr Sharrock described as his total costs for the proceedings. Although Mr Fryer did not tender evidence of his total costs, I am satisfied that his additional costs after mid-June 2017 would have been substantial.

18    Since the dismissal of the 2016 proceeding, Mr Pritchard has, somehow, been able to file further notices of motion in that proceeding. I say “somehow” because, on 12 February 2019, Kunc J made an order restraining Mr Pritchard from filing any notice of motion or commencing proceedings in any court or tribunal against Mr Fryer, Mr Sharrock or Damon Hall (Mr Fryer’s solicitor), without leave. That order was made until the determination of proceeding 2018/282469 in the Supreme Court (the 2018 proceeding). It should be noted that the order did not restrain Mr Pritchard from bringing an application in this Court or the Federal Circuit Court of Australia in response to any bankruptcy notice or bankruptcy proceedings brought against him by Mr Fryer.

19    In the present application, Mr Pritchard relies on three notices of motion filed in the 2016 proceeding after it was dismissed. I will discuss them later. At the moment, I simply note that two of them were filed after 12 February 2019. There is no evidence before me that Mr Pritchard sought leave to file them.

Proceedings commenced by Mr Pritchard against Mr Fryer in 2018

20    In 2018, Mr Pritchard commenced four proceedings against Mr Fryer in the Supreme Court: 2018/124156; 2018/151411; 2018/59275; and 2018/63434. Other proceedings may have been commenced. I do not know. Two of the proceedings (2018/151411 and 2018/63434) came before Pembroke J as Duty Judge on 6 June 2018. The four proceedings subsequently came before Kunc J on 23 July 2018 at which time his Honour dismissed proceedings 2018/151411, 2018/59275 and 2018/63434, and stayed proceeding 2018/124156, on the bases summarised below.

21    As described by Kunc J, proceeding 2018/124156 purports to be an appeal from decisions of the Local Court. The proceeding was stayed by his Honour pending determination of the 2018 proceeding. His Honour described this proceeding as “almost completely incompetent, subject to the technical possibility of an appeal being available in relation to some costs orders made in the Local Court”: Pritchard v Fryer [2018] NSWSC 1141 at [19].

22    Proceeding 2018/151411 was commenced by summons filed on 15 May 2018. Amongst other things, Mr Pritchard sought an order that Mr Fryer provide him with details of insurance held by Mr Fryer in respect of his business premises and Mr Pritchard’s goods that were stored at those premises. In reasons for judgment given on 6 June 2018, Pembroke J referred to this claim as unjustified and inappropriate, given that there was no evidence that raised any reasonable concern that Mr Pritchard’s goods were not adequately insured: Pritchard v Fryer, 6 June 2018, unpublished (Pembroke J). His Honour said:

23     The plaintiff’s pedantic insistence on wanting to know the details of the insurance policy and the communications between the defendant and his insurance brokers and insurance companies, is unwarranted. And it is unnecessary for the resolution of whatever substantive claim the plaintiff may possibly be justified in pursuing. The fact is that the defendant is a bailee. He claims a lien. The plaintiff owes him money. Ordinarily the defendant would be entitled to retain the goods unless and until the debt is discharged. The plaintiff’s conduct and serve to increase his indebtedness to the defendant made the prospect of him recovering his goods from the defendant less and less likely.

23    As to the other claims for relief in the summons, Pembroke J said:

10     The other prayers for relief in the summons appear on their face to be either clearly demurrable or an abuse of process or misconceived or just plain wrong. They include numerous claims for declarations pursuant to Section 75 of the Supreme Court Act. It will be sufficient if I provide one example. Prayer 8 of the summons seeks a declaration that ‘the statement contained in the email of Mr Gregory Robert Fryer dated 31 December 2015 (10am) to Mr Andrew Ronald Pritchard that Mr Fryer provide a list of guitar parts (other than and distinct from a list of guitars, guitar bodies and guitar necks) was false or misleading in a material particular pursuant to Section 192G of the Crimes Act (NSW) 1900’.

24    On 23 July 2018, Kunc J dismissed the proceeding with costs against Mr Pritchard, but with leave to Mr Pritchard to raise, in the 2018 proceeding, the matters canvassed by his summons.

25    Proceeding 2018/59275 introduced Mr Hall as a party to Mr Pritchard’s litigation in the Supreme Court. In his reasons for judgment given on 23 July 2018, in which he dismissed the proceeding, Kunc J referred to the summons as incompetent because it contained a series of declarations which the Supreme Court would never make and in relation to which Mr Hall was not an appropriate party in any event. Although dismissing the proceeding with indemnity costs against Mr Pritchard, Kunc J nevertheless granted leave to Mr Pritchard to raise, in the 2018 proceeding, the matters canvassed in the summons.

26    Proceeding 2018/63434 was commenced by summons filed on 26 February 2018. The summons sought a declaration that Mr Pritchard was justified in concluding that his goods, which were the subject of invoices raised by Mr Fryer, were forfeited to Mr Fryer at the expiration of six months from the date of each invoice. As I have noted, this matter also came before Pembroke J on 6 June 2018. At that time, his Honour commented on the form of the declarations that were sought, noting that their effect, if made, might have unintended consequences for Mr Pritchard.

27    Pembroke J also referred to a notice of motion that had been filed in the proceeding by Mr Pritchard, which sought leave to file affidavits “in relation to the iniquity exception to the legal professional privilege between the defendant and Mr Phillip Gregory Sharrock”. His Honour refused to grant the leave sought, saying:

13     The plaintiff contended that Mr Sharrock, who is counsel for the defendant, and the defendant, have misled the court, have influenced the minds of various judicial offices in a way which is brought about an injustice to the plaintiff, have engaged in a criminal conspiracy, have engaged in an abuse of process and have conducted themselves fraudulently. He added that Mr Sharrock has breached the Barrister’s Rules in an unspecified way and that the invoices issued by the defendant were a sham contrivance. None of those serious allegations were supported, or proved adequately or at all, by the evidence before me.

28    His Honour also said:

15     The plaintiff says that the affidavits that he wishes to be at liberty to file, relating to the alleged fraudulent and criminal conduct of the defendant and his counsel – whatever that might be – are essential for him to answer the defendant’s claim that the summons be dismissed or that security for costs be ordered. There was no clear articulation of the facts which those proposed affidavits are supposed to prove; no explanation of any plausible link to the defendant’s application; and no discernible basis for acceding to the application, even if it were possible to understand what ‘affidavits in relation to the iniquity exception to legal professional privilege’ was intended to mean in the proved circumstances of this case.

29    I refer to these observations because one theme in Mr Pritchard’s present application is that Mr Fryer and Mr Sharrock have engaged in “iniquitous schemes” which, according to Mr Pritchard, is one reason to set aside the bankruptcy notice.

30    On 23 July 2018, Kunc J dismissed the summons in proceeding 2019/63436 with costs. However, once again, his Honour did so without prejudice to Mr Pritchard’s right to canvass, in the 2018 proceeding, the matters raised by his summons.

31    When dealing with the four proceedings, Kunc J’s reasons for judgment ([2018] NSWSC 1141) make it clear that, by permitting Mr Pritchard the right to raise, in the 2018 proceeding, the various matters canvassed in each dismissed or stayed proceeding, his Honour was not intending to signify that the matters which Mr Pritchard wanted to agitate were meritorious. Rather, his Honour made a case management decision that there should be one vehicle through which all claims to be made by Mr Pritchard would be advanced:

[5]     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.

[6]     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.

[7]     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.

[8]     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.

32    When dismissing the summons in proceeding 2018/63434, Kunc J said:

[13]     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.

33    The vehicle for advancing Mr Pritchard’s claims was the 2018 proceeding. This proceeding emanated from proceeding 2018/63434 in which, on 23 July 2018, Kunc J granted leave to Mr Fryer to commence fresh proceedings in the Supreme Court against Mr Pritchard under s 18 of the Uncollected Goods Act 1995 (NSW) (the Uncollected Goods Act). As Kunc J later observed in the 2018 proceeding (Fryer v Pritchard [2019] NSWSC 89):

[3]     I first became acquainted with these matters when I was called upon to resolve various costs applications on 23 July 2018 in several proceedings that had been before Pembroke J (Pritchard v Fryer, 6 June 2018, Pembroke J). In disposing of the applications on that day it became apparent to me that, in the interests of the just, quick and cheap resolution of the issues genuinely in dispute between the parties, it would be necessary to ensure that the pattern of multiple applications in multiple proceedings by Mr Pritchard would have to be stopped to enable the parties to concentrate on preparing for the determination of the real dispute between them. To that end I made orders which had the effect of permitting Mr Fryer to commence these proceedings under the Uncollected Goods Act 1995 (NSW): Pritchard v Fryer; Pritchard v Hall [2018] NSWSC 1141. These are the proceedings which, as far as the Court is concerned, will provide the vehicle for the determination of the real issues in dispute between the parties.

34    These observations were made in the context of Kunc J either dismissing or staying three further notices of motion that Mr Pritchard had filed in the 2016 proceeding (despite the fact that the proceeding had been dismissed with costs) and a further notice of motion in proceeding 2018/124156 (despite the fact that it had already been stayed).

35    The first notice of motion in the 2016 proceeding was filed on 16 January 2019. It contained 27 prayers for relief and, as described by Kunc J, was primarily devoted to seeking various orders for the separate determination of what were described as questions of fact and law. It also sought orders that a large number of costs orders that had been made against Mr Pritchard in various proceedings be “stayed and set aside”. Kunc J noted that the outcome that Mr Pritchard was seeking could only be achieved by appeals, the time for which had expired.

36    The notice of motion also sought leave to commence proceedings against Mr Sharrock under s 99 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) in relation to the lump sum costs order that Robb J had made on 14 December 2017. Kunc J refused to grant that leave, noting that leave to appeal from the lump sum costs order had not been sought (still, less, an appeal commenced); an application under s 99 would be a collateral attack on the lump sum costs order; Mr Pritchard had made no application to Robb J based on s 99 at the time the lump sum costs order was made, when Mr Pritchard could have done so; and an application under s 99 would invite consideration of the reasonableness of a legal practitioner’s fees—a question which Robb J had considered when making the lump sum costs order.

37    Notwithstanding the observations he made about the viability of the claims for relief in the notice of motion, Kunc J decided that the appropriate order was to stay the notice of motion until further order, with costs reserved.

38    The second notice of motion in the 2016 proceeding was filed on 30 January 2019. It contained 22 prayers for relief, including the setting aside of an order that had been made for the examination of Mr Pritchard. Kunc J refused to set aside the examination order. As to the other relief sought, Kunc J said:

[9]     The motion also includes prayers of the kind to which the Court would never accede, including that the Court “accept” various representations said to have been made by Mr Fryer for the purposes of the examination. In default of the Court making orders of that kind, the motion seeks an order for the referral by the Court of Mr Fryer to the Police in relation to various alleged criminal offences. I have raised in the course of argument with Mr Pritchard his right, if he wishes to do so, to report what he regards as criminal matters to the Police.

[10]     In similar vein, the motion continues by seeking relief relating to a proposed private criminal prosecution by Mr Pritchard of Mr Fryer. Again, I think that these are orders of the kind that the Court would never make. Even if I am wrong about that, in the absence of clear evidence that Mr Pritchard has reported precisely those matters to the Police and received no satisfaction, it is simply not the kind of relief that the Court will entertain today.

39    The second notice of motion also sought orders for discovery. Kunc J also stayed this motion until further order, with costs reserved.

40    The third notice of motion in the 2016 proceeding was filed on 31 October 2018. Mr Pritchard volunteered that this notice of motion was “superseded” by the notice of motion filed on 16 January 2019. Kunc J dismissed the notice of motion filed on 31 October 2018, with no order as to costs.

41    As to the notice of motion filed in proceeding 2018/124156 (filed on 1 February 2019), Kunc J said:

[12]     This motion prays for relief either of the kind which is only available by way of an appeal or which, again, is connected with Mr Pritchard’s desire to bring a private criminal prosecution against Mr Fryer. It also seeks a lifting of the stay of these proceedings which I ordered on 23 July 2018 to be in effect pending the determination of the main proceedings. That question can be revisited after the main proceedings are determined.

42    Kunc J also stayed this notice of motion until further order, with costs reserved.

43    Kunc J explained his decision to stay the notices of motion, rather than dismissing them:

[6]     Mr P Sharrock of Counsel, who appears for Mr Fryer, has submitted that I ought to dismiss all of those motions with costs. I do not propose to do so. In my view the justice of the case will be better served if (with one exception) they are all stayed with costs reserved so that their ultimate outcome can be viewed in the context of the outcome of what I have referred to as the main proceedings. In fairness to Mr Pritchard, who is an unrepresented but nevertheless resourceful litigant, this course will leave open the possibility (in my current view a remote one) that something in one or more of these motions may need to be agitated in the lead up to, or as a result of, the determination of the main proceedings.

44    His Honour then made the order I have noted above (at [18]) restraining Mr Pritchard from filing any notice of motion and from commencing proceedings in any court or tribunal against Mr Fryer, Mr Sharrock or Mr Hall, without leave.

The 2018 proceeding

45    In the 2018 proceeding, which was commenced by summons, Mr Fryer claimed the following relief:

1.    That the court determine the quantum of monies (workmanship and storage, including ongoing storage costs) owed on the items subject of the attached inventory, by the defendant to the plaintiff.

2.    That the plaintiff be authorised to dispose of the defendant’s said goods after the expiration of six months from the date of this summons, should that quantum remain unpaid at that time.

3.    That the disposal of said items be by way of public auction.

4.    Alternatively that the goods be valued by a competent independent valuer and set off against judgement costs owed by the defendant to the plaintiff.

5.    That the defendant be restrained by injunction from bidding, whether by agent, proxy, or associated person or entity, at any said auction pursuant to Order 3 sought above.

6.    Costs.

46    Prayers 3 and 4 assumed importance in the present application, for reasons I will explain below.

47    As events transpired, on 13 May 2019 Mr Fryer filed a notice of discontinuance of the proceeding, with leave of the Supreme Court granted on 8 May 2019. However, by that time Mr Pritchard had filed a cross-claim in the proceeding seeking the following relief:

1.    The Summons filed in these proceedings on 14 September 2018 be struck out.

2.    All goods of the Defendant be immediately returned to the Defendant by the Plaintiff.

3.    That the Plaintiff has engaged in misleading or deceptive conduct or conduct likely to mislead or deceive, in contravention of Section 18 of the Australian Consumer Law.

4.    That the Plaintiff has made false or misleading representations and/or conduct in contravention of Section 29 and 34 of the Australian Consumer Law.

5.    That the Plaintiff has made false or misleading representations and/or conduct in contravention of Sections 29, 33 and 34 of the Australian Consumer Law.

6.    That the Plaintiff has engaged in unconscionable conduct in contravention of the common law and/or in contravention of Sections 20 and 21 of the Australian Consumer Law.

7.    That the Plaintiff has made misleading representations with respect to future matters, in contravention of Section 26 (1) of the Australian Consumer Law.

8.    That every individual contract between the Plaintiff and the Defendant for each and every item of work carried out for “work” to the Defendant’s goods from April 2012, be declared void ab initio.

9.    That damages be paid by the Plaintiff to the Defendant pursuant to Section 236 of the Australian Consumer Law.

10.    That compensation be paid by the Plaintiff to the Defendant pursuant to Section 237 of the Australian Consumer Law, such compensation to include the amount of any costs awarded against Andrew Ronald Pritchard in all cases in the civil courts involving Gregory Robert Fryer.

11.    That compensation be paid by the Plaintiff to the Defendant pursuant to Sections 237 and 238 of the Australian Consumer Law, for the loss suffered and likely loss to be suffered in Federal Court proceedings File number NSD 117 of 2019 and all civil cases involving Andrew Ronald Pritchard and Gregory Robert Fryer.

12.    The Defendant seeks damages equivalent to the sum of all monies paid by the Defendant to the Plaintiff for the work the subject of Prayer 8 above.

13.    Interest.

14.    That Second Cross-Claimant be found to “involved” in the contraventions and also liable for the Orders sought at Prayers 4 to 13 above.

48    In large measure, the claimed relief substantially mirrored the relief which Mr Pritchard had already sought against Mr Fryer in a notice of motion filed in the 2016 proceeding on 16 February 2017. For example, in the earlier-filed notice of motion, Mr Pritchard sought relief that included orders that Mr Fryer had made false or misleading representations or had engaged in conduct that contravened ss 29, 33 and 34 of the Australian Consumer Law; that Mr Fryer had engaged in unconscionable conduct in contravention of ss 20 and 21 of the Australian Consumer Law; that each contract between Mr Pritchard and Mr Fryer for work carried on “non-Fender Fender-style guitars, guitar necks and guitar bodies” since 1 July 2008 be declared “void ab initio”; that damages be paid by Mr Fryer to Mr Pritchard pursuant to s 236 of the Australian Consumer Law; and that compensation be paid by Mr Fryer to Mr Pritchard pursuant to s 237 of the Australian Consumer Law.

49    I draw attention to these claims for relief because, as their apparent origin indicates, they concern grievances respecting Mr Fryer which Mr Pritchard held before the 2016 proceeding was dismissed.

50    The motion was listed for hearing on 16 March 2017, but appears to have been overtaken by the directions made by Robb J requiring Mr Pritchard to file a draft statement of claim in respect of his (then) foreshadowed claim for damages against Mr Fryer. As I have explained, Robb J found that the draft statement of claim which Mr Pritchard did prepare was unintelligible and did not disclose any reasonable cause of action, eventually leading to his Honour dismissing the 2016 proceeding after giving Mr Pritchard the further opportunity to formulate and plead viable causes of action.

51    On 23 and 24 March 2020, Parker J dealt with six notices of motion that had been filed in the 2018 proceeding: Pritchard v Fryer [2020] NSWSC 311. One notice of motion was filed by Mr Fryer seeking to strike out the cross-claim and for judgment to be entered summarily in his favour. Mr Sharrock filed a notice of motion seeking corresponding relief. The remaining notices of motion were filed by Mr Pritchard. It is not necessary for me to summarise these notices of motion. It is sufficient for me to record that, on 1 April 2020, they were dismissed by Parker J, with costs against Mr Pritchard: see also Pritchard v Fryer (No 2) [2020] NSWSC 44.

52    In the course of dealing with the various notices of motion, Parker J noted that, as explained by Mr Pritchard, the damages which he was claiming against Mr Fryer and Mr Sharrock in the cross-claim represented the costs which had been awarded against him in the Supreme Court and the Local Court, the total amount of which was, according to Mr Pritchard, $100,000.

53    Parker J found that the pleading of the cross-claim was inadequate and did not comply with the Uniform Civil Procedure Rules NSW (2005). His Honour said:

[29]     As I have already indicated, Mr Pritchard’s substantive claim is for damages or compensation for contravention of the ACL. The pleaded contraventions are engaging in misleading or deceptive conduct or making false or misleading representations (ss 18, 29, 33, 34) and engaging in unconscionable conduct (ss 20, 21, and the general law).

[30]     In the course of the oral argument, I went through with Mr Pritchard the elements of the causes of action which he has advanced. His claim for misleading and deceptive conduct has four elements which require pleading. First, identification of the conduct on which Mr Pritchard relies (and which needs to be identified with precision so that the other elements can be assessed by reference to it). Second, facts which show that the conduct was misleading or deceptive. Third, that the conduct occurred in trade or commerce (a potentially significant issue for the claim against Mr Sharrock). Fourth, that the conduct caused Mr Pritchard to suffer damage. The elements of the claim for unconscionable conduct broadly parallel the elements of the misleading and deceptive conduct claim.

[31]     After this had been explained to him, Mr Pritchard acknowledged that there are elements of his claim which are not pleaded, or not properly pleaded. This acknowledgment is clearly correct. Mr Pritchard’s statement of cross-claim does not actually plead that he had suffered any damage at all, and still less that the damage was caused by contraventions of the ACL. The pleading is also unclear, at least to my mind, in the identification of the particular conduct which is said to have been misleading or deceptive (or unconscionable) and the facts which render that conduct misleading or deceptive (or unconscionable).

54    Later, his Honour said:

[42]     There are many difficulties facing Mr Pritchard’s claim. Although, as I have said, I took Mr Pritchard through the elements which need to be proved under the relevant parts of the ACL, I have no confidence based on the way he has conducted these applications before me that he has the ability to formulate the necessary allegations (if a proper factual basis for them actually exists).

[43]     Mr Pritchard peppered his submissions to me with apologetic statements about being an unrepresented litigant. That is not necessarily a barrier to propounding a claim to the Court, although lack of experience can make things difficult. But Mr Pritchard in the course of his arguments exhibited a determined refusal to come to grips with the points which I asked him to address. All I can say is that formulation of a proper statement of claim will require a degree of self-discipline and critical thinking, which, with all respect to Mr Pritchard, he has not manifested in the applications before me.

[44]     But even if a proper claim under the ACL could be formulated, it still has its difficulties. The damages claimed by Mr Pritchard consist entirely of costs awarded against him in earlier court proceedings. His attempt to claim these costs back smacks of making a collateral challenge to the original decisions under which the costs were awarded. I am not sure, in those circumstances, that the claim is even maintainable. Furthermore, as Mr Fryer pointed out, Mr Pritchard’s statement of cross-claim is full of allegations about events going back long before 2016, and indeed before 2012. Part or all of those claims may be statute-barred.

[45]     As I have already mentioned, the amount involved in the claim is relatively small. The proceedings have already been unnecessarily protracted. I was taken to correspondence which shows that Mr Pritchard was given a clearly and fairly stated opportunity to reconsider his pleadings before the strike-out motions were pursued against him. All of these are significant discretionary factors which tell against Mr Pritchard having a further opportunity to reformulate his statement of cross-claim.

[46]     But taking them all into account, I do not think that these difficulties are decisive. I am conscious of the need to preserve Mr Pritchard’s right to his day in court, if he is able to formulate a viable claim and the cross-defendants’ legitimate interests can be protected.

55    In the result, Parker J struck out prayers 1 – 8, 12 and 14, and the whole of the pleading of the cross-claim. This left intact Mr Pritchard’s claims against Mr Fryer and Mr Sharrock for damages and compensation under the Australian Consumer Law. His Honour granted leave to Mr Pritchard to file a notice of motion seeking leave to file an amended cross-claim in respect of these claims for relief, on condition that, in respect of the claims against Mr Fryer, Mr Pritchard first pay costs to Mr Fryer in the amount of $511 and, in respect of the claims against Mr Sharrock, Mr Pritchard first pay costs to Mr Sharrock in the amount of $30,000. It was necessary for Parker J to grant leave to Mr Pritchard to file the notice of motion because of the order made by Kunc J on 12 February 2019 restraining Mr Pritchard from filing notices of motion without leave. This outcome was formalised by orders made by Parker J on 1 April 2020.

56    Mr Pritchard has filed a notice of intention to appeal against the judgment and orders made by Parker J on 1 April 2020, but no appeal had been instituted. The evidence before me (tendered by Mr Pritchard) reveals that Mr Pritchard intends to pursue an appeal. However, at the hearing before me, Mr Pritchard also said that he intends to pay Mr Fryer’s costs and file a notice of motion, pursuant to the leave he has been granted. He said, however, that, without legal assistance (which he has not yet obtained) he is not able to formulate a pleading to support his cross-claim.

The course of the present application

57    The hearing of the present application commenced on 18 September 2019. However, after some affidavits had been read, and after Mr Pritchard had commenced to develop his case to set aside the bankruptcy notice, it became apparent that an adjournment of the hearing to a later date was necessary.

58    First, the exhibits referred to in one of Mr Pritchard’s affidavits, on which he wished to rely, were not available to the Court. These exhibits comprised various affidavits and process (two lever arch folders) that had been filed in some of the Supreme Court proceedings to which I have referred. Further, Mr Pritchard wished to take me to other documents which, inadvertently, he had not brought to court.

59    Secondly, Mr Fryer applied for the issue of a referral certificate under r 4.12 of the Federal Court Rules 2011 (Cth). I was prepared to issue such a certificate given the apparent complexity of the issues that were emerging before me, and my assessment that the Court would be assisted by some legal representation, if offered. Mr Yin of counsel, who now appears for Mr Fryer, accepted a brief in the matter. His representation, on behalf of Mr Fryer, has provided considerable assistance to the Court.

60    Thirdly, I was informed that Mr Fryer’s notice of motion in the 2018 proceeding ([51] above) had been listed for hearing. Given that an adjournment of the hearing of the present application was inevitable, I reasoned that the hearing should be adjourned to a date after Mr Fryer’s notice of motion in the 2018 proceeding had been determined. The result of that determination would assist in informing me whether Mr Pritchard did, in fact, have a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt referred to in the bankruptcy notice, which Mr Pritchard could not have set up in the 2016 proceeding.

61    On 7 April 2020, I was informed of the orders made by Parker J on 1 April 2020. I took steps to have the hearing of the present application re-listed before me at the earliest opportunity.

Mr Pritchard’s case to set aside the bankruptcy notice

62    The case which Mr Pritchard advanced to set aside the bankruptcy notice reflects a number of the arguments he has advanced, unsuccessfully, in the various Supreme Court proceedings to which I have referred. The submissions which Mr Pritchard advanced in support of his case were not always coherent and, at times, reflected such confusion of thought that they were difficult to follow, and certainly no easier to understand.

63    First, Mr Pritchard submitted that he did have a claim against Mr Fryer which exceeded the amount of the judgment debt in the bankruptcy notice. This claim, as explained by Mr Pritchard, had two aspects. The first aspect was that Mr Pritchard had an unliquidated claim for damages against Mr Fryer because, according to Mr Pritchard, Mr Fryer had engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law. The second aspect was that Mr Pritchard had a liquidated claim against Mr Fryer based on payments he had made to Mr Fryer which exceeded the amount of the judgment debt and which, Mr Pritchard argued, were recoverable from Mr Fryer. I will endeavour to explain each aspect as best I can.

64    The contention that Mr Pritchard has an unliquidated claim for damages against Mr Fryer for misleading or deceptive conduct is based on statements made in email correspondence by Mr Fryer about the value of Mr Pritchard’s guitars and guitar parts (guitar necks, fingerboards, unfinished guitar bodies, pickups and other hardware) left by Mr Pritchard at Mr Fryer’s workshop.

65    In an email from Mr Fryer to Mr Pritchard sent 30 January 2012, Mr Fryer said that these goods had an approximate value “as they are” of $60,450. This statement was made by Mr Fryer in the context of providing a “hypothetical cost estimate” of completing work on those items of $102,550 even though, Mr Fryer said in the email, he had never agreed to undertake most of that work.

66    In an earlier email from Mr Fryer to Mr Pritchard, sent on 24 January 2012, Mr Fryer counselled Mr Pritchard against undertaking work on these items which, according to Mr Fryer, would be a loss-making exercise and, simply, “a waste of money”.

67    For example, in that email, Mr Fryer said:

… you should heed my professional advice below before deciding to spend any more money unwisely on projects that I believe are liabilities and not assets. The great many guitar bodies necks and parts that you have stockpiled for over a decade (at least the ones that I know about) are definitely not “investments” as you have claimed several times in emails, and I believe it is not in your best interests financially to continue.

68    In an email sent by Mr Fryer to a Ron Pritchard (although addressed and copied to a Barbara Pritchard) on 9 February 2016 (i.e., some four years later), Mr Fryer said:

Andrew will not be able to sell the majority of his guitars (or the individual bodies and necks) because they breach Fender Australia’s trademarks. This represents approx 80% of Andrew’s stockpile.

Fender Australia and their legal team constantly monitor online guitar sales and sales elsewhere.

69    Mr Fryer also said:

On 24th Jan 2012 I sent an email to Andrew … pointing out that completing the guitars on Andrew’s list would be a bad financial decision. The majority of Andrew’s guitars (ie the illegal ones which breach Fender Australia’s trademarks) are not assets, they are liabilities because Andrew will not be able to sell them and this makes their value very low indeed.

Even the guitars that are not illegal on Andrew’s list take far greater money to assemble and complete than can ever be recouped when sold. My estimate from 2012 is below this email.

For example: the average guitar on Andrew’s list costs approx $6050 in total, and can only be sold for approx $1500. Net loss = approx $4550 on each guitar.

70    In that email, Mr Fryer expressed his concern that, if he were to complete work on the guitars, and the guitars were then sold, he would be an accessory to a criminal act. It seems that this was an intended reference to a possible contravention of s 148 of the Trade Marks Act 1990 (Cth) (the Trade Marks Act). Mr Fryer also referred to the fact that, in 1988, he had had a meeting with a person he identified as the “owner of Fender Australia”, and that he had assured this person that he would not have anything to do with the illegal Fender decals, and would report “anything suspicious”.

71    In this connection he said:

After Fender Australia had their trademarks come into law in 2003 they warned every guitar maker/repairer not to breach these trademarks.

72    The nub of Mr Pritchard’s asserted claim appears to be that, by making the statement on 30 January 2012 that Mr Pritchard’s goods had an approximate value of $60,450, and then by later saying that, because the guitars “breached” Fender Australia’s trade marks, they could not be sold and their value would be very low, Mr Fryer engaged in misleading or deceptive conduct.

73    There is evidence before me of two registered trade marks held by Fender Australia Pty Limited: trade marks 858747 and 858748. These are shape marks, but representations of them are not in evidence. I do not know how, if it all, such marks would be infringed in relation to the sale or supply of Mr Pritchard’s guitars or guitar parts.

74    Even so, having read and considered the emails on which Mr Pritchard relies, I am not persuaded that they necessarily evidence conduct on the part of Mr Fryer that is misleading or deceptive or likely to mislead or deceive, as understood in the Australian Consumer Law. One would need to know much more about the context and circumstances in which each email was written in order to come to the conclusion that such conduct was involved.

75    For example, the estimated value given in the email of 30 January 2012 concerns a range of items, not just guitars. Further, the loss of approximately $4550 on each guitar was specifically referred to in Mr Fryer’s earlier email to Mr Pritchard of 24 January 2012, as follows:

1.    My advice about your guitars and necks to be worked on and assembled:

As a cost guide per guitar:

Raw materials cost approx. $2000 per guitar minimum (neck body parts pickups etc)

Cost of doing the work per guitar is approx $3750 minimum (sometimes much more)

Case is approx $300 each

Cost of each “bitsa guitar” = $6050 minimum

Resale value of each bitsa guitar = $1500 if you are lucky in a bull financial market and probably much less in today’s financial market

Individual loss on each guitar = $4550 approx

My professional opinion is that you should stop work on these projects right now, because the cost of modifying, spray painting, fitting out, assembling at a rough estimate of $3750 minimum each project (20 projects = $75000 and possibly much more because they all vary) is a waste of money on fancy customised “bitsa” guitars which are only ever treasured by their creator and are not well regarded throughout the music industry.

76    In any event, Mr Pritchard has not articulated or provided any evidence of (a) how he has suffered any loss or damage by reason of the statements made in Mr Fryer’s emails; (b) what that loss could possibly be; or (c) the value of any such loss.

77    Lastly, Mr Pritchard has not established that this claim could not have been set up as a claim in the 2016 proceeding, assuming it to be an arguable claim. As I have observed, Mr Pritchard filed a notice of motion in the 2016 proceeding claiming damages and compensation against Mr Fryer pursuant to ss 236 and 237 of the Australian Consumer Law. When given the opportunity in that proceeding to pursue a claim for damages against Mr Fryer, he was unable to satisfy the Supreme Court that he had any reasonable cause of action in that regard. I do not know whether the claims that Mr Pritchard then sought to advance included the asserted unliquidated claim for misleading or deceptive conduct based on the emails. But I have no doubt that the opportunity to advance that claim was available to him: see, in that connection, [88] below in relation to Mr Pritchard’s letter to Mr Fryer, dated 13 September 2016.

78    The contention that Mr Pritchard has a liquidated claim against Mr Fryer fairs no better. It is based on no more than Mr Pritchard’s assertion that he had paid Mr Fryer for work in excess of $40,400 which sum, Mr Pritchard says, he is entitled to recoup because, even though Mr Fryer undertook and completed the agreed work, he did not undertake other work for Mr Pritchard.

79    In this connection, Mr Pritchard contends that he had an agreement with Mr Fryer in 2012 that Mr Fryer would carry out certain work for Mr Pritchard for $1,000 plus GST. Mr Pritchard asserts that Mr Fryer reneged on this agreement and did not do the work. Mr Pritchard asserts that, had he known that Mr Fryer would not carry out this other work, he (Mr Pritchard) would not have engaged Mr Fryer to undertake the work that Mr Fryer did, in fact, carry out. He also says that he would not have paid Mr Fryer for that work.

80    I am not satisfied, on the basis of these bare assertions, that Mr Pritchard has a claim against Mr Fryer to recoup the money that Mr Pritchard paid for work that was actually undertaken and completed by Mr Fryer.

81    The emails which Mr Pritchard tendered show that, by the beginning of 2012, there was disagreement between Mr Pritchard and Mr Fryer as to the scope and extent of the work that Mr Fryer had previously agreed to undertake. For example, in the email sent on 24 January 2012, Mr Fryer said:

Your claims about the work that I agreed to do are incorrect and exaggerated. I never agreed to do a lot of what you are claiming. (More details about that in a separate email)

In 2007 when Paul De Como re-introduced you to me, the terms that I agreed to do work for you (brokered and witnessed by Paul) were on an hourly rate basis only. I have agreed to only doing particular sections of work for you and have been charging this work by the hour, with sections of work invoiced at regular intervals because I didn’t want to commit to completing guitars with lots of spray painting and other things involved.

In my whole career since 1980 I have made less that 25 guitars and I can only think of one guitar that I have made from start to finish for you.

You have been very keen in the last 2 years to persuade me to do types of work that I didn’t want to do. I tried to tell you this regularly but you appeared to have other ideas, and have been trying all sorts of tactics to get me to do what you want.

Completing guitars that I have not agreed to do is one such issue.

Spray painting is another such issue, and I will address both these things more fully as mentioned in another email.

To put it simply re the painting, I agreed to run a trial to see if it was possible for me to spray paint guitars at my workshop, ran the trial, found that it wasn’t possible due to health and legal reasons (cannot do this without proper spray booth and is against council and landlord conditions), I advised you of this, looked around for other options and have advised about those. You are now trying to force me to do this work against my will, and this is not what I agreed to.

There are other better and cheaper options for spray painting and I will send you details about these again soon.

Andrew, I am happy to do the work that I agreed to do for you. I am happy to sit down soon with yourself, your dad Ron if he wants to be there, and your representatives to discuss the work to be done, time schedules and anything else that needs to be talked about.

82    It was in the immediate context of that statement that Mr Fryer counselled Mr Pritchard in the terms quoted at [69] above, and gave the advice I have quoted at [75] above, the effect of which was that Mr Pritchard’s plans and wishes in relation to future work on guitar bodies, necks and parts that he had stockpiled over many years were uneconomical.

83    In the course of submissions, Mr Pritchard explained that the other work which Mr Fryer did not undertake for $1,000 plus GST was itemised in a “without prejudice” letter from his then solicitors, David Landa Stewart, to Mr Fryer’s solicitors, Spooner & Hall, dated 3 May 2012. It seems that, in an attempt to resolve the disputes that then existed between them, Mr Pritchard’s solicitors proposed that Mr Pritchard would pay Mr Fryer $1000 plus GST to undertake the itemised work. In the letter, they explained how this sum was calculated:

Our client will pay your client the sum of $1000 plus GST to do the Work. The sum of $1000 plus GST takes into account amongst other things:

(a)     the considerable legal costs our client has incurred due to your client’s conduct;

(b)     the considerable angst your client’s conduct has caused him and his parents; and

(c)     [t]he enormous amount of time our client has had to spend since January 2012 in relation to correspondence with your client, whether directly or through his legal representatives in relation to the Work.

84    I observe that the itemised work was considerable. It extended over four pages and related to a number of guitars and guitar parts. The proposal would have involved a considerable commitment by Mr Fryer in return for what seems a disproportionately small sum of money whose quantum appears to reflect, in large measure, compensation for Mr Pritchard’s injured feelings.

85    There is no evidence before me that this offer was accepted by Mr Fryer. Indeed, in an affidavit made by Mr Fryer on 13 September 2018 in the 2018 proceeding—which Mr Pritchard tendered in the present application—Mr Fryer made clear that he had not accepted the offer and that, as events transpired, he and Mr Pritchard “withdrew our respective claims against each other”. Nevertheless, in submissions before me, Mr Pritchard asserted that there was an agreement between himself and Mr Fryer that Mr Fryer would carry out the itemised work for $1,000 plus GST.

86    I am not prepared to act on Mr Pritchard’s assertions alone, especially in light of Mr Fryer’s statement on oath that he did not accept the proposal. Given that the proposal was put in correspondence between solicitors, one would have expected that, had it been accepted by Mr Fryer, then, at the very least, his solicitors would have communicated that fact in writing to Mr Pritchard’s solicitors. There is no evidence of this having been done. There is no other objective evidence of such an agreement having come into existence.

87    Further and in any event, Mr Pritchard has not demonstrated any legal nexus between the earlier, allegedly agreed work he wanted Mr Fryer to carry out, and his payment for the later work which Mr Fryer did, in fact, carry out. Thus, the legal basis to recoup the money paid for the work that Mr Fryer did carry out is not apparent.

88    Further, as with his asserted unliquidated claim, Mr Pritchard has not established that his liquidated claim could not have been set up in the 2016 proceeding. Mr Fryer’s affidavit in the 2016 proceeding, referred to above, includes a letter dated 13 September 2016 from Mr Pritchard to Mr Fryer, which was written in the context of the 2016 proceeding. In that letter, Mr Pritchard raised the question of the work referred to in the David Landa Stewart letter. He stated that, in lieu of seeking specific performance in the 2016 proceeding, he would pursue an alternative claim for damages. The letter stated that Mr Pritchard reserved the right to amend the orders and relief sought in the 2016 proceeding “to properly reflect the matters in dispute between the parties”, which “may” include claims for breach of contract and/or misleading or deceptive conduct and/or false or misleading statements and/or wrongly accepting payments for goods or services and/or unconscionable conduct. As I have noted, Robb J was not satisfied that Mr Pritchard had articulated a coherent claim for damages against Mr Fryer and did not accept that, through lack of information, Mr Pritchard could not plead such a claim, assuming there to be a reasonable cause of action that was capable of being pleaded.

89    Mr Pritchard also argued that he had a cause of action “in regard to the trade mark issues”. This appears to be a variation on his claim that Mr Fryer engaged in misleading or deceptive conduct in relation to the emails. As I understand it, Mr Pritchard says that, despite Mr Fryer’s concerns about trade mark infringement, his email of 24 January 2012 represented that Mr Pritchard could, nonetheless, sell his goods for approximately $60,000. I understand Mr Pritchard’s complaint to be that, in January 2012, Mr Fryer impliedly represented that there would be no trade mark concerns if Mr Pritchard were to sell his guitars and guitar parts then at Mr Fryer’s premises.

90    Once again, on the evidence before me, I do not know how, if it all, Fender Australia’s trade marks would have been infringed if Mr Pritchard’s guitars or guitar parts had been sold in, say, 2012. There is not even evidence before me that Mr Pritchard was motivated, at that time, to sell any of his guitars or guitar parts referred to in the email of 24 January 2012. Mr Pritchard has not articulated or provided any evidence of (a) how he has suffered any loss or damage by reason of the implied representation, if in fact it was made; (b) what that loss was; or (c) the value of that loss.

91    For these reasons, I am not satisfied that Mr Pritchard has a counter-claim, set-off or cross demand against Mr Fryer that responds to s 40(1)(g) of the Act.

92    Mr Pritchard then turned to other matters.

93    First, Mr Pritchard said that there is an extant notice of motion that he had filed in the 2016 proceeding on 16 January 2019 seeking, amongst other orders, an order that all costs orders made in the 2016 proceeding be “stayed and set aside”. However, apart from refusing leave to permit Mr Pritchard to commence proceedings under s 99 of the Civil Procedure Act, this notice of motion has not been dealt with because, on 12 February 2019, Kunc J stayed it until further order: see [35] – [37] above. There has been no further order lifting the stay. I do not propose to anticipate how the Supreme Court might deal with the notice of motion should the stay be lifted. I observe, however, that the question of costs, on which the bankruptcy notice is founded, was a contested issue before Robb J which his Honour determined after due consideration. There is nothing before this Court that would warrant it going behind the costs order that was made on 14 December 2017, particularly in light of Kunc J’s observations referred to at [35] and [36] above: see the discussion of relevant principles by Griffiths J in Dunkerley v Comcare [2019] FCA 1002 at [68]; affirmed on appeal Dunkerley v Comcare [2020] FCAFC 8 at [52].

94    According to Mr Pritchard, the fate of the notice of motion filed on 16 January 2019 depends, in part, on him achieving a successful outcome in relation to other notices of motion he filed in the 2016 proceeding on 28 June 2019 and 18 February 2020, in apparent disobedience of Kunc J’s order of 12 February 2019.

95    In the notice of motion filed on 18 February 2020, he sought orders that the Supreme Court decide, as separate questions, a large number of questions of “fact and law” concerning the Uncollected Goods Act and the Australian Consumer Law, and the application of that legislation to aspects of Mr Pritchard’s dispute with Mr Fryer. The notice of motion filed on 28 June 2019 sought orders that Mr Pritchard be granted leave to issue a court attendance notice to Mr Fryer in relation to a private criminal prosecution which Mr Pritchard wishes to bring against Mr Fryer and also that leave be granted to Mr Pritchard to commence a criminal prosecution against Mr Fryer for perjury. On 19 June 2020, while the present judgment was reserved, Robb J dismissed both notices of motion: Pritchard v Fryer [2020] NSWSC 744.

96    Mr Pritchard then alleged that Mr Fryer has been involved in “very serious abuses of process”. Mr Pritchard asserted that Mr Fryer misled the Supreme Court in the 2016 proceeding by relying, in particular, on letters he had written on 21 April 2016 and 5 May 2016. The letter of 21 April 2016 was, apparently, read into evidence at the hearing before Robb J. This letter explained why Mr Fryer would not be responding to two notices to produce which Mr Pritchard had served in the 2016 proceeding. It also said that Mr Fryer would assert a lien over Mr Pritchard’s goods “for which work/invoice remains unpaid”, and charge Mr Pritchard for storage in relation to his goods remaining at Mr Fryer’s premises after 1 May 2016. Mr Pritchard’s point seems to be that, as at the date of the letter, Mr Fryer was claiming sums from Mr Pritchard which had not, by then, been invoiced by Mr Fryer and that Mr Fryer then commenced to issue tax invoices dated as far back as 2012 for work that he had performed. The letter of 5 May 2016 apparently contained a statement by Mr Fryer that he was not withholding any of Mr Pritchard’s goods and that Mr Pritchard was free to collect them using the procedure set out in the letter of 21 April 2016. Mr Pritchard alleges that this statement was false. He argues that, contrary to the statement in the letter, he was not able to collect the goods because Mr Fryer had not properly invoiced him for the work done and, without being properly invoiced, he (Mr Pritchard) could not pay for the work done. Mr Pritchard submitted that, in these circumstances, he was effectively being held to ransom.

97    Whether or not any of these allegations are true, I am unable to see how any reliance by Mr Fryer on these letters, including by reading part of the letter of 21 April 2016 into evidence in the 2016 proceeding, constitutes an abuse of process or that such reliance impugns the costs order on which the bankruptcy notice is founded.

98    Another complaint is that Mr Fryer charged Mr Pritchard for storage fees when, according to Mr Pritchard, Mr Fryer was not entitled to do so. Mr Pritchard’s argument is that, because Mr Fryer did not incur any additional liability to his landlord by reason of Mr Pritchard’s goods remaining at Mr Fryer’s workshop, he could not charge for storage. Whether Mr Fryer was entitled to charge Mr Pritchard for storage is not a matter with which I need be concerned because, once again, that assertion by Mr Pritchard, if it be correct, does not impugn the costs order on which the bankruptcy notice is founded. I should add that there is no evidence before me that Mr Pritchard has, in fact, paid any of those charges. He has certainly not raised any claim that he is entitled to repayment of any storage fees he might have paid.

99    Mr Pritchard then took me to Kang v Kwan [2001] NSWSC 698 at [44], dealing with the loss of client legal privilege under s 125 of the Evidence Act 1995 (NSW). He also took me to Reg v Cox and Railton (1884) 14 QBD 153 at 168 and JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm) (Ablyazov) at [93] and [105] dealing with the principle that, at common law, legal professional privilege attaches only to communications where, as between lawyer and client, there is professional confidence and professional employment and that these features will be absent where the advice or litigation, over which or in respect of which the privilege is claimed, is in furtherance of a fraud, crime or similar iniquity (referred to in Ablyazov as the iniquity exception).

100    The relevance of these cases to the present application escapes me. Nevertheless, Mr Pritchard relies on them to contend there has been no professional confidence between Mr Fryer and his former counsel Mr Sharrock, and no professional employment of Mr Sharrock by Mr Fryer, because, according to Mr Pritchard, they have engaged in “a relentless campaign to mislead the court”. This is allied to a more general allegation by Mr Pritchard to the effect that Mr Fryer and Mr Pritchard have engaged in “iniquitous schemes”. To illustrate this point, Mr Pritchard seized on Popplewell J’s rejection of a submission in Ablyazov at [105] that the iniquity exception only arises where the conduct in question is “uniformly iniquitous”. Popplewell J said:

105    … That does not prevent such communications being part of, and in furtherance of, the iniquitous strategy in relation to his assets as a whole. Telling the truth in part is the furtherance of iniquity if the bigger picture is that such truth is a deliberately incomplete picture put forward as part of a strategy designed to deceive and evade, supported by perjury, forgery and contempt.

101    Mr Pritchard then submitted:

So again, your Honour, you can see that you can’t have a situation where, effectively, Robb J or any other judge is misled by a material omission, if you like. And that’s, essentially, what Popplewell J has said there. And, in fact, that last bit of that paragraph is exactly, I say, your Honour – these matters are yet to be tested, of course, before Robb J – but that is exactly what I say has been done relentlessly over four years by Mr Fryer in front of every judge that we’ve appeared before. What there is is there’s sort of an initial iniquitous scheme, which might be Mr Fryer’s letter of 21 April 2016 that I referred to earlier where, you know, where he’s withholding my goods and not issuing invoices and threatening me with a lien for storage. And then, what I call the secondary iniquitous scheme, which is what Popplewell J probably referred to there, is, you know:

… put forward as part of a strategy designed to deceive and evade, supported by perjury, forgery and contempt.

So, for example, the perfect example of that, your Honour, is Mr Fryer’s letter of 21 April 2016. That’s the initial iniquitous scheme, which I say is, you know, perjury and unwarranted demands with menaces, and then Mr Fryer follows up with a letter on 5 May trying to cover it up and saying, “Oh, no. I’m not withholding Mr Pritchard’s goods,” you know. It’s one iniquitous scheme followed by concealment. And, your Honour, these are very serious matters because, as I said, they go directly to the issue of abuse of process and a dishonest abuse of power, as Santow J found in Kang v Kwan.

Now, your Honour, I understand that this is court of equity and I am not strictly limited to remedies today under the Bankruptcy Act, and the British case law going back 200 years, your Honour, the common law, is my remedy, in addition to the statutory remedies. And, your Honour, I would ask this court today to take very close note of this. …

102    There is nothing before me that would lead me to conclude that Mr Fryer and Mr Sharrock have engaged in “iniquitous schemes”. This is a long-standing allegation by Mr Pritchard which has not found acceptance when previously raised. For example, it was rejected by Pembroke J in June 2018: see [27] – [29] above. Parker J struck out similar allegations concerning the letters of 21 April 2016 and 5 May 2016 in Mr Pritchard’s cross-claim in the 2018 proceeding.

103    Further, there is nothing before me that would lead me to conclude that, when making the costs order on which the bankruptcy notice is based, Robb J was misled by any of the matters or in any of the ways asserted by Mr Pritchard. The basis on which his Honour made the costs order is made clear from the passages in the reasons for judgment I have quoted at [16] – [17] above. As I have said, there is nothing that would warrant the Court in going behind that order.

104    Mr Pritchard raised another allegation of abuse of process, this time based on prayers 3 and 4 of his summons in the 2018 proceeding, which I have quoted at [45] above. Mr Pritchard argues that the claiming of this relief was an abuse of process because, according to Mr Pritchard, it could not be granted in light of the trade mark issue which Mr Fryer had raised in the email of 9 February 2016. If, as Mr Fryer contended, the sale of Mr Pritchard’s guitars would infringe Fender Australia’s trade marks, and also expose the seller to liability under s 148 of the Trade Marks Act, then, according to Mr Pritchard, claiming the relief in prayers 3 and 4 must have been an abuse of process because Mr Fryer had not obtained Fender Australia’s consent to any sale or other supply before Mr Fryer filed his summons.

105    Once again, on the material before me, I cannot tell whether the sale or other supply of Mr Pritchard’s guitars would infringe Fender Australia’s registered trade marks or give rise to an offence under s 148 of the Trade Marks Act. But, whatever the position may be in that regard, it simply does not follow that it was incumbent on Mr Fryer to obtain Fender Australia’s consent to any sale or other supply before filing his summons. I do not intend to explore this question further because Mr Fryer’s claims under the Uncollected Goods Act, as reflected in the summons, were discontinued with leave of the Supreme Court. Moreover, as events have transpired, Mr Pritchard’s goods have been returned to him. The issue which Mr Pritchard has raised is not only moot, but unconnected to the costs order made in the 2016 proceeding.

106    Mr Pritchard advanced a variation of this argument. He contended that, because Mr Fryer had not sought Fender Australia’s consent to any sale or other supply before he filed the summons, he must have been motivated by something other than a genuine desire to be paid for the work he had carried out. Thus, the summons was filed for an improper purpose and was, therefore, an abuse of process. Mr Pritchard did not articulate what this other “improper” purpose was, other than to say that there was “another agenda” to harm him. I am not persuaded that Mr Fryer acted with any purpose other than the purpose of being paid what he claimed he was owed. But, once again, the issue which Mr Pritchard has raised is moot and unconnected to the costs order made in the 2016 proceeding.

107    Finally, Mr Pritchard argued that the Court should permit his notices of motion in the 2016 proceeding to “run their course” before taking any action that could prejudice him. And even though Mr Pritchard said that he intends to appeal the orders made by Parker J on 1 April 2020, he also says that he proposes to file a notice of motion seeking leave to re-plead his cross-claim in the 2018 proceeding. He submitted that it was not in the interests of justice for this Court to allow any other course.

108    As to the notices of motion, I can only repeat the observations I have made at [93] – [95], noting that two of them have now been dismissed. The remaining notice of motion does not stand as a reason for setting aside the bankruptcy notice. As to the application that Mr Pritchard says he wishes to bring to re-plead his cross-claim in the 2018 proceeding, I share Parker J’s scepticism as to whether Mr Pritchard can formulate viable claims. He has certainly not persuaded me that he has such claims which sound in damages. Moreover, the claims which, in the present application, Mr Pritchard asserted he has against Mr Fryer, could have been brought in the now-dismissed 2016 proceeding, in which the costs order was made.

Conclusion and disposition

109    Mr Pritchard has failed to establish any basis on which the bankruptcy notice should be set aside. His application will be dismissed, with costs. I will, however, extend the time for compliance with the bankruptcy notice until 4.00 pm on 21 July 2020 to enable Mr Pritchard the further opportunity to comply with it.

Associate:

Dated:    7 July 2020