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Boensch v Bingham

Boensch v Bingham

Case [2023] NSWSC 1152 22 September 2023

Standing

Advocate’s Immunity

Striking Out

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Boensch v Bingham [2023] NSWSC 1152
Hearing dates: 19 and 24 May 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Equity
Before: Richmond J
Decision:
See [96]

Catchwords:
CIVIL PROCEDURE — pleadings — striking out — advocate’s immunity from suit

Legislation Cited:
Uniform Civil Procedure Rules 2005
Real Property Act 1900 (NSW)

Cases Cited:
Alpine Holdings Pty Ltd v Feinauer [2008] WASC 85
Attwells v JaksonLalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Australian Hardboads Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Australian Hardboads Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Bingham v Boensch [2023] FCA 117
Boensch Trust v Pascoe [2018] FCAFC 234
Boensch v Bingham [2022] NSWSC 1432
Boensch v Bingham (No 2) [2022] FedCFamC2G 47
Boensch v Pascoe [2015] NSWSC 1882
Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593
Boensch v Somerville Legal [2021] FCAFC 79
Boensch v Somerville Legal Pty Ltd [2019] FCA 1752
Boensch v Somerville Legal Pty Ltd [2019] FCA 590
Boensch v Somerville Legal Pty Ltd [2019] FCCA 868
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
Dickens v New South Wales (No 3) [2018] NSWSC 485
FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Golden v Koffel [2022] NSWCA 8
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Hind v Ronsel Investments Pty Ltd (No 3) [2021] VSC 385
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Minogue v HREOC (1999) 84 FCR 438; [1999] FCA 85
Nikolaidis v Satouris (2014) 317 ALR 761; [2014] NSWCA 448
Norman v Wall (No 5) [2020] NSWSC 1062
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267
Somerville Legal v Boensch [2019] FCCA 3637
UBS Ag v Tyne (2018) 265 CLR 77; [2018] HCA 45
Volanne Pty Ltd v Donohue [2021] ACTSC 48
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Texts Cited:
Peter Taylor SC et al, Ritchie’s Uniform Civil Procedure NSW (LexisNexis)

Category: Principal judgment
Parties: Franz Boensch (Plaintiff)
John David Bingham (Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
Mr J Dooley (Defendant)
Solicitors:
Self-represented (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): 2021/00353042
Publication restriction: Nil

JUDGMENT

Before the Court is a notice of motion filed by the defendant for summary dismissal of the proceedings under rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (UCPR) or alternatively an order under rule 14.28 of the UCPR that the statement of claim be struck out. At the hearing the Court gave leave to the plaintiff to file an amended statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boensch v Bingham

Details

AGLC: Boensch v Bingham [2023] NSWSC 1152
Case: [2023] NSWSC 1152
Decision Date: 22 September 2023

CaseChat Overview and Summary

In Boensch v Bingham, the matter before the court was an application by the defendant, Bingham, to strike out the plaintiff's statement of claim. The plaintiff, Boensch, had commenced proceedings against Bingham, alleging professional negligence on the part of Bingham who acted as Boensch's advocate in a family law proceeding. The case was heard in the Supreme Court of New South Wales.

The central legal issue for the court was whether Bingham was entitled to strike out the statement of claim on the grounds of advocate’s immunity from suit. The court had to determine whether Bingham’s conduct during the family law proceeding could be considered negligent, and if so, whether the immunity granted to advocates applied to shield Bingham from the claim. Additionally, the court had to consider whether the plaintiff's statement of claim disclosed a cause of action against Bingham for professional negligence.

The court held that advocate’s immunity from suit does not extend to claims of professional negligence. The court found that the immunity applied to the advocacy provided in court but did not protect the advocate from liability for pre-trial conduct that could give rise to a claim for professional negligence. The court also found that the plaintiff's statement of claim sufficiently disclosed a cause of action against Bingham for professional negligence. Consequently, the application to strike out the statement of claim was dismissed.

The court ordered that Bingham pay Boensch’s costs of the application. This decision underscores the importance of distinguishing between the immunity of advocates in court and the professional conduct that precedes litigation, which remains subject to scrutiny and potential liability.

Orders