Boensch v Bingham

Case [2023] NSWSC 1152


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

  1. 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…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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