Boensch v Bingham [2023] NSWSC 1152

Boensch v Bingham [2023] NSWSC 1152

The Amended Statement of Claim was defective in several respects, including claims precluded by advocate's immunity, issue estoppel, and abuse of process, and failed to connect facts to causes of action properly. However, some viable causes of action could be identified that, with proper pleading, might be available to the plaintiff. Accordingly, parts of the ASOC were struck out, but leave was granted to replead, and the plaintiff was referred to pro bono assistance due to their self-represented status.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Civil (equity) / Interlocutory—summary Dismissal and Strike Out Application
Outcome
Interlocutory orders — parts of plaintiff’s claim struck out with leave to replead; referral to pro bono program; costs reserved; remaining application otherwise dismissed.
Legal Topics
['pleadings' 'summary Dismissal' 'strike Out' "advocate's Immunity" 'costs Agreements' 'abuse of Process']
['civil Procedure' 'equity'] ['pleadings' 'summary Dismissal' 'strike Out' "advocate's Immunity" 'costs Agreements' 'abuse of Process']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil (equity) / Interlocutory—summary Dismissal and Strike Out Application

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim (ASOC) discloses a reasonable cause of action or is an abuse of process' 'Whether various claims are precluded by advocate’s immunity' 'Whether the ASOC contains claims already subject to issue estoppel or which constitute an abuse of process' 'Whether defective pleadings by a self-represented litigant should result in summary dismissal or amendment']

Ratio Decidendi

The Amended Statement of Claim was defective in several respects, including claims precluded by advocate's immunity, issue estoppel, and abuse of process, and failed to connect facts to causes of action properly. However, some viable causes of action could be identified that, with proper pleading, might be available to the plaintiff. Accordingly, parts of the ASOC were struck out, but leave was granted to replead, and the plaintiff was referred to pro bono assistance due to their self-represented status.

Court Disposition

Interlocutory orders — parts of plaintiff’s claim struck out with leave to replead; referral to pro bono program; costs reserved; remaining application otherwise dismissed.

Orders

  • ['Prayers 4, 5, 6, 9 and 10 of the ASOC and paragraphs [28]-[46], [128]-[163] of the ASOC are struck out.' 'Plaintiff has leave to file and serve a further amended statement of claim by 5pm on 27 October 2023.' 'Plaintiff referred to the Registrar for referral to solicitor or barrister on Pro Bono Panel pursuant to...