Boensch v Bingham

1. [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 of claim (ASOC) on the basis that the defendant’s motion would be treated as referable to the ASOC and the matter proceeded on that basis. The defendant, John Bingham (Solicitor) is a solicitor and the plaintiff, Franz Boensch (Client), is his former client.

2. [2]

   In broad terms, these proceedings concern the conduct by the Solicitor of several litigious matters on instructions from the Client. The Client complains about the manner in which the litigation was conducted and the fees charged by the Solicitor. The principal issue is whether the ASOC discloses a reasonable cause of action or is an abuse of process. The Solicitor accepts that the test for this purpose is whether the pleaded cause of action or actions are manifestly groundless: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129. The Solicitor submits that the ASOC meets that description because: (a) in several respects it makes complaints about the conduct of litigation by the Solicitor which cannot be maintained due to the doctrine of advocate’s immunity from suit; (b) there are complaints made in the ASOC which are subject to an issue estoppel; (c) there are complaints made in the ASOC which are made in other proceedings between the Client and the Solicitor in this Court so as to make the agitation of those claims in this proceeding an abuse of process; and (d) in other respects the ASOC makes claims for damages or forfeiture of remuneration by the Solicitor in circumstances in which, on the pleaded facts, no cause of action is disclosed.

3. [3]

   At the hearing the Client, who is not a lawyer or legally trained, was self-represented. Mr Dooley of counsel appeared for the Solicitor.

4. [4]

   In order to put the claims sought to be advanced in the ASOC in context it is necessary to set out a factual chronology which I have taken from the material in evidence.

Factual Chronology

1. [5]

   On 23 August 2005, a sequestration order was made in respect of the Client's estate following service of a bankruptcy notice on the Client (1st Bankruptcy Notice) as a result of a judgment against him obtained in the Local Court in 2003. Mr Scott Pascoe was appointed as the trustee in bankruptcy.

2. [6]

   On 25 August 2005, Mr Pascoe lodged a caveat in respect of a property in Rydalmere registered in the name of the Client. Ultimately the caveat lapsed in September 2009. All the disputes to which the ASOC relates arise out of the proceedings which the Client then brought in this Court seeking compensation from Mr Pascoe pursuant to s 74P of the Real Property Act 1900 (NSW) on the basis that the caveat had been lodged (and refused to be withdrawn) without reasonable cause. Separate questions in respect of whether the Client was entitled to compensation were heard and determined by Darke J. Somerville Legal acted for the Client, and instructed Mr Bevan of counsel who appeared for the Client with Ms Sethi of counsel.

3. [7]

   On 10 December 2015, Darke J answered the separate questions contrary to the Client and dismissed the proceedings with costs: Boensch as trustee of the Boensch Trust v Pascoe [2015] NSWSC 1882.

4. [8]

   A dispute arose between the Client and Somerville Legal regarding the costs charged by the latter for acting in the proceedings before Darke J. Somerville Legal lodged an application for assessment of its costs and following the issue by a costs assessor of two certificates of determination the Client lodged an application for review by the costs review panel. This was determined in favour of Somerville Legal and led to Somerville Legal obtaining two judgments against the Client in the Local Court for $91,212.35 and $4,061.75, the latter being for the costs of those assessments, plus interest accrued thereon.

5. [9]

   On 8 February 2017, the Client filed a summons in the District Court appealing from the decisions of the costs review panel. On 14 December 2018, following repeated failures by the Client to comply with court orders for the service of evidence, Wilson DCJ ordered that the appeal summons be struck out.

6. [10]

   On 20 December 2018, the Client’s appeal from the decision of Darke J to the Full Court of the Federal Court of Australia was dismissed with costs: see Boensch as trustee of the Boensch Trust v Pascoe [2018] FCAFC 234. The Client was represented on the appeal by Mr Bevan instructed by Madison Marcus Law Firm.

7. [11]

   In early 2019, there were discussions between the Client, the Solicitor, and Mr Bevan in respect of an application for special leave to appeal from the decision of the Full Court to the High Court of Australia, and the terms on which the Solicitor and Mr Bevan would act, including a proposed mortgage over the Rydalmere property to secure payment of their fees.

8. [12]

   An aspect of these discussions which has led to subsequent litigation between the Client and the Solicitor, and other litigation between Mr Bevan and the Solicitor, was the terms of the costs agreements they entered into — in particular whether the costs agreement between the Client and the Solicitor included a "cap" on the fees payable by the Client of $100,000, and whether the Solicitor was entitled to receive payment prior to 1 March 2024.

9. [13]

   Ultimately, on 12 March 2019, the Client entered into a mortgage of the Rydalmere property in favour of the Solicitor which included an Annexure ‘A’ setting out the terms on which the Client would be liable to the Solicitor for legal costs incurred by the Client as the client of the Solicitor (Mortgage). The Mortgage was found by Judge Mansousaridis in the decision referred to at [38]­–[39] below to be the only costs agreement between the Client and the Solicitor in respect of the High Court proceedings.

10. [14]

    In the meantime, on 7 February 2019, a bankruptcy notice (2nd Bankruptcy Notice) was issued at the request of Somerville Legal (which had acted for the Client in the proceedings before Darke J) and was served on the Client that day. The 2nd Bankruptcy Notice claimed the total of the amounts due to Somerville Legal under the two judgments against the Client referred to at [8] above.

11. [15]

    On 4 March 2019, the Client applied in the Federal Circuit Court of Australia (Circuit Court) to have the 2nd Bankruptcy Notice set aside. On 4 April 2019 Judge Street dismissed this application with costs on the basis that the application was not brought within the 21-day period for compliance with the bankruptcy notice and the Circuit Court had no power to extend time for compliance as an act of bankruptcy had occurred: Boensch v Somerville Legal Pty Ltd [2019] FCCA 868 (1st Circuit Court decision). The Solicitor acted for the Client in this application.

12. [16]

    On 13 March 2019, Henry J made final orders in proceedings in this Court brought by Somerville Legal against the Client in relation to a caveat lodged by Somerville Legal over the Rydalmere property: Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267 (1st Caveat proceedings). The caveat related to a security taken by Somerville Legal over the Rydalmere property to secure a debt for legal costs outstanding to it under a Deed of Agreement and Mortgage dated 21 September 2015. The Client denied liability on various grounds and brought a cross-claim (Caveat Cross-Claim) claiming essentially that his liability to Somerville Legal was limited to $100,000 by an oral agreement between them, and that as he had already paid the firm $89,500, the firm was not entitled to the full amount claimed. The final orders made by Henry J did not deal with the substantive claims made in the proceedings which had been resolved by the parties without a hearing on the merits: Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267 at [8]–[11]. The Solicitor said to the Client in an email sent on 12 November 2019 that the Caveat Cross-Claim was not pursued because “evidence was not put on to support the cross claim before I was involved”.

13. [17]

    On 20 March 2019, the Client filed a notice of motion in the District Court seeking leave to file an amended appeal summons from the decisions of the costs review panel referred to at [8] above. On 10 July 2019, Balla ADCJ declined to grant that leave. An application for judicial review was brought by the Client against that decision in the Court of Appeal and was dismissed with costs: Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249. The Solicitor acted for the Client in both of these proceedings.

14. [18]

    On 5 April 2019, Somerville Legal filed a creditor's petition in the Circuit Court based on the Client’s failure to comply with the 2nd Bankruptcy Notice.

15. [19]

    On 11 April 2019, Robertson J dismissed an interlocutory application that the Client had filed in the Federal Court on 9 April 2019 in relation to the 1st Circuit Court decision seeking urgent orders (in the nature of extending time for compliance with the 2nd Bankruptcy Notice): Boensch v Somerville Legal Pty Ltd [2019] FCA 590. An appeal from the 1st Circuit Court decision was subsequently bought in the Federal Court on 26 April 2019 and dismissed with costs by Abraham J on 25 October 2019: Boensch v Somerville Legal Pty Ltd [2019] FCA 1752.

16. [20]

    On 21 June 2019, the High Court granted special leave to appeal to the Client against the Full Court’s decision in respect of the dispute with Mr Pascoe.

17. [21]

    On 3 October 2019, Mr Bevan issued an invoice to the Solicitor for $261,750 (plus GST), and $2,856 (plus GST) for photocopying, in respect of work done for the High Court proceedings.

18. [22]

    On 4 October 2019, the Solicitor sent an email to the Client with documents described (broadly) as costs disclosures between the Solicitor and the Client, Mr Bevan and the Solicitor, and Mr Wells (of counsel) and the Solicitor in respect of the High Court proceedings.

19. [23]

    Also on 4 October 2019, the Client sent an email to the Solicitor (copying Mr Bevan) in which he rejected the costs disclosures in respect of the High Court proceedings.

20. [24]

    On 11 October 2019, the High Court heard the appeal. Mr Bevan appeared with Mr Wells of counsel for the Client, instructed by the Solicitor. On 13 December 2019, the High Court dismissed the Client's appeal with costs: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49.

21. [25]

    In the meantime, on 6 December 2019, the Solicitor had issued an invoice to the Client in respect of the High Court proceedings for $391,555.44 (incl. GST), which included $301,636.72 (incl. GST) for Mr Bevan's fees.

22. [26]

    On 12 December 2019, Somerville Legal’s creditor’s petition filed on 5 April 2019 was heard, following which the Circuit Court made a sequestration order against the Client's estate based on the 2nd Bankruptcy Notice: Somerville Legal v Boensch [2019] FCCA 3637 (2nd Circuit Court decision). By this time, the Solicitor had ceased to act for the Client and he appeared in person at the hearing.

23. [27]

    On 17 February 2020, the trustees of the Client’s bankrupt estate appointed under the 2nd Circuit Court decision issued a report to creditors which disclosed that the Solicitor had lodged a total claim for his costs and disbursements owing by the Client of $550,355.46 of which $100,000 was claimed to be secured by the Mortgage. It seems that the difference between this amount and the amount of the Solicitor’s invoice dated 6 December 2019 is the fees for the other work the Solicitor performed for the Client during his retainer.

24. [28]

    On 15 October 2020, the Solicitor lodged an application for assessment of his costs in relation to the High Court proceedings claimed in the 6 December 2019 invoice.

25. [29]

    Also around that date, Mr Bevan lodged an application for assessment of his costs (with the Solicitor being the costs respondent) in respect of the High Court proceedings.

26. [30]

    On 26 November 2020, the Client submitted a letter to the costs assessor setting out his objections to the Solicitor's application in respect of the High Court proceedings.

27. [31]

    On 9 December 2020, the costs assessor made a decision about the costs assessment in respect of the High Court proceedings and issued a costs certificate in the amount of $372,674.84 (incl. GST), comprising the Solicitor’s costs ($358,234.71), interest ($10,524.58) and a filing fee ($3,915.55). The costs certificate was not provided to the Client until it was emailed to him on 12 May 2021.

28. [32]

    On 26 May 2021, the Full Court of the Federal Court allowed the appeal from the 2nd Circuit Court decision in respect of the sequestration order made on 12 December 2019 essentially on the basis that the primary judge had failed to afford procedural fairness to the Client: Boensch v Somerville Legal [2021] FCAFC 79. The Full Court remitted the creditor’s petition filed by Somerville Legal to the Circuit Court, differently constituted, for hearing. The Client sought special leave to appeal from this decision to remit the creditor’s petition to the Circuit Court which was refused on 7 April 2022. In Somerville Legal’s response to the application, it stated that it had offered to the Client to withdraw the creditor’s petition because, given his financial circumstances, there was no utility in pursuing it.

29. [33]

    On 4 June 2021, the Solicitor lodged the costs certificate (in respect of the High Court proceedings) for registration as a judgment with the District Court, and judgment in the sum of $372,674.84 against the Client was entered that day.

30. [34]

    On 23 June 2021, the Solicitor applied for a bankruptcy notice to issue based on the District Court judgment of 4 June 2021 (3rd Bankruptcy Notice), and on 6 September 2021, the 3rd Bankruptcy Notice was served on the Client.

31. [35]

    On 22 September 2021, the Client applied to the Circuit Court to set aside the 3rd Bankruptcy Notice.

32. [36]

    On 23 November 2021, the Client filed an application to review the decision of the costs assessor dated 9 December 2020, and sought an extension of time in which to do so. On 3 December 2021, the Manager, Costs Assessment, refused the extension of time sought to challenge the decision of the costs assessor.

33. [37]

    On 24 January 2022, the Client made an application by a summons filed in this Court, to review the decision of the Manager, Costs Assessment of 3 December 2021.

34. [38]

    On 21 October 2022, Chen J granted the Client the extension of time sought and set aside the decision of the Manager, Costs Assessment, and directed that the matter be referred to a review panel: see Boensch v Bingham [2022] NSWSC 1432 (Costs decision). Critical to Chen J’s reasoning was the decision handed down by Judge Manousaridis on 4 February 2022 which set aside the 3rd Bankruptcy Notice: Boensch v Bingham (No 2) [2022] FedCFamC2G 47 (3rd Circuit Court decision). In broad terms, Judge Manousaridis found that that the costs agreement entered into by the Client with the Solicitor in relation to the High Court proceedings was the agreement constituted by the Mortgage under which the Solicitor’s fees were subject to "cap" of $100,000, and that any liability he had could not be enforced until 1 March 2024, with the result that there was no debt underlying the judgment in respect of the costs certificate. Chen J considered that these findings gave rise to an issue estoppel or alternatively, were highly relevant and persuasive to any costs determination: see [61], [66], [67] and [69].

35. [39]

    The key aspects of Judge Manousaridis’ reasoning for present purposes are as follows:

36. [40]

    Earlier in his reasons when dealing with the history of the Client’s dispute with both the Solicitor and Mr Bevan regarding their costs of the High Court proceedings, Judge Manousaridis made the following observations at [39(f)] (footnotes omitted):

37. [41]

    On 22 February 2023, Abraham J dismissed the appeal from the 3rd Circuit Court decision expressing agreement with the analysis of Judge Manousaridis set out [39] above: Bingham v Boensch [2023] FCA 117.

38. [42]

    On 8 March 2023 the review panel sent a letter to the Client and the Solicitor which stated, with reference to [84(h)-(i)] and [85] of the 3rd Circuit Court decision:

39. [43]

    While the Client has no present liability to the Solicitor in respect of costs, it follows from the 3rd Circuit Court decision that he will have a liability to the Solicitor under the Mortgage for costs up to the cap of $100,000 on and from 1 March 2024. By the ASOC he seeks to challenge the existence of that future liability.

Relevant principles

1. [44]

   Rule 13.4(1) of the UCPR provides:

2. [45]

   Rule 14.28(1) of the UCPR provides:

3. [46]

   The court may receive evidence on the hearing of an application for an order under either of these rules: r 13.4(2) and r 14.28(2). Both parties tendered evidence at the hearing of the defendant’s motion, including the judgments in the key decisions referred to in the chronology set out above.

4. [47]

   Rule 13.4 applies to the proceedings generally and to claims for relief in the proceedings. Given the drastic consequences for a plaintiff of a court exercising the power under r 13.4(1), the power is to be exercised with the upmost caution and it is only appropriate to summarily dismiss proceedings or a claim for relief in proceedings where the case of the plaintiff is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [66]–[67]. In General Steel Industries, Barwick CJ said at 129 that the test to be applied had been expressed in many very different ways, including “manifestly groundless”.

5. [48]

   Rule 14.28 permits the striking out of the whole or part of a pleading. As a general principle, the power to strike out should only be exercised in plain and obvious cases and if a defect in a pleading can be cured by amendment then it is appropriate to grant leave to amend the pleading rather than to strike it out or summarily dismiss the proceedings: Peter Taylor SC et al, Ritchie’s Uniform Civil Procedure NSW (LexisNexis) [14.28.25].

6. [49]

   The power to strike out a pleading, in whole or part, is informed by the critical role performed by pleadings in the conduct of litigation in the court and ensuring the timely and cost-effective resolution of disputes. In Dickens v New South Wales (No 3) [2018] NSWSC 485, Adamson J (as her Honour then was) summarised the requirements to avoid a defective pleading and the reasons for those requirements, as follows:

7. [50]

   The need for the court to consider whether a defect in a pleading can be cured by amendment is particularly relevant in the case of self-represented litigants. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536 Kirby P (with whom Hope and Samuels JJA agreed) said (emphasis added):

8. [51]

   It follows that a court should in the case of a self-represented plaintiff take care to ensure that if it can identify a viable cause of action in a defective pleading which could with appropriate amendment and a little assistance from the court be put into proper form, the plaintiff should be given that opportunity.

9. [52]

   The need for the court to provide some assistance to self-represented litigants arises from the duty of the court to ensure procedural fairness to all litigants, and in the case of a self-represented litigant the extent of the assistance which can be given depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case: Minogue v HREOC (1999) 84 FCR 438; [1999] FCA 85 at [27]–[29]. However, it is important to ensure that in providing assistance to the self-represented litigant the court does not thereby confer an advantage on the self-represented litigant and cease to maintain its impartiality. The extent of the assistance provided must be proportionate in the circumstances and cannot extend to giving legal advice: Dickens at [46].

10. [53]

    A balance needs to be struck, therefore, between the need to avoid procedural unfairness and the need to avoid a compromise of judicial impartiality, which was emphasised by Samuels JA in Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 (in a passage approved by Sackville, North and Kenny JJ in Minogue at [28]):

11. [54]

    In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant.

12. [55]

    It may be inferred that Samuels JA saw no inconsistency between this statement and the later observations of Kirby P set out at [50] above with which his Honour concurred. Indeed, there are many examples of a court providing assistance to a self-represented litigant to amend a pleading so that it pleads a cause of action which the court can identify is available on the pleaded facts and the evidence before it: see eg. Norman v Wall (No 5) [2020] NSWSC 1062; Hind v Ronsel Investments Pty Ltd (No 3) [2021] VSC 385 at [89]–[92].

13. [56]

    An advocate is immune from suit for negligence for work done in court or for work done out of court which leads to a decision affecting the conduct of the case in court or, to put it another way, work intimately connected with work in a court: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [85]–[86], [94]–[95] and [359]. The weight of authority indicates that the immunity also extends to both an action in contract and statutory causes of action for misleading and deceptive conduct, arising out of the same conduct: Nikolaidis v Satouris (2014) 317 ALR 761; [2014] NSWCA 448 at [24]–[42].

14. [57]

    The advocate’s immunity is available not only to a lawyer who acts as an advocate, but also to a solicitor who gives advice which leads to a decision which affects the conduct of a case in court: D’Orta-Ekenaike at [90]–[91].

15. [58]

    The basis for the immunity is the protection of the finality and certainty of judicial determinations and, consequently, what is required for the immunity to apply is a functional connection between the work of the advocate or solicitor and the determination of the case in court: Attwells v Jakson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [5] and [46]; Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 at [31]. Consequently, the immunity is not engaged merely because there is an historical connection between the advice and the outcome of the case, in the sense that one precedes the other: Attwells at [49].

16. [59]

    Advocate’s immunity does not extend to negligent advice given to a party either to settle or not to settle a case: Attwells at [5], [45]–[46]; Kendirjian at [32].

17. [60]

    In the present case, the 1st Caveat proceedings before Henry J were settled and hence the Solicitor has no immunity for negligent advice, if any, regarding the decision to settle. While the settlement was reflected in consent orders made by the court, this does not affect the position: Attwells at [6], [59]–[62].

18. [61]

    Given that advocate’s immunity does not apply to negligent advice not to settle a proceeding, the better view is that it will not apply to negligent advice to bring an appeal, at least one which is doomed to failure: Dansar Pty Ltd v Pagotto [2008] NSWSC 112 at [91], [94]; Alpine Holdings Pty Ltd v Feinauer [2008] WASC 85 at [86], [92]; Volanne Pty Ltd v Donohue [2021] ACTSC 48 at [54].

19. [62]

    In many cases, an application for summary dismissal will not be an appropriate time to determine the potential application of advocate’s immunity because the pleadings may not sufficiently enable the negligent conduct to be identified: FEV Mono Constructions Pty Ltd v Beattie [2021] NSWCA 18 at [20].

The ASOC

1. [63]

   The Client commenced these proceedings by summons on 13 December 2021.

2. [64]

   The relief claimed in the ASOC is relevantly as follows:

3. [65]

   The pleading in support of the relief claimed comprises five sections:

4. [66]

   There is an overlap between prayers 5 and 6 of the relief claimed in the ASOC and the relief claimed by the Client in a cross-claim filed by him in other proceedings brought by the Solicitor in this Court against the Client on 8 November 2021 (2nd Caveat proceedings). Those proceedings have been heard by Peden J and judgment is reserved. In those proceedings the Solicitor seeks a declaration that the Mortgage is valid and enforceable and a declaration that he has a caveatable interest in the Rydalmere land pursuant to the Mortgage. The Client has filed a cross-claim in those proceedings seeking relevantly the following relief:

5. [67]

   It would be an abuse of process for the Client to bring a separate proceeding in a different form in relation to the same subject matter as the cross-claim: Australian Hardboads Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 at [34]. Accordingly, prayers 5 and 6 of the ASOC should be struck out. Similarly, prayers 9 and 10 should be struck out because they are the subject of the proceedings before Peden J and will be res judicata. Prayer 4 should also be struck out for the reason given at [92] below.

ASOC Section A: General contract and retainer

1. [68]

   The ASOC at [1]–[18] essentially pleads: (a) the facts leading to the engagement of the Solicitor to act for the Client, (b) that the Solicitor agreed to act for the Client in relation to two matters, being the application for special leave to appeal to the High Court and any High Court appeal arising therefrom and secondly defending the Client against the claim brought against him by Somerville Legal including preventing Somerville Legal from making him bankrupt, and (c) that the costs agreement entered into between the Client and the Solicitor for all these matters comprises the Mortgage (including Annexure ‘A’) entered into in March 2019.

2. [69]

   The Solicitor did not take any objection to the content of these paragraphs of the ASOC and I did not understand there to be any dispute that the Mortgage is a costs agreement for all matters in which the Solicitor acted for the Client referred to in the ASOC.

Section B: Conduct of proceedings against Somerville Legal

1. [70]

   ASOC [19]–[98] pleads facts related to claims against the Solicitor regarding the conduct by him of three litigious disputes between the Client and Somerville Legal which arose from the Client’s failure to pay Somerville Legal’s outstanding fees for the proceedings before Darke J. The Client pleads (by reference to allegations made previously in the Caveat Cross-Claim) that he entered into an oral agreement with Somerville Legal in 2015 under which his liability for costs was capped at $100,000, he had previously paid a total amount of $89,500 to Somerville Legal under that costs agreement and disputed that he had any remaining liability to Somerville Legal above the amount of $22,340. It was on the basis of the alleged oral agreement to cap Somerville Legal’s fees at $100,000 that the Client brought an appeal to the District Court against the decisions of the costs review panel, which proceedings were struck out by Wilson DCJ on 14 December 2018. This was before the Solicitor was engaged to act for the Client.

2. [71]

   The first claim (ASOC [19]–[46]) relates to proceedings commenced by the Client in the District Court on 20 March 2019 seeking leave to file an amended summons by way of appeal from the decisions of the costs review panel. On 10 July 2019, Balla ADCJ declined to grant that leave. An application for judicial review was brought against that claim by the Client in the Court of Appeal and was unsuccessful: see [17] above. The Solicitor acted for the Client in both of these proceedings.

3. [72]

   The complaint made by the Client in relation to the conduct of the proceedings before Balla ADCJ is that the Solicitor failed (a) to bring to the attention of the District Court his medical history relevant to circumstances in which his earlier appeal was dismissed, (b) to present a comprehensive view of the merits of his claim, and (c) to demonstrate to the District Court that the case was more than just an arguable case: ASOC [35]. He also pleads that the Solicitor was given the opportunity by the District Court to provide supporting evidence during the proceedings but failed to do so ASOC [36]. He alleges that because of the Solicitor’s “unprofessional actions/conduct”, the application to Balla ADCJ was lost and the Solicitor is liable for loss and damages and has forfeited or is not entitled to remuneration for his services: ASOC [37] - [39].

4. [73]

   The Solicitor submits that the claim falls within the doctrine of advocate’s immunity and cannot succeed, relying on Golden v Koffel [2022] NSWCA 8 at [13]–[15]. I agree that this claim as currently pleaded is precluded by advocate’s immunity and ASOC [28]–[40] should therefore be struck out.

5. [74]

   In relation to application to the Court of Appeal for judicial review of the orders made by Balla ADCJ, the Client claims that these proceedings had not been professionally prepared by the Solicitor, and that as a consequence the Solicitor is liable for damages for his unprofessional conduct and has forfeited his entitlement to remuneration: ASOC [41]–[46]. For the same reasons as given in the previous paragraph, this claim against the Solicitor as currently pleaded cannot succeed and ASOC [41]–[46] should also be struck out.

6. [75]

   The second claim (ASOC [47]–[62]) relates to the non-prosecution of the Caveat Cross‑Claim in the 1st Caveat proceedings which the Solicitor took over in February 2019. As noted at [16] above, the 1st Caveat proceedings were resolved by agreement without a hearing on the merits. The final orders made by Henry J included the dismissal of the Caveat Cross-Claim, but it is clear that this resulted this cross-claim not being pressed at the hearing: [2019] NSWSC 267 at [8]. The Client claims that as a result of the failure to pursue this cross-claim the “problem” with Somerville Legal’s unjustifiable claim for costs was not resolved and this caused “dramatic loss and damage for the plaintiff”. He claims that the Solicitor is liable for damages because of his “unprofessional conduct” and has forfeited, or is not entitled to, remuneration for his services in respect of that matter: ASOC [53]–[62].

7. [76]

   The Solicitor contends that this claim is also precluded by advocate’s immunity. In my view that contention is not correct for the reasons given at [58]–[59] above. However, it is necessary for the ASOC at [47]-[62] to be amended to plead properly the nature of the cause of action in negligence and/or contract and the damage suffered.

8. [77]

   The third claim (ASOC [63]–[98]) relates to the proceedings brought by the Client to contest the 2nd Bankruptcy Notice. The Client claims that he instructed the Solicitor to contest the 2nd Bankruptcy Notice in both emails and meetings in February 2019 which, if acted upon, would have resulted in the proceedings to contest the 2nd Bankruptcy Notice being brought within time rather than out of time: ASOC [66]–[69]. The Client claims that due to the failure of the Solicitor to act on these instructions, the Client was required to commence the proceedings that led to the 1st Circuit Court decision as a self-represented litigant and that they were subsequently taken over by the Solicitor. The Client claims that because the proceedings were brought out of time, he was not able to adduce evidence to establish that there was no debt outstanding to Somerville Legal (on the basis of the allegations in the Caveat Cross‑Claim), and that had they been brought within time, the subsequent proceedings to contest the sequestration order (and other related proceedings) would not have been necessary: ASOC at [70]-[94]. The Client claims an entitlement to damages for the Solicitor’s “unprofessional conduct” and that the Solicitor is not entitled to, or has forfeited his entitlement to, remuneration for his services in the conduct of the relevant court proceedings: ASOC at [95]-[98].

9. [78]

   The Solicitor submits that this claim does not disclose a cause of action for two reasons. First, it is said that on the Client’s own case as pleaded in the ASOC at [70], the advice as to the time for filing the application in the District Court was given by the Registry staff at the District Court to the Client on 1 March 2019 rather than by the Solicitor, and hence the ASOC does not disclose any breach of duty or contract by the Solicitor. Second, the Solicitor submitted that the sequestration order was ultimately set aside by the Full Federal Court (see [32] above) and consequently the Client has suffered no loss.

10. [79]

    In my view, these submissions do not meet the essential allegation of the Client, which is that the Solicitor failed to act on the instructions the Client gave him, in a timely fashion, to commence the proceedings to set aside the 2nd Bankruptcy Notice which, had they been acted on, would have meant that the application would have been brought within time (ASOC [66]–[69]). It is open to the Client to claim damages for the adverse costs order in the 1st Circuit Court decision and both wasted costs and adverse costs orders in the related proceedings. This claim is not covered by advocate’s immunity because the conduct relied on does not have a functional connection with the finality of judicial determination which the immunity serves to protect. However, it is necessary for the ASOC at [63]-[98] to be amended to plead more clearly the cause of action and the damages claimed.

Section C: The High Court proceedings

1. [80]

   The ASOC at [99]–[127] makes a complaint about the manner in which the appeal to the High Court was conducted. In essence the complaint is that, despite the invitation given by Nettle and Gordon JJ during the course of the oral argument on the special leave application, the Solicitor did not “present” or “provide” to the High Court on the appeal any evidence as to the amount of rent owing by the Client for the use by him of the areas in the Rydalmere property which he occupied in order to establish that there was an “offset claim” which exceeded by some $400,000 the amount of his right of indemnity as trustee of the Boensch Trust, with the result that he had no beneficial interest in the Rydalmere property capable of supporting Mr Pascoe’s caveat. It is then said that the failure to present this evidence led to the Client suffering loss or damage and the defendant had “forfeited” his right to, or was not entitled to, remuneration for his services in acting in the High Court proceedings.

2. [81]

   This allegation relates to the conclusion reached by the High Court that the Client’s appeal failed because he had not discharged his onus of proving that he had no right of indemnity and therefore lacked any beneficial interest in the Rydalmere property because the value of the benefits obtained under the arrangement for his use of the property would equal or exceed the total of the trust expenses incurred by him: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [9], [96]-[100], [102].

3. [82]

   In so far as this allegation relates to the failure to put new evidence to the High Court it is misconceived because the High Court is unable to receive fresh evidence on appeal due to s 73 of the Constitution: see Roads and Traffic Authority v Cremona (2002) 191 ALR 566; [2002] HCA 38 at [2]. Hence, it would only have been possible for the Client to have succeeded on the indemnity question if the evidence adduced for the Client at the hearing before Darke J was sufficient. It is clear from the passages from the High Court’s decision referred to above that it was not. This difficulty facing the Client, which is referred to in the passage from the 3rd Circuit Court decision set out at [40] above, would have been apparent at the time the special leave application was made and/or at the time the appeal to the High Court was commenced.

4. [83]

   The Solicitor submits that this claim falls within the doctrine of advocate’s immunity and therefore cannot be maintained.

5. [84]

   A claim that new evidence was not put to the High Court of the kind referred to above would, apart from being hopeless, be covered by advocate’s immunity. However, that is not the end of the matter. The ASOC at [106] raises more generally the allegation that the Solicitor did not, due to the deficiency in the evidence regarding the offset claim, represent and protect the Client’s interests in the High Court proceedings. As indicated by the observations in Wentworth v Rogers (No 5) set out at [50] above, the Court needs to take into account the disadvantage which the Client suffers as a self-represented litigant and should not shut out the Client from raising a claim in respect of the conduct of the High Court proceedings if there is a viable cause of action which, with an appropriate amendment to the pleading and a little assistance from the Court, could be put into a proper form.

6. [85]

   In my view, the ASOC at [99]–[127] raises a potential cause of action in negligence for advice given to bring the High Court appeal. It is arguable that advice to seek special leave to appeal and/or run the appeal following the grant of special leave in circumstances where the evidence is insufficient to make good an argument on which the success of the appeal depends would be negligent, and not protected by advocate’s immunity. Such advice has no functional connection with the conduct of the case in court, and would only have an historical connection with the ultimate determination by the High Court: see [60] above. The damages for such negligent advice would include the legal costs incurred by the Client in prosecuting the appeal (both of his Solicitor and of the successful respondent).

7. [86]

   In my view, allowing the Client to replead this cause of action is in the interests of justice and consistent with the principles stated at [50]–[54] above. Whether such a cause of action would succeed is, of course, quite another matter and nothing said in this judgment should be read as going to that question. There may be arguments available to the Solicitor, or evidence that can be led, which either negate negligence or bring the matter within the doctrine of advocate’s immunity.

8. [87]

   The ASOC at [99]–[127] will need to be repleaded to set out clearly the cause of action and damages claimed in respect of the High Court proceedings.

Section D: Failure to honour the retainer

1. [88]

   The ASOC at [128]–[161] contains a claim that the Solicitor breached the terms of the retainer in the following ways:

2. [89]

   The Client then claims the Solicitor is liable for damages including the costs orders made against the Client in the proceedings relating to the 2nd Bankruptcy Notice and has forfeited the right to, or is not entitled to, any remuneration for his services in connection with the retainer.

3. [90]

   The Solicitor submits that these claims are subject to four difficulties: (a) they seek to agitate the same issues which were dealt with in the 3rd Circuit Court decision and are therefore precluded by issue estoppel, for the reasons stated by Chen J in the Costs decision at [60] - [69]; (b) these claims are the same as claims brought in the cross-claim in the 2nd Caveat proceedings and to allow them to be brought again is oppressive to the Solicitor (Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 591) and bring the administration of justice into disrepute (UBS Ag v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1]); (c) to the extent that the Client challenges the quantum of fees payable to the Solicitor or seeks to contend that the Solicitor is not entitled to payment of fees under the capped costs agreement, the decision of the costs review panel has already determined that the amount payable is nil and accordingly the bringing of the claim is an abuse of process; (d) no loss or damage is identified, which is consonant with the 3rd Circuit Court decision and the decision of Abraham J on appeal from that decision.

4. [91]

   I agree with the Solicitor’s submission, and note also that it is not possible to identify from these paragraphs of the ASOC a cause of action which is not precluded by advocate’s immunity. Accordingly, the ASOC at [128]–[161] should be struck out.

Section D1: Collaboration with Mr Bevan

1. [92]

   This section of the ASOC comprises two paragraphs which contain a claim that the Solicitor collaborated with Mr Bevan “to circumvent the capped costs agreement” and claims that the Solicitor is liable to the plaintiff for loss and damages, without particularising what they are: ASOC [162]–[163].

2. [93]

   As the Solicitor submitted, this part of the ASOC does not disclose a cause of action and should be struck out. Further, it appears to be linked to the relief claimed in prayer 4 of the ASOC which alleges “a conspiracy … amounting to fraud”. An allegation of fraud must be clearly pleaded and properly particularised, by specifically alleging the acts involved and that they were done in a manner that involves fraud: UCPR r 14.14. That has not been done. Accordingly prayer 4 should be struck out.

Conclusion

1. [94]

   The proceedings should not be struck out because there are causes of action which are capable of being identified: see [75], [78] and [84] above. However, the ASOC is clearly defective in a number of ways, in particular it fails to identify the required connection between allegations of fact and the causes of action alleged and as indicated above, there are various parts which should be struck out. I will grant leave to the plaintiff to file and serve a further amended statement of claim. However, as the plaintiff has already had a number of opportunities to replead his case, I indicate that he should not assume that if the next pleading is defective that the proceedings will not be dismissed with costs.

2. [95]

   Given the difficulties which the plaintiff has had to date, due to his absence of legal training, in preparing a pleading which is not deficient, I will make a referral for him to have the assistance of a barrister under the pro bono scheme.

3. [96]

   I will reserve the question of costs.

4. [97]

   I make orders as follows:

   1. (1)

      Prayers 4, 5, 6, 9 and 10 of the ASOC and [28]-[46], [128]-[163] of the ASOC are struck out.

   2. (2)

      The plaintiff has leave to file and serve a further amended statement of claim by 5pm on 27 October 2023.

   3. (3)

      Order that the plaintiff be referred to the Registrar for referral to a solicitor, or a barrister, or both, on the Pro Bono Panel for legal assistance pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).

   4. (4)

      The defendant’s motion filed on 22 December 2022 is otherwise dismissed.

   5. (5)

      Costs of the defendant’s motion are reserved.

   6. (6)

      The matter is listed for directions before the Registrar on 6 November 2023 with a view to setting a timetable for the further conduct of the proceedings.