The principal issue before the Supreme Court is whether the amended statement of claim disclosed a reasonable cause of action or is an abuse of process. In the background is an ongoing complaint about the manner in which litigation was conducted and the fees charged.

Mr Bingham alleged the statement of claim falls short for a number of reasons, including that it makes complaints that are subject to other proceedings and would be an abuse of process. Mr Bingham also claimed some of Mr Boensch’s complaints cannot be maintained due to the doctrine of advocate’s immunity from suit.

Justice Mark Richmond ruled the proceedings should not be struck out because there are “causes of action which are capable of being identified” but agreed the claim was “clearly defective” in some parts. Mr Boensch has been given an opportunity to file a further statement.

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“However, as [Mr Boensch] 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,” Justice Richmond cautioned.

As to the immunity, Justice Richmond found there was no immunity owing to Mr Bingham relating to a caveat proceeding that had settled. However, he also noted an application for summary dismissal was not an “appropriate time” to determine an immunity application.

Justice Richmond noted that Mr Boensch appeared self-represented and, “given the difficulties” he has had, a referral was made for Mr Boensch to receive a pro bono barrister’s assistance.

From bankruptcy notices to High Court: Complex history behind stoush with lawyer

In August 2005, almost two decades before Mr Bingham would be caught up in the matter, Mr Boensch was hit with a sequestration order in respect of his estate following service of a bankruptcy notice. Scott Pascoe was appointed the trustee in bankruptcy.

A caveat was lodged two days later but ultimately lapsed in 2009. All disputes within the amended statement of claim, and concerning Mr Bingham, all arose out of what transpired next.

Represented by Somerville Legal, Mr Boensch sought compensation from Mr Pascoe on the basis that the caveat had allegedly been lodged, and then refused to be withdrawn, without reasonable cause.

During this proceeding, a dispute arose between Mr Boensch and Somerville Legal, which led to a judgment being made in favour of the legal centre for $91,212.35 and $4,061.47, the latter being the costs and interests for the application for assessment of costs.

Following several failed attempts to appeal this, there was a discussion between Mr Boensch, Mr Bingham and counsel Christopher Bevan to appeal to the High Court of Australia. This discussion allegedly included terms on which Mr Bingham and Mr Bevan would act, including a proposed mortgage over a property.

This then led to subsequent litigation between Mr Boensch and Mr Bingham about whether there was a “cap” on the fees payable by Mr Boensch of $100,000 and whether Mr Bingham was entitled to payment prior to March 2021. These two concerns were the primary features in the most recent amended statement of claim issue.

There was also separate litigation between Mr Bingham and Mr Bevan.

Ultimately, in March 2019, Mr Boensch entered into a mortgage in favour of Mr Bingham, which was later found to be the only costs agreement in respect of the High Court proceedings.

In the meantime, a second bankruptcy notice was filed by Somerville Legal. Mr Boensch failed to have this set aside and also failed to have the costs judgment for Somerville Legal appealed.

In June 2019, the High Court granted Mr Boensch special leave to appeal in respect of his dispute with Mr Pascoe. This was eventually heard and dismissed in October 2019.

That month, Mr Bevan issued an invoice to Mr Bingham for $261,750 – which was the subject of the separate litigation between the two – and Mr Bingham then emailed Mr Boensch with the costs disclosures between all parties in respect of the High Court proceedings.

Mr Boensch rejected these costs disclosures.

In December 2019, Somerville Legal’s creditor’s petition was heard, and a sequestration order was again made on the property.

Two months later, the trustees disclosed that Mr Bingham had made a total claim owing by Mr Boensch of $550,355.46, of which $100,000 was claimed to be secured by the mortgage.

Mr Bingham then lodged an application for assessment of his costs in October 2020, which was objected to by Mr Boensch.

The costs assessor issued a costs certificate in the amount of $372,674.84, but ultimately, a judge found the costs agreement entered into by Mr Boensch with Mr Bingham – related to the High Court proceedings – was the agreement constituted by the mortgage under which Mr Bingham’s fees were subject to the $100,000 cap and any liability could not be enforced until march 2024.

In the current stage of the proceedings, Mr Boensch’s amended statement of claim is seeking to challenge the existence of that future liability.