B & the Estate of Coburn

This matter concerned an application for costs against a legal practitioner, Ms B, by the respondent in proceedings concerning a de facto relationship. The dispute arose from Ms B's conduct of the applicant's case, particularly concerning the jurisdictional basis of the claim and the date of separation of the de facto relationship. The court was asked to determine whether Ms B's conduct warranted a costs order against her, and if so, on what basis.

The central legal issues before the court were whether Ms B had breached her duty to ensure the court had jurisdiction to hear the matter, whether her conduct was improper or unreasonable, and whether these failures justified an award of costs against her. Specifically, the court had to consider the conflicting statements made by Ms B regarding the date of separation, her failure to correct the applicant's evidence or withdraw from the proceedings when it became apparent the court lacked jurisdiction, and whether her conduct amounted to a serious breach of court rules or improper/unreasonable behaviour.

Carew J found that Ms B's conduct was indeed improper and unreasonable, constituting a serious breach of her duty under rule 1.08(1)(a) of the relevant rules. The court noted that Ms B had made conflicting submissions about the date of separation, including suggesting the relationship was ongoing, then proposing a date of separation that was inconsistent with the applicant's evidence and the events of the respondent's move to a nursing home. Crucially, the applicant's evidence remained consistent throughout the proceedings, and it was Ms B's representations and attempts to amend the application that were inconsistent and ultimately failed to establish a jurisdictional basis for the claim. The court concluded that Ms B's failure to give proper consideration to the futility of the claim, or to withdraw from the proceedings if her advice was not taken, warranted an award of costs against her on an indemnity basis.