FAMILY COURT OF AUSTRALIA
Beamish & Coburn (Deceased) [2021] FamCAFC 20
Appeal from: Pilkvist & Coburn (Deceased) [2020] FamCA 92 Appeal number(s): NOA 19 of 2020 File number(s): BRC 2525 of 2009 Judgment of: ALDRIDGE, AUSTIN & TREE JJ Date of judgment: 22 February 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal from costs order against counsel and solicitor – Jointly and severally liable for successful respondent’s costs of proceedings before the primary judge – Breakdown of de facto relationship – Where the proceedings were doomed to fail but were nonetheless pursued – No error by the primary judge – Appeal dismissed with fixed costs – Legal representatives jointly and severally liable for respondent’s costs of appeal and cross-appeal.
FAMILY LAW – CROSS-APPEAL – COSTS – Cross-appeal from costs order against counsel and solicitor – Rule 19.10 of the Family Law Rules 2004 (Cth) – Where quantum and apportionment were not raised before the primary judge – Cross-appeal dismissed with fixed costs – Legal representatives jointly and severally liable for respondent’s costs of the appeal and cross-appeal.
Legislation: Family Law Act 1975 (Cth) ss 31, 79, 79A, 90SM, 90SN, 90RD, 117
Family Law Rules 2004 (Cth) r 19.10
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Cassidy v Murray (1995) FLC 92-633; [1995] FamCA 91
Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2006) 233 ALR 97; [2006] FCA 671
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Pilkvist & Coburn (Deceased) [2019] FamCA 635
Pilkvist & Coburn (Deceased) [2020] FamCAFC 204
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Radecki & Fairbairn (2020) FLC 94-001; [2020] FamCAFC 307
Sheill & McMurr (No 2) (2014) FLC 93-599; [2014] FamCAFC 134
Division: Appeal Division Number of paragraphs: 94 Date of hearing: 9 December 2020 Place: Heard in Brisbane (via video link), delivered in Sydney Counsel for the Appellant/ Second Cross-Respondent: Mr Page QC (direct brief) Counsel for the First Respondent/ First Cross-Respondent: Mr Waterman Solicitor for the First Respondent/ First Cross-Respondent: Peter J Sheehy Solicitor Counsel for the Second Respondent/ Cross-Appellant: Mr Jones Solicitor for the Second Respondent/ Cross-Appellant: D Firm Third Respondent/ Third Cross-Respondent: Litigant in person ORDERS
NOA 19 of 2020
BRC 2525 of 2009APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS BEAMISH
Appellant/ Second Cross-Respondent
AND: MR COBURN (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVES MS COBURN AND MR ELDER
First Respondent/ First Cross-Respondent
MS FARENS
Second Respondent/ Cross-Appellant
MS PILKVIST
Third Respondent/ Third Cross-Respondent
ORDER MADE BY:
ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
22 FEBRUARY 2021
THE COURT ORDERS THAT:
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CaseChat Overview and Summary
In the matter of Beamish & Coburn (deceased), the Full Court of the Family Court of Australia was asked to determine appeals against costs orders made against the appellant's counsel and solicitor, and a cross-appeal against a costs order made against the cross-appellant's counsel and solicitor. The appeals arose out of proceedings between Ms Pilkvist and the deceased, who had been in a de facto relationship until the deceased moved into a nursing home in 2014. Ms Pilkvist had brought a claim under section 90RD of the Family Law Act 1975 (Cth) seeking a declaration that she and the deceased had been in a de facto relationship from 1993 until 2009 and sought a division of property. The claim was resolved by consent in 2009, with a payment of $400,000 made to Ms Pilkvist and a declaration made that a de facto relationship had never existed between her and the deceased. Despite this, Ms Pilkvist continued to live in the deceased's house until she was evicted in 2014.
The legal issues before the court were whether the primary judge erred in failing to require the appellant to produce evidence of her financial position and whether the primary judge erred by failing to take into account the fact that the appellant was retained on or about 2 April 2019. The court found that there was no error in the primary judge's decision, as the appellant was afforded the opportunity to adduce evidence on the application against her but chose not to do so. The court also found that the appellant was responsible for the claim from the beginning and should have confronted the issues as to the breakdown of the relationship immediately.
The court dismissed both the appeal and the cross-appeal, and ordered that the appellant and the cross-appellant be jointly and severally liable for the costs of the first respondent fixed in the sum of $8,000. The court found that the primary judge did not err in making the costs orders, and that the appeals and cross-appeal were without merit. The legal representatives of the appellant and the cross-appellant are therefore jointly and severally liable for the respondent's costs of the appeal and cross-appeal.
The legal issues before the court were whether the primary judge erred in failing to require the appellant to produce evidence of her financial position and whether the primary judge erred by failing to take into account the fact that the appellant was retained on or about 2 April 2019. The court found that there was no error in the primary judge's decision, as the appellant was afforded the opportunity to adduce evidence on the application against her but chose not to do so. The court also found that the appellant was responsible for the claim from the beginning and should have confronted the issues as to the breakdown of the relationship immediately.
The court dismissed both the appeal and the cross-appeal, and ordered that the appellant and the cross-appellant be jointly and severally liable for the costs of the first respondent fixed in the sum of $8,000. The court found that the primary judge did not err in making the costs orders, and that the appeals and cross-appeal were without merit. The legal representatives of the appellant and the cross-appellant are therefore jointly and severally liable for the respondent's costs of the appeal and cross-appeal.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The cross-appeal be dismissed.
3. The appellant and the cross-appellant be jointly and severally liable for the costs of the first respondent fixed in the sum of $8,000.
Background
Background to the litigation
As to the appellant, the primary judge said:51.Although [the appellant] submits that she considered withdrawing during the trial, it could not be said that her attempts to do so were made within a reasonable time, given what she knew or ought to have known at least as early as 2 April 2019, namely, that the Court did not have the power to make the order sought. The fact that [the appellant] decided not to withdraw because she contends that [the cross-appellant] swore at her and threatened to sue her for negligence does little to commend her or indeed [the cross-appellant’s] (if accurately portrayed) professionalism. [The appellant] also incorrectly submits that [Ms Pilkvist’s] case changed during the trial. As already noted, [Ms Pilkvist’s] evidence as contained in her trial affidavit, her statements on each of the four iterations of the Initiating Applications, and her oral evidence remained consistent.52.[The appellant’s] breach of the duty imposed by r 1.08(1)(a) to ensure that the Court had the power to make the order sought was serious. [The appellant’s] failure to give proper consideration (or any consideration at all) to the futility of the claim or, if she did, to withdraw from the proceedings if her advice was not taken, amounts to improper or unreasonable conduct. The circumstances as they involve [the appellant] are of an exceptional kind and warrant an award of costs on an indemnity basis.BACKGROUND In order to understand the appeal, it is necessary to give some detail first as to the relationship between Ms Pilkvist and the deceased and then turn to the course of the proceedings before the primary judge. The following is taken from the reasons of the Full Court in Pilkvist & Coburn (Deceased) [2020] FamCAFC 204:4.The deceased was a quadriplegic and required assistance with his day to day care. In 1993, he placed an advertisement seeking a live in carer. He proposed to provide free accommodation, board and a discretionary payment to the live in carer. [Ms Pilkvist] responded to the advertisement and was engaged in the position until July 2014, which was when the deceased moved into a nursing home.…6.It was not in dispute that from 1993 until July 2014, [Ms Pilkvist] lived in the deceased’s house and provided him with the necessary care. Each week [Ms Pilkvist] received a payment from the deceased (initially in the sum of $1,200 per week, then $1,500 per week and increasing to $1,850 per week for a period in 2014), which was used by her to buy food and other household supplies. [Ms Pilkvist] was free to retain the balance for her own use, which she did.7.On 23 March 2009, [Ms Pilkvist] brought a claim under s 90RD of the Act seeking a declaration that she and the deceased had been in a de facto relationship from 1993 until 14 March 2009, at which time she asserted that they had separated but continued to live in the same house. [Ms Pilkvist] also sought a division of property pursuant to s 90SM of the Act.8.[Ms Pilkvist’s] evidence in the proceedings before the primary judge was that she had been persuaded to bring the proceedings in 2009 by the deceased’s lawyer as a means of obtaining funds from the deceased to purchase furniture and appliances for the deceased’s home ([Ms Pilkvist’s] affidavit filed on 29 June 2016, paragraph 38–46).9.On 20 October 2009, [Ms Pilkvist’s] claim was resolved by consent and a payment of $400,000 was made to her pursuant to a Deed of Settlement. A declaration was also made that a de facto relationship had never existed between [Ms Pilkvist] and the deceased.10.The declaration made on 20 October 2009 is of some significance because if the relationship between the deceased and [Ms Pilkvist], whatever its nature, continued in the same way without change after October 2009, it must logically follow that it too was not a de facto relationship.11.The evidence called by [Ms Pilkvist] before the primary judge, however, did not suggest that there was any significant change in the nature of the relationship between her and the deceased after October 2009. It must be said, however, that much of that evidence was in general terms and often did not say whether the events described took place before or after that date. The general tenor of the evidence was that the arrangements within the deceased’s household remained much as they were, although his health deteriorated.12.Notwithstanding the proceedings in 2009 and the subsequent resolution of them, [Ms Pilkvist] continued to live in the deceased’s house, other than for a few days immediately after the settlement.13.[Ms Pilkvist] said that from the settlement payment that she received from the deceased, she spent $4,500 replacing the carpet in the deceased’s house and $4,500 on a sofa bed in 2011, and purchased a hospital adjustable bed probably around 2011 or 2012. Confusingly, she also deposed that she saved money from the weekly payments that she received from the deceased to enable her to purchase furniture ([Ms Pilkvist’s] affidavit filed on 29 June 2019, paragraph 46).14.On 23 July 2014, the deceased was removed from his house by a number of people who held an enduring power of attorney for him and taken to hospital. He was moved to a nursing home a few days later.15.[Ms Pilkvist] was evicted from the deceased’s house on 26 July 2014.16.A temporary protection order was made against [Ms Pilkvist] for the protection of the deceased on 24 July 2014. On 17 November 2014, a final protection order was granted for the protection of the deceased for a period of two years.17.The Public Guardian was appointed as the guardian of the deceased on 24 October 2014 as to accommodation, healthcare, provision of services and the application for protection orders. The Public Guardian also made decisions in relation to contact between [Ms Pilkvist] and the deceased, which included authorising supervised visits with conditions and then ultimately barring contact altogether. On the same day, the Public Trustee of Queensland was appointed as administrator over most of the deceased’s financial affairs. On 4 January 2016, the Queensland Civil and Administrative Tribunal dismissed [Ms Pilkvist’s] application to be substituted as the person responsible for decisions concerning the deceased’s care.
Evidence
Evidence Before The Court
This ground of appeal is not established.Did the primary judge err by failing to require the appellant to produce evidence of her financial position? (Ground 1(b)) We commence the discussion of this ground of appeal by noting that the appellant was afforded the opportunity to adduce evidence on the application against her, but did not adduce any evidence at all as to her financial circumstances. This was noted by her Honour at [53]. Notwithstanding that she had taken that course, the appellant submitted that s 117(2A)(a) of the Act states that the Court shall have regard to, amongst other things, “the financial circumstances of each of the parties to the proceedings” and therefore there was “a mandatory duty on a judge … to require that evidence” (the appellant’s Summary of Argument filed on 17 August 2020, paragraph 12). We disagree. Section 117(2A)(a) of the Act does no more than require the Court to consider the financial circumstances of the parties known to it. There is no obligation to seek out this evidence if a party chooses not to provide it. Section 117(2A) of the Act also directs the Court to consider the conduct of the parties in relation to the proceedings (s 117(2A)(c)) and any offers to settle the proceedings (s 117(2A)(f)). The appellant’s submission, if accepted, would require the Court to demand such evidence on every costs application. Proceedings under the Act are civil proceedings conducted by the parties, who chose the parameters of the dispute before the Court and may, subject to some exceptions in parenting cases, call such evidence as they consider relevant to the issues which they have chosen to put in dispute. It is not for a judge to demand such evidence. Indeed, the Court is entitled to proceed on the basis that a failure to adduce evidence on a particular consideration under s 117(2A) of the Act is an indication that the party takes the view that the consideration is not relevant and carries no weight in arriving at the appropriate conclusion.Did the primary judge err by failing to take into account the fact that the appellant was retained on or about 2 April 2019? (Ground 1(c)) The submission under this ground was that the appellant was not responsible for the first three versions of the Initiating Application. That is so, but the bulk of the respondent’s costs were incurred in relation to the hearing before the primary judge itself. It was then submitted that:14.It is quite clear that [the appellant’s] instructions to trial were that there had been a necessary breakdown. It was the evidence of [Ms Pilkvist] that was different and unexpected.(The appellant’s Summary of Argument filed on 17 August 2020) (As per the original) We have already explained why this submission cannot be accepted. The only indication of Ms Pilkvist’s instructions or the advice given to her as to the prosecution of the claim falls to be gleaned from the various iterations of the Initiating Application and her affidavit evidence. As we have explained, each was consistent with the evidence given orally at trial. The issues as to the breakdown of the relationship were obvious from the moment the appellant was instructed and should have been confronted immediately.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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