Beamish & Coburn (dec'd)
[2021] FamCAFC 20
•22 February 2021
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
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
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:
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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beamish & Coburn (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE JJ:
INTRODUCTION
On 19 February 2020, a judge of the Family Court of Australia ordered Ms Beamish (“the appellant”) and Ms Farens (“the cross-appellant”), a barrister and a solicitor respectively, to pay the successful respondent’s costs of proceedings in which they acted for the applicant, Ms Pilkvist. The successful respondent was the estate of the late Mr Coburn (“the respondent”). The order provided for them to be jointly and severally liable for the costs, which were fixed in the sum of $100,000. Further orders provided for the redaction of the names of the legal practitioners from the primary judge’s reasons for judgment (Order 3) and for their referral to the Legal Services Commission (Order 4). All of the orders were the subject of the appeal but, as no grounds of appeal or submissions were directed to the latter two orders, we shall say no more about them.
Each of the legal practitioners now appeals against that order. In addition, the cross-appellant seeks an order that if the appeal is dismissed, nonetheless, the order should be varied so that the liability is not joint and several, but shared so that the appellant is liable for 80 per cent and the cross-appellant is liable for 20 per cent of the costs.
The proceedings before the primary judge were between Ms Pilkvist and the respondent. Ms Pilkvist contended that there was a de facto relationship between her and Mr Coburn (“the deceased”) and sought a division of property pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
Those proceedings failed because the primary judge was not satisfied that a de facto relationship had existed between Ms Pilkvist and the deceased (Pilkvist & Coburn (Deceased) [2019] FamCA 635). Ms Pilkvist’s appeal against that decision was dismissed (Pilkvist & Coburn (Deceased) [2020] FamCAFC 204).
The primary judge was however concerned, having regard to the various iterations of Ms Pilkvist’s Initiating Application, her evidence in chief and her evidence given in cross-examination, that the relationship between Ms Pilkvist and the deceased had never broken down. If that was the case, even if a de facto relationship had existed, there was no basis for a property settlement claim under s 90SM of the Act, because it is a necessary pre-condition to the application of that section of the Act that there has been a “breakdown” of the de facto relationship. Thus, in her Honour’s view, the proceedings were doomed to fail, even if Ms Pilkvist had established the existence of a de facto relationship.
The primary judge came to the view that this difficulty ought to have been patently obvious to the legal practitioners acting for Ms Pilkvist who, nonetheless, pursued the matter to judgment.
Her Honour recognised, as do we, that an application for the payment of costs by legal practitioners “must be exercised with caution” (Cassidy v Murray (1995) FLC 92-633 at 82,359) and that the jurisdiction is compensatory and not punitive. Whilst more is required than merely acting for a client who has little or no prospects of success (Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 at [44]), proceeding “without any, or any proper, consideration of the prospects of success” or “serious incompetence in framing an application… and in its presentation” may enliven the discretion (Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2006) 233 ALR 97 at [1] and [12]).
The primary judge came to the following conclusion as to the cross-appellant:
46.I find that [the cross-appellant’s] failure to ensure that the Court had the power to make the order sought was a breach of r 1.08(1)(a) and is serious. The many iterations of the Initiating Application resulted in the respondent incurring unnecessary costs, including a trial. I also find that [the cross-appellant] failed to give proper consideration (or any consideration at all) to the essential jurisdictional fact that had to be established. In the first line of s 90SM of the Act the jurisdictional fact is apparent i.e. “In property settlement proceedings after the breakdown of a de facto relationship…”. (see also the definition of ‘de facto financial cause’ in s 4(1)(c) and s 44(5)) Even if it were the case that [the cross-appellant] was ignorant of the relevant jurisdictional fact at the commencement of the proceedings, the deficiency in the case was brought to her attention on 2 April 2019. The commencement and continuation of the proceedings in these circumstances amounts to improper or unreasonable conduct. If [the cross-appellant] gave appropriate advice to [Ms Pilkvist] which was not accepted she should have withdrawn.
(As per the original) (Emphasis in original)
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.
The proceedings before the primary judge were initiated by Ms Pilkvist on 29 June 2016. The Initiating Application filed on that day sought orders to the following effect:
·the orders made on 20 October 2009 be set aside pursuant to s 79A of the Act;
·a declaration that a de facto relationship exists between Ms Pilkvist and the deceased; and
·alteration of the parties’ property interests pursuant to s 79 of the Act.
The references to s 79 and s 79A of the Act were erroneous as they apply only to persons that have been married. As noted earlier, s 90SM of the Act (which deals with alterations of property interests between de facto partners) only applies where the de facto relationship has broken down. If a declaration was made in the terms sought by Ms Pilkvist at point two, it would preclude any property settlement being made in her favour.
The Initiating Application filed on 29 June 2016 was signed by Ms Pilkvist so as to verify the information contained within it. At line 27, a cross indicated that a date of final separation was “[n]ot applicable”. Similarly, at line 55(a), it was indicated, consistently with the declaration sought by Ms Pilkvist, that the de facto relationship had not broken down on or after March 2009.
The Initiating Application was amended on 3 August 2016 to seek orders primarily to the following effect:
·the orders made on 20 October 2009 be set aside pursuant to s 31(1)(aa) of the Act;
·a declaration that a de facto relationship exists between Ms Pilkvist and the deceased pursuant to s 90RD of the Act; and
·alteration of the parties’ property interests pursuant to s 90SM of the Act.
In the alternative, the Amended Initiating Application filed on 3 August 2016 sought:
·the declaration made on 20 October 2009 be set aside pursuant to s 90SN of the Act;
·a declaration that a de facto relationship existed between Ms Pilkvist and the deceased from 26 May 1994 until 17 July 2016; and
·the deceased pay to Ms Pilkvist an amount determined by the Court pursuant to s 90SM of the Act.
Once again, the primary relief sought by Ms Pilkvist precluded any property settlement being considered because of the proposed declaration that a de facto relationship continued to exist. The alternate declaration, if made, would permit a property settlement being made but it was inconsistent with the details contained in the Amended Initiating Application which continued to assert that there had been no separation or breakdown of the relationship.
The application was further amended on 6 December 2016 so as to primarily seek the following:
·the orders made on 20 October 2009 be set aside pursuant to s 31(1)(aa) of the Act;
·a declaration that a de facto relationship exists between the Ms Pilkvist and the deceased “post the declaration [made] on 20 October 2009 until present” pursuant to s 90RD of the Act; and
·alteration of the parties’ property interests pursuant to s 90SM of the Act.
In the alternative, the Further Amended Initiating Application filed on 6 December 2016 sought:
·the declaration made on 20 October 2009 be set aside pursuant to s 90SN of the Act;
·a declaration that a de facto relationship existed between Ms Pilkvist and the deceased from 26 May 1994 until October 2009;
·a declaration that “a de facto relationship exist[s] between the parties post the declaration on 20 October 2009 until present” pursuant to s 90RD of the Act (as per the original); and
·the deceased pay to Ms Pilkvist an amount determined by the Court pursuant to s 90SM of the Act.
The Further Amended Initiating Application filed on 6 December 2016 was attended with the same difficulties as the application that it replaced.
These issues should have been apparent to the cross-appellant who had filed each iteration of the Initiating Application on behalf of Ms Pilkvist.
The appellant was retained from at least 2 April 2019 and appeared for Ms Pilkvist throughout the trial before the primary judge.
A second Further Amended Initiating Application was filed on 10 April 2019. It sought:
1.That this honourable Court declare that a de facto relationship exists between the parties from 09 October 2009 to 06 December 2016.
2.That this Honourable court order an alteration of property interests pursuant to s.90SM [of the Act] 35% to [Ms Pilkvist] of the property pool or as the Court deems appropriate.
(As per the original)
This time, the declaration sought by Ms Pilkvist was capable of enlivening s 90SM of the Act. The information contained in the application however continued to indicate that there had been no separation or breakdown of the relationship.
We will now turn to the evidence given by Ms Pilkvist in her trial affidavit filed on 1 July 2019:
·The deceased was “forcibly taken out of the house” on 17 July 2014 by people who held an enduring power of attorney for him (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 26(b)).
·Ms Pilkvist was evicted from the house on 26 July 2014 (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 26(d)).
·In 2015, the Public Guardian had been appointed to manage the deceased’s affairs. The Public Guardian refused to permit Ms Pilkvist to contact the deceased, despite him wishing to see Ms Pilkvist (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(a)–(e)).
·Ms Pilkvist continued to visit the deceased and was again banned from seeing him on 26 October 2017 (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(f)).
·Ms Pilkvist and the deceased continued to communicate via telephone (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(g)).
·There was a call from the deceased on 6 December 2016 which Ms Pilkvist was unable to take. After 6 December 2016, Ms Pilkvist did not speak to the deceased anymore because he would get upset and did not understand why she could not visit (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(h)).
·From December 2016 to March 2017, Ms Pilkvist sought permission to visit the deceased but was not permitted to do so (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(i)–(m)).
·Ms Pilkvist wrote an email on 20 January 2017 which stated that Ms Pilkvist and the deceased were being separated “against our w[i]ll” (Annexure “MsP29” to Ms Pilkvist’s affidavit filed on 1 July 2019).
·Ms Pilkvist again asked to see the deceased in July 2017 (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 33(o)).
·Ms Pilkvist visited the deceased in December 2018 (Ms Pilkvist’s affidavit filed on 1 July 2019, paragraph 38).
That affidavit sought to incorporate Ms Pilkvist’s earlier affidavit filed on 29 June 2016. Whilst the primary judge did not receive Ms Pilkvist’s earlier affidavit filed on 29 June 2016 at the trial before her Honour, it was before us as part of the Appeal Book.
In her affidavit filed on 29 June 2016, Ms Pilkvist said:
19.… I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home…
…
21.… What we have for each other is deep feeling for one another.
…
82.… [The deceased] did not voluntarily leave me but was forced to…
Obvious difficulties emerge from this evidence.
The first is whether the parties had in fact separated at all. This issue can arise when one party to a de facto relationship becomes frail and is moved to a hospital or an aged care facility. This does not necessarily mean there has been a separation or breakdown of the de facto relationship or marriage, which can continue albeit in a different form (Stanford v Stanford (2012) 247 CLR 108 at [42]–[46]; Radecki & Fairbairn (2020) FLC 94-001 at [52]).
The second is identifying the date of the breakdown of the de facto relationship, if that had in fact occurred.
Essentially, the primary judge found that the legal practitioners were each negligent in failing to come to grips with these difficulties. The highest the evidence arrived at was that the appellant said that she considered withdrawing during the trial before the primary judge but did not do so because the cross-appellant swore at her and threatened to sue her for negligence.
THE APPEAL
As recorded above, the appellant was the barrister who appeared for Ms Pilkvist at the trial before the primary judge.
Ground 1(e) was not pressed.
We commence with the unremarkable proposition that a judgment is presumed to be correct until an error is established. The issue of costs is discretionary and any appeal from such a decision is subject to the well-known principles in House v The King (1936) 55 CLR 499 at 504–505 and Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [32]. An error cannot be demonstrated by establishing that another judge or an appellate court may have reached a different conclusion (Gronow v Gronow (1979) 144 CLR 513 at 519–520).
The appellant’s counsel commenced his oral address at the appeal hearing by making the general submission that the outcome of the proceedings was entirely and solely due to Ms Pilkvist unexpectedly changing her evidence during the course of cross-examination at the trial before the primary judge, which neither the appellant nor the cross-appellant could have anticipated. It followed, it was said, that there was no basis to find that the lack of success was due to any failing on their part. Although it was asserted that this submission was in support of Ground 1(g) (being that the order made by the primary judge was punitive), it was, in fact raised in Grounds 1(c) and 1(d) and in the cross-appeal.
It is true that during cross-examination at the trial before the primary judge, Ms Pilkvist said:
·Ms Pilkvist and the deceased never separated (Transcript 1 August 2019, p.54 line 42; p.78 lines 14–16);
·“We are a couple” (Transcript 1 August 2019, p.60 line 20);
·The de facto relationship “[d]id not end … [n]ever ended” and that it was still going until he died (Transcript 1 August 2019, p.77 lines 44–47);
·Ms Pilkvist and the deceased were still together when he died (Transcript 1 August 2019, p.78 lines 12–23); and
·“[W]e are in de facto relations. We are a couple. We are partnered” (Transcript 1 August 2019, p.105 lines 18–19).
These statements are, however, entirely consistent with the evidence in chief of Ms Pilkvist which we have set out earlier. Importantly, they are also consistent with the details provided as to separation and the breakdown of the relationship in each of the four iterations of the Initiating Application and the primary declaration sought in the first three versions.
The appellant’s submission cannot be accepted.
Did the primary judge provide adequate reasons? (Ground 1(a))
The appellant submits that the “reasons to make an order for costs against counsel must be detailed and significant” (the appellant’s Summary of Argument filed on 17 August 2020, paragraph 7). We agree, but we consider that her Honour’s reasons for judgment easily meet that standard. The primary judge’s reasons for judgment are detailed, thorough and her Honour’s reasoning process is clearly apparent (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
The general submission that there had been no anticipation by the appellant of instructions that the relationship had not broken down and that Ms Pilkvist had changed her evidence in cross-examination was repeated under this ground of appeal.
Finally, the appellant submitted that the primary judge “did not enunciate in her reasons what action was taken by counsel that was misleading” (the appellant’s Summary of Argument filed on 17 August 2020, paragraph 8). We are unable to locate any finding to that effect.
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.
This ground of appeal does not succeed.
Did the primary judge fail to take into account “the fact that the evidence at trial from [Ms Pilkvist] disavowing that previous evidence was that there had been a breakdown of the de facto relationship was not disclosed to the appellant at any time”? (Ground 1(d))
As the appellant’s Summary of Argument filed on 17 August 2020 makes clear, this ground is based on the premise that the oral evidence of Ms Pilkvist came as a “complete surprise” to the appellant (the appellant’s Summary of Argument filed on 17 August 2020, paragraph 16). We have not found that premise to have been established and this ground of appeal must fail.
Was the order made on the basis of a punitive approach having regard to the financial circumstances of the appellant? (Ground 1(g))
Did the primary judge err by finding that the evidence at trial was consistent with each iteration of the Initiating Application without regard to the amendment made on 10 April 2019? (Ground 1(f))
The appellant submits that the order made by the primary judge was punitive because no regard was had to her financial circumstances or the circumstances that led to the appellant not withdrawing from the proceedings.
There can be no error on the part of the primary judge by failing to take into account evidence which was not called.
The appellant did, however, provide the primary judge with short written submissions dated 21 November 2019 opposing the respondent’s costs application. The appellant’s written submissions asserted that at a conference (date unknown) “it was clearly established with [Ms Pilkvist] that the de facto relationship ended when [the deceased] was removed from his home” (the appellant’s written submissions dated 21 November 2019, paragraph 4) (footnote omitted). The relevant file note was attached.
We are unable to see that the attached file note supports the written submission. It is merely the agenda for the meeting and not notes of what actually occurred. However, even if the file note was to the effect asserted in the written submissions, it would not assist the appellant. This is because the date of the deceased’s removal from his home was 17 July 2014 or 23 July 2014, yet the date of the breakdown of the de facto relationship contended for in the Further Amended Initiating Application filed on 10 April 2019 and in the Case Outline filed on 29 July 2019, which was prepared for the primary judge by the appellant, was 6 December 2016. No explanation was proffered for the discrepancy.
In those same written submissions dated 21 November 2019, the appellant submitted that she could not be responsible for there being no date of separation or breakdown of the de facto relationship appearing on the first Initiating Application and the subsequent two amended versions, or the consequences thereof, because she was never briefed with a copy of it. However, the same difficulty appears in the Further Amended Initiating Application filed on 10 April 2019, after the appellant was briefed, and on which the trial proceeded, as well as in the affidavits of Ms Pilkvist.
It was submitted that the appellant advised Ms Pilkvist to discontinue the proceedings, but she appeared not to understand. The appellant said that at the end of the first day of the trial, during which the primary judge squarely raised the difficulties that arose from the evidence, she proposed withdrawing from the proceedings, but did not because the cross-appellant swore at her, threatened to sue her and persuaded her not to do so. In any event, it may have been too late for the appellant properly to have returned the brief.
The fact remains that the appellant did not withdraw and the above assertions do not establish any error on the part of the primary judge.
The appellant submits that the conduct of the primary judge during the trial demonstrates that the primary judge acted in a punitive manner (Transcript 1 August 2019, p.79 to p.80).
In her Honour’s exchanges with the appellant that are recorded in those pages of the transcript, the primary judge raised the issue of whether there had been a breakdown of the relationship and the consequences for the claim if that was, in fact, the case. Her Honour asked the appellant if she had considered Ms Pilkvist’s evidence that she and the deceased had never separated “in light of what you have to establish under section 90SM(1)” (Transcript 1 August 2019, p.80 lines 1–2).
The primary judge was properly alerting the appellant to an issue that needed to be addressed. We cannot see anything in that warning that would suggest that her Honour was, or was intending to, act in a punitive manner.
The appellant also submits that during this exchange her Honour criticised the appellant for misleading the Court. The primary judge did do so, but in relation to an entirely different matter.
At the beginning of the trial, the appellant indicated that she was relying on all 47 annexures to Ms Pilkvist’s affidavit filed on 1 July 2019. The primary judge considered that many of them were not relevant to the issues in the case. The appellant accepted this to be the case and the documents which were not to be relied on were identified. Her Honour directed that the irrelevant documents should be removed from the bundle and that the balance would be received as Exhibit 2.
After raising the issue as to the evidence, the following exchange occurred:
HER HONOUR: … Before we proceed, I asked you, before you handed up exhibit 2, whether or not the documents which you said you were no longer relying on had been removed and you told me they had. Some of them have not, so I don’t know why you tell me things that aren’t correct, [the appellant]; it’s not appreciated.
[THE APPELLANT]: I do apologise.
HER HONOUR: There’s also an envelope – a sealed envelope – included in this folder, addressed to Family Court. I don’t know what’s in it, I haven’t opened it but I shall return it to you. And you also indicated to me – and I’ve marked as exhibit 2 – that these are the exhibits to your client’s affidavit. I note that there are other documents included from other people’s affidavits, which his – and I haven’t given you leave to hand those up, so I will hand those back as well.
[THE APPELLANT]: Thank you, your Honour.
HER HONOUR: I really shouldn’t have to do your job for you, [the appellant], and I really don’t appreciate being misled by you.
[THE APPELLANT]: I – your Honour, I had no intention to ---
HER HONOUR: You may not have had an intention to and I accept that but it’s really very, very unhelpful when you tell me something and it’s not right.
[THE APPELLANT]: I do appreciate that, your Honour.
HER HONOUR: I’m entitled, surely, to rely on counsel’s representations to me and it seems I cannot rely on what you tell me and that’s very disappointing…
(Transcript 1 August 2019, p.80 lines 6–34)
There can be no suggestion that this criticism of the appellant related to the difficulties with the application which were foreshadowed by the primary judge or that it affected the outcome of the respondent’s costs application.
Finally, it was submitted that the order was punitive because the primary judge also referred the appellant to the Legal Services Commission. We do not agree. Whilst the referral may lead to disciplinary action being taken against the appellant, the issue as to who should pay the costs of the successful respondent could only be decided by the primary judge. It was a course that the primary judge was obliged to take because the respondent expressly sought costs orders against the appellant and the cross-appellant.
In oral submissions at the appeal hearing, the appellant pointed to the fact that the issue of the breakdown of the relationship was entirely irrelevant because the primary judge was not satisfied that a de facto relationship existed. That may be so, but the point is that the proceedings were doomed to fail because whatever the nature of the relationship, there was no evidence of a breakdown and there was significant evidence from Ms Pilkvist that it never ended until the death of the deceased. If that was the case, the proceedings never should have been pursued because it was inevitable that they would fail.
These grounds of appeal have not been established.
It follows that the appeal will be dismissed.
THE CROSS-APPEAL
As recorded above, the cross-appellant was the solicitor who acted for Ms Pilkvist throughout the proceedings before the primary judge.
The cross-appellant sought leave to cross-appeal. However, leave to appeal is not required against a final order (Sheill & McMurr (No 2) (2014) FLC 93-599 at [39]–[54]).
Did the primary judge err by finding that the cross-appellant did not follow r 19.10 of the Family Law Rules 2004 (Cth)?
Rule 19.10 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the Court to make a costs order against a lawyer for a reason, including where a lawyer’s conduct has been “improper or unreasonable” (r 19.10(1)(c) of the Rules).
We have already quoted the passage from the primary judge’s reasons for judgment where such finding was made against the cross-appellant.
The cross-appellant’s submissions under this ground assert:
10.The Cross Appellant acted, at all times consistently with [Ms Pilkvist’s] instructions… [t]hose instructions asserted [Ms Pilkvist] had been in a de facto relationship and that relationship had ended.
11.… What essentially changed, as regards [Ms Pilkvist’s] evidence was [Ms Pilkvist’s] understanding of the distinction between, the legal perspective of when the relationship ‘broke down’ and her emotional view that the relationship continued for her beyond her partner’s death.
12.… [Ms Pilkvist] at trial ‘misspoke’ due to her not understanding a legal distinction…
(The cross-appellant’s Summary of Argument filed on 3 September 2020) (As per the original)
The first difficulty is that those submissions do not identify error on the part of the primary judge, they merely describe the case as the cross-appellant would have it.
The second difficulty is that these submissions are not consistent with the various forms of the Initiating Application filed by Ms Pilkvist, all of which failed to assert a breakdown of the relationship or identify a date that it occurred. Indeed, the first three versions of the Initiating Application sought a declaration that the relationship had not ended. As we have explained, Ms Pilkvist’s affidavit evidence was consistent with there being no breakdown of the relationship.
This ground of appeal has not been established.
Did the primary judge fail to enquire into the reasonableness of the quantum of the costs sought by the respondent?
The primary judge recorded that “neither [the appellant] nor [the cross-appellant] cavil with the quantum claimed by the respondent” (at [55]).
The cross-appellant did not suggest that this comment was wrong.
If the issue of the quantum of the respondent’s costs had been raised at the hearing before the primary judge, submissions and most likely evidence would have been directed to that issue, but it was not. Accordingly, it is now too late to raise the point (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) at 71).
The cross-appellant repeated the appellant’s contention that the primary judge failed to enquire into the cross-appellant’s financial position, however, as with the appellant, she did not deign to call any evidence as to her financial circumstances. This submission is rejected for the same reasons.
Finally, the cross-appellant submitted that by awarding indemnity costs, the primary judge sought to punish the legal practitioners. This is a difficult submission to pursue in the absence of any challenge to the quantum of the costs sought by the respondent. Further, it is not correct to describe the orders as one for indemnity costs, although that was the description used by the primary judge. The costs incurred by the respondent were in the sum of $128,672.05 (Annexure “C” to the respondent’s affidavit filed on 16 October 2019). Thus, whilst the costs order made by the primary judge was fixed in a sum greater than at scale, the costs were not fixed on a true indemnity basis.
This ground of appeal does not succeed.
Did the primary judge err by making the appellant and the cross-appellant jointly and severally liable for the respondent’s costs?
In her submissions under this ground of appeal, the cross-appellant contends that, for a number of reasons, the appellant should bear the greater proportion of the liability which ought to have been apportioned so that the cross-appellant was only liable for 20 per cent of the respondent’s costs.
This ground of appeal must fail as these contentions were not raised before the primary judge. Had that occurred, the hearing would have taken a different course with evidence being called on this point (Metwally at 71). The point cannot now be taken on appeal.
The cross-appeal will be dismissed.
COSTS
The respondent sought costs of the appeal and the cross-appeal in the sum of $9,215.47 against the appellant and the cross-appellant on a joint and several basis, although it was properly accepted that some of the items could not be sustained.
Neither the appellant nor the cross-appellant sought to inform the Court of their financial circumstances. Indeed, contrary to submissions that the appellant put to the effect that the Court was obliged to require such evidence, counsel for the appellant said that he did not have such evidence and would not provide it to us.
The appeal and the cross-appeal were wholly unsuccessful (s 117(2A)(e) of the Act).
In the absence of any evidence raising other relevant considerations under s 117 of the Act, the appropriate order is that the appellant and the cross-appellant be jointly and severally liable for the respondent’s costs, which we will fix in the sum of $8,000. Whilst it was suggested to us that the costs should be apportioned between the appellant and the cross-appellant, no submissions were advanced as to how that might be done on a principled basis.
Ms Pilkvist sought no order as to costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree. Associate:
Dated: 22 February 2021
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