Pilkvist and Coburn (deceased) By His Legal Personal Representatives

[2019] FamCA 803

FAMILY COURT OF AUSTRALIA

PILKVIST & COBURN (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVES [2019] FamCA 803

FAMILY LAW – PRACTICE AND PROCEDURE – Referral of papers to the Legal Services Commission.

APPLICANT: Ms Pilkvist

RESPONDENT: Mr Coburn (deceased) by his legal personal representatives Ms Coburn and Mr E

FILE NUMBER: BRC 2525 of 2009

DATE DELIVERED: 31 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 October 2019

REPRESENTATION

FOR THE APPLICANT: Appearance excused

FOR THE RESPONDENT: Appearance excused

FOR MS B Mr Page QC

FOR MS F Self-represented

ORDERS

1. The Senior Registrar of the Family Court of Australia is requested to provide the following material to the Legal Services Commission, Queensland for their consideration:

   (a)       Reasons for judgment dated 6 September 2019;

   (b)       Reasons for judgment dated 31 October 2019;

   (c)       Transcript of show cause hearing dated 17 October 2019 (pages 1 to 14).

2. The names of the legal practitioners who are the subject of the referral are to be redacted from the reasons for judgment dated 6 September 2019 and 31 October 2019 prior to any public dissemination.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilkvist & Coburn (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2525 of 2009

Ms Pilkvist

Applicant

And

Mr Coburn (deceased) by his legal personal representatives Ms Coburn and Mr E

Respondent

And

Ms B

And

Ms F

REASONS FOR JUDGMENT

1. On 1 and 2 August 2019 Ms B of counsel instructed by Ms F, a solicitor, represented the applicant in proceedings in which the applicant sought a property settlement arising out of an alleged de facto relationship with the respondent.

2. On 6 September 2019 I required Ms B and Ms F to show cause why they should not be referred to the Legal Services Commission in relation to their conduct of the case on behalf of the applicant.

3. The reasons for the show cause hearing are set out in paragraphs 64 to 75 of the reasons for judgment dated 6 September 2019.

4. On 17 October 2019 I heard submissions from Mr Page QC on behalf of Ms B and from Ms F representing herself.

5. As to why Ms B should not be referred it was submitted inter alia:

   The imprimatur which lands upon my client by reason of your own reasons are a sufficient lesson to her to that enough care was not taken in relation to this particular matter. There is nothing in it which shows a deliberate course of planning and execution of a plan to mislead the court.

6. During his submissions, Mr Page QC was granted leave to call Ms B to give oral evidence. During her evidence, she denied that she had changed the evidence to create a jurisdictional basis for her client’s claim to be made and claimed that the “client’s evidence in the witness box was completely different to what the instructions were.”

7. The difficulty with Ms B’s evidence is that during the case management hearing on 2 April 2019 she informed the Court that the de facto relationship continues despite the parties being physically separated. It was only after it was brought to her attention by opposing counsel that the Court would not have jurisdiction to make an order for property settlement if the de facto relationship had not broken down, that Ms B then submitted the parties had separated on 6 December 2016. The sworn material relied upon at trial did not corroborate that representation. Far from her client’s oral evidence at trial being “completely different” it appears on its face that her client’s evidence was consistent with her sworn material.

8. Nothing said on behalf of or by Ms B has persuaded me against referring her to the Legal Services Commission in relation to her conduct of the trial on behalf of her then client.

9. Ms F represented herself at the show cause hearing and supplemented her written submissions with oral submissions. In the course of her submissions Ms F candidly disclosed that she had been the subject of a number of complaints to the Legal Services Commission in the past but never penalised or subject to any disciplinary action. Ms F’s submissions have not persuaded me against referring her to the Legal Services Commission. 

10. I note that neither Ms B nor Ms F had notified their professional indemnity insurers of the show cause hearing.

11. I propose to request the Senior Registrar to provide a copy of my reasons for judgment delivered 6 September 2019 together with these reasons and a copy of the transcript of the show cause hearing to the Legal Services Commission, Queensland for their consideration.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 31 October 2019.

Associate:   

Date:  31 October 2019.