FAMILY COURT OF AUSTRALIA
| PILKVIST & COBURN (DECEASED) | [2020] FamCA 92 |
| FAMILY LAW – COSTS – Circumstances justifying order – Where the respondent to the substantive proceeding seeks costs be paid by the applicant and her legal representatives jointly and severally on an indemnity basis – Where there was no jurisdictional basis for the applicant’s claim and her application was wholly unsuccessful – Where the consistent sworn evidence of the applicant was that there was no breakdown of the de facto relationship and no order for costs is made against her – Where the solicitor and barrister for the applicant failed to ensure the Court had power to make the order sought and breached r 1.08(1)(a) of the Family Law Rules 2004 – Where the breach by the solicitor and barrister is serious – Where the solicitor commenced and continued the proceedings where there was no jurisdictional basis for such a claim – Where the failure of the solicitor and barrister to give proper, if any, consideration to the futility of the claim and/or failure to withdraw if their advice was not taken amounts to improper or unreasonable conduct – Where the wasted costs of the respondent are considerable – Where the circumstances justify a costs order in favour of the respondent and an award of costs on an indemnity basis is just – Where the solicitor and barrister are jointly and severally liable for the respondent’s costs fixed in the sum of $100,000. |
| Family Law Act 1975 (Cth) ss 4(1)(c), 44(5), 31(1)(aa), 90RD, 90RH, 90SM, 90SN, 117 Family Law Rules 2004 (Cth) rr 1.08, 19.08, 19.10, 19.18 |
| Cassidy & Murray (1995) FLC 92-633 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2006) 233 ALR 97 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 In the marriage of McAlpin (1993) FLC 92-411 In the marriage of Pagliarella (No. 3) (1994) FLC 92-460 Kohan and Kohan (1993) FLC 92-340 Lenova & Lenova (Costs) [2011] FamCAFC 141 Pilkvist & Coburn (Deceased) [2019] FamCA 635 Pilkvist & Coburn(Deceased) (No. 2) [2019] FamCA 803 Prantage v Prantage (2013) 49 Fam LR 197 Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 Z (a solicitor) & Limousin (2010) FLC 93-433 |
| 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: | 19 February 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | In Chambers – date of last submission 21 November 2019 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| FOR THE RESPONDENT: | Peter J Sheehy, Solicitor |
it is ordered that:
The application by the respondent for the applicant to pay costs be dismissed.
Ms F and Ms B be jointly and severally liable for the costs of the respondent fixed in the sum of $100,000.
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- AGLC
- Pilkvist & Coburn (Deceased) [2020] FamCA 92
- Case
- [2020] FamCA 92
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for costs against a legal practitioner, Ms F, in proceedings between Pilkvist and Coburn (Deceased). The applicant, Ms B, sought to avoid a personal costs order, arguing her conduct did not demonstrate negligence, improper conduct, or other misconduct. She contended that she had no knowledge the client would give different evidence at trial.
The court was required to determine whether costs should be awarded against Ms F personally. This involved assessing whether Ms F's conduct in commencing and continuing the proceedings was improper or unreasonable, or whether she failed to comply with the Rules, thereby warranting a costs order against her. The court also considered the applicant's submissions regarding special disadvantage and the consistency of the applicant's evidence.
Carew J found that the applicant's evidence, across multiple iterations of the Initiating Application and in her oral testimony, consistently indicated no final separation. Therefore, Ms B's submission that the applicant gave "completely different evidence" was not supported. However, the court found that the proceedings, as commenced and continued, should not have been brought. The Initiating Applications, in their various forms, failed to establish a legal entitlement to the orders sought, a fundamental deficiency that was not excused as a mere error. This failure to ensure the court had the power to make the orders sought was found to be a breach of rule 1.08(1)(a) and was considered serious, leading to unnecessary costs for the respondent. Ms F was also found to have failed to give proper consideration to the essential jurisdictional fact that a de facto relationship breakdown was required. Even if initially ignorant of this fact, the deficiency was brought to her attention, and the continuation of the proceedings in these circumstances was deemed improper or unreasonable conduct.
The court concluded that Ms F's failure to ensure the court had the power to make the orders sought, and her continuation of the proceedings despite the fundamental deficiency and the jurisdictional requirements being brought to her attention, constituted improper and unreasonable conduct. The court ordered that Ms F pay the costs of the proceedings.
The court was required to determine whether costs should be awarded against Ms F personally. This involved assessing whether Ms F's conduct in commencing and continuing the proceedings was improper or unreasonable, or whether she failed to comply with the Rules, thereby warranting a costs order against her. The court also considered the applicant's submissions regarding special disadvantage and the consistency of the applicant's evidence.
Carew J found that the applicant's evidence, across multiple iterations of the Initiating Application and in her oral testimony, consistently indicated no final separation. Therefore, Ms B's submission that the applicant gave "completely different evidence" was not supported. However, the court found that the proceedings, as commenced and continued, should not have been brought. The Initiating Applications, in their various forms, failed to establish a legal entitlement to the orders sought, a fundamental deficiency that was not excused as a mere error. This failure to ensure the court had the power to make the orders sought was found to be a breach of rule 1.08(1)(a) and was considered serious, leading to unnecessary costs for the respondent. Ms F was also found to have failed to give proper consideration to the essential jurisdictional fact that a de facto relationship breakdown was required. Even if initially ignorant of this fact, the deficiency was brought to her attention, and the continuation of the proceedings in these circumstances was deemed improper or unreasonable conduct.
The court concluded that Ms F's failure to ensure the court had the power to make the orders sought, and her continuation of the proceedings despite the fundamental deficiency and the jurisdictional requirements being brought to her attention, constituted improper and unreasonable conduct. The court ordered that Ms F pay the costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Ms B’s written submissions conclude with the following submission:I submit that my conduct shows no evidence of negligence, there was no improper conduct on my part, nor was there other misconduct or default that would merit an order against me. I had no knowledge that the client would give completely different evidence at the trial. (emphasis added) A difficulty with Ms B’s submission is that the applicant’s oral evidence during cross-examination at trial was consistent with her evidence in chief and consistent with her statements in each of the four iterations of the Initiating Application i.e. there was no final separation. In other words the applicant did not give “completely different evidence at trial”. In circumstances where the sworn evidence of the applicant (in the various iterations of the Applications, her affidavit, and her oral evidence) consistently conveyed that there had been no final separation, I am not persuaded that costs should be awarded against the applicant personally. In coming to this conclusion I also take into account, in favour of the applicant, the factors of special disadvantage identified by Ms B. In my view, properly advised, the proceedings should not have been commenced let alone continued. If the applicant insisted on the proceedings continuing, despite advice, her legal representatives had the option to withdraw. A failure to do so leaves them vulnerable to costs. A costs order can be made against a lawyer where they have failed to comply with the Rules or where their conduct has been improper or unreasonable. There is no requirement for a finding of negligence or professional misconduct or default. Of course, not every failure to comply with the Rules would warrant a costs order. In my view, it would only be in cases where the failure is clear and the consequences serious that costs against a lawyer would be warranted. Likewise, not every example of a lawyer acting improperly or unreasonably would necessarily warrant a costs order. The discretion to award costs should be exercised with caution bearing in mind the competing public policy interests. I am also mindful that the applicant has not waived legal professional privilege and in those circumstances, not every relevant fact may be known to me. However, the Initiating Applications in their various iterations do not establish an entitlement to advance the claim at law. I do not accept that this fundamental deficiency can be excused as a mere error when the evidence in chief of the applicant also failed to establish the legal entitlement to advance the claim. The applicant’s evidence did not change during the proceedings. To the contrary, it remained consistent. I find that Ms F’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 Ms F 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 Ms F 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 Ms F gave appropriate advice to the applicant which was not accepted she should have withdrawn.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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