Pilkvist & Coburn (Deceased)

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.