Beamish v Coburn (Deceased) 2021 FamCAFC 20

This case is an appeal from a costs order against counsel and solicitor.

This is an appeal dealing with a case where, on 19 February 2020, a judge of the Family Court ordered Ms Beamish, the appellant, and Ms Farens, the cross-appellant, a barrister and 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.  They were jointly and severally liable for the costs which were fixed at the sum of $100,000.

Each appealed that order.

The actual proceedings were in relation to a de facto relationship claim.

The primary judge was not satisfied that a de facto relationship had existed. The primary judge was concerned having regard to the various iterations of her initiating application, her evidence-in-chief, and her evidence given in cross-examination that the relationship between them 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 because it is a necessary precondition to the application that there had been a breakdown. Thus, in Her Honour’s view, the proceedings were doomed to fail even if she had established the existence of a de facto relationship.

The primary judge took the view that this difficulty ought to have been patently obvious to the legal practitioners.

The Full Court said at paragraphs 28 to 31:

“Obvious difficulties emerge from this evidence….whether they had in fact separated at all…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.”

At paragraph 31, the Full Court said:

“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.”

Ground 1(a) was whether the primary judge had provided adequate reasons. The Full Court said this ground was not established.

Ground 1(b) was whether the primary judge erred by failing to require the appellant to produce evidence of her financial position.

At paragraph 45 the Full Court said:

“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.”

At paragraph 48, the Full Court said:

“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.”

Ground 1(c) was 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 Full Court found this ground of appeal does not succeed.

Ground 1(d) – the fact that the evidence at the trial had not been disclosed to the appellant at any time also failed.

The court said:

“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.”

At paragraph 64, the Full Court said:

“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.”

At paragraph 69, the Full Court said:

“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.”

There was also a cross-appeal by the solicitor.

At paragraph 78, the Full Court said:

“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 respondent had sought costs of the appeal and cross-appeal in the sum of $9,215.47 against the appellant and the cross-appellant on a joint and several basis. It was properly accepted some of the items could not be sustained. The Full Court determined to fix those in the sum of $8,000.

The quantum was reduced, by the conduct was certainly considered to be conduct that would result in a costs order and in the mind of the primary judge, a referral to the Legal Services Commission.