RISK WATCH
Lawyers’ Paramount Duty to the Court: Greater Risks for ProBono/No-Win-No-Fee Work? GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
T
hat a lawyer’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty — including that owed to the lawyer’s client — is well known (see Australian Solicitor’s Conduct Rules — Rule 3.1), but how does the apparent conflict in these duties really work in practice? A particularly acute and instructive example of how the paramount duty applies and interacts with the duty owed to clients can be found in the recent decision of the Family Court in Pilkvist & Coburn (Deceased) [2020] Fam CA 92.
THE FACTS The applicant Ms Pilkvist (Ms P) was engaged as the carer of Mr Coburn (Mr C) in 1993. Mr C was a quadriplegic. The terms of the engagement were that Ms P would live in Mr C’s house with him and would be provided with board and a weekly payment. Mr C died in mid2019 aged 85 years. Notwithstanding his disability, Mr C had operated a number of businesses and his estate was worth approximately $11m at his death. In July, 2014, Mr C was removed from his home by others acting pursuant to a Power of Attorney and admitted to hospital. Shortly after that Mr C commenced to live in a nursing home. At around the same time, Mr C’s attorneys evicted Ms P from Mr C’s home. Ms P alleged that she was in a de facto relationship with Mr C and that this relationship continued until Mr C’s death in May, 2019.
36 THE BULLETIN August 2020
THE PROCEEDINGS Ms P commenced proceedings in the Family Court in June 2016, seeking a declaration “that a de facto relationship exists between the parties” and that the Court “order an alteration of property interests pursuant to s. 79 of the Family Law Act 1975 (Cth) (FLA)”. There was evidence that Ms P was impecunious and “a person of low average intelligence with minimal education from Country who speaks and understands English but has no real understanding of the legal process.” The Application was drafted by Ms F, Ms P’s lawyer. Sharp-eyed readers will notice several problems with the orders sought — s.79 of the FLA only applies to married couples and, critically, the entitlement to apply for a property settlement as a de facto only arises after the breakdown of the relationship (s. 90 SM FLA).
The key fact is that, consistent with the orders sought in the Application, Ms P’s evidence was that she and Mr C remained in a relationship up to the date of Mr C’s death, despite their physical separation i.e. the relationship had not broken down — it only ended upon the death of Mr C. The Application remained basically the same throughout the interlocutory stages of the proceedings, despite being amended a number of times, including after Ms F briefed Ms B to appear as Counsel for Ms P.
THE DECISION Carew J had little difficulty dismissing Ms P’s application (Pilkvist & Coburn (Deceased) [2019] Fam CA 635) because no jurisdictional basis for the orders sought was established. Indeed, no
