Kerr v Fox[2024] QCA 251

[2024] QCA 251

COURT OF APPEAL

BOND JA

Appeal No 14872 of 2024

SC No 2430 of 2024

ROBERT JOHN KERR Appellant

v

HELEN LAURA FOX Respondent

BRISBANE

THURSDAY, 12 DECEMBER 2024

EX TEMPORE JUDGMENT

BOND JA:  On 28 February 2024, Mr Kerr commenced a proceeding in the trial division of the Supreme Court for further and better provision out of a deceased’s estate on behalf of the deceased’s child, aged 10.  Mr Kerr had named himself as the litigation guardian of the child and filed a consent of litigation guardian.  He named Ms Fox, the child’s mother and the estranged wife of the deceased, as the respondent to the proceeding.

Mr Kerr was a longstanding friend of the deceased, but he was not related to the deceased, or to the child for whom he purported to act as litigation guardian, or to Ms Fox.

The relationship between the Ms Fox and the deceased had broken down in 2015.  Consent orders obtained in the Federal Circuit Court of Australia in 2018 provided for the child to live with Ms Fox, but for parental responsibility to be shared between Ms Fox and the deceased.  Thereafter, the parents shared the care of the child.  They never divorced.

The deceased died on 7 January 2024, without leaving a will, and, accordingly, the distribution of the deceased’s estate was governed by the rules of intestacy in Queensland.  A grant of letters of administration of the deceased’s estate was made in favour of Ms Fox on 8 March 2024.

On 3 July 2024, Ms Fox brought an application that, pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and the inherent jurisdiction of the court, the proceeding brought by Mr Kerr as litigation guardian for the child be dismissed.  Ms Fox further sought an order that Mr Kerr in his personal capacity pay the costs of the proceeding on the indemnity basis.  In the alternative to those orders, Ms Fox sought an order pursuant to r 670 of the UCPR and the inherent jurisdiction of the court that Mr Kerr provide a sum of $200,000 by way of security for her costs of the proceeding.

It must have been obvious to Mr Kerr that the application brought by Ms Fox put his proceeding in peril of being struck out and that an order was being sought that he personally be liable for costs of the proceeding.

The application was heard by the primary judge on 17 July 2024.  In reasons published by her Honour on 16 August 2024 (see Robert Kerr as litigation guardian for Asha Chaudhary v Helen Fox [2024] QSC 174), the primary judge ordered -

1. the proceeding commenced by Mr Fox be dismissed; and

2. Mr Kerr in his personal capacity, to pay Ms Fox’s costs of the proceeding, including the cost of her application, on the standard basis.

The primary judge’s reasons for judgment reveal that she first addressed the question whether Mr Kerr had been properly appointed as litigation guardian.  Her Honour found that Mr Kerr had been properly appointed so far as compliance with UCPR rr 94(1)(a) and (b) and 95(1), were concerned.

The primary judge then addressed whether Mr Kerr was a suitable person to remain as litigation guardian.  The primary judge had found it was uncontentious that:

1. at the time of filing the family provision application, no grant of letters of administration had been issued, the grant not issuing until 8 March 2024;

2. as a consequence, the proceeding commenced by Mr Kerr on behalf of the child named the child’s mother, Ms Fox, in her personal capacity and not as administrator of the estate (as she subsequently became);

3. Mr Kerr had limited knowledge of the estate’s financial circumstances at the time of commencement of proceedings; and

4. Mr Kerr had limited knowledge of the financial needs of either the child or the child’s mother, Ms Fox.

The primary judge had found the estimated net value of the estate was approximately $1.662 million, with the result that the first $150,000 would be distributed to Ms Fox with the remainder shared equally between Ms Fox and the child, and, accordingly, Ms Fox would receive approximately $906,000 and the child would receive approximately $756,000.

The primary judge recorded that Mr Kerr had submitted that he was a suitable person to remain as litigation guardian because he was the deceased’s closest friend; he had known the child all her life; he was a qualified legal practitioner; he did not intend to charge for his services; he had deposed that he would be guided by legal advice; and, he had only the child’s best interests at heart.

The primary judge found that Mr Kerr was not a suitable person to remain as litigation guardian for the following reasons, each of which she elaborated upon and justified in her careful and detailed reasons:

1. Mr Kerr had failed to consult with the child’s parent at all before the commencement of the proceeding, a step which ought to have been obvious for a person unrelated to the child to have taken;

2. by the commencement of the proceeding at the time he did and the way he did, he had acted in a manner that was hasty and ill-considered;

3. the exercise of careful judgment in relation to the infant had not been demonstrated;

4. there was no evidence that he had properly considered what was in the infant’s best interests before commencing the proceeding;

5. he was not impartial;

6. he had some history of not being careful in the management of financial affairs;

7. he was impecunious, and had no reason to be careful of the infant’s prospects of success knowing that he could not be liable for the costs which might be incurred.

I should observe the proposition about not being liable I take to mean would not be able to pay and could not be made to pay.  That is how I have interpreted her Honour’s explanation.

Accordingly, based on those considerations, the primary judge concluded that Mr Kerr should be removed as litigation guardian.

Finally, the primary judge addressed whether the proceeding commenced by Mr Kerr, that is, the family provision proceeding commenced by Mr Kerr as litigation guardian on behalf of the child, should be allowed to continue without his being removed or replaced or should be dismissed.  Her Honour reached the conclusion that the proceeding should be dismissed on the basis that:

1. Ms Fox as personal representative ought not distribute the estate earlier than nine months after the deceased’s death;

2. a proceeding on behalf of the child could be instituted as of right within nine months after the death of the deceased and outside that timeframe in the court’s discretion;

3. the dismissal of the proceeding commenced by Mr Kerr would not deprive the child of the right by an alternative guardian to bring such a proceeding should an appropriate person consider it proper to do so;

4. no one, neither Mr Kerr nor Ms Fox, had suggested or identified another person to be appointed in the event that Mr Kerr was removed, and, in any event, her Honour thought that the court ought not lightly make orders for some other person to be appointed litigation guardian when the court considered the case was currently a weak case.  By “case,” her Honour was referring to the case for family provision.  And any person so appointed would be at risk of an adverse costs order.

By an application filed on 31 October 2024, some seven weeks after the time for lodgement of a notice of appeal, Mr Kerr applied to the Court of Appeal for a grant of leave to appeal the decision of the primary judge.  The application was supported by an affidavit by Mr Kerr sworn on 15 October 2024.

Although Mr Kerr had been represented in the proceeding before the primary judge, it appears that in this Court he represents himself.  That may explain why the form of his application and his supporting affidavit suffers from the following obvious defects:

1. If Mr Kerr wanted to appeal the decision of the primary judge, he should have done so by failing a notice of appeal in the ordinary way.  That notice of appeal would have had to comply with UCPR r 747 and it would have to be in the approved form, and state (a) whether the whole or part of the decision was appealed from; (b) briefly and specifically the grounds of appeal; and (c) the decision the appellant sought.  That was not done.  Rather, an application for leave was filed.  That application is wrongly founded.

2. I observe that even disregarding the way in which the Court has been approached, there has been no document filed by Mr Kerr which could be said to address briefly and specifically the grounds of any appeal, nor is there any document filed by Mr Kerr that identifies whether the whole or part of the decision is appealed from and what decision Mr Kerr seeks to obtain from this Court.

3. Rather, having regard to the application and the supporting affidavit, Mr Kerr has approached his application to this Court, at least so far as the documents make clear, on the basis that an appeal is simply an opportunity to re-litigate de novo the application below.

By an application filed on 3 December 2024, Ms Fox applied for the following orders:

1. the application for leave to appeal be dismissed on the grounds that

1. the appeal was out of time and Mr Kerr had offered no reason for his failure to lodge an appeal within time;

2. no reasonably arguable grounds of appeal had been identified; and

3. Mr Kerr was a litigation guardian and purported to act in person;

2. in the alternative there should be security for costs; and

3. Mr Kerr’s affidavit filed in this Court be removed from the Court file or sealed up on the basis that it exhibited material obtained in the course of a Family Court proceeding without relief from the implied undertaking having been sought or obtained.

In support of the application, Ms Fox relied on a solicitor’s affidavit which, amongst other things, dealt with matters that are more relevant to the security for costs application.  During the course of the hearing today, it became clear that it would be unnecessary to consider the security for costs application if the summary dismissal application succeeded.

In my view, it is appropriate to exercise the jurisdiction summarily to dismiss the application filed by Mr Kerr for these reasons.  I hasten to add that I am conscious that Mr Kerr belatedly in the course of oral argument sought an adjournment of the application, but I will address why that adjournment should not be granted and why it is nevertheless necessary to exercise the jurisdiction summarily to dismiss the application.

First, Ms Fox is correct to contend that the commencement of the proceeding in this Court was seven weeks late.  Mr Kerr had neither sought nor justified an extension of time within which to file a notice of appeal.

Second, in its current form, Mr Kerr’s application seems merely to be a frivolous and vexatious attempt to re-litigate the proceedings below.  That much is apparent from the last paragraph of his affidavit which states:

“34. The foregoing demonstrate irrefutably why the respondent Ms Helen Fox should not succeed in removing me as Litigation Guardian for [the child] and be replaced solely by Ms Fox, because

a. The affidavit deposed by Ms Fox on 3 July 2024 is demonstrably untruthful, and

b. Ms Fox has demonstrated a lifetime inability to manage financial affairs appropriately, and

c. The court has discretion under UCPR r 610(3) to grant Letters of Administration to any person in priority to a person listed in UCPR r 610(1), and

d. Because of the circumstances that prevail in this matter, justice requires that the court should utilize the discretion provided, because

e. If this honourable court should find that I am unsuitable to be Litigation Guardian for [the child], because of the very real conflict of interest Ms Fox has in this matter, with respect, the court should appoint an independent Litigation Guardian for [the child].”

The problem here is that an appeal is not an opportunity to re-litigate the proceeding below.  In order to persuade this Court that it should interfere with the orders made by the primary judge, Mr Kerr is required to show factual, legal, or discretionary error.  He has not sought to fulfil that task.  Moreover, further evidence such as that contained in his affidavit, even putting aside the problem about the Family Court material, would not be admissible without leave being sought.  And if leave was sought, which it has not been, some real justification would need to be developed bearing in mind the orthodox distinction between new and fresh evidence.

At present, Mr Kerr’s affidavit seems mostly to be argumentative and, to the extent that it expresses anything in admissible form, mostly to consist of new, rather than fresh evidence, that is, material that he now relies on that he says that his legal representation must have had but that he now wishes to deploy in support of his complaints about the judgment of the primary Judge.  There is no apparent reason to think the new evidence would be admissible on any appeal, and, as I have said, there is no application for such leave.

Finally, an appeal from a primary Judge’s decision is not an appropriate vehicle by which to seek some change to the grant of letters of administration which has already been made or to appoint a new litigation guardian without either an application that that should occur or having identified a candidate willing to take on that task.

Mr Kerr’s response to these considerations, drawn to his attention as they were during the course of my discussions with counsel for the applicant and with him, is to concede that the way in which he has sought to commence the proceeding in this court is flawed.  It is to concede that he has not identified the orders which he is pursuing or, in the way that the rules require, legitimate grounds for an appeal.  He concedes that he is not seeking, by this appeal, to overturn the decision to remove him as a litigation guardian.  He has had a thought, he says, about another litigation guardian having been engaged, but he has not sought to do so.

His main concern is that he thinks that the material that he now seeks to deploy, that he is concerned was not adequately deployed by his representation before the primary Judge, would demonstrate that Ms Fox’s affidavit was remiss in many areas and should have been appreciated by the primary Judge as misleading.  What the point of so doing was not clear.  It seems that his principal complaint is that a costs order was made against him, but it was obvious from the outset that a costs order was sought against him.  He was represented, and, in any event, he has not sought to appeal from the costs order.  There is no identification of error by her Honour in relation to the costs order.

As I have mentioned, during the course of oral argument, Mr Kerr belatedly sought an adjournment, he said, to enable him to complete properly with the documentary and procedural requirements.  The adjournment was opposed.  To my mind, there is no utility in allowing an adjournment for that purpose.  This application has been brought by Ms Fox.  It has correctly identified that the proceeding, in its current form, is flawed.  In my view, I am persuaded that in its current form Mr Kerr’s application is frivolous and vexatious and amounts to an abuse of process.  It should be dismissed.

If, about which I have grave doubts, there is a proper basis upon which an appeal can be advanced in relation to orders made by the primary Judge, then Mr Kerr can do so by attempting to commence a proceeding in the court on some other occasion.  Of course, on that occasion he will need to address the various problems that have been pointed out during the course of this application, and any time that passes will sound against the application for an extension of the time in which to file a properly formulated notice of appeal, if one can be formulated.

For these reasons, I am persuaded that an order should be made summarily dismissing the application filed by Mr Kerr on 31 October 2024, and I so order.

As mentioned, my having made that order means that it is not necessary to address the security for costs application.  It does remain to deal with the application that Mr Kerr’s affidavit should be either removed or sealed up.  Mr Kerr conceded that he has not obtained any relief from the implied undertaking.  The complaint, as I have mentioned here, was that, amongst other things, Mr Kerr exhibited copies of extracts from material filed in the Family Court proceedings between the deceased and Ms Fox in which it seems likely that he was probably the subject of an implied undertaking, and, as I mentioned, if he was, he has not obtained relief from it.

I think the order that I would make in that regard is that the affidavit of Robert John Kerr, sworn 15 October 2024, filed 31 October 2024, be sealed up and not unsealed save by order of a Judge of this court.  Those are the orders that I make.

…

The application having succeeded, Ms Fox is entitled to an order for costs in her favour.  The application is sought to be made on an indemnity basis, effectively on the basis that the commencement of the proceeding in this court by Mr Kerr should never have been done in the way that it was done, and, based upon the findings that I have made, it is sufficient to warrant that indemnity costs order.  I agree.

I order that Mr Kerr pay Ms Fox’s costs of the application to be assessed on the indemnity basis.

…

The Court orders:

1. The application filed by Mr Kerr on 31 October 2024 is summarily dismissed.
2. The affidavit of Robert John Kerr sworn 15 October 2024 and filed 31 October 2024 be sealed and not unsealed save by order of a Judge of this Court.
3. Mr Kerr pay Ms Fox costs of her application to be assessed on the indemnity basis.