Kerr v Fox[2024] QSC 174

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The deceased, Kundan Chaudhary, died on 7 January 2024.  He was survived by his wife, Helen Fox, who is the respondent, and his daughter, Asha, then aged 10 years. 
2. [2]
   The deceased and Ms Fox had met in 2002 and commenced a relationship in 2007.  They began living together in 2009, subsequently purchased a house and married.  The relationship broke down and the deceased moved out of the family home in 2015 at which time the parties commenced proceedings in the Family Court for the division of their property.
3. [3]
   On 1 May 2018, consent orders were made in the then Federal Circuit Court of Australia in relation to the care of the child, Asha.  A copy of the orders was not in evidence before me, but they were summarised on behalf of Ms Fox, without objection by Mr Kerr, to provide that the deceased and Ms Fox were to have equal shared parental responsibility for decisions relating to major long term issues affecting the child, and that the child would remain living with the mother but gradually the care of the child would be shared more equally between the parents.  From the time of separation onwards, the parents continued to share the care of the child.
4. [4]
   Despite the consent orders also being made in the Federal Circuit Court pertaining to property matters, the parties never divorced.  Accordingly, when the deceased died on 7 January 2024, without a Will, the distribution of the deceased’s estate was governed by the rules of intestacy in Queensland.^[1]
5. [5]
   The estimated net value of the estate was approximately $1.662 million, meaning that the distribution of the estate would proceed as follows:

   1. the first $150,000 to the spouse with the remainder shared equally between the spouse and the child;
   2. accordingly:
      3. (i)
         Ms Fox would receive approximately $906,000; and
      3. (ii)
         the child would receive approximately $756,000.
6. [6]
   On 28 February 2024, just seven weeks after the deceased’s death, Mr Kerr commenced a proceeding for further and better provision out of the deceased’s estate on behalf of the child.  Mr Kerr named himself as the litigation guardian, and filed a consent of litigation guardian on the same day.
7. [7]
   Mr Kerr is a longstanding friend of the deceased; but he is not related to the deceased, the child for whom he acts as litigation guardian, or her mother.
8. [8]
   On 3 July 2024, Ms Fox brought an application that pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and the inherent jurisdiction of the court, that 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 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.
9. [9]
   At the heart of the application is a broad question, being who may be a litigation guardian on behalf of an infant child? Whilst similar considerations might arise in relation to those acting for persons with other forms of incapacity, the question raised in this proceeding is one relating to children under the age of 18 years.
10. [10]
    The issues to be considered are:

    1. First, has Mr Kerr been properly appointed as litigation guardian?
    2. Second, is Mr Kerr a suitable person to remain as litigation guardian?
    3. Third, if Mr Kerr is not a suitable litigation guardian should the proceeding be allowed to continue, with Mr Kerr being removed or replaced, or should the proceeding be dismissed?

Further background to proceeding

11. [11]
    The deceased died unexpectedly after a short and devastating vascular incident. He spent a brief period in hospital immediately prior to his death on 7 January 2024.
12. [12]
    Before the deceased died, but when he was gravely ill, there are friendly text messages passing between Ms Fox and Mr Kerr.  For example, on 6 January 2024, Ms Fox extended an offer for Mr Kerr to stay in the deceased’s house whilst the deceased was in ICU and acknowledged that Mr Kerr was a person whom the deceased “would want involved in things”.  Ms Fox forwarded a photograph of her child with the deceased to Mr Kerr shortly prior to the deceased’s death.  Ms Fox described Mr Kerr’s relationship with the deceased as “the closest and most enduring” and provided Mr Kerr with contact details of the deceased’s neighbours in case Mr Kerr needed them.  Ms Fox made a suggestion to Mr Kerr of a lawyer in Queensland who had offered to assist if needed.  Mr Kerr rejected the suggested assistance of a solicitor suggesting rather that someone “independent is best”.
13. [13]
    Ms Fox replied by a text message that she would “make sure” that the child’s rights were “preserved above all else”. 
14. [14]
    After death, communications continued between Mr Kerr and Ms Fox regarding funeral arrangements. Those text messages included one from Ms Fox which stated, “My thinking over the last few days has been just that I must advocate for what Asha needs”.
15. [15]
    Although the date is not entirely clear from the material, but certainly after the deceased’s death on 7 January, a text message appears to demonstrate an early view that Mr Kerr was taking in relation to the deceased’s estate.  The text message from Mr Kerr identifies that the child would be:

“…the primary beneficiary.  But certain legal provisions need to be made to prevent any family applications.  Effectively the court has the last say…” 

(emphasis added)

16. [16]
    Mr Kerr went on to identify that he would like to engage a law firm in Brisbane before he left.
17. [17]
    Later, Ms Fox noted that both she and the deceased were advised to do a Will after the property settlement but observed that the deceased had not done so.
18. [18]
    Gradually, some disputes arose between Mr Kerr and Ms Fox regarding the way in which the funeral ought to be conducted, and the extent to which the deceased’s Hindu religion would be a feature of the ceremony. The difference of views infected issues from the coffin, flowers, choice of celebrant and eulogy. Ms Fox told Mr Kerr that she was still officially the deceased’s next of kin and would advocate for him and the child to make sure the service was in keeping with his life as a whole.  Mr Kerr did not agree and responded that “the service will remain as is”. 
19. [19]
    That position was not accepted by Ms Fox who considered that there ought to be discussions about the issue to which Mr Kerr responded:

“I would reflect if I were you.”

and

“You are not considering anyone else.”

and

“You are being selfish.”

20. [20]
    The exchange of text messages became more heated. 
21. [21]
    Ms Fox requested a general outline of the service so that she could review what it would entail regarding the child’s best interests. 
22. [22]
    By 11 January 2024, Ms Fox was requesting that Mr Kerr not ignore her input, restating that she would “stand up for” the child.  Later that same day, she reiterated that as she was legally the deceased’s next of kin, she felt that her child’s rights and wishes were not being fully considered and taken into account.  She reiterated that if she felt that the child’s rights and the deceased’s wishes were not being fully considered, she would take action to ensure that that occurred.  Amongst other things, she confirmed that she was the person with the highest priority in applying for letters of administration and that Mr Kerr should not assume that she would not rely on her and her child’s rights. 
23. [23]
    By 12 January 2024, the relationship between the parties had broken down.  Ms Fox expressed the view that she would now be coordinating the funeral arrangements herself, noting that she was the next of kin, a fact which she asserted had been confirmed to her by both the funeral director and an estate lawyer.  Mr Kerr responded:

“Your contentions are debatable.  I will continue as already arranged.  If you apply for an injunction, I will object, requiring the court to make a decision.  Which would obviously cause significant delays.  I will proceed as previously, in Kundan’s interest.”

(emphasis added)

24. [24]
    Ms Fox responded that she did not need to apply for an injunction, to which Mr Kerr responded:

“As I am the person responsible for all matters thus far.  To change will require court intervention.”

25. [25]
    Mr Kerr further stated:

“I will proceed as arranged.  I will involve you and Asha as intended.  If you do not participate, I will endeavour to arrive at consensus with other parties.  With regard to engaging a lawyer, I will represent in my own capacity, I will not diminish Kundan’s estate.  I will only respond with you via email in future.”

26. [26]
    Although there is no copy of the eulogy given by Mr Kerr before the court, the text messages sent by Ms Fox after the funeral to Mr Kerr record what she thought of the eulogy:

“That speech was disgusting.

Do not raise any ideas or questions in front of Asha that her dad’s death could have been preventable.

Your speech was a disgrace and an embarrassment to Kundan and yourself.”

27. [27]
    While this exchange of text messages was going on, solicitors on behalf of Ms Fox were attempting to moderate the burgeoning dispute.
28. [28]
    On 12 January 2024, Mr Whitla offered a solution in relation to the funeral to break it into two parts, to first have a secular ceremony overseen by a funeral celebrant and then afterwards, a Hindi ceremony by a Hindu priest.  The focus was said to be to let the child say goodbye to her father in a safe and respectful manner.
29. [29]
    On 14 January 2024, Mr Kerr wrote to Mr Whitla alleging that Ms Fox was restricting access to the deceased’s house and suggesting that Mr Whitla obtain and retain the keys to the house.  Mr Kerr expressed the view that it would not be the deceased’s wish that Ms Fox control access to his house “before matters of administration are decided”. 
30. [30]
    On 15 January 2024, Mr Kerr expressed issues that he had with the eulogy which he considered Ms Fox was “trying to control”.  He described Ms Fox and the deceased as “mortal enemies”, that he only had the child and her best interests at heart, and he would “not let any untoward actions happen at the service”. 
31. [31]
    Once the funeral was over, Mr Kerr wrote to Mr Whitla on 21 January 2024 and said:

“A little common sense should be utilised.  The false narrative displayed at the service upset a lot of Kundan’s true friends, it was never happy families, the complete opposite.  Kundan’s brother and his guardian are supporting these actions.

I will be contacting the Wills and Estates List Manager first up Monday notifying my objection to granting letters of administration to Helen Fox. 

…

I will access all public documents relating to the Federal Circuit Court family matter, and the assault matter that the police brought on Helen’s false accusations. 

I will access all email and text messages from Kundan over the years, including affidavits from both parties in the family matter, as well as vitriolic text messages sent by Helen to Kundan and myself, including text messages from her mother and her sister. 

I will seek access to the Kundan’s solicitor’s files for actions taken by Helen during the matter. 

As justification for the objection, Helen’s financial history from 2009 will be provided demonstrating her inability to manage finances. 

I will have mountains of relevant documentary evidence to support the objection.  The objection will be brought on equitable grounds: to do what should be done in conscience.”

(emphasis added)

32. [32]
    On 23 January 2024, Mr Kerr sent further correspondence after a telephone discussion with Mr Whitla which email included:

“I confirm, I reject your suggestion that an independent person apply for Letters of Administration. 

My duty is to Kundan, to ensure his wishes are respected.  That Asha’s long-term security is protected as the primary beneficiary, the biological child of Kundan Chaudhary.

With regard your criticism of the eulogy I presented at the funeral service, this reflects poorly on yourself, as you repeated the vindictive and false claims by Ms Fox and her immediate family, without validating the claims from independent parties, ie the funeral director.

With regard the standing of Ms Fox, she is the guardian of the primary beneficiary, 10 year old Asha.  She has no standing as spouse.  There has been NO domestic relationship whatsoever, since the end of August 2015.  From which time Ms Fox refused to provide any access to Asha whatsoever to Kundan, as Asha’s father.  Until forced to do so by the legal representatives.  Ms Fox also refused Jack, her biological son, and Kundan’s stepson, who he had a great relationship with, to have any contact whatsoever.  This deprived Jack of any male role models.  Because, Ms Fox had denied Jack’s biological father, Michael, any contact with Jack since shortly after birth. 

My intention is to apply for Letters of Administration for Kundan Chaudhary’s estate, through a reputable legal firm.  Essentially, to ensure his wishes are respected and his biological daughter, Asha and his primary beneficiary’s interests are protected.

I have no interest, other than arranging a framework of professional independent trusts to administer the accumulation of funds, and a maintenance trust to provide Ms Fox regular and adequate funds for the ongoing care of Asha and for her future security. 

I will ensure you are provided with updates for your client’s benefit.”

(emphasis added, except “NO” in original)

33. [33]
    Despite the expressed intention above to apply for Letters of Administration, Mr Kerr did not so proceed. There is no evidence as to why that was so. A grant was in fact made to Ms Fox on 8 March 2024. Prior to the grant being issued, Mr Kerr commenced the family provision application on behalf of the child on 28 February 2024. He did so without any notice to the child’s only surviving parent.
34. [34]
    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 was not issued until 8 March 2024;
    2. as a consequence of the fact in sub-para (b) above, the proceeding brought 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. He understood there to be a real property situated at Taringa valued at approximately $1.1 million over which the Commonwealth Bank of Australia had a mortgage secured; and
    4. Mr Kerr had limited knowledge of the financial needs of either the child or the child’s mother, Ms Fox.

A litigation guardian – a general background

35. [35]
    If a child is to bring a proceeding, it is a procedural requirement that they must do so by a litigation guardian, otherwise the proceedings are irregular. 
36. [36]
    In Cairns, Australian Civil Procedure^[2] the learned author states:

 “The office of next friend is designed for the protection of the infant.  It is for the next friend to conduct the proceedings so that the interests of the infant are the paramount consideration.  A presumption of the law is that an infant cannot assert his rights or form a judgment.  So that this does not prejudice his position, the next friend is appointed to carry litigation on the infant’s behalf.  Once the next friend is appointed, he has the conduct of the proceedings.  Because of the confidential relationship between the infant and his next friend, the natural choice of the person of the next friend is a parent.  Where a parent cannot be appointed, any person of full legal capacity may act as a next friend.  The only qualification to the identity of a next friend is that he must be subject to the jurisdiction of the court and may not have an interest in the proceedings adverse to that of the infant.  While the next friend is closely associated with the action, he is not a party to it, the infant is the plaintiff.”

(footnotes omitted)

37. [37]
    The matter of representation of infants was dealt with by Street CJ (with whom Samuels JA agreed on this point) in Haines v Leves^[3] as follows:

“Limitations on the capacity of infants have long been part of the common law.  Where the capacity in question involves the right to sue or the liability to be sued the common law required as a matter of procedure the appointment of a guardian ad litem (11 Co on Litt s 201, at 135b).  The ancient statutes of Westminster I and Westminster II enabled a next friend to sue for an infant.  This requirement of participation by a guardian ad litem or a next friend where an infant is involved in civil proceedings has subsisted down through the centuries: Chitty’s (Archbold’s) Practice, 12th ed (1866) at 1240 and 1244.  In its current form in this State it is stated, so far as the Supreme Court is concerned, in the Supreme Court Rules 1970, Pt 63.

It is important to recognise that this limitation on the capacity of infants did not extend to matters of substantive entitlement or of substantive liability on the part of infants.  It is well settled that at common law an infant can sue and be sued: Dicey on Parties to an Action (1870) at 2; Halsbury’s Laws of England, 4^th ed, vol 24, par 8961 at 481.  The limitation on capacity is entirely procedural and is confined to participation by an infant on one or other side of the record in civil proceedings before a court.  It is a limitation ordinarily to be found expressed in rules of court or regulations.”

38. [38]
    Once appointed, the litigation guardian alone has the right to instruct legal representatives and is entitled to give instructions contrary to the child’s expressed wishes, provided those instructions are issued in good faith.^[4] Whatever is done must be done for the benefit of the infant.^[5]
39. [39]
    Chapter 3 Part 4 UCPR provides the rules relating to persons under a legal incapacity, such as, in this case, an infant child.  Rules 93 to 95 provide:

3. “93
   Litigation guardian of person under a legal incapacity

3. (1)
   A person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian.

3. (2)
   Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party’s litigation guardian.

3. (3)
   A party’s litigation guardian who is not a solicitor may act only by a solicitor.

3. 94
   Who may be a litigation guardian

3. (1)
   A person may be a litigation guardian of a person under a legal incapacity if the person—

3. (a)
   is not a person under a legal incapacity; and

3. (b)
   has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity.

3. (2)
   If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends.

3. (3)
   A corporation, other than the Public Trustee or a trustee company under the Trustee Companies Act 1968, may not be a litigation guardian.

3. 95
   Appointment of litigation guardian

3. (1)
   Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person’s written consent to be litigation guardian of the party in the proceeding.

3. (2)
   If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian.”

Issue one – has Mr Kerr been properly appointed as litigation guardian?

40. [40]
    Mr Kerr submits that there are only two criteria as to who may be a litigation guardian prescribed by r 94(1) UCPR; the first being that the person themselves is not under a legal incapacity, and the second that the person has no interest in the proceedings adverse to the interest in the proceeding of the person under the legal incapacity.  Once those criteria are satisfied, the mere filing of the consent to act as litigation guardian (r 95(1) UCPR) is all that is required to be validly appointed the litigation guardian. Thereafter the court’s oversight of the proceedings is found in r 95(2) such that the court can then appoint, remove or substitute such a person.
41. [41]
    There is support for this construction.
42. [42]
    First, it is clear that to be a litigation guardian, the criteria in r 94(1)(a) and (b) must be satisfied. No person who has, for example, a conflict with the infant’s interests can be the litigation guardian.
43. [43]
    However, the wording of ‘may’ in rule 94(1) is permissive only. Upon the satisfaction of certain criteria, a person ‘may’ be the litigation guardian, but it is not a right to do so.
44. [44]
    Second, the wording can be contrasted with the ‘entitlement’ in r 94(2) for those persons authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, suggesting that there are other considerations than the mere satisfaction of r 94(1)(a) and (b) at least for those with impaired capacity in contrast to legal incapacity.
45. [45]
    When r 94(1) is construed in the context of children, the best interests of the child must be paramount.  If the only criteria to be applied were those matters in r 94(1)(a) and (b), then the range of persons who satisfy it would be vast.  The person could be a complete stranger to the child; the person could have no knowledge of the child, the deceased or his estate. The person would not need to seek the parent/s’ input. Rather, any person over the age of 18 years with sufficient mental acuity and no conflict could satisfy the criteria.
46. [46]
    Those matters suggest that whilst the satisfaction of r 94(1)(a) and (b) are required for a person to be a litigation guardian for a child, they create permission but not entitlement to act as litigation guardian, and certainly not entitlement without reference to the child’s parent/s for the reasons I set out at [50] to [69] below.
47. [47]
    Nevertheless, Mr Kerr was properly appointed so far as compliance with rr 94 (1)(a) and (b) and r 95(1) is concerned.^[6]

Issue two – is Mr Kerr a suitable person to remain as litigation guardian?

48. [48]
    On behalf of Mr Kerr it is submitted that he is a suitable person to remain as litigation guardian because:

    1. he was the deceased’s closest friend;
    2. he has known the child, Asha, all her life;
    3. he is a qualified legal practitioner;
    4. he does not intend to charge for his services;
    5. he deposes he will be guided by legal advice; and
    6. he has only the child’s best interests at heart.
49. [49]
    I find that Mr Kerr is not a suitable person to remain as litigation guardian for the following reasons, which I summarise as follows, and then set out in greater detail below:

    1. he 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 – [50] to [69] below;
    2. by the commencement of the proceedings at the time he did, and the way he did, he has acted in a manner that is hasty and ill-considered – [70] to [80] below;^[7]
    3. the exercise of careful judgement in relation to the infant is not demonstrated. There is no evidence that he properly considered what was in the infant’s best interests before commencing the proceeding – [81] to [93] below;
    4. he is not impartial. The tone and content of his emails and text messages leads to that conclusion – [21] to [34] above and [94] to [96] below;
    5. he has some history of not being careful in the management of financial affairs – [97] to [99] below; and
    6. he is impecunious, and has no reason to be careful of the infant’s prospects of success, knowing he cannot be liable for the costs which might be incurred –  [103] to [107] below.

Failure to consult with parent

50. [50]
    It is uncontentious that Mr Kerr commenced this proceeding on behalf of the child without any consultation with her mother.  Courts have long eschewed such an approach.
51. [51]
    In Woolf v Pemberton^[8] the Court of Appeal considered the case of a deceased who died in March 1877 possessed of a valuable property estimated at £250,000.  The deceased gave an annuity to his wife during her widowhood and a life annuity of £240 to each of his six nephews and nieces.  After giving some other annuities of no great amount, he directed his trustees to accumulate the income of the residue for 21 years from his death and to stand possessed of the capital and accumulations in trust to divide the same between his nephews and nieces as should be then living in equal shares, with a proviso that if any of them died within that period leaving issue, such issue should take the shares their parents would respectively have taken if living, and with a further proviso giving over half the fund if there should be no takers, except one nephew or niece, or the issue of one nephew or niece, and giving over the whole if there should be no niece or nephew or issue of a niece or nephew who should become entitled. 
52. [52]
    In May 1877, a decree was made for the administration of the real and personal estate of the testator at the suit of the three infant children of one of the nephews named in the Will by a Mr JR Price, their next friend.  In June of that same year, the infants, by their father, moved that Mr Price be removed and that their father (or some other proper person) might be approved as the next friend in place of Mr Price.  The case made by the father in support of the application was that it was only shortly prior to June 1877 that he became aware that an action had been commenced in the names of his children and that he had never in any way been consulted about the action.
53. [53]
    Mr Price, the then next friend, was unconnected with the family but was a nephew of a member of the firm by whom the defendants appeared.
54. [54]
    Vice Chancellor Little refused the father’s application, saying:

“It appears to me that this is a case which really raises this important question of principle, whether there must be, or ought to be, a communication to the father of an infant of an intention to file a bill in the name of the infant, and whether, in default of such a communication, an application is justifiable, or is to be acceded to on the part of the infant, for removing the next friend who has been appointed …  If I had found any cases or any dicta laying down any such general rule as this, that where a suit is about to be instituted in the name of infants a communication must be, or ought to be, made to their father, or that his judgement ought to be taken as to whether the interests of his children require the institution of the suit or not, I should have followed them.  None, however, have been called to my attention, and I must assume there are none…At the same time I must say that I think greater freedom of communication to the father ought to have been used by these solicitors…”.

(emphasis added)

55. [55]
    The infants, by their father, appealed this decision.
56. [56]
    Before the Court of Appeal, it was uncontentious that the suit was a proper one and for the benefit of the infants, however, it was submitted that the father, who was the natural guardian of his children, ought not to be passed by when he had no adverse interest and there was no personal imputation upon him, and to institute the suit without communicating with him was improper. 
57. [57]
    The Court of Appeal accepted that submission, Jessel MR stating:

“A father, against whom not a word is to be said, is informed that his infant children take large contingent benefits under a Will, and a discussion takes place as to whether anything should be done to protect the interests of the children.  In the meantime, and without any information being given to the father, a gentleman, who has been nominated by the executors of that Will for the purpose, institutes a suit for the administration of the trusts of that Will in the name of the infants as their next friend, and obtains by consent a decree, which I assumed to be, and I have no doubt was, a very proper decree for that administration. …  The father then intervenes, and says:  ‘I am the natural guardian of my children; it is for me to consider in what way they should be maintained and educated, and it is for me to judge what is for their benefit both as regards their personal guardianship and the guardianship of their estates; I am the proper person, therefore, to conduct this suit on their behalf, and I ask the court to intervene under these circumstances in my favour and substitute me as their next friend.’  It appears to me it requires nothing more than to state these facts to shew the proprietary of the application, and that it should have been acceded to.”             

(emphasis added)

58. [58]
    James LJ agreed saying:

“It appears to me that the Vice Chancellor had really a wider discretion, and a discretion which ought to have been more easily exercised, than he appears to have thought.  He seems to have considered that the next friend, having instituted a suit in which there was no impropriety, and having taken a decree which was advantageous for the infants, had a sort of vested right to continue the proceedings, which could not be taken away from him except on some sufficient ground, and he did not consider that the non-communication to the father before the institution of the suit of its being about to be instituted was a sufficient ground for depriving the next friend or the next friend’s solicitor of that vested right.  I am of the opinion that is not the right way of looking at the matter, but that, as the Master of the Roles has put it, the question is, whether the father ought to be deprived of his vested right to look after the interests of his children; whether, where a father has no hostile interest to the children, has been guilty of no default or neglect of any kind, has not rendered it necessary for somebody else to intervene because he has refused or declined to do so, the mere fact that a man goes in who is named by the defendants, and is enabled thereby to (what is called) snatch a decree or obtain a decree without delay, can deprive the father of  his right in that suit, as in everything else, to assume his proper position and function of guardian of the interests of his infant children.”

59. [59]
    Bramwell LJ was of entirely the same opinion. 
60. [60]
    Woolf’s case is different to the circumstances before me. Ms Fox does in fact have an interest adverse to the interest of her child, Ms Fox being the only other beneficiary of the deceased’s estate. That fact was properly conceded by counsel for Ms Fox from the outset. That fact alone does not detract from the important statement of principle arising out of Woolf’s case that a parent as the natural guardian of the children, had the primary responsibility (viz a ‘vested right’) for acting in the children’s interests.  The secondary issue arising from Woolf’s case, but connected to the first, was that that vested right to look after the interests of the children ought not to be taken away from the parent by non-communication with the parent before the institution of the suit. 
61. [61]
    The primacy of the parent’s entitlement to act as litigation guardian for his or her own child was restated almost one hundred years later in the Court of Appeal in Re Taylor’s Application.^[9]  That case arose out of a proposed settlement for the benefit of 374 infants born in the United Kingdom suffering from a range of disabilities, which disabilities were generally attributed to the children’s mothers having taken the drug Thalidomide during pregnancy.  The manufacturer of the drug had reached an in-principle settlement with many of those children for the establishment of a charitable trust fund.  The trustees of that fund were given a discretion to distribute the income from it having regard to the differing needs, resources and disabilities of the individual beneficiaries without any lump sum being guaranteed for any child.  The United Kingdom company which had manufactured the drug stipulated that unless all parents in all 374 cases accepted the settlement on the terms of the trust deed, the whole scheme would be abandoned. 
62. [62]
    Six of the parents, as next friends of their children, objected to the settlement for a variety of reasons.  As an example, one child might not qualify for a benefit from the discretionary trust fund where the benefit was means test operated and therefore, that child’s parent concluded that the child might be better off pursuing an action for damages against the company rather than risking receiving little or no benefit from the discretionary trust. 
63. [63]
    One of the parents who did assent to the settlement applied to the court for the removal of the dissenting parents from the office of next friend and for the appointment of the official solicitor in their stead.  At first instance the application was granted but on appeal, the appeal was allowed.  Lord Denning MR said:^[10]

“I take it to be clear that the father is prima facie the person entitled to be the next friend of his child so as to look after the interests of the child.  He is the person entitled in the first place to consider whether or no the proposed settlement is reasonable.  He is entitled to consider his child’s case on its merits.  He is not bound to consider the cases of others which may not be as strong as his child’s.  If he is to be removed, it should only be done if the proposed settlement is so clearly beneficial for his child that he is acting improperly in refusing it…The burden is clearly on those who seek to remove a parent to show that he is not acting properly in the interests of his child as its next friend.”

(emphasis added)

64. [64]
    A similar view was adopted by Edmund Davies LJ:^[11]

“The position of a next friend is of especial importance; in the words of Bowen LJ in Rhodes v Swithenbank (1889) 22 QBD 577, 579:

‘He is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend.’

But in each of these cases the next friend is no mere officer of the court:  each is a parent of the afflicted child concerned and his position involves both legal and moral duties of a particularly heavy kind.  In the words of Miss Steel, appearing for Mr B, each of the parents and next friends are required to be convinced — that is the word she rightly stressed — that the settlement in which it is sought to compel them to concur is in the best interests of his child.  Such an attitude is surely both understandable and completely reasonable — indeed any other would be an abdication of their legal and moral duty in relation to their children.”

(emphasis added, except for “convinced”, which is emphasised in the judgment)

65. [65]
    Edmund Davies LJ went on to stress the role of the parents who were “…in law liable for [the] care and maintenance...” of their child.^[12]
66. [66]
    That position is now reflected in s 61C of the Family Law Act 1975 (Cth) (“Family Law Act”) which provides that a parent has parental responsibility (subject to court orders) for a child who is not 18 years of age.  Section 61B defines “parental responsibility”:

“In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children.”

67. [67]
    What the cases of Woolf and Taylor demonstrate is that parental responsibility has, for many years, included being the person who is authorised to conduct legal proceedings on behalf of a child and to instruct lawyers in relation to the conduct of that proceeding.  Whilst the Family Law Act expressly envisages that ‘parental responsibility’ can be vested in adults other than the child’s parents^[13] that does nothing to detract from the primary proposition that a parent in the position of Ms Fox holds the primary legal, and indeed moral, obligation to act as her child’s litigation guardian. Where such a parent cannot hold the role themselves, for reasons of conflict or otherwise, the parents have a right to be consulted and heard on a contested application.^[14]
68. [68]
    Where a parent has a conflict, it is not necessary, as a starting position, that an application ought to be made to the court as to who is the appropriate person to act for the child in those circumstances.  However, “freedom of communication” (as the expression was used in Woolf’s case), ought to engage the parents’ views prior to the selection of an appropriate litigation guardian.  In the overwhelming majority of circumstances, it can fairly be supposed that the choice of a litigation guardian to protect the child’s interests can, and should, be achieved without any court intervention. 
69. [69]
    In the unusual circumstances where agreement could not be reached, it would nevertheless follow that the parent or parents would have a right to be heard on an application for the selection of an appropriate litigation guardian.  One would expect that the need for such an application would be rare indeed.  However, it cannot be the case that a stranger to the child, unrelated by birth, marriage or traditional relationships could “snatch a decree” from a parent, even a parent who themselves was not in a position to take the appointment, without communication with that parent. The parent holds a far better right to consider the child’s interests than even the most well-meaning stranger.

Haste

70. [70]
    The Succession Act 1981 (Qld) requires that, unless the court otherwise directs, no application for provision out of a deceased’s estate shall be heard unless it is instituted within nine months of the date of death.^[15] Nine months from the deceased’s death would be 7 October 2024. As a matter of practise, notice is usually given of an intention to bring such an application within six months of date of death because of the effect of s 44(3). Six months would have been 7 July 2024.
71. [71]
    Proceedings were in fact commenced on 28 February 2024. Mr Kerr was represented by his current solicitors when he filed the family provision application. No notice had been given by them, or Mr Kerr, of an intention to bring such a proceeding. The lack of notice is not a procedural fatality; there is no requirement to do so. But for reasons I develop below, it is a relevant matter.
72. [72]
    At the time of filing the family provision application, no grant of letters of administration had been issued.  The grant was not issued until 8 March 2024. Again, the lack of a grant is not a procedural fatality, but it is relevant.
73. [73]
    The urgency with which the proceedings were commenced is not explained in any of the material.
74. [74]
    At the time of filing, Mr Kerr had limited knowledge of the estate’s financial circumstances. He understood there to be a real property at Taringa estimated to be valued at $1.1m, secured by a mortgage of an unspecified sum in favour of the Commonwealth Bank. Otherwise, Mr Kerr deposed that he was still in the process of obtaining information in compliance with the then relevant Practice Direction.^[16] He did not depose to the financial circumstances of Ms Fox or any needs of the child which he believed would be unmet by the child’s entitlements on intestacy.
75. [75]
    On 13 May 2024, Mr Kerr’s solicitors sought information regarding the size and nature of the deceased’s estate (including superannuation and life insurance) and suggested some draft directions for the future conduct of the proceedings.  That request was rebuffed by Ms Fox’s solicitors on 1 July 2024 and followed up by the filing of the dismissal application on 3 July 2024.
76. [76]
    Between the date of filing the family provision application on 28 February and the filing of the application to dismiss the proceedings on 3 July, Mr Kerr did not file any further material.^[17]
77. [77]
    When Mr Kerr’s material was filed in defence of the dismissal application, there was still no explanation for the haste with which the proceeding was commenced. In the context of Ms Fox’s repeated assertions in the text exchanges^[18] that she was going to protect her child’s rights, Mr Kerr’s haste suggests a disregard for Ms Fox’s parental rights and her views.
78. [78]
    When considering Mr Kerr’s fitness to act as litigation guardian, the issue of the haste with which the proceedings were commenced is relevant because it is open to the court to conclude that Mr Kerr had not given proper consideration to the merits of the proceedings, and whether it was in fact in the child’s best interests to bring it. The sorts of matters that ought to have been front of mind would include:

    1. What is the size and nature of the estate?
    2. What is the benefit the child is to receive from the estate under intestacy?
    3. Is the child a beneficiary of a superannuation or life insurance benefit, and how much is/are those amounts?
    4. What are the needs of the child?
    5. How are the child’s needs going to be met going forward?
    6. Is there a gap in meeting those needs, even with the benefit of the gift to her?
    7. Are there any health issues affecting the child?
    8. What are the financial circumstances of the competing beneficiary?
    9. Why is the child’s distribution on intestacy inadequate for her proper maintenance and support?
    10. What costs are going to be incurred not only by the litigation guardian, but by the estate in defending the proceedings? Assuming that all of those costs were to come out of the estate, what is the reduction to the size of the estate, and how would that affect the child’s benefit on intestacy?
    11. After deduction of legal costs from the estate, how much more would the child have to obtain in order to make the bringing of a claim worthwhile?
79. [79]
    Whilst this might not be a comprehensive list of all the matters to be considered before bringing a claim on behalf of the child, they ought to have been the obvious ones. With the exception perhaps of [78](a), there is no evidence before me that any of these matters were considered prior to the commencement of proceedings. Mr Kerr did not contend that he had turned his mind to any of these matters, but that he claimed legal professional privilege in respect of them; he simply gave no evidence on the issues at all.
80. [80]
    I find that the proceedings were brought with unexplained haste.

Prospects

81. [81]
    The issue of prospects overlaps with the issue of haste above. The matters in [78] were directly relevant to the child’s prospects of success.
82. [82]
    It is unnecessary on this application to consider the child’s family provision application, and the prospects of it succeeding, as if Ms Fox’s application was one for summary dismissal of the child’s application on the merits.^[19]  As such, it is not necessary for me to consider whether the threshold is that the proceeding is so untenable as to comprise an abuse of process.  The question here is only whether Mr Kerr’s consideration of prospects is relevant to him continuing in the role of litigation guardian.
83. [83]
    There is no evidence that Mr Kerr took advice as to prospects before he commenced proceedings. Naturally, he was not required to do so, but the court must take into account the prospects when considering whether it is in the child’s interest for the proceeding to continue or for Mr Kerr to be the litigation guardian if they do so continue.
84. [84]
    As to prospects, Mr Kerr did express his opinion “…that the laws of intestacy do not adequately provide for Asha’s proper maintenance and support, having regard to the estimated size of Kundan’s estate, his formal property settlement with Helen (who is the only competing beneficiary of his estate) and Asha’s status as a minor”. Ms Fox did not object to this arguably inadmissible expression of opinion, but submitted the court would give it no weight.
85. [85]
    In his supplementary affidavit, Mr Kerr expressed the following opinions, which were not objected to at the hearing before me:

    1. that he did not consider the distribution on intestacy adequately provided for the child’s proper maintenance and support because the child was 10 years of age, was approaching secondary school and, if she chooses, university;
    2. in eight years’ time (by the time the child reaches 18) she would require security of accommodation which Mr Kerr believed the deceased would have wanted her to have; 
    3. that the child had lost her brother and her father in the space of only five months, and would need to be engaging with professional support to navigate that grief. 
86. [86]
    Mr Kerr made the following submission with respect to the two-stage process in Singer v Berghouse (No. 2):^[20]

“Asha on the material clearly satisfies the jurisdictional test being a 10 year old child with no assets and the sole person whom her father owned a moral duty given he had separated and had a property settlement with Helen.  Intestacy has created an usual (sic) set of facts whereby a separated spouse who has received a property settlement from the deceased is entitled to the first $150,000 of the estate and then the remaining 50%.  Helen as guardian will be entitled to claim/charge property expenses from any trust provided it is for Asha’s property maintenance and advancement.”

87. [87]
    That the material satisfies the jurisdictional test is far from clear. The child is 10 years old. She is to receive over $750,000. There are no identified health, educational or other needs which are not being provided to her. The test is not whether the child might have received more had her father made a Will in her favour. The test is whether the sum she receives on intestacy is inadequate provision for her proper maintenance, education and advancement in life.^[21] Furthermore, the child’s asserted ‘moral claim’ does not give the court carte blanche to make a distribution that may appear more just.^[22]
88. [88]
    At its highest, Mr Kerr maintains that the deceased would have wanted to provide his daughter with ‘security of accommodation’ after she reached 18 years and that $750,000 is not enough to achieve that goal.
89. [89]
    The authorities do not establish that a child has a right to be provided with an unencumbered property,^[23] and Mr Kerr’s assertion that the deceased ‘would have wanted’ that outcome does not change that fact.
90. [90]
    It is beyond the scope of this proceeding to determine whether the case is one which might be liable to be summarily dismissed as considered by Justice Applegarth in Atthow v McElhone^[24] and recently re-considered by Porter DCJ in Taylor v Brinin & Anor;^[25] but there must be a real prospect that a 10 year old child with no issues of ill health who receives a sum of $756,000 would not satisfy the jurisdictional threshold. That is particularly so where a surviving parent, who now has the sole care, support and maintenance of that child, is the competing beneficiary.
91. [91]
    On the current evidence, the child’s prospects of success are weak. I take into account however that it is possible that the evidence might be improved were the matter further investigated. Being as fair as I can to that possibility however does not change the current prospects.
92. [92]
    Also relevant to the issues of prospects and haste, is that Ms Fox is wrongly named as the respondent in her personal capacity. The proceeding should not have been commenced against her personally. The proper respondent to a family provision application is the estate, not a beneficiary personally. I do not however treat this as a separate matter affecting my view about prospects because had an application been made to substitute her in her representative capacity, it would likely have been granted.
93. [93]
    I find that Mr Kerr did not turn his mind properly to the child’s prospects before commencing a proceeding on her behalf.

Impartiality

94. [94]
    Mr Kerr deposes that:

    1. his only involvement is to promote the best interests of the child as he believed the deceased would have wanted.  For that purpose, he engaged solicitors in February of this year and deposed that he intended to be guided by the advice in relation to the proceeding; 
    2. his wish is to ensure that the child receives adequate provision from the deceased’s estate;
    3. he has not and does not intend to charge for his time as acting as litigation guardian;  
    4. in relation to the administration of any fund held on behalf of the child, he proposed that an independent person would be appointed who would apply those funds for the advancement and maintenance of the child as well as invest them for her benefit until she reaches adulthood.
95. [95]
    None of these matters are persuasive as to impartiality when weighed against the text messages exchanged with Ms Fox set out at [12] to [25], and the emails to her solicitors set out at [29] to [32], which all suggest that Mr Kerr had not taken a dispassionate approach generally. The tone of his correspondence is, at the very least, combative. Whilst I take into account that he deposes that he will be guided by legal advice, I have reservations that he will be able to set aside his previously expressed views of Ms Fox as vindictive, false and selfish so as to apply a rational and impartial approach to the claim.  Impartiality is in the infant’s best interests.
96. [96]
    I observe, parenthetically, that Mr Kerr’s statements that:

    1. he does not intend to charge for his time as acting as litigation guardian; and
    2. he proposes an independent person be appointed to administer the fund on the child’s behalf, do not improve his impartiality. As to the former statement, it does not enhance the assessment of his impartiality when there is no provision for him to so charge in any event.^[26] As to the latter statement, this is a result that would likely follow with or without his intervention.

General matters of fitness

97. [97]
    Ms Fox further contends that the court ought to make an order removing Mr Kerr as the litigation guardian for the child for reasons pertaining to his general unfitness to act as a litigation guardian.  Specifically, Ms Fox relies upon two issues. The first is that Mr Kerr has a history of failing to lodge tax returns, and secondly, a history of unsuccessfully appealing matters that have been decided by a court or a tribunal.
98. [98]
    As to the first issue, in 2016 Mr Kerr pleaded guilty to failing to return tax returns for six years being the financial years 2009 to 2014.^[27] His explanations included he was suffering severe financial hardship from the impact of drought, the breakdown of his marriage, the sale of his property at a loss, his indebtedness to his accountant and ill health.  As a consequence, he was on a disability pension and had failed to attend to the returns.
99. [99]
    This is a matter that affects Mr Kerr’s fitness to act for another. The issue is not one of misconduct or dishonesty, but it might be one of either mismanagement or falling so far short of the appropriate standard as to give rise to a real apprehension that the child’s best interest would not be protected.^[28] It is a factor against Mr Kerr continuing to act in the role as litigation guardian.
100. [100]
     As to the second issue of Mr Kerr’s history of unsuccessfully appealing matters that have been decided by a court or a tribunal, I am less persuaded that these are significant matters going to Mr Kerr’s fitness to continue in the role. The complaints relate to traffic infringements and a landlord-tenant dispute.^[29]
101. [101]
     On behalf of Ms Fox, it was submitted that the decisions in both matters demonstrated that Mr Kerr had a ‘history of failing to accept decisions made against him’ when a tribunal of fact disagreed with how he viewed things, and secondly that he cannot make reasonable decisions to resolve legal matters, taking irrelevant points too far at the public’s expense.^[30]
102. [102]
     I consider that this second issue is probably neutral when assessing his suitability to remain as litigation guardian.

Impecuniosity

103. [103]
     The issue of impecuniosity is submitted to be relevant both to Mr Kerr’s fitness to be the litigation guardian as well as to the alternative orders sought for security for costs.
104. [104]
     Mr Kerr’s evidence is that he has limited assets and owns no property.  He is reliant upon a disability support pension from the Government and a small income of approximately $21,000 as a sessional academic at a university.  He deposes to not having sufficient assets to provide security as sought by Ms Fox.  His counsel agreed with the proposition that it did not matter what amount of security he was ordered to provide, he could not provide it.  That is consistent with Mr Kerr’s evidence in his dispute with the tax office that he had limited financial resources, was suffering from financial impecuniosity due to the breakdown of his marriage, the sale of his property and his need to clear his debts.  At that point he could not even provide the funds to meet his accountant’s fees. While his circumstances might be less precarious now, he is still impecunious. He would not be able to meet a costs order were one made against him. 
105. [105]
     Ms Fox contends that one of the purposes of having a litigation guardian is so that there is someone on the record against whom a costs order can be made^[31] given that such an order cannot be made against the child.  As against that proposition, Mr Kerr submits that provided he acts reasonably he ought to be indemnified in acting in his role as a litigation guardian where the child has a substantial interest in the deceased’s estate.  He relies upon a decision of McMeekin J in Collett & Anor v Knox & Anor^[32] as authority for the proposition that he will ordinarily be entitled as of right to be indemnified for expenses incurred.
106. [106]
     That proposition has no relevance here.  Mr Kerr is not acting as a trustee or executor as was the circumstance in Collett’s case, he acts as a litigation guardian.  Whilst I accept that ordinarily an infant’s costs will generally be ordered to be paid from the estate of the deceased^[33] that is not a rule of inflexible application.  A litigation guardian who, like any party, acts unreasonably or incurs unnecessary costs, might well not be indemnified in respect of their costs.  In fact, as much was also the case in Collett’s case.  There, the executor was found by McMeekin J to have not acted reasonably^[34] and was precluded from obtaining a full indemnity in respect of his costs.^[35]
107. [107]
     Further, Ms Fox relies upon the fact that, in respect of an application for security for costs, pursuant to r 671(b) UCPR if a plaintiff is suing for the benefit of another person, rather than for their own benefit, and there is reason to believe that the plaintiff will not be able to pay the defendant’s costs if ordered to pay them, that in itself is a discretionary factor in the consideration of an order for security for costs. That concern has an evidentiary foundation in light of Mr Kerr’s evidence that he is impecunious. I find that Mr Kerr’s impecuniosity is a factor against him remaining as litigation guardian.

Competence generally

108. [108]
     Despite his legal qualifications, the respondent submits that Mr Kerr does not demonstrate a good understanding as to the operation of the law including:

     1. his early assertion that Ms Fox had no standing as a spouse, when plainly that was incorrect;
     2. his assertion that he had some standing to apply for letters of administration when there were several others with a better claim than him, including a spouse, child and siblings.
109. [109]
     As to the assertion that Mr Kerr had some standing to apply for letters of administration, it was submitted on Mr Kerr’s behalf that I should infer he received advice and, acting upon it, re-considered his position. I draw no such inference. Mr Kerr could have given that evidence, but he did not. I am unable to make any finding or draw any inference as to what occurred.
110. [110]
     On balance, the matters in [108] (a) and (b) above are relevant only to the questions of whether the child’s best interest would be served by a person with a less than perfect understanding of the legal issues the child may face. Whilst the mistakes are not encouraging of confidence, they are of less significance than some of the other matters set out above.  This is particularly so when it is remembered that, as a matter of practice, litigation guardians are not routinely legally qualified.

Conclusion as to fitness

111. [111]
     Ms Fox submits that Mr Kerr’s impecuniosity, coupled with his hasty approach to the litigation, unburdened it seems by any proper consideration of the merits of that application, are all factors which would support the application to dismiss the proceedings in their entirety, or alternatively, to remove Mr Kerr as litigation guardian. Mr Kerr submits he is actively protecting the child’s interests, and given her prospects of success, and the likely indemnity in respect of costs, he ought to be permitted to remain in the role.
112. [112]
     For the reasons which I set out above, I conclude that Mr Kerr is not suitable to remain as the child’s litigation guardian. The child’s best interests will not be served by him remaining in that role.

Issue three – removal/replacement, dismissal or some other course?

113. [113]
     It follows that Mr Kerr must be removed as the litigation guardian.
114. [114]
     Does that conclusion mean the proceeding should be dismissed entirely (as sought by Ms Fox), or should Mr Kerr be replaced, and someone else be appointed as litigation guardian?
115. [115]
     Whilst the application before me would not amount to a summary dismissal of the child’s claim on the merits,^[36] the orders sought by Ms Fox are a dismissal of the child’s proceeding.  In the exercise of this court’s parens patriae jurisdiction, this would not be lightly done.
116. [116]
     However, a proceeding on behalf of the child can be instituted as a right within nine months after the death of the deceased (7 October 2024), and outside that timeframe in the court’s discretion.^[37]  The dismissal of the proceeding therefore would not deprive the child of a right to bring such a proceeding should an appropriate person consider it proper to do so. There will be no issue estoppel, and a further proceeding, of itself, would not amount to an abuse of process.
117. [117]
     Counsel for Mr Kerr submits that if the current proceeding was dismissed then, given that it is more than six months after the date of the deceased’s death (7 July 2024), Ms Fox would be at liberty to distribute the estate without regard to the child’s potential proceedings.  I disagree.  Pursuant to s 44(3) of the Succession Act 1981 which pertains to the protection afforded to personal representatives under the provision of that Act:

3. “(3)
   No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative—

3. (a)
   not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41(1) or 42 in relation to the estate; or

3. (b)
   if notice under section 41(1) or 42 has been received—not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application.”

(emphasis added)

118. [118]
     In my view it could not be said that the personal representative did not have notice of an application on behalf of the child within the meaning of s 44(3). The proceeding amounts to notice. The personal representative ought not to distribute earlier than nine months.
119. [119]
     Even if I am wrong about notice, there are a number of factors to which this court would have regard when exercising its discretion to hear and determine an application under Part 4 of the Act even should such a proceeding be later brought out of time, including, but not limited to:

     1. the fact of the proceeding;
     2. the commencement of the application within the time limit for doing so;
     3. that the estate has not yet been distributed; and
     4. that the potential applicant is an infant. 
120. [120]
     In the circumstances, the dismissal of the proceeding would not deprive the infant of the right to bring a proceeding and is not therefore a compelling reason not to accede to the relief sought.
121. [121]
     Neither Mr Kerr nor Ms Fox suggested or identified another person to be appointed in the event Mr Kerr were removed.
122. [122]
     Practically, however, I am conscious that the 10 year old infant cannot herself instruct an appropriate person to act as a litigation guardian for the purpose of investigating whether such a claim ought to be brought in her interests. Whilst that is a discretionary consideration which would be a relevant one in a strong case, such that the court would then make directions for the child’s representation, this is not such a case. The court ought not lightly make orders for some other person to be appointed litigation guardian when the court considers this is currently a weak case, and any person to be so appointed would be at risk of an adverse costs order.
123. [123]
     The proceeding can therefore be dismissed without prejudice to the infant’s right to bring a further proceeding for the same relief.
124. [124]
     It is unnecessary to decide the issue of security for costs.

Costs

125. [125]
     As to costs, Ms Fox has been successful. However, Mr Kerr was given little notice of this application. The letter requesting that he discontinue was given on 1 July, and he was served with this application 3 July. That was a very short time frame, and he was unlikely to be able to properly consider his position in such a short period.
126. [126]
     The application however was not heard until 17 July. That was enough time for him to consider his position.
127. [127]
     Ms Fox asks for her costs on the indemnity basis.
128. [128]
     There must be some special or unusual feature or circumstance to justify an award of indemnity costs.^[38] Although the categories of such cases are not closed, the nature of the cases in which such awards are made include pursuing a hopeless case, engaging in an abuse of process, unreasonable conduct of a proceeding, maintaining a knowingly false case, deliberately high-handed aggressive or un-cooperative behaviour leading to incurring of needless costs, etc.^[39]
129. [129]
     Whilst I consider that Mr Kerr ought to have appreciated his position was untenable, that does not necessarily sound in an order of indemnity costs.  Such an order is intended to compensate but not to punish. I am not satisfied that the case falls within the category of ‘special or unusual’ in the way described in Colgate’s case, especially in light of the limited notice Mr Kerr was given of it.
130. [130]
     I am not satisfied that the sorts of matters required for an order for indemnity costs have been made out.
131. [131]
     I order that the applicant, Mr Kerr, is to personally pay the respondent’s costs of the application on the standard basis.
132. [132]
     The orders of the court are that:

1. The proceeding is dismissed.
2. The applicant in his personal capacity pay the respondent’s costs of the proceeding, including the costs of this application, on the standard basis.