Robert Kerr as litigation guardian for Asha Chaudhary v Helen Fox

A long-term friend of the deceased brought an application for family provision as litigation guardian for the deceased’s daughter. He gave no prior notice to the deceased’s wife, who was the only other beneficiary. The wife subsequently brought an application for the friend’s proceeding to be dismissed and sought he personally pay costs on an indemnity basis. Treston J held the friend ought be removed as the litigation guardian and pay costs personally, but only on the standard basis. Treston J found, while the friend had complied with the procedural requirements of appointment under the Uniform Civil Procedure Rules 1999, he was not suitable for appointment. Amongst her Honour’s detailed reasons, she identified that the common law recognises inherent parental responsibility to act in a child’s best interest should not be displaced for a stranger, except in unusual circumstances.

Treston J

16 August 2024

Background

The deceased died intestate and was survived only by his wife and their daughter, then aged 10-years-old. [1], [4]. The total value of the estate was approximately $1.662 million. [5].

Some years prior to his death, the deceased and his wife separated and commenced proceedings in the Family Court for division of their property. However, they never formally divorced. [2]–[4].

The division of the estate was therefore subject to the Succession Act 1981. [5]. The resulting distribution would be $150,000 for the wife, with the remainder to be shared equally with the daughter (total of $906,000 for the wife and $756,000 for the daughter). [5].

A long-term and close friend of the deceased, Mr Kerr, commenced family provision proceedings on behalf of the daughter, having named himself as litigation guardian. [6]–[7]. He filed a consent of litigation guardian on the same day. [6]. The proceeding was brought within 7 weeks of the deceased’s death and without notice to the wife, despite her lawyers having expressed to him an intention to apply for Letters of Administration. [33].

The wife subsequently brought an application for Mr Kerr’s proceeding to be dismissed, under r 658 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and the inherent jurisdiction of the court. [8]. She also sought an order that Mr Kerr personally pay the costs of the proceeding on an indemnity basis, or alternatively provide $200,000 as security for her costs of the proceeding. [8].

Appointment of litigation guardian

The primary issue in this case was whether Mr Kerr was properly appointed and suitable to remain a litigation guardian for the daughter, who was a child. [9]–[10].

Proper appointment

Mr Kerr submitted the only requirements for a person to be appointed a litigation guardian are prescribed by r 94(1) of the UCPR, namely: that person is not themselves under a legal incapacity, and the person has no interest in the proceeding adverse to the interest of the person under the legal incapacity. [40]–[42]. He had complied with those requirements and was therefore properly appointed.

Suitability

Treston J held satisfaction of the r 94(1) criteria does not, however, entitle a person to be appointed a litigation guardian. [43]–[46].

In the circumstances, Treston J found Mr Kerr was not a suitable person to remain a litigation guardian. First, he failed to consult with the child’s parent before the commencement of proceedings. [49], [111]–[112].

Her Honour considered the decision of Woolf v Pemberton (1877) 6 Ch D 19, where the Court of Appeal held that the litigation guardian (not “next friend”) could be removed because he had failed to communicate with the father of the children who were beneficiaries under a will. [50]–[59]. Treston J summarised the principles as follows:

“[first] 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 noncommunication with the parent before the institution of the suit”. [60].

Those principles were reiterated by the Court of Appeal in Re Taylor’s Application [1972] 2 QB 369. [61]–[63]. The primary responsibility of parents for their children is also reflected in the “parental responsibility” provisions of ss 61B and 61C Family Law Act 1975 (Cth). [66].

While the wife in the present case, unlike the father in Woolf, did have an adverse interest in the proceeding, Treston J found this did not detract from the principles in Woolf. The views of the parent should nevertheless be sought prior to the selection of a litigation guardian, particularly where the alternative is a stranger. [68]–[69].

A number of other matters also made Mr Kerr unsuitable. Her Honour found he acted “in a manner that is hasty and ill-considered”, was “not impartial” in light of his “combative” communications with the deceased’s wife, had a history of poor management of financial affairs – currently being impecunious, and there was “no evidence that he properly considered what was in the [child’s] best interests before commencing the proceedings”. [49], [95]. Those matters were considered by her Honour in detail at [70]–[110].

Notably, when considering Mr Kerr’s impecuniosity as a factor against his continued appointment as the litigation guardian, Treston J observed that “Whilst I accept that ordinarily an infant’s costs will generally be ordered to be paid from the estate of the deceased 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”. [106].

As a consequence of removing Mr Kerr as litigation guardian, a question arose as to whether the proceeding should be dismissed in its entirety or some other order made in respect of replacing the litigation guardian. [113]–[114]. Treston J concluded that the dismissal of the proceedings would not deprive the child of the right to bring a proceeding. [115]–[120], [123]. In circumstances where the case on behalf of the child was weak, and a person-appointed litigation guardian would be at risk of an adverse costs order, Treston J declined to exercise the court’s powers to make an appointment. [122].

Her Honour ordered Mr Kerr personally pay the wife’s costs of the proceeding on the standard basis. [131]–[132].

H Edwards of Counsel