Chaudhary v Fox [2025] QSC 144

HER HONOUR: This is an application brought by Robert Kerr for leave to appeal against a costs order. The application proceeds under section 64 of the Supreme Court Act 1991. The costs order in question was one which was made by me on 16 August 2024. Section 64 of the Supreme Court Act 1991 provides, "Leave required to appeal in relation to costs." Subparagraph (1): "An appeal only in relation to costs lies to the Court of Appeal from a judgment or order of the court in the Trial Division only by leave of the judge who gave the judgment or made the order, or, if that judge is not available, another judge of the court in the Trial Division."

Before turning to the submissions of either party in relation to leave to appeal in relation to costs, it is important to say something about the legal principles which apply to section 64 which have been considered on a number of occasions, both at first instance and in the Court of Appeal. In the matter of EPAS Ltd v James & Others [2007] QSC 49, speaking of the precursor of section 64, that is, section 253 of the Supreme Court Act 1995, Justice Wilson observed that the making of an order as to costs involves the exercise of judicial discretion on a procedural question and that leave to appeal against that decision can only be made after leave is obtained from the judge who made the order, or if that judge is not available, then another judge of the trial division.

Justice Wilson went on to observe that the evident purpose of the rule is to limit appeals as to costs only because decisions on costs afford a "prime example of a discretionary judgment which parliament has recognised should be left to the trial judge". Justice Wilson referred, favourably, to the decision of Dowsett J in Grundmann v Georgeson [1996] QCA 189, that leave to appeal against an order for costs is not given as a matter of course. And a trial judge, when asked to grant such leave, should not be expected to accede to such a request simply because it is the judge's own order which is being attacked. Rather, leave should not be given unless the applicant demonstrates that there is "a cogent argument against the order".

A similar approach was adopted by Chesterman J in Emanuel Management Pty Ltd (in liquidation) & Ors v Foster's Brewing Group Ltd & Ors [2003] QSC 484, where his Honour said "A trial judge who is asked for leave to appeal should not be defensive about the orders made or overly reluctant to give leave. Nevertheless, the cases make it clear that leave should not be given unless there is an arguable case that, applying the principles of House v the King, the discretion will be overturned on appeal. That means that there must be an arguable case that the judge committed an error of law or misapprehended the facts or that the result is inexplicably inconsistent with the facts." With those legal principles in mind, I turn to the actual background of the matter before me.

In doing so, I read from and adopt the summary of the background from the ex tempore decision of Bond JA of 12 December 2024, where Mr Kerr had appealed the substantive decision which I had given in relation to the matter as opposed to the costs order. His Honour's ex tempore decisions records that on 28 February 2024, Mr Kerr commenced a proceeding in the trial division of this court for further and better provision out of the deceased estate on behalf of the deceased child, age 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 the child for whom he purported to act as litigation guardian, or to Ms Fox.

The relationship between 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. The 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 rule 658 of the Uniform Civil Procedure Rules 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 rule 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. Justice of Appeal Bond noted that it must have been obvious to Mr Kerr that the application brought by Ms Fox, in his proceeding, was in peril of being struck out and that an order was being sought that he personally be liable for the costs of the proceeding. The primary application was heard by me on 17 July 2024. My decision was reserved and I published reasons on 16 August 2024, being [2024] QSC 174.

In doing so, I ordered that the proceeding commenced by Mr Kerr be dismissed and that Mr Kerr, in his personal capacity, pay Ms Fox's costs of the proceeding, including her costs of the application on a standard basis. Mr Kerr did not appeal either the decision or the costs decision within the time limit for doing so, being 28 days after the decision was given. Mr Kerr then filed an application appealing against the dismissal of the proceedings on 31 October 2024, being some seven weeks after the 28 day time period had expired. He applied for leave to appeal that primary decision, but not the costs decision. Although Mr Kerr was represented before me in the proceedings of July 2024, he was self-represented in the Court of Appeal when his leave to appeal was heard on 12 December 2024.

Before Justice Bond, Ms Fox applied for orders that the application for leave to appeal be dismissed on the grounds that the appeal was out of time and Mr Kerr had offered no reason for his failure to lodge an appeal within time. Secondly, Ms Fox contended that there were no reasonably arguable grounds of appeal that had been identified, and thirdly, that Mr Kerr was then litigation guardian but was now purporting to act in-person. In addition to seeking security for costs, Ms Fox also asked for certain material which Mr Kerr had filed, be sealed up on the basis that that

material exhibited had been obtained in the course of Family Court proceedings between the deceased and Ms Fox without relief from the applied undertaking having been sought and obtained.

Bond JA considered that it was appropriate to exercise the jurisdiction to summarily dismiss Mr Kerr's application, and he did so on reasons that included, first, that the application was out of time and Mr Kerr had neither sought nor justified an extension of time to file a notice of appeal. Second, the court considered that the application was frivolous and vexatious and an attempt to relitigate the proceedings below. I do not propose to set out all of the details in his Honour's reasons leading to the conclusion that the proceeding was so frivolous and vexatious. The reasons, however, are important because the same types of matters are relied upon before me today in respect of the application for leave to appeal the costs order.

I turn to Mr Kerr's submissions in relation to this application. Firstly, Mr Kerr submits that an order for costs on the standard basis is unjust and is not supported by chapter 17A UCPR and in particular the rule 700A. That rule pertains to estates of deceased persons and trusts. The rule applies to, amongst other things, a proceeding commenced under part 4 of the Succession Act and therefore, as I understand the submission, would have applied to the family provision application brought on behalf of the infant.

Mr Kerr submits that in that context the rule is relevant, and whilst that is correct, subrule (2) makes it clear that the court nevertheless retains a discretion in relation to the costs, and it was that discretion that I exercised in ordering costs against Mr Kerr at first instance. The rule does not create a blanket presumption that the parties such as Mr Kerr are entitled to protection out of the deceased's estate in respect of costs. If that was the purpose of the submission at page 1 of the outline it can be easily disposed of on that basis. However, Mr Kerr's submission goes further, claiming that the only possible relevant section that would deny costs out of the estate appears to be rule 700A sub (2) sub (b)(iii), "The litigation of unmeritorious issues."

Mr Kerr's submissions expressly set out that he contests the issue, that is, that the proceedings were unmeritorious. His submission then goes on to set out the basis upon which he contests the submission that the case was an unmeritorious one. It is of no relevance to this application that Mr Kerr contests the underlying matters that were dealt with by me in August of last year. He has already been unsuccessful in relation to that issue before me, and was unsuccessful again before Justice Bond. This is not an occasion to relitigate issues about the merits to date.

The balance of Mr Kerr's written submissions which span over seven pages all pertain, it seems to me, to a challenge to the decision which I made in August of last year. He contests, for example, the evidence before me, claims that there was evidence which I failed to consider, refers again to the evidence in the Family Court which has, in fact, been sealed up by the order of Justice Bond, and generally

challenges many of the factual matters which I set out in my decision. His submissions repeatedly refer to his view about where I fell into error in the primary judgment. His written submissions are not directed to the issue of costs.

In respect of the written submissions, I can do no better than repeat the words of Bond JA: "In its current form, Mr Kerr's application seems merely to be a frivolous and vexatious attempt to relitigate the proceedings below." Before me, however, I gave Mr Kerr, expressly, a further opportunity to consider the particular matters which I had dealt with in my reasons of August of last year pertaining to costs. I directed Mr Kerr to paragraphs 125 to 131 of my judgment and I adjourned the matter for a short period of time to enable him to address in oral submissions any further issues that arose out of those paragraphs. In response to that further period of time to consider those matters, Mr Kerr made some further submissions.

Firstly, he submitted that he was impecunious, a finding which I had made in August, he contends, and he has no way of paying the costs order. It is correct that in the decision under the heading "Costs" I did not expressly refer to Mr Kerr's impecuniosity as a separate matter which influenced my decision. Next, Mr Kerr refers to the fact that I found that he was validly appointed as litigation guardian, and therefore he was entitled to commence proceedings. In relation to that, my judgment dealt with this issue at paragraphs 40 to 47. I accepted there that the rule provides that in order to be a litigation guardian, the criteria in rule 94(1)(a) and (b) must be satisfied. No person who has a conflict of interest with the infant's interests can be a litigation guardian. However, I also found that the wording of "may" in rule 94(1) is permissive and upon satisfaction of certain criteria, a person may be a litigation guardian, but it is not a right to do so.

I will not extract in full that which I set out at paragraphs 40 to 47 of the judgment. It is true that I found that Mr Kerr was properly appointed so far as compliance with rule 94 and 95 is concerned. However, that is only part of the question, as I found on the last occasion that I considered the matter properly. iIf the only criteria to be applied were those in rule 94(1)(a) and (b) then the range of persons who would satisfy the criteria would be vast. I gave an example that a person could be a complete stranger to a child, a person who had no knowledge of the child, the deceased, or the estate - rather, any person over the age of 18 with sufficient mental acuity and no conflict of interest could satisfy the criteria. Therefore, while it is correct that Mr Kerr was properly appointed so far as compliance with the rule was concerned, that did not give him an entitlement to act as litigation guardian, and certainly not an entitlement without reference to the child's parents for the reasons which I have set out at paragraphs 50 to 69 of my judgment.

Next, Mr Kerr referred on a number of occasions to the fact that Ms Fox herself was in a conflicted position and could not act as litigation guardian. Although that is referred to on multiple occasions in the written submissions, and again today, that is simply a question of fact. It is not to say anything about Ms Fox's own unsuitability. The real issue there is simply that

because she and the infant both are entitled to share in the deceased's estate, she is in a conflicted position as a question of law that she has an interest that conflicts with the interest of her child. It says nothing about unsuitability or otherwise and it is a question that really is of no particular relevance in consideration of the costs issue.

The third issue that Mr Kerr raised in oral submissions is that he lives in Calliope, so it is very difficult for him to speak to his lawyers. There is no particular evidence about any occasion where he found it difficult to speak to his lawyers or how his living in a rural location ought to have informed the costs order which would be made against him, was not clear.

Fourth, Mr Kerr referred to the fact that in his submission, the respondent has refused to negotiate with him throughout the course of the proceedings and, in fact, described that the junior solicitor with the conduct of the matter at a certain time had shown disrespect towards him during the carriage of the matter. There is no mention in the material before me today that goes to either of those issues. I did give Mr Kerr the opportunity to read any other material upon which he wishes to rely for the purpose of the application, explaining to him at the outset that if he wished to rely upon anything in another affidavit, he ought to read it in this proceeding. He read no such material before me today.

Nevertheless, I take his submission to be a reference to a matter which I had already made reference when the matter came before me, and that is that which appears at around paragraphs 74 and 75 of my original judgment.

In his oral submissions, Mr Kerr referred to a letter of the 13th of May 2024, which he felt had been responded to disrespectfully by the junior solicitor with the conduct of the matter when no reply was received to it for a period of some seven weeks. That seems to be a reference to the material to which I had regard at paragraph 75 of my judgment. In any event, assuming that being the material upon which Mr Kerr intended to rely today, it is difficult to see how any of that material is relevant to the question of costs before me today. They are the only further matters that Mr Kerr added to his written submissions today.

Importantly, it seems to me Mr Kerr does not identify any error of law or fact affecting the costs order which I made. He was on notice by correspondence before the matter was heard in July that a costs order would be sought against him. He did not, before me today, advance any reason why the costs order was wrongly made. Although he has made reference on a number of occasions to the fact he did not appear in person at the hearing before me in July of last year, he was then represented by both solicitor and counsel, and there is no reason to think that, had he been personally present, a different costs order might have been made.

Next, I take into account that Mr Kerr has singularly failed to identify any proper explanation for the very significant delay in appealing the costs decision or seeking leave to appeal the costs decision. When he made his application to appeal against the substantive decision to the Court of Appeal, he could have, at the same time, appealed the costs order before Justice Bond, but he did not. He gives no explanation for his failure to do so at that time.

To the extent that Mr Kerr has made any submissions as to an explanation for the delay generally, as opposed to the specific delay related to the costs appeal, his material demonstrates the following: firstly, that after I delivered my decision in August it was necessary for him to access the transcript, which he could not do for some reason until 17th of September, some two months after the hearing was held. He did not then receive a copy of it until 11 October, by which stage more time had elapsed since my decision had been made.

In his affidavit, he says that after analysing the transcript, he prepared an appeal which he sent by post on 18 October. Mr Kerr must have known, in light of some of his legal experience, that the decision was already out of time, but he did not address any of the relevant issues as to appealing out of time when he filed the application for leave to appeal in the Court of Appeal. Next, he says that his documents were misplaced by Australia Post and were not filed until the 31st of October 2024.

Mr Kerr asserts that Justice Bond dismissed his application in the Court of Appeal because he had made procedural errors and had failed to file forms required by the Uniform Civil Procedure Rules. In part, that is true. Bond JA's judgment reveals that Mr Kerr did belatedly seek an adjournment to enable him to complete proper documentation and that that application was opposed. Bond JA, however, concluded that there was no utility in allowing an adjournment for that purpose, because his Honour was persuaded that the application was frivolous and vexatious and amounted to an abuse of process.

On 4 March 2025, Mr Kerr then filed an application that he be granted an extension of time to request leave of the court pursuant to section 64 and that he be granted leave to appeal from the costs order. That application proceeds on the basis that the extension of time is relevant only to the costs order, not to the substantive appeal. That flows from the form and content of the application, but it also flows, in my opinion, from the fact that Bond JA had already considered the merits of the appeal and described them as frivolous, vexatious and an abuse of process.

I find that none of the explanations contained in Mr Kerr's affidavit, affirmed on the 7th of February 2025, in fact explains the delay between my handing down a decision in August 2024 and Mr Kerr making a belated application for leave to appeal in March of 2025. The expiration of over six months between the decision and the filing of the application is effectively unexplained. In my view, it is a substantial basis for the refusal of the grant of leave to appeal.

Secondly, I take into account the strongly expressed views of Bond JA in relation to the substantive appeal that I have already referred to, that the appeal was frivolous, vexatious and amounted to an abuse of process. Given that the submissions of Mr Kerr in this court today rehearsed the very same sorts of matter which were rehearsed before Justice Bond, it is difficult to see that there is any reason for this court to conclude that this application is not likewise so described as frivolous, vexatious or

an abuse of process; however, I do not even have to make a finding at that threshold. The application, it seems to me, is one which has no prospect of success.

Even if I were not persuaded, as I am as to the lack of merit of Mr Kerr's application for leave to appeal, I would be significantly influenced by the views of Justice Bond in relation to the substantive appeal. That his Honour would not even consider an adjournment to allow further material to rectify procedural defects because his Honour considered that the appeal is so hopeless it follows that where the appeal itself had no merit, there is unlikely to be any merit in the reconsideration of the discretion and that is affecting the costs judgment.

Third, I take particular note of the fact that when the matter came before Justice Bond, Ms Fox applied for an order that Mr Kerr pay the costs of that application on an indemnity basis, effectively, on the basis that since the commencement of the proceeding in the Court of Appeal, Mr Kerr should never have proceeded in the way and manner in which he did. His Honour found that there was a sufficient basis to warrant an order for indemnity costs against Mr Kerr there, and he did so order.

The indemnity costs order speaks to the assessment of the merits of the appeal to the Court of Appeal. That is a relevant matter which I take into account, that that appeal was so hopeless, it is one which informs, in some respects, the prospects as to whether there are any similar prospects in relation to the discretionary consideration of the costs order. I would not grant leave to appeal where to do so would simply transfer the exercise of discretion as to costs to the Court of Appeal in the way described by Muir JA in Lessbrook Pty Ltd (in liq) v Whap [2014] QCA 63; [2014] 2 Qd R 102 at paragraph [52], being where his Honour, referring to In the Will of Gilbert, said "If a tight reign were not kept upon the interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal."

In the circumstances, Mr Kerr's application for leave to appeal the costs order is dismissed. The respondent asks for an order against Mr Kerr in relation to the application. Mr Kerr, having been wholly unsuccessful, it is appropriate that a costs order be made against him. In so concluding, I take into account Mr Kerr's submission that he is impecunious and has no way to pay the costs order. That is a matter that speaks to recovery of costs, not a matter that speaks directly to the discretion to make the costs order. In any event, having had the opportunity to consider not just the decision which I made at first instance, but also Justice Bond's reasons where Mr Kerr was present, I think - by some video or phone link, but appeared before Justice Bond, and heard Justice Bond's reasons - he ought to have well understood that his prospects of success on this application were most dire.

I am therefore persuaded that an order for costs on the standard basis, as is sought by the respondent, is appropriate to make in the circumstances. In the circumstances, I

make an order (1) that Mr Kerr's application filed 4 March 2025, be dismissed and secondly; that the applicant, Mr Kerr, be ordered to pay the respondent's costs of the application on the standard basis.