Laghari & Laghari
[2022] FedCFamC1F 683
Federal Circuit and Family Court of Australia
(DIVISION 1)
Laghari & Laghari [2022] FedCFamC1F 683
File number(s): SYC 2267 of 2020 Judgment of: RIETHMULLER J Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Litigation guardian – Where the second respondent is in need of a litigation guardian – Incapacity to provide instructions – President of the Law Society of New South Wales to nominate suitable solicitor to act as litigation guardian Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.14
NSWTrustee and Guardian Act 2009 (NSW) s 16(1)(s)
Cases cited: Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 3) [2009] WASCA 118
Attorney-General for State of Queensland v SLS (2021) 8 QR 128; [2021] QSC 111
Dey v Victorian Railways (1949) 78 CLR 62; [1949] HCA 1
Genesalio & Genesalio (2019) FLC 93-901; [2019] FamCAFC 85
Grace & Grace (1990) FLC 92-170
Nalder v Hawkins (1833) 2 Myl & K 243; 39 ER 937
Taylor’s Application [1972] 2 QB 369
Thorn & Thorn [2017] FamCA 950
Vishnakov v Lay (2019) 58 VR 375; [2019] VSC 403
Willshire & Willshire [2009] FamCAFC 130
Woolf v Pemberton (1877) 6 Ch D 19
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 22 July 2022 Place: Parramatta Solicitor for the Applicant: Bainbridge Legal Counsel for the First Respondent: Mr O’Reilly Solicitor for the First Respondent: York Family Law Specialists Solicitor for the Second Respondent: Michael Vassili Barristers & Solicitors Independent Children’s Lawyer: Legal Aid New South Wales ORDERS
SYC 2267 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAGHARI
Applicant
AND: MS LAGHARI
First Respondent
MS BARIGAI
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
RIETHMULLER J
DATE OF ORDER:
12 september 2022
THE COURT ORDERS THAT:
1.Within seven (7) days of the date of these Orders, the solicitors for the second respondent write to the President of the Law Society of New South Wales (enclosing a copy of these Reasons for Judgment, the Orders reflecting these Reasons for Judgment, and the reports of Dr B dated 12 May 2021, 8 November 2021, and 1 July 2022) requesting that the President nominate a suitable solicitor to be appointed as litigation guardian for the second respondent in these proceedings, pursuant to r 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.Simultaneous to compliance with Order 1, the applicant and first respondent do all things and sign all documents necessary to authorise the fee of $660 to the Law Society of NSW to be paid (in the first instance) from the monies held on trust in the parties’ controlled monies account to facilitate the nomination of a suitably qualified solicitor to be appointed as a litigation guardian for the second respondent. And it is noted that the details of the controlled monies account are as follows:
(a)Account Name: York Law Family Law Specialists Pty Limited ITF Mr Laghari and Ms Laghari CMA;
(b)BSB: …;
(c)Account Number: …46,
(“the Controlled Monies Account”).
3.Within three (3) days of receipt of the President of the Law Society of NSW’s nomination, the solicitors for the second respondent provide the applicant and first respondent details of the nomination.
4.The solicitor nominated by the President of the Law Society of NSW pursuant to these Orders is requested to consent to the appointment as the litigation guardian for the second respondent, and to file and serve upon the applicant and first respondent a Notice of Consent to such appointment, and a Notice of Address for Service within 14 days of receiving the President of the Law Society of NSW’s nomination.
5.Upon compliance with Order 4, the nominated solicitor be at liberty to obtain a copy of all documents on the Court file SYC2267/2020.
6.Any objections to the appointment of the nominated solicitor be made by affidavit electronically filed and served within three (3) business days of receiving the Notice of Consent from the nominated solicitor.
7.Upon the expiry of the objection period outlined in Order 6, the solicitors for the second respondent forward to the associate of the Honourable Justice Riethmuller details of the nomination and acceptance of the solicitor to act as litigation guardian for the second respondent, to enable an order to be made in chambers formalising the appointment.
8.The fees of the litigation guardian for the second respondent in these proceedings be charged pursuant to the rates set out in the Court scale of fees.
9.The costs of the litigation guardian, up to the sum of $10,000, be met at first instance from the funds held in trust for the applicant and first respondent in the Controlled Monies Account, and the applicant and first respondent do all things and sign all documents to authorise the payment of any reasonable fees of the appointed litigation guardian up to the amount of $10,000.
10.Leave is granted to the parties (including the litigation guardian appointed pursuant to these Orders) to relist the proceedings for mention before the Honourable Justice Riethmuller in the event of issues arising in relation to the implementation of these Orders.
11.The litigation guardian not be liable costs other than costs incurred as a result of misconduct or default by the litigation guardian.
12.Costs of the Application in a Proceeding filed 20 June 2022 be reserved to the trial judge.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Laghari & Laghari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
The current Application in a Proceeding filed on 20 June 2022 concerns the appointment of a litigation guardian for the second respondent.
Background
Some background to the proceedings is necessary to provide context to the current application.
The applicant husband and first respondent wife married in Country C in 1995, and migrated to Australia shortly thereafter. The husband and wife separated in June 2019. There are two children of the marriage, a child born in 1997, who is an adult, having attained 25 years of age; and a child born in 2007, a girl, who will attain 15 years of age in a few months. The husband commenced proceedings by way of an Initiating Application filed on 14 April 2020, seeking parenting orders to enable him to have contact with the youngest child, who presently lives with the mother. By way of Response filed 26 June 2020, the mother opposed orders for the child to spend time with the father, and sought property settlement orders.
On 22 September 2020, the second respondent (the husband's mother and the paternal grandmother of the child) filed an Application in a Case seeking to be joined to the proceedings. The orders sought by the second respondent were ultimately articulated in her Response filed on 26 October 2020, where she sought a declaration that the husband (her son) holds 70 per cent of a property located at D Street, Suburb E (“the Suburb E property”) on trust for her benefit, and contact orders for the child to visit her each alternate Sunday from 9am to 5pm. On 19 March 2021, the second respondent filed an Amended Response, amending the contact orders sought with respect to time with the child, seeking only two hours each second Sunday.
Notably, the husband’s mother (the second respondent) lived in various properties that were purchased or contributed to by both the paternal grandparents and the husband for over 25 years before she was placed in a nursing home in late 2020 (however, the paternal grandfather lived in Country C from about 1992 and passed away in about 2002). Whether this was the result of simple charity by the husband towards his parents or a contribution by the husband’s parents is a key question in the property settlement proceedings.
Whether the husband owes obligations to the second respondent (his mother) in the form of a remedial trust imposed by equity would be an issue in the proceedings, even if the second respondent were not joined.
Given the current circumstances of the second respondent her will can no longer be altered and is thus discoverable in order to show who may benefit when she passes. Similarly, her representations to the nursing home about her assets will be significant evidence, as with any documents evidencing financial contributions to the husband or wife.
The second respondent’s capacity
During 2021, Dr B undertook two assessments as to the capacity of the second respondent grandmother to provide instructions. In mid-May 2021, Dr B prepared a detailed report, which concluded:
As highlighted in my report, I was not able to elicit any evidence indicative of [Ms Barigai] suffering from mental illness/disorder. Examination/assessment findings do not indicate towards [Ms Barigai] presenting with any significant cognitive deficits. [Ms Barigai] is quite capable of making her own financial decisions. She has the capacity to provide instruction to her Legal Team in any financial/civil matters.
Considering [Ms Barigai] has capacity to make her own decisions, I am of the view that she does not require a case guardian. She would be able to understand the nature and the effect of the instructions she provides to her legal team.
Note: It is important that [Ms Barigai's] Legal Team use an interpreter as she does struggle with her communication in English. She does require questions to be explained to her slowly in [Country C] language. Occasionally, she might require questions to be repeated although is able to understand the content of the questions.
([Dr B] Psychiatric Report dated 12 May 2021)
In November 2021, Dr B prepared a further report which concluded:
As per review today, I remain of the view that [Ms Barigai] does not suffer from any mental illness/disorder. Her cognitive functioning has remained unchanged with nil evidence of decline since my last review in May 2021. Overall, I am of the opinion that [Ms Barigai]
•Does not suffer from mental illness/disorder.
•Does have the capacity to made decisions in terms of financial matters and provide instruction to her legal team.
(Dr B Psychiatric Report dated 8 November 2021)
However, since that time, the second respondent’s health has deteriorated, such that she no longer recognises her solicitor, and the husband (her son) agrees that she now needs a litigation guardian.
The wife expresses concerns that the case being pursued by the second respondent is for the purpose of assisting the husband in the proceedings. Her concerns in this regard were no doubt heightened by the husband setting out in an affidavit that:
6. Throughout the proceedings, I have acted as a middle person between my mother and her lawyers because my mother did not have a telephone or an email address. She is also unable to drive so I drove her to and from her appointments with her lawyers. Her lawyers have at all times ensured that the instructions I conveyed to them came from my mother and not me. They have also ensured that the advice they provided was conveyed to my mother.
(Applicant’s Affidavit filed 24 June 2022)
On 1 July 2022, a further psychiatric report was obtained from Dr B with respect to the second respondent’s capacity, who advised that:
[Ms Barigai] was unable to understand the majority of my questions. She provided me with irrelevant answers to most of my questions. She was observed to be struggling with her cognitive abilities. [Ms Barigai] remained preoccupied with persecutory ideation related to one of her (possible) family members. The discussion also indicated towards her experiencing visual and auditory hallucinations which are more prominent at night. [Ms Barigai] has been able to sleep with the help of the medication.
I discussed with [Ms Barigai] about her savings and her property. [Ms Barigai] was not able to understand my questions. Occasionally she would provide me with an unrelated answer and on other occasions, she would ask me to speak to her son regarding any financial or property matters. She was not able to provide me with details of her contribution to her current assets. She was also not able to make a comment about the future distribution of her assets. [Ms Barigai] also struggled to provide me with details about personal life events and her past history in general. Her current presentation indicates a significant decline in her cognitive functioning as compared to my last two reviews i.e., in May 2021 and November 2021.
…
As per review today, I am of the opinion that [Ms Barigai] does not have the mental capacity to provide instruction in any legal case. She does not have the mental capacity to consider the legal advice you may provide her. She will not be able to sit through the legal proceeding or follow the legal proceedings due to a lack of her capacity. She will not be able to provide instruction to your legal team. [Ms Barigai] lacks the capacity to understand the information you may provide her and in turn, will struggle to provide you (your team) with informed.
([Dr B] Psychiatric Report dated 1 July 2022)
(Emphasis in original)
I am comfortably satisfied that on the evidence the second respondent requires a litigation guardian to be appointed to manage the litigation on her behalf.
Appointment of a litigation guardian
The issue in dispute between the parties is who should be appointed as the litigation guardian for the second respondent. The husband and the second respondent’s current solicitors suggested the appointment of a community member who speaks her language (Country C language), and the appointment of a solicitor from a different firm from the solicitors presently acting for the second respondent, but who was previously a consultant solicitor engaged by the current solicitors for the second respondent, to act as solicitor for the second respondent through her litigation guardian. The wife seeks the appointment of the NSW Trustee and Guardian or a solicitor as nominated by the President of the Law Society of NSW, in order to ensure that the litigation guardian is acting solely in the best interests of the second respondent, uninfluenced by the interests of the husband.
Both the community member and the solicitor proposed by the husband have sworn affidavits setting out that they are prepared to accept the appointment of litigation guardian as proposed.
The extent of the work involved for any future litigation guardian may be relatively limited as the current solicitors for the second respondent advised during argument that there is a real prospect that the litigation guardian, upon reviewing the evidence available, would not pursue the proceedings with respect to the property claim. The parenting proceedings are unlikely to be pursued given the current state of health of the second respondent, the age of the child, and that the child remains fixed in her opposition to seeing her grandmother. The child’s opposition in this regard remains fixed despite a discussion with the Independent Children’s Lawyer to ensure that the child had reflected upon the fact that she would be unlikely to have opportunities to see her grandmother again in the future, given her grandmother's failing health.
At common law, the purpose of a litigation guardian for a person with a disability, like that of a litigation guardian for an infant (in some rules referred to as a next friend or tutor), is primarily to protect the interests of the person under a disability, and to ensure that the other parties are not exposed to frivolous proceedings. Thus, as Williams J set out in Dey v Victorian Railways (1949) 78 CLR 62, at [8]:
In Rhodes v. Swithenbank (1889) 22 QBD 577, at p 579 Bowen L.J. said: “The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that 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”. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.
(Citations omitted)
It is apparent that close family members are usually most suitable for appointment as litigation guardians as family members are most likely to have the litigant's interests at the forefront of their considerations. Hence, the long acknowledged preference for a relative or friend of the family rather than a volunteer: see Nalder v Hawkins (1833) 2 Myl & K 243; Woolf v Pemberton (1877) 6 Ch D 19, at 23; Taylor’s Application [1972] 2 QB 369. Whilst this proposition is of great force in general litigation, it is more difficult to apply in the context of litigation between family members.
If the litigation guardian fails to act fairly and competently in the second respondent’s interests, they can be removed by the Court as an appointment is not irrevocable: see Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 3) [2009] WASCA 118 at [4], and Taylor’s Application [1972] 2 QB 369.
Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), r 3.14 provides:
3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a) is an adult; and
(b) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c) can fairly and competently conduct the proceeding for the person needing the litigation guardian.
There is nothing to indicate that the community member has an adverse interest to that of the second respondent, nor that he would not be able to competently carry out the task. The issue in this case is whether the community member could “fairly” conduct the proceedings on her behalf.
In this case, the proceedings by the second respondent lie primarily against the husband (her son). The effect of her claim also impacts upon the wife as it would reduce the property that is available for settlement between the husband and wife pursuant to the Family Law Act 1975 (Cth). It appears that the husband does not dispute the claim of the second respondent; he and the second respondent having taken a united front. The husband also sets out in his affidavit that he has provided his mother’s instructions to her lawyers in the past (Applicant’s Affidavit filed 24 June 2022, paragraph 6). On the wife's case, the claim by the second respondent is, in effect, a ruse to reduce the assets available for settlement under s 79 of the Act.
In Genesalio & Genesalio (2019) FLC 93-901, it was found that a husband's brother was a suitable person to be a litigation guardian, despite having interests in trusts involving the husband, as he and the husband had a united position at that stage. A stricter view was taken in Grace & Grace (1990) FLC 92-170 and Thorn & Thorn [2017] FamCA 950. It appears that the findings in Genesalio are limited to the particular circumstances of that case, being an approval for a limited time to facilitate the hearing of an appeal that was pending, leaving open the question of the brother's suitability into the future.
The husband was well advised to refrain from seeking to be appointed litigation guardian for the reasons discussed in Grace & Grace (1990) FLC 92-170 and Thorn & Thorn [2017] FamCA 950.
In Willshire & Willshire [2009] FamCAFC 130, the Full Court was critical of a party's own solicitor being appointed as litigation guardian which the court described as “highly unusual and indeed concerning”, before noting the difficulties in finding appropriate persons to carry out the role, although a different view was taken in Vishnakov v Lay (2019) 58 VR 375. Here however, a solicitor who accepts the nomination as a litigation guardian will not have previously acted for the second respondent and will not be required to act in the proceedings if they are of the view it is inappropriate. In these circumstances, they are in a similar position to a public trustee, many of whom now undertake their legal work from within their own office.
Whilst a litigation guardian is an officer of the court, with considerable obligations to the person for whom they are guardian, I am not persuaded that the fairness referred to in r 3.14 of the Rules is intended to require that the litigation guardian display a level of independence from each other party in the proceedings similar to that of a judge or arbitrator. If this level of independence was required it would be rare that a family member or friend could be appointed. The role of the litigation guardian is to protect the interests of the person under a disability, and is not constrained by obligations to other parties in the proceedings, beyond the obligation to conduct the proceedings reasonably in the interests of the person under a disability. However, a litigation guardian's obligations require that they act in the interests of the person under a disability and not act as a mere puppet of another.
The community member who had been nominated by the second respondent's solicitors was a member of the local Country C community and speaks the second respondent’s first language. Although, given the second respondent’s current state of health, it seems unlikely that any meaningful discussions could now take place. Whilst the community member set out his consent to appointment in an affidavit filed 21 June 2022, he had not acknowledged that he would ordinarily be liable for any costs ordered against the second respondent in the proceedings. Since hearing argument on the Application in a Proceeding filed on 20 June 2022, the community member has withdrawn his consent as a result of concerns that he may ultimately be liable for costs. It is unfortunate that this was not the subject of specific discussion with him prior to obtaining his consent.
The wife had expressed her concerns that the community member would be influenced by the husband, and also sought that an independent solicitor be nominated. The wife pointed out that:
20. [The community member] is a personal a [sic] friend of [the husband]. [The community member] provided evidence in support of [the husband] during our ADVO proceedings and was a witness in [the husband’s] case during the ADVO proceedings. [The husband] and [the community member] became friends during the marriage having met through a charity organisation [F Charity]. I believe that the [Second] Respondent's legal representative has nominated [the community member] on the request of [the husband]. I do not consider [the community member] to be impartial.
…
23. After the provisional AVO was made and on 18 July 2019 [the community member] contacted [the parties’ eldest child] by text message where in that message he said “I had so much respect far you guys but now Ive totally lost all respect for you guys and I have NEVER seen a daughter or wife ignore a dying man like you guys and I sincerely hope no father gets a child like you who has such disregard for her ill father - irrelevant how bad he is, and iam not asking you to see, visit or call him just an small sms to wish his recovery from hospital. But some people just have a heart of stone”.
(Wife’s Affidavit filed 24 June 2022)
As events have unfolded it is no longer necessary for me to determine whether the community member would be a suitable person for appointment as a litigation guardian.
The solicitors originally engaged by the second respondent have nominated an alternative solicitor who has said that he will cap his fees at $10,000, if engaged by the community member to act on behalf of the second respondent. He has now offered to act as both guardian and the solicitor on the record. The solicitor is a former employee of the solicitors who have so far acted for the second respondent. It is not said that the solicitor is known to the second respondent, nor that he has any special skills (such as an ability to speak the second respondent’s language), that would make him more suitable than any other experienced legal practitioner. There is little in the material to suggest that the proposed solicitor has any experience in acting in the role of a litigation guardian, nor in the dual capacity of guardian and solicitor with the carriage of the matter.
The wife is also opposed to the solicitor nominated by the current solicitors for the second respondent, pointing to evidence indicating that the husband had played a considerable role in providing instructions to the second respondent’s solicitors, and the time it took for an application for a litigation guardian to be appointed given the second respondent’s poor health since late last year. The wife’s concerns are further inflamed by the failure of the second respondent to provide any documentary evidence to support her claim despite litigating for two years when it is apparent that there would have, at the very least, been representations by her to the relevant government agencies as to her assets when obtaining her nursing home care.
Whilst a fixed fee arrangement (as offered by the second respondent’s solicitors nominated solicitor) has many attractions, it also presents difficulties as the fixed fee proposed is far less than the estimated future fees of the second respondent’s current solicitors (by an order of magnitude). It is more appropriate in this context for a solicitor to be remunerated for the work actually done, by reference to the court scale.
In paragraph 27–28 of the wife’s affidavit filed 24 June 2022, the wife seeks orders requiring the New South Wales Trustee and Guardian to be appointed by this Court as the litigation guardian. No consent from the NSW Trustee and Guardian to appointment as litigation guardian has been obtained by the wife. The wife relies upon s 16(1)(s) of the NSWTrustee and Guardian Act 2009 (NSW) as a source of power for such an order. However, that provision only sets out powers that the trustee has “when acting in a trustee capacity or protective capacity”. The provision does not provide a power to order the NSW Trustee and Guardian to take on the role of litigation guardian. I am not persuaded that I have the power to force the NSW Trustee and Guardian to act as a litigation guardian in this case: see generally Attorney-General for State of Queensland v SLS (2021) 8 QR 128. As a result, in the absence of express consent from the NSW Trustee and Guardian, I am not prepared to impose such a role upon the NSW Trustee and Guardian.
Alternatively, the wife proposes that a solicitor be nominated by the President of the Law Society of NSW to act as litigation guardian for the second respondent, and that the solicitor's fees be paid, at first instance, from monies of the husband and wife held in a controlled monies account, with the trial judge to determine who should meet the costs, as between the parties. This option ensures that a solicitor with appropriate experience, without connections to any of the parties, will be appointed.
Ultimately I am persuaded that in the context of this case there is not a close relative or friend of the second respondent that is presently available to protect her interests in this litigation (I note that her son, the husband, is not suitable as he is a protagonist in the litigation). I am also persuaded that in the context of these proceedings it is more appropriate that the solicitor appointed to protect the interests of the second respondent not have any prior connection to the parties.
I therefore make orders that the solicitors on the record for the second respondent make a written request (including a copy of these reasons, the orders reflecting these reasons, and the reports of Dr B) to the President of the Law Society of NSW for the nomination of a suitable solicitor to act as litigation guardian in these proceedings for the second respondent at the rates set out in the court scale of fees. The nomination and acceptance of the solicitor, should then be provided to the other parties and forwarded to my associate in chambers for the purpose of making an order formalising appointment.
It is also necessary to consider how the costs of the litigation guardian will be met as it does not appear that the second respondent has any assets. In the Application in a Proceeding filed 20 June 2022, the solicitors for the second respondent sought orders that the husband meet the costs, which he did not originally oppose. He now opposes such an order, saying that he cannot meet those expenses. The second respondent is not a complete stranger to the parties, nor at arm’s length. Rather, she had lived with the parties for many years prior to entering nursing home care. She is the husband’s mother. In these circumstances it is appropriate in proceedings in this court that her reasonable legal expenses be met from the assets of the parties, at least at first instance, to ensure that poverty alone does not prevent her claim.
I am persuaded that the costs of the President of the Law Society of NSW actioning the request to nominate a solicitor to act as a litigation guardian for the second respondent, and the costs of the litigation guardian (up to $10,000) should be met (at first instance) from the funds of the husband and wife held on trust (from the sale of the property) in the controlled monies account “York Law Family Law Specialists Pty Limited ITF Mr Laghari and Ms Laghari CMA”, and that those expenses be met from the second respondents judgment (if any), and otherwise adjusted between the husband and wife as ultimately determined by the trial judge. In the event that the reasonable costs for acting as litigation guardian for the second respondent are likely to exceed $10,000, the issue can be the subject of an interlocutory application by the litigation guardian, if not agreed by the parties.
Finally, I am of the view that in circumstances where the litigation guardian is not initiating the proceedings but appointed by the Court, that any costs order to be against the estate of the second respondent (unless they relate to default or misconduct of the solicitor appointed as litigation guardian) and I will make such an order.
It is appropriate that the costs of this application be reserved to the trial judge.
I will make orders for the second respondent’s current solicitors to make the request to the President of the Law Society of NSW.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 12 September 2022
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