A disabled person can only make a claim or bring a proceedings for relief in the National Court through a next friend. A disabled person is a minor or a mentally disordered person. If, on the other hand, the disabled person is to defend or intervene or appear in any proceedings under order then the disabled person can only do that through his guardian at law. A guardian at law means the guardian of a defendant who is a disabled person. The disabled person may, by his next friend, commence, carry on or defend any claim in a proceedings for relief.
Any person can be a next friend except a disabled person and a corporation. However, a person may not be a next friend if that person has an interest that is adverse to the interest of the disabled person. Furthermore, in order for a person to be a next friend, he must give his consent to be next friend. A person cannot take any step in any proceedings as next friend for a disabled person unless he files, beforehand, at the National Court Registry, the following documents:
- his consent to act as next friend of the disabled person in the proceedings.
- a certificate by his solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person.
In Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318, the proceedings was commenced by a next friend of a disabled person. This disabled person is mentally disordered. The next friend filed the proceedings without filing a consent to act for the disabled person and filing a certificate by the solicitor. The Court ordered default judgement and the matter returned before the Court for assessment of damages. Thereafter, the Defendant raised the issue of compliance with requirement under the Rules for acting as next friend for a disabled person. His Honour, Justice Kandakasi (as he then was) dealt with the following two (2) issues:
- whether the proceedings are correctly on foot in light of the non-compliance of the rules?
- whether the signing of default judgment is a bar to considering the validity of the proceedings and defendant’s liability?
Justice Kandakasi (as he then was), after considering the law and the evidence dismissed the proceedings on the following basis:
“The provisions of O 5 rr 21(6) and 22(3) are clear. These provisions stipulate that, no person purporting to be a next of friend can take any step in any proceedings until the required consent and certificates have first been filed. These requirements are in mandatory terms and are important and necessary to ensure that the proceedings or any steps that are taken for a disabled person is indeed for the benefit of the disabled person and not otherwise. By reason of his or her disability, a disabled person may not be able to fend for him or herself and hence, could easily be taken advantage of by other persons purporting to represent them. Thus, the need for the Court to ensure that, the next friend is indeed acting for and in the best interest of a disabled person. The consent of the next of friend and the lawyer’s certificate provides the necessary basis for the Court to be satisfied that the proceedings are indeed for the benefit of a disabled person. Accordingly, no proceedings can be issued and maintained purportedly for and on behalf of a disabled person, unless the requirements in question are met.
Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [2008] PGNC 40; N3318
It is, therefore, a prerequisite requirement to file these documents prior to instituting a proceedings as next friend of a disabled person. As these requirements are in mandatory terms, failure to comply will raise the issue of whether the Court has the jurisdiction to deal with a proceeding. His Honour, Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [supra] addressed the issue on competency of the proceedings as follows:
The failure to provide the consent and the certificates at the first place and the failure to correctly fix the defects, goes into Mr Boi Gabriel’s ability to initially issue, then pursue and maintain these proceedings. It also goes into the jurisdiction of the Court in the matter. To the extent that the required consents and certificates have not been given prior to the issuance, the pursuance and the maintaining of these proceedings, the Court would have no jurisdiction to allow the matter to go any further. In my view, this is not a simple non compliance of the rules which can be cured under O 1 r 7. The non compliance is a fundamental one given the reasons for the requirements which I have briefly noted above.
It is now clear law that, the issue of competency of any proceedings before the Court is an open issue. As such, the issue can be raised at any stage of the proceedings even on the Court’s own initiative. In the absence of a proper consent to act and certification from the plaintiff’s lawyer as required, the proceedings are not correctly before me. This alone forms the foundation for a dismissal of the proceedings.
Justice Kandakasi (as he then was) in Kagl v Baki, Secretary Department of Education [Supra]
In Kewa v Motor Vehicles Insurance Ltd [2011] PGNC 162; N4440, Justice Makail stated that the requirements of Order 5, rules 21 and 22 are mandatory in a case where a plaintiff is a disable person. A failure to comply with these requirements would render the proceeding incompetent and can be struck out.
In conclusion, the requirements of Order 5 Division 2 must be complied in a proceedings commenced by a next friend of a disabled person. The non-compliance of these Rules may render the entire proceedings incompetent.
