A child cannot conduct litigation. Order 5 Division 2 of the National Court Rules 1983 — headed Disability — supplies the machinery, and it protects the child at every stage, including at settlement.
Who is a “disabled person”
“disabled person” means a minor or a mentally disordered person.
“minor” means a person who has not attained the age of 18 years.
“next friend” means a person who is a plaintiff on behalf of a disabled person.
“guardian at law” means the guardian of a defendant who is a disabled person.
Rule 19 — which one you need
(1) A disabled person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court.
(2) A disabled person may not, except by his guardian at law — (a) defend any proceedings; or (b) intervene in any proceedings; or (c) appear in any proceedings under a judgment or order.
(3) Where a disabled person has a next friend, they may by that next friend commence, carry on or defend any claim in those proceedings.
| Next friend | Guardian at law | |
|---|---|---|
| Side | Plaintiff | Defendant |
| Court order needed? | No — r 21(1), for a minor | Yes — r 24(1), by motion |
| Must file consent | Yes — r 21(6)(a) | Yes — r 24(2)(b)(i) |
| Solicitor’s certificate of no adverse interest | Yes — r 21(6)(b) | Evidence to same effect — r 24(2)(b)(iii) |
| Must act by a solicitor | Yes — r 20(2) | In practice, yes |
Rule 21 — qualifications
(1) Subject to sub-rule (5) and Rules 22 and 24, an order appointing a next friend is not necessary.
(2) A disabled person may not be a next friend and a corporation may not be a next friend — but otherwise any person may be.
(3) A person may not be a next friend in any proceedings in which he has an interest adverse to the interest of the disabled person.
(4) A person shall not be made a next friend without his consent.
(6) A person shall not take any step as next friend unless there have beforehand been filed — (a) his consent to act; and (b) a certificate by his solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person.
A parent is the natural next friend for a child — but not where the parent’s interest conflicts. In a motor accident in which a parent was the driver, and the child a passenger, that parent cannot be next friend to a claim in which they may themselves be at fault. Another relative must act.
Note also Rule 20(2): a next friend must act by a solicitor. A parent cannot run a child’s National Court claim in person, even though an adult may represent themselves.
Rules 23 and 24 — a child as defendant
Rule 23(1) — where originating process is served on a disabled person and no notice of intention to defend is given in time, a party shall not take any step in the proceedings affecting the disabled person until a notice of intention to defend is given by a guardian at law.
Rule 23(2) — where notice of a judgment is served and no notice of intention to defend is given, the Court may stay proceedings under the judgment or order until one is.
This is the practical effect of Rule 23(1). A plaintiff cannot sign default judgment against a child who has not responded — because entering judgment is a “step in the proceedings affecting the disabled person”. The plaintiff must first move under Rule 24 for the appointment of a guardian at law, with evidence that the person is a disabled person, that the proposed guardian consents, is a proper person, and has no adverse interest.
Rules 28 to 30 — every settlement needs approval
Rule 28(1) — where proceedings have been commenced and the next friend agrees to a compromise or settlement, the Court may approve or disapprove the agreement. An approved agreement is as binding on the disabled person as if he were not a disabled person; a disapproved agreement is not binding.
Rule 29(1) — the same applies to an agreement made before proceedings are commenced.
Rule 29(4) — notwithstanding Order 4 Rule 2, a person may commence proceedings by originating summons for approval, and may by the same summons seek enforcement of the claim if approval is refused.
An insurer or defendant who settles a child’s claim without Court approval has bought no peace: the agreement does not bind the child, who may sue again on reaching 18. Approval is the whole point of the rule.
Rule 30 allows approval on terms, and specifically permits the Court to require that money or property payable to or for the benefit of the disabled person be dealt with by way of settlement or otherwise as the Court thinks fit. In practice, damages for a child are commonly ordered to be held until majority rather than paid out to a relative.
Where the claim is under Part IV of the Wrongs (Miscellaneous Provisions) Act, Rule 29(5) requires full particulars of the matters specified in section 32 to be filed and served with the summons.
Rule 31 — personal service
Sources
- National Court Rules 1983 — O 1 r 6; O 4 r 2; O 5 rr 18–31; O 8 r 21; O 9 Divs 1–2
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pt IV, s 32
- Lukautim Pikinini Act 2015; Juvenile Justice Act 2014
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.