Anyone searching for “guardian ad litem” in Papua New Guinea will not find the phrase in the Rules. Order 5 Division 2 of the National Court Rules 1983 uses two different terms, and they are not interchangeable.
The definitions
“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.
“disabled person” means a minor or a mentally disordered person.
Where it is necessary to refer to the office of a next friend, he shall be described as a next friend unless it is necessary to distinguish between a plaintiff and a defendant to an action or proceeding.
So the title of a proceeding reads, for example: “JM, an infant, by his next friend PM”.
Both offices exist for the same reason — a person under disability cannot conduct litigation. The difference is which side of the record they stand on. The next friend brings and carries on claims; the guardian at law defends, intervenes, or appears under a judgment.
Under Rule 19(3), where a disabled person already has a next friend in a proceeding, that next friend may also defend any claim in those proceedings — so a plaintiff facing a cross-claim does not need a separate guardian at law.
How each is appointed
| Office | Court order? | What must be filed |
|---|---|---|
| Next friend of a minor | No — r 21(1) | Consent to act; solicitor’s certificate of no adverse interest — r 21(6) |
| Next friend of a mentally disordered person with a committee or curator | Ordinarily the committee or curator acts — r 22(1) | Certificate that he is committee or curator, and how and when he became so — r 22(3)(a) |
| Next friend of a mentally disordered person without one | No, if the certificate is filed | Solicitor’s certificate that r 22(1) does not apply, giving the grounds — r 22(3)(b) |
| Next friend where a party becomes mentally disordered mid-case | Yes — r 22(2) | Motion; no step may be taken until appointment |
| Second or replacement next friend | Yes — r 21(5) | Motion |
| Guardian at law | Yes — r 24(1) | Motion with evidence under r 24(2) |
The evidence on the motion shall include evidence —
(a) that the person is a disabled person; and
(b) that the proposed guardian at law (i) consents to act; (ii) is a proper person for appointment; and (iii) has no interest in the proceedings adverse to the interest of the disabled person; and
(c) that the disabled person is in default of giving a notice of intention to defend, if that is the fact.
Rule 22 in particular
Rule 22(2) — where, after the commencement of proceedings, a party becomes a mentally disordered person, no step in the proceedings shall be taken by or against them until a next friend has been appointed by the Court.
This is an absolute freeze. It binds the other side too: an opponent who obtains judgment or takes any step in the interval has taken a step that should not have been taken.
Rule 22(1) — where the person has a committee or curator with authority under an Act to litigate on their behalf, a person other than the committee or curator shall not, unless the Court otherwise orders, act as next friend. The statutory office takes priority.
What the office involves
Rule 20(1) — anything the Rules would require or authorise the disabled person to do shall or may be done by his next friend. The next friend gives instructions, verifies documents and makes the decisions the party would otherwise make.
Rule 20(2) — a next friend must act by a solicitor. There is no self-representation in this office.
Rule 27 — Order 9 Divisions 1 and 2 apply to a disabled person and to his next friend. So discovery and interrogatories may be directed at the next friend as well.
Rule 21(3) — the next friend must have no interest adverse to the disabled person, and the solicitor must certify it.
A next friend puts their own name on the record. If the claim fails, an order for costs may be made against them — the child is not the party against whom costs would ordinarily be ordered.
This is a real consideration, and one a proposed next friend should understand before consenting under Rule 21(4). No one can be made a next friend without their consent.
Rule 25
(1) The Court may, on motion by a party or by any other person or of its own motion — (a) remove a next friend; and (b) stay the proceedings until appointment of a next friend in place of the next friend removed.
(2) The person moving shall, unless the Court otherwise orders, serve notice of the motion on the next friend whose removal is sought and on the disabled person.
Read together, Rules 21(3), 24(2)(b)(iii), 25, 26, 28, 29 and 30 form a coherent scheme: the person conducting the case must have no conflict, may be removed if they do, cannot make admissions by silence on the disabled person’s behalf, and cannot bind them to a settlement without the Court’s approval — and even then the Court may control what happens to the money.
The Lukautim Pikinini Act 2015 creates its own protective machinery — the Director for Child Protection, child protection officers and the Family Court — but that is a separate scheme for the child’s welfare, not a substitute for a next friend in a civil claim. Similarly the Adoption of Children Act (Chapter 275) has its own procedure. If a child has a claim for damages, Order 5 Division 2 is the route.
Sources
- National Court Rules 1983 — O 1 r 6; O 5 rr 18–31; O 8 r 21; O 9 Divs 1–2
- Lukautim Pikinini Act 2015
- Adoption of Children Act (Chapter 275)
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.