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In the Application of Tahabiang Nasing [2024] PGNC 313; N10991 (12 September 2024)

N10991

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 173 OF 2024

BETWEEN
IN THE APPLICATION PURSUANT TO ORDER 5 RULE 22 (1) OF THE NATIONAL COURT RULES FOR TAHABIANG NASING TO BE DECLARED THE NEXT FRIEND OF THE MENTAL IMPAIRED ELIZABETH NASING
- Plaintiff / Applicant -

Lae: Dowa, J
2024: 9^th & 12^th September

LEGAL REPRESENTATION - Application to declaration and appointment as next friend for mentally disordered person– Entitlement of mentally disordered person to be paid superannuation – Failure of statute to provide procedure – S 155(4) of the Constitution to aid enforcement of primary right- The necessity to file consent to act and certification by solicitor- Application incomplete for failure to file consent to act and certificate of solicitor- Proceedings struck out.

Case Cited
Kagl v Baki, Secretary for Department of Education (2008) N3318
In the Application of Harry Meria (MP 1 of 2019) (2019) N7873

Counsel:
Mr. V. Ngibe, for the Plaintiff / Applicant

RULING

12^th September 2024

1. DOWA J: This is a ruling on an application by the Plaintiff, Tahabiang Nasing, seeking to be appointed the next friend of Elizabeth Nasing, a mentally disordered person.

2. By Originating Summons, the Plaintiff claims an Order pursuant to section 155(4) of the Constitution of Independent State of Papua New Guinea and Order 5 Rule 22 (1) of the National Court Rules 1983 that the Plaintiff / Applicant, Tahabiang Nasing, be declared and appointed as the next friend of her mentally impaired daughter Elizabeth Nasing.

Background Facts

3. The Plaintiff aged 68 years old, is a resident of Lae, Morobe Province. She is the mother of Elizabeth Nasing, a mentally impaired person. Elizabeth Nasing is a former lecturer at PNG University of Technology. She resigned on 31^st December 2018 due to mental disorder.

4. Elizabeth Nasing’s mental condition has deteriorated over the years, and she is currently looked after by the Plaintiff and her other family members. The Plaintiff claims, Elizabeth Nasing, needs to seek further medical treatment, and they need money. Elizabeth Nasing has savings with Nasfund but cannot withdraw funds due to her mental incapacity. The Plaintiff made enquires with the office of Nasfund for the release of the savings, but she was directed to seek assistance from the Court for orders to act as next friend. This resulted in the current application.

Issues

5. The main issue for consideration is whether the Plaintiff be declared and appointed the next friend of her mentally impaired daughter, Elizabeth Nasing.

6. Mr. Ngibe, counsel of the Plaintiff, submits that the Court has the powers to grant the Orders sought under Order 5 Rule 22(1) of the National Court Rules and Section 155 (4) of the Constitution. Counsel relies on the case, In the Application of Harry Meria (MP 1 of 2019) (2019) N7873 as authority for his submissions.

7. The current medical condition of Elizabeth Nasing is this. According to Dr. Goiba Tienang, Consultant Psychiatrist, of Angau Memorial Hospital, Elizabeth Nasing is suffering from a major mental disorder called Schizophrenia since 2015. She is not able to think and act appropriately. She needs money for further medical treatment. She has funds from her savings with Nasfund, but she cannot access those funds due to her medical condition.

8. The Plaintiff attended on Nasfund to withdraw the funds but was advised to seek orders from the Court to have her appointed as next friend of Elizabeth before funds can be released.

9. In the current proceedings, the Plaintiff seeks orders for her appointment as next friend. The application is made pursuant to Order 5 Rule 22(1) of the National Court Rules and Section 155(4) of the Constitution.

10. Order 5 Rule 22 of the National Court Rules reads:
    

“22. Appointment of next friend of mentally disordered person (63/5)

(1) Where a mentally disordered person has a committee or curator and the committee or curator has or may be given authority, under an Act, to bring or defend proceedings on behalf of the mentally disordered person, a person other than the committee or curator shall not, unless the Court otherwise orders, act as next friend of the mentally disordered person in proceedings which the committee or curator has or may be given authority to bring or defend.

(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 the mentally disordered person until a next friend for him has been appointed by the Court.

(3) A person shall not take any step in any proceedings as next friend for a mentally disordered person unless he has been appointed next friend by the Court or unless there has been filed (in addition to the documents mentioned in Rule21(6))—

(a) in a case to which sub-rule (1) applies—a certificate by the next friend that he is committee or curator for the mentally disordered person and specifying the date on which and the manner by which he became committee or curator; or

(b) in a case to which sub-rule (1) does not apply—a certificate by his solicitor that he knows or that he believes that that sub-rule does not apply and giving the grounds of his knowledge or belief.”

11. For the purposes sub-rule (1), there is no evidence that there is in existence a committee or curator taking charge of Elizebeth, the disordered person. The appropriate authority would be the Mental Health Tribunal, and an Accounts Committee appointed by that Tribunal under the Mental Health Act 2015. The evidence shows the Plaintiff’s lawyers wrote to the Minister for Health on 26^th July 2024 seeking advice whether the Tribunal and the Accounts Committee are established and are functioning. According to the Affidavit of Vincent Ngibe, the lawyer for the Plaintiff, no response was received prompting the current application.

12. A similar dilemma was faced by an applicant in the case; Harry Meria Re: ..Application of Harry Meria to be declared Next Friend of the Mentally Impaired Mapa Akopa Meria (2019) N7873. The trial Judge, Thompson J, (as she then was) commented the lack of procedure in assisting mentally disordered persons in the following terms:

“8. There is no evidence that such Mental Health Centres and Committees have been set up and are operating, and it seems improbable that this will happen any time soon.

9. The Act does not make specific provision for dealing with persons who are not admitted to mental health centres, which were previously covered by the provisions in the Public Health Act.
10. I have therefore turned to the SGP Act. Section 90 (1) says that a member may withdraw the full amount on ceasing to be employed etc., including in Section 90 (1) (d) if permanently incapacitated due to mental infirmity, “in accordance with certification procedure prescribed in the regulations”
11. Unfortunately, the Regulations do not prescribe any certification procedure. There is in fact no reference to the procedure at all.”

13. Her Honour concluded that she was conferred jurisdiction under Section 155(4) of the Constitution to grant the orders sought to ensure that the interests and rights of the mentally disordered persons are protected.
    
14. Turning to the present case, given the facts presented, the Court can invoke and does have jurisdiction under Section 155(4) of the Constitution to grant the orders sought. However, noting the text and context of Order 5 Rules 21 and 22 of the NCRs, it is imperative that consent of the Plaintiff/Applicant and Certificate of the Solicitor be filed beforehand. There are good reasons for these requirements. His Honour Kandakasi J, as he then was, has succinctly explained why these documents are necessary in his judgment in Kagl v Baki, Secretary for Department of Education (2008) N 3318:
    

“5 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.

15. In the present case, the Plaintiff has not filed a Consent to Act, and likewise, the Plaintiff’s lawyer has not filed a Certificate of Solicitor, as required by Rules 21(6) and 22 (3) of the National Court Rules.
    
16. The Court notes, and it is arguable that these preemptory requirements may not be required because the main relief is for the appointment of next friend to collect the Nasfund savings of the mentally disabled person rather than it is for the purposes of instituting or defending proceedings for and on her behalf.
    
17. Nevertheless, in my view, the need to safeguard the interests of the disabled person is of paramount concern and the Court is duty bound to ensure the mandatory requirements under Order 5 Rules 21 and 22 of the National Court Rules are met.
    
18. The failure to file these mandatory documents render the proceedings incomplete and thus incompetent.
    
19. The Court will therefore strike out the proceedings. As the proceedings are terminated on competency grounds, the Plaintiff is at liberty to institute fresh proceedings if she so desires.
    

Orders

20. The Court orders that:

1. The proceedings are struck out for being incompetent.
2. The Plaintiff is at liberty to file fresh proceedings if she desires to.

100. No order as to costs.

4. Time be abridged

____________________________________________________________
The Public Solicitor: Lawyer for the Plaintiff / Applicant