Brook v Brook [2002] FJHC 253; HBC0560D.2000S (2 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0560 OF 2000

Between:

1. JENNIFER LYNNE BROOK

2. LAUREN BROOK )

3. THOMAS BROOK ) by next friend

4. BRIANNA BROOK )

Plaintiffs

and

1. MICHAEL BROOK
2. OVALAU INVESTMENTS LIMITED
3. MATA VINAKA ESTATES LIMITED
4. FAT CHOI CORPORATION
Defendants

Mr. McDonnell for 2nd, 3rd & 4th Plaintiffs
Mr. H. Nagin for 1st Defendant

DECISION

By Notice of Motion dated 8 August 2001 the first defendant (D1) seeks an order that the second, third and fourth plaintiffs (P2, 3, 4 respectively) suing by next friend be struck out as parties in this action upon the grounds contained in the affidavit of Michael Brook (D1) sworn and filed herein.
Background facts

The first defendant is the husband of the first plaintiff and the father of 2nd, 3rd and 4th plaintiffs. The said plaintiffs (children) are aged 13, 11 and 3 years old respectively. They are infants and have been joined as plaintiffs to sue their father by their next friend the first plaintiff.

It is not in dispute that P1 and D1 have both been appointed joint guardians of the three infants in the Magistrates Court in Matrimonial Cause No. 7 of 2000 on 26 April 2001.

First Defendant=s contention

It is the applicant=s (D1's) submission that the said infants are under a disability as defined under Order 80 Rule 1 of the High Court Rules 1988 and therefore they may not bring or make a claim in any proceedings except by their next friend. Mr. Nagin says that because both P1 and D1 as wife and husband have been appointed joint guardians, one parent cannot become the next friend of the children and maintain a legal action against another parent. The P1 cannot without (D1's) consent unilaterally make the infants parties to this action. There is no need for P1 to join the infants for she can on her own protect the interests of the infants. Here P1 is claiming an interest to certain properties adverse to the infants which are held in trust for the benefit of the children and which interest is in conflict with that of the infants. In this context Mr. Nagin refers to the following passage from the Supreme Court Practice 1988 (Or.80 r.3) at p.1199 which he says is pertinent:

AA next friend may be removed if he has an interest in the suit adverse to the infant; or be an accounting party; or be closely connected with defendant having adverse interest; or if he will not proceed with the cause; or conducts it improperly; or refuses to appeal. (Re Birchall [1880] UKLawRpCh 252; (1880) 16 Ch.D 41)@

First Plaintiff=s contention

The P1 by her affidavit in reply to D1's affidavit has refuted the arguments put forward by D1. She says that the infants have been properly joined and she does not need D1's consent to join them. The learned counsel for P1 submits that if the children are struck out as plaintiffs their best interests will be compromised. She says that her interest is not adverse to the interests of the children. It is P1's contention that Athe establishment of Pelham and the transfer of most of the matrimonial properties to that trust and/or its nominee is patently transparent way for the First Defendant to transfer property from his ownership and an attempt to defeat P1's claim to a share of the matrimonial property@.

Therefore, P1 says that the children must be allowed to remain as plaintiffs in the action and they must do this through a next friend and that P1 is, prima facie, the best and appropriate person to be so.

Consideration of the issue

I have before me affidavits of D1 in support of the Motion together with written submission from his counsel. The first plaintiff through her solicitors Messrs. Munro Leys has filed an affidavit opposing the application. Mr. McDonnell has filed written submissions on behalf of P2, P3 and P4.

This action has been commenced by P1. She has joined the infants as plaintiffs and stated in the intitule to the action the capacity in which they are joined as plaintiffs, namely, Athe last three named Plaintiffs by their mother and next friend@.

As rightly pointed out by Mr. Nagin, Order 80 r.2 of the High Court Rules 1988 applies, which provides:

2. - (1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem

The term Aperson under disability@ has been defined in Or.80 r.1 as >a person who is an infant or a patient=. Hence here the children are >persons under disability=. The words of the rule Amay not@ in r.2 are equivalent to Ashall not@. The words in r.2 Amay not bring, or make a claim@ refer, not only to the commencement, but also to the continuance of any proceedings@. (The Supreme Court Practice 1988, Or.80 r.2 p1193).

This application in actual fact is one to remove P1 as self-appointed next friend for the purposes of this action. Further to Mr. Nagin=s reference to the White Book (supra) the Notes to the said order 80 r.3 states:

A person seeking to remove a parent or next friend and substitute some other person must establish that the parent is not acting properly in the interest of his or her child as its next friend, e.g. that the terms of the proposed compromise are so manifestly beneficial to the infant that the refusal of the parent to agree or to participate in it must be condemned as prejudicial to its interests (Re Taylor=s Application [1972] 2 Q.B. 369; [1972] 2 All E.R. 873, C.A.).

Further on change of next friend or guardian ad litem, there is need for a Court Order after issue of summons for such purpose and this is what is being done here. The Notes to Or.80 r.3.3 in this regard states:

Change of next friend or guardian ad litem - A change for any reason of a next friend or a guardian ad litem, and the substitution of another person to act in that capacity can only be effected by order: r.3(4). A person who has been or is next friend or guardian ad litem of an infant or patient in any proceedings is entitled and indeed bound to continue so to act unless and until the Court or a Judge by order substitutes another person to act in that capacity (Approved by Court of Appeal in Re E [1985] 1 W.L.R. 245 at p. 253; [1985] 1 All E.R. 609 at p. 616).

I now apply the Rules to the facts of this case.

On the affidavit evidence before me it appears that a number of issues between P1 and D1, particularly in relation to matrimonial properties, whichever ones they are, are still unresolved. The P1 herself says in her affidavit (item 1.6) that >negotiations have continued between the parties (since separation in May 1999) regarding a matrimonial settlement but, to date, the parties have not been able to reach any agreement as to the disposition of the matrimonial property=.

Although a Trust called >Pelham= seems to have been created for the benefit of the children by evidently D1, this matter is also in dispute and yet to be resolved in the trial of the action.

If at any time any interest in the matrimonial properties are created for the benefit of the children they have to be properly and legally spelt out. This has to be done jointly by either P1 and D1 as wife and husband respectively or pursuant to a Court Order.

In all these matters which still remain unresolved, the children according to my understanding of the situation in this case do not have a part to play. They are not aware of nor involved in any dispute between their parents. What the issues are in this action and the consequences of same are not within the knowledge of the children. It is not clear on the affidavit evidence as to what cause of action the children have in the matrimonial property of P1 and D1 to give rise to them suing D1 their father.

The burden is on D1 in seeking to remove P1 a parent as next friend to show that she is not acting properly in the interest of the children as their next friend. This I find D1 has done on the affidavit evidence before me. As was said by Sir George Jessel MR in Re Birchall, Wilson v Birchall (supra) at 42:

AIf the Court saw that a guardian or next friend was acting improperly and against the infants= interests in refusing to assent to an arrangement which appeared clearly beneficial to them, steps might be taken to remove him and substitute some other person, but I never heard of such a thing as the Court compromising without the consent of the next friend or guardian@.

Therefore, on the authorities and on the facts and circumstances of this case, I do not consider that the first plaintiff, although she is the mother and has the custody of the children with reasonable access to the father (D1), would with all due respect to her be a proper person to represent the children in her capacity as next friend. One cannot lose sight of the fact that there is a squabble going on between P1 and D1 and which does not appear to have anything to do with the children at this stage.

If the situation does arise that the childrens= interests have to be protected then the Court could appoint a completely independent person like for example the Public Trustee to become the next friend as the Court thinks fit.

As I understand the situation here, particularly as to property settlement which is as yet not finalised, no question of interests of the children which they are likely to acquire arises at present. Hence I will go as far as to say that this whole affair about joining or not joining the infants as plaintiffs is premature.

Having considered the whole of the affidavit evidence before me and the submissions made by both counsel, I consider that for the above reasons the first plaintiff ought to be removed as next friend of the infants as I do not regard her to be a proper person to act as such to the exclusion of D1 as they are both joint guardians. However, as I stated above, I will not appoint another person in substitution for P1 until the situation arises to do so.

In the outcome, for these reasons I would allow the first defendant=s application by striking out the second, third and fourth plaintiffs as parties to this action and consequently the first Plaintiff is removed as next friend. Liberty is reserved to the parties to apply to have the infants joined as a party at the appropriate time in accordance with the Rules.

D. Pathik
Judge

At Suva
2 August 2002