Order 1 Rule 7 of the National Court Rules 1983 is a single sentence.
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
Three things to notice
The power is not confined to particular Orders. Any requirement of the Rules may be dispensed with — a form, a time, a step, a mode of service, a document.
This is the important half. Dispensation may be prospective — sought in advance, before the step falls due — or retrospective, curing something already done wrongly or not done at all.
So a party who has already failed to comply is not shut out. They may apply for dispensation after the event, and the Court may grant it.
The power is discretionary. It is exercised to serve the administration of justice, not to excuse indifference to the Rules.
An applicant should be ready to explain why compliance was not possible or would serve no purpose, and to show that the other party is not prejudiced — or that any prejudice can be met by an order for costs.
When Rule 7 is used
| Situation | What is dispensed with |
|---|---|
| Urgency — an injunction needed the same day | The requirement of notice, and the usual time for service of a motion |
| A defendant cannot be found | Personal service — though substituted service under Order 6 is the ordinary route |
| A prescribed form does not fit the case | Strict compliance with the form — note Order 1 Rule 11(2) already requires only substantial compliance |
| All parties agree to a shortened procedure | Whatever step the parties have agreed to omit |
| A step would be futile in the circumstances | The step itself |
Order 1 contains three related powers, and it is worth knowing which to use:
- Rule 7 — dispense with a requirement. Use where the step should not have to be taken at all.
- Rule 15 — extend or abridge time. Use where the step must still be taken, but later or sooner.
- Rule 12 — directions where the manner or form of procedure is not prescribed or is in doubt.
And Rule 8 operates separately: non-compliance does not make a proceeding void, and the Court may set it aside as irregular, amend it, or otherwise deal with it on terms.
Making the application
An application under Rule 7 is normally made by notice of motion in an existing proceeding, supported by an affidavit explaining the circumstances.
In a genuinely urgent case the application may be made without notice — and dispensation with the requirement of notice is itself commonly the first order sought.
Dispensation is frequently sought orally at a hearing, particularly where a minor formality has been overlooked and the other side does not object.
The limits of Rule 7
Rule 7 empowers the Court to dispense with “the requirements of these Rules”. It cannot dispense with a requirement imposed by statute or by the Constitution.
Examples the Court cannot dispense with:
- The six-month notice under section 5 of the Claims By and Against the State Act 1996 — though that Act contains its own extension power in section 5(2)(c);
- A limitation period under the Frauds and Limitations Act 1988;
- The 40-day period for filing an election petition, which comes from the Organic Law on National and Local-level Government Elections, not from rules of court;
- The requirement in section 8 of the Claims Act that the State be afforded an opportunity to be heard before leave for judicial review is granted.
Where a statute sets the requirement, look for a power of extension in that statute. There may be none.
Note finally that section 9 of the National Court Act (Chapter 38) supports the same flexibility from the other direction: practice and procedure is as provided by the Rules “except as directed by the National Court at any stage of the matter”.
How to seek dispensation
- Identify the requirement precisely — the Order and rule you cannot comply with. A general request to be excused from “the Rules” will not do.
- Say why compliance is impossible, pointless or disproportionate. Rule 7 is not a licence to ignore inconvenient rules; it exists for cases where insisting on the letter would defeat the purpose.
- Apply by notice of motion, citing Order 1 Rule 7 as the jurisdiction — Rule 8 of the Motions (Amendment) Rules 2005 requires a concise reference to the Court’s jurisdiction.
- Support it with an affidavit deposing to the facts. Where the difficulty is that a document cannot be obtained or a person cannot be found, the evidence of the attempts made is the heart of the application.
- Ask retrospectively if you must. The rule expressly permits dispensation after the occasion for compliance arises, so an omission already made can be cured.
Forms. Where no prescribed form fits — though Order 1 Rule 11(2) already provides that substantial compliance with a form is sufficient, which often makes an application unnecessary. See the forms.
Service requirements. Though here the specific provisions are usually better: Order 6 Rule 12 for substituted service, and Rule 13 for confirming informal service.
Notice periods for motions, in a genuinely urgent case — see applying without notice.
Steps in a proceeding that have become pointless because the issue has fallen away.
Where a specific rule addresses your problem, use it. Rule 7 is the residual power, and an application under it is stronger when you can show the specific rules do not reach the case.
Sources
- National Court Rules 1983 — O 1 rr 7–16; O 4 Div 5; O 6 rr 12, 13; Motions (Amendment) Rules 2005 r 8
- National Court Act (Chapter 38) — s 9
- Claims By and Against the State Act 1996 — ss 5, 8
- Frauds and Limitations Act 1988
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.