Order 23 of the National Court Rules 1983 is unusual in assuming that many applicants will have no lawyer, and designing around that.
The general rule
(1) Subject to sub-rule (2) and to Order 5 Rule 20(2), any person may proceed in the Court by a solicitor or in person.
(2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.
That is the position in every civil proceeding — see representing yourself. Two exceptions carry over into human rights matters: a corporation must act by a solicitor, and a next friend for a disabled person must act by a solicitor under Order 5 Rule 20(2).
But note that Order 23 Rule 6(b) allows proceedings to be brought by a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right — without imposing the next-friend machinery of Order 5.
Four features
| Feature | Provision |
|---|---|
| Free filing for a Human Rights Enforcement Application and a Complaint of Unlawful or Unreasonable Detention | r 7(5)(a) |
| Fee waiver for other human rights proceedings where payment might be a hardship | r 7(5)(b) |
| Plain forms — Form 124 asks for name, address and phone; Form 125 asks you to “tell your story” | rr 7(1)(c), 7(4) |
| Lodgement outside the Registry — Form 125 may be given to a Clerk of the District Court, an Assistant Registrar, or a Judge in your Province | Form 125 |
| Identification of the right required only as far as is practicable | r 7(3) |
| Any member of the public may deliver a Form 127 Statement to the Registrar | r 9(1) |
| The Court may act on its own initiative, and informally in urgent cases | rr 8(1), 8(3) |
Rule 9(3) and section 177
After receiving a Statement of Alleged or Suspected Breach of Human Rights and other relevant information, the Judge shall decide what further action, if any, is necessary, including whether to open a HROI file in relation to the matter and whether to direct the Public Solicitor under Section 177(2)(b) of the Constitution to provide legal aid, advice and assistance to a person.
This is a significant provision. The Judge’s response to a Form 127 Statement is not limited to opening a file — the Judge may direct the Public Solicitor to provide legal aid, advice and assistance.
So a person who cannot afford a lawyer, or a person in custody, may end up represented as a result of a Statement delivered by someone else entirely — a relative, a prison visitor, a member of the public. See Court-initiated proceedings.
The Constitution establishes the Public Solicitor as one of the Law Officers, and section 177 provides for the office’s functions.
Section 57(1) and (2)
A right or freedom shall be protected by, and is enforceable in, the Supreme Court or the National Court either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section, by a person acting on his behalf, whether or not by his authority.
Those five words are the most striking in section 57. A person may act on behalf of someone unable fully and freely to exercise their rights without that person’s authority.
That removes the practical obstacle facing anyone who wants to help a detainee they cannot reach, or a person too frightened or unwell to instruct. No retainer, no authority, no next friend appointment is needed.
Section 57(2) then deems certain people to have the required interest: the Law Officers of Papua New Guinea; persons prescribed by Act; and any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard — and the subsection does not limit who else may have such an interest.
If you are acting for yourself
- Use the right form. Form 124 for enforcement (reference HRA); Form 125 for a detention complaint (reference HRC). Both are free.
- Name the right by its section if you can — the standard is as far as is practicable. See the Basic Rights.
- Say what you want the Court to do — Rule 7(3)(b) asks for the orders, declarations or other relief that is sought.
- Give the section 5 notice within six months if you are claiming damages against the State. This is the requirement self-represented applicants most often miss.
- Ask for the Public Solicitor where you need representation.
- Attend when required. Under Rule 11(1), every application goes before the Judge dealing with the Human Rights List.
Where substantial damages are claimed, the proceeding is in substance a tort claim — commenced by writ under Order 4 Rule 2, with pleadings under Order 8, particulars under Rule 33 if injuries are alleged, and proof of loss at an assessment. That is difficult without representation.
The Rules make enforcement accessible to everyone. They do not make a substantial damages claim simple. Where both are in play, the sensible course is to file the enforcement application at once and seek assistance for the damages claim.
Sources
- National Court Rules 1983 — O 4 rr 2, 5; O 5 r 20; O 8 rr 33; O 23 (Human Rights Rules 2010) rr 6–11; Forms 124, 125, 127
- Constitution — ss 57, 58, 177, Div III.3
- Claims By and Against the State Act 1996 — ss 2, 5
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.