The answer differs by the kind of proceeding, and in two situations it is not a matter of choice.
The general position
The National Court Rules 1983 assume that a party may act by a solicitor or personally. Order 22 Rule 51(2) reflects this: any party interested may attend any taxation.
Order 1 Rule 6 defines “solicitor” as a person admitted to practice as a lawyer under the Lawyers Act 1986.
Where a party sues or defends by a solicitor, the address for service is the solicitor’s. Where a party acts in person, it is their own — see Order 6 Rule 7. Documents are served at that address, so it must be one where they will actually be received.
Where representation is required
A corporation is a separate legal person and can act only through others. In practice it appears by a lawyer.
The Rules assume this. Order 5 provides for suing a company, and Order 22 Rule 49(7) requires a bill of costs to be endorsed with the name or firm and business address of the lawyer whose bill it is.
A director who wishes to appear for a company should raise it with the Court at the earliest mention rather than assuming permission.
Order 2 Rule 10(4) of the ADR Rules 2022: a mediation session shall be attended by each party or if a party is a corporation then by an officer of the corporation having full authority to settle the proceeding.
So a corporation must send a person with real settlement authority, in addition to any lawyer. See attending a mediation.
Leave or consent required
(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel appear on behalf of a party.
— Organic Law on National and Local-level Government Elections
Representation is therefore the first matter considered at the directions hearing under Rule 13(3)(a) of the Election Petition Rules 2017. See representation in election petitions.
Representation is addressed early
Order 2 Rule 3 of the Criminal Practice Rules 2022 requires the Judge at the first mention to ascertain legal representation for the accused — before anything about the merits. Order 4 Rule 7(4)(a) does the same in fraud and corruption cases.
Where an accused is self-represented, Order 6 Rule 2(b) makes attendance at the pre-trial review necessary … in person, and Order 8 Rule 13 provides for orders under section 37E of the Evidence Act where the accused is self-represented.
The Office of the Public Solicitor is the usual source of representation in criminal matters.
Children and disabled persons
A person under legal disability does not conduct proceedings personally. They sue by a next friend and defend by a guardian at law. See how a child sues and next friends and guardians.
Where the Court appoints a solicitor to that role, Order 22 Rule 63 allows the costs of performing the duties to be paid by the parties to the proceedings or any of them or out of any fund in Court in which the disabled person is interested.
And on a solicitor and client taxation, Order 22 Rule 35(6): where the client is a disabled person, references to the client … shall be read as references to his next friend or guardian at law.
Where many people share the same interest, one may be authorised to act for all — see representative proceedings. Order 20 Rule 19 does the same for testator’s family maintenance, allowing a defendant to be authorized to defend on behalf of or for the benefit of all persons similarly interested, who are then bound by any order made.
That is not self-representation; it is representation of a group by one of its members, and it requires the Court’s authorisation.
What a lawyer does that is hard to replicate
- Chooses the right originating process. Writ or originating summons — and Order 4 governs which.
- Pleads the facts properly. Order 8 requires the material facts, not the evidence, and a defective pleading can be struck out.
- Meets the deadlines. Two years to serve a writ — and Order 4 Rule 13(2) forbids extending it. Six months for a section 5 notice against the State. Forty days for a Supreme Court appeal.
- Cites the jurisdiction. A notice of motion must contain a concise reference to the Court’s jurisdiction, and one without it may be struck out as incompetent.
- Assesses the costs risk. Costs follow the event under Order 22 Rule 11 — see what a case costs.
Order 1 Rule 8 — non-compliance with any of these Rules … shall not render any proceedings void, unless the Court so directs; proceedings may instead be set aside … as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.
Order 1 Rule 11(2) — it shall be sufficient compliance with any requirement … as to the form of any document if the document is substantially in accordance with the requirement.
Order 1 Rule 7 — the Court may dispense with compliance with any of the requirements of these Rules.
And on an appeal where both parties are unrepresented, Order 18 Division 1A Rule 6(5)(f) allows the Registrar to give such assistance to the parties as is necessary to compile the Appeal Book.
The Office of the Public Solicitor, and the firms listed in the law firms directory. See free legal help.
Sources
- National Court Rules 1983 — O 1 rr 6–8, 11; O 4 rr 13, Div 5; O 5; O 6 r 7; O 8; O 18 Div 1A r 6; O 22 rr 11, 49, 51
- Criminal Practice Rules 2022 — O 2 r 3; O 4 r 7; O 6 r 2; O 8 r 13
- Alternative Dispute Resolution Rules 2022 — O 2 r 10
- Organic Law on National and Local-level Government Elections — s 222
The Lawyers Act 1986 and the Evidence Act (Chapter 48) are not available on PacLII.
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.