Rule 1 of Order 17 of the National Court Rules 1983 sets out how the application is made.
Rule 1(1)
An application for a writ of habeas corpus must be made by way of originating summons to the Court or —
(a) in vacation or at any time when no Judge is sitting in court, it may be made to a Judge otherwise than in court; and
(b) in cases where the application is made on behalf of an infant, it must be made to a Judge otherwise than in court.
Note the difference. Paragraph (a) says the application may be made to a Judge otherwise than in court when the Court is not sitting. Paragraph (b) says that where the application is on behalf of an infant, it must be.
An application for a child is therefore never made in open court.
Order 4 Division 4 governs the originating summons generally. The relief sought is the issue of the writ.
Rule 1(2)
An application for such writ may be made ex parte and, subject to Sub-rule (3), must be supported by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.
That the application is made at the instance of the person restrained — that they want it made. And the nature of the restraint — where they are held, by whom, since when, and on what asserted basis.
The default is that the affidavit comes from the person restrained. That is deliberate: it prevents applications being brought in someone’s name without their knowledge.
See applications without notice for the general duty of candour on an ex parte application.
Where the person restrained is unable for any reason to make the affidavit required by Sub-rule (2), the affidavit may be made by some other person on his behalf and that affidavit must state that the person restrained is unable to make the affidavit himself and for what reason.
So a relative or lawyer may swear it — provided the affidavit itself explains that the person cannot swear it and why. Both elements must appear.
A person held incommunicado, or too ill or injured to swear an affidavit, is precisely the person most in need of the writ. Rule 1(3) makes the application possible in that case, and the reason given — no access, incapacity, or refusal of facilities — is itself evidence going to the restraint.
Rule 2
(1) The Court or Judge may make an order immediately for the writ to issue, or may adjourn the application so that notice of the writ may be given.
(2) The notice and summons must be served on the person against whom the issue of the writ is sought and on such other persons as the Court or Judge may direct, and unless the Court or Judge otherwise directs, there must be at least eight clear days between the service of the notice and summons and the date named in the summons for the hearing.
(3) A notice of an adjourned application shall be in Form 119 and an order for the writ shall be in Form 122.
The period is substantial, and in an urgent case it should be shortened. The rule expressly permits that: unless the Court or Judge otherwise directs.
Where the urgency is real, ask for an immediate order under sub-rule (1) rather than an adjournment — and note the separate power in Rule 4(1) to order that the person restrained be released, which shall be sufficient warrant for release.
Rule 3
Every party to an application under Rule 1 must supply to every other party on demand and on payment of the proper charges copies of the affidavits which he proposes to use at the hearing of the application.
Rule 1(4)
Any refusal to grant application shall be subject of appeal by motion to the Supreme Court only, and further application shall not be made to the Court or another Judge sitting otherwise than in court, unless other or further evidence is adduced in support of the application.
Two rules in one sentence. A refusal is challenged by motion to the Supreme Court — not by a fresh application to another Judge. And a further application to the National Court is barred unless other or further evidence is adduced.
So if the first application failed for want of evidence, gather more before applying again. Contrast bail, where section 13 of the Bail Act (Chapter 340) entitles a person refused bail to apply again immediately if he so desires to the next court up.
Rule 4(2): where the application is heard by a Judge and the Judge does not order the release of the person restrained, he shall direct that the application be made by motion to the Supreme Court.
The direction is mandatory, so the route upward does not depend on the applicant identifying it.
Preparing the application
- Check Rule 10. The Order shall not … apply to persons covered by the Bail Act. If bail is the right remedy, use it — see what habeas corpus is.
- Draft the originating summons under Order 4 Division 4.
- Obtain the affidavit from the person restrained if at all possible — showing that the application is made at his instance and setting out the nature of the restraint.
- If they cannot swear it, have someone else swear it, stating that the person cannot and for what reason.
- Identify the correct respondent — the person actually restraining, which for a detained person is usually the officer in charge of the place of detention.
- Decide whether to seek an immediate order under Rule 2(1), or release under Rule 4(1).
- If the application is for a child, it must be made to a Judge otherwise than in court.
Sources
- National Court Rules 1983 — O 4 Div 4; O 17 rr 1–10, Forms 119–123
- Bail Act (Chapter 340) — ss 6, 13
- Constitution — ss 42, 57, 155(4)
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.