Order 23 Rule 7 of the National Court Rules 1983 is designed so that a person can enforce a Basic Right without a lawyer and without money.
Rule 7(5)
(a) the filing of a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention shall be free of fees; and
(b) the Registrar shall for the purposes of other human rights proceedings exercise the discretion whether a filing fee should be paid by a plaintiff taking into account the nature of the proceedings and whether payment of a filing fee might be a hardship to the plaintiff.
A Human Rights Enforcement Application (Form 124, reference HRA) and a Complaint of Unlawful or Unreasonable Detention (Form 125, reference HRC) are filed free of fees. Not reduced — free.
For a human rights proceeding commenced by writ or originating summons, the Registrar has a discretion to waive the fee, and must take into account whether payment might be a hardship to the plaintiff. That discretion should be asked for where it applies.
The Human Rights Enforcement Application
A human rights proceeding may be commenced by filing a Human Rights Enforcement Application in Form 124, in which case the file reference shall be “HRA”.
Form 124 is headed HUMAN RIGHTS ENFORCEMENT APPLICATION FORM and begins with the applicant’s name, address and phone numbers.
Under Rule 7(2), the person commencing is the plaintiff; the person against whom proceedings are commenced is the defendant.
The purpose of the Rules, stated in Rule 2, is to facilitate a quick and just resolution of enforcement proceedings. A form that begins by asking for a name, an address and a telephone number is designed for a person acting without a lawyer.
Contrast the ordinary requirements: a statement of claim under Order 8, with material facts, particulars and a prayer for relief. Order 23 does not require that of an HRA applicant.
Rule 7(3)
The originating process for enforcement of a right or freedom referred to in Division III.3 shall as far as is practicable identify with precision, by reference to relevant provisions of the Constitution —
(a) the right or freedom that has been allegedly infringed or of which there is a reasonable probability of infringement; and
(b) the orders, declarations or other relief that is sought.
The right, by its section. Not “my rights were breached”, but the provision — section 36 (inhuman treatment), section 37 (protection of the law), section 42 (liberty of the person), section 44 (arbitrary search and entry). See the Basic Rights.
The relief. What you want the Court to do — a declaration, an order to stop, an order to do something, compensation.
Note the standard: as far as is practicable. That is a deliberate softening. An applicant who cannot identify the precise section is not shut out, but should come as close as they can.
Note also paragraph (a)’s second limb: a right of which there is a reasonable probability of infringement. The application need not wait for the breach to occur.
Rule 7(4) — Form 125
A complaint under Constitution section 42(5) that a person is unlawfully or unreasonably detained may be made by filing a Complaint of Unlawful or Unreasonable Detention, in Form 125, in which case —
(a) the file reference shall be “HRC”; and
(b) the person making the complaint shall be called “the complainant” and the person against whom it is made “the respondent”.
Rule 10
(1) When any proceedings are filed, the plaintiff may request, by filing a notice in Form 128, that the proceedings be placed on the Human Rights List — and, irrespective of whether such a request is made, the Registrar or his delegate will decide, having regard to Rule 5 and other relevant considerations, whether the proceedings are appropriate to be placed on the Human Rights List or on some other list.
(2) A person aggrieved by that decision may apply to a Judge, by notice of motion, for review, supported by a listing statement in Form 129; all parties shall be given notice and shall have a right to be heard.
(3) The decision of the Court on such a motion is final and not subject to appeal.
Listing does not depend on the plaintiff’s request. The Registrar decides having regard to Rule 5 — which places on the List proceedings that are, in substance, irrespective of whether expressly so described, for enforcement of Basic Rights.
A Form 128 request is nonetheless worth filing where the human rights character of a claim might not be obvious from the pleading.
Sub-rule (3) is unusual and worth noting: the decision on a listing review is final and not subject to appeal. Listing is a case-management matter, and the Rules close off satellite litigation about it.
Rule 12
The provisions of Division 1.2 (general) of the National Court Rules apply to these Rules.
That brings in Order 1 Rule 7 (dispensation with compliance), Rule 8 (non-compliance does not render a proceeding void), Rule 12 (directions where the procedure is in doubt) and Rule 15 (extension of time).
Together with the as far as is practicable standard in Rule 7(3), and the informal-commencement power in Rule 8(3), these make clear that a procedural imperfection should not defeat the enforcement of a Basic Right.
One requirement is not dispensable: where the State is the defendant and damages are claimed, the section 5 notice under the Claims By and Against the State Act 1996 is statutory, and section 2(2) applies the Act to applications under Constitution sections 57 and 58. But an application to allow a further period for that notice itself goes on the Human Rights List under Rule 5(j).
Sources
- National Court Rules 1983 — O 1 Div 1.2; O 8; O 17; O 23 (Human Rights Rules 2010) rr 2, 5, 7, 10, 12; Forms 124, 125, 128, 129
- Constitution — ss 42, 57, 58, 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.