Order 5 of the National Court Rules 1983 is headed Parties and Causes of Action. It answers who can be on the record.
Any person may sue
(1) Subject to sub-rule (2), Rule 6(1) and 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.
An individual may appear for themselves — see representing yourself. A company cannot. A director has no right to appear for the company, however small it is or however completely they own it.
The reason is that a corporation is an artificial person — the Rules define “corporation” in Order 1 Rule 6 as including any artificial person — and can only act through a human agent. The Rules require that agent to be a lawyer, who owes duties to the Court.
See suing a company.
Order 5 Division 2
Order 1 Rule 6 — “disabled person” means a minor or a mentally disordered person.
Order 5 Rule 19(1) — a disabled person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief.
Rule 19(2) — a disabled person may not, except by his guardian at law, defend any proceedings, intervene in any proceedings, or appear in any proceedings under a judgment or order.
Order 1 Rule 6 defines “next friend” as a person who is a plaintiff on behalf of a disabled person, and “guardian at law” as the guardian of a defendant who is a disabled person.
Rule 20 — anything the Rules would require the disabled person to do shall or may be done by his next friend, and a next friend must act by a solicitor.
Order 5 Rule 13
Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
Rule 13(4) — a judgment shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, but shall not be enforced against any person not a party except with the leave of the Court.
Rule 13(5) — the application for leave is by motion, served personally on the person against whom enforcement is sought.
Rule 13(6) — even though bound, that person may dispute liability on the ground that by reason of facts and matters particular to his case he is entitled to be exempted.
Rule 13 does not apply to proceedings concerning the administration of a deceased estate or property subject to a trust — those are governed by Rules 14 and 15. See representative proceedings.
Rules 14 to 16
| Rule | Effect |
|---|---|
| 14 | In proceedings concerning administration of an estate, property subject to a trust, or the construction of a written instrument including an Act, the Court may appoint persons to represent any person — including an unborn person — or class who is or may be interested |
| 14(2) | Available where the persons cannot be ascertained, cannot be found, or where it is expedient for saving expense |
| 14(4) | The Court may approve a compromise and order it binding on absent persons — except where obtained by fraud or non-disclosure of material facts |
| 15(1) | In proceedings by or against a trustee, executor or administrator, beneficiaries need not be joined, and the judgment binds them |
| 15(2) | But where the trustee could not or did not in fact represent their interests, the Court may order the judgment not binding on them |
| 16 | Where a deceased person is interested and has no personal representative, the Court may order the proceedings continue in the absence of one, or appoint a person to represent the estate |
The Court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.
A short rule with real utility where several parties share an interest and one is better placed to run the case.
Rule 7 — mistakes about parties are curable
(1) Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.
(2) The Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
Suing the wrong person, or leaving someone out, does not defeat the proceeding. The answer is to add or remove a party under Rules 8 and 9 — which the Court may do on application by any party or of its own motion.
This sits with Order 1 Rule 8, under which non-compliance does not render a proceeding void.
One caution: under Rule 11(3), where a party is added, the date of commencement of the proceedings so far as concerns him is the date of the amended originating process adding him — which matters for a limitation period.
On joining several claims or several defendants, see joinder of causes of action and joining defendants. On business names, see Order 5 Division 3. On what happens when a party dies, see Rules 10 and 12.
Sources
- National Court Rules 1983 — O 1 r 6; O 4 rr 5, 6; O 5 rr 7–22, Divs 1–3
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.