District Court complaints are drafted by the parties, often without a lawyer, and often say less or other than they should. The Act expects that, and gives the Court a wide power to put the case into the right shape at the hearing.
Two powers of amendment
The Court, at any time before an order is made, may allow either party to alter or amend the particulars of his demand or set-off on such terms as to costs, adjournment or otherwise as the Court thinks just (s 133(4)).
On the hearing of a complaint, the Court may allow such amendment of the summons as it thinks just, and on such terms as it thinks just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties (s 138).
Section 133(4) is about the itemised particulars of a debt or set-off; section 138 is about the summons itself, which under section 133(1) includes the particulars and states the cause of complaint. The Magistrates’ Manual reads them together as a general power to amend so that the true issues between the parties can be decided. The last words of section 138 are mandatory: where an amendment is necessary to reach the real question, the Court shall make it.
Why it matters: section 137
Evidence of a demand or cause of action shall not be given on behalf of the complainant on the hearing of a complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended.
Without an amendment, a complainant is confined to what the summons says. Section 133(3) softens this for small errors: inaccuracies or omissions that in the Court’s opinion are not likely to mislead do not vitiate the particulars, but no evidence may be given of a debt not mentioned in the particulars if the opposite party objects. So a complainant who sued for three unpaid invoices and wants to prove a fourth needs an amendment.
Terms
| Amendment | Likely terms |
|---|---|
| Correcting a date, a figure or a misdescription that misled no one | Allowed without terms |
| Adding an item to the particulars that the defendant has not seen | Adjournment so the defendant can meet it; costs of the adjournment under s 260(1)(e) |
| Changing the cause of action, for example from debt to damages for breach | Adjournment; costs; the defendant may then need to give notice of special defences under s 153 |
| Correcting the defendant’s name from a misdescription | Allowed; but substituting a different person requires fresh service and a chance to be heard |
The Manual observes that an amendment can make a defendant aware for the first time of a significant change in the complaint, and that an adjournment is then appropriate. Section 33, which gives a misled defendant an adjournment as of right on an information, has no exact civil counterpart, but the same fairness principle applies through the “terms” in sections 133(4) and 138.
What cannot be amended in
The Manual gives, as an example of a magistrate acting in excess of jurisdiction, allowing an amendment to increase a civil claim to a figure above the statutory limit in section 21(1). The same applies to amending a complaint so that it raises a subject in section 21(4), such as title to land, and to amending in a new cause of action against which the limitation period has already expired; the position on that last point is discussed for the National Court in amending after the limitation period, and the District Court will follow the same principles under regulation 46. An amendment that would take the case outside the Court’s area under section 21(5) is equally unavailable.
Further particulars: the defendant’s tool
Section 135 allows the Court, on the defendant’s application at the hearing of a debt complaint, to order the complainant to deliver further and fuller particulars, but only if satisfied they are necessary for the defence and not demanded for delay, and the Court may adjourn and stay proceedings until they are given. Section 136 applies the same to a set-off. The Manual points out two drawbacks: the application must come from the defendant, and only at the hearing, so it tends to produce adjournments; it recommends that registry staff spot thin complaints at filing. A defendant who genuinely cannot tell what is claimed should ask for particulars at the first appearance.
Amending a defence
A defendant who has given a statement of defence under section 140 is confined to it except by leave of the magistrate. Leave is the civil defendant’s amendment power, and the same considerations of fairness and terms apply. Special defences omitted from a section 153 notice can be added only with the complainant’s consent or the Court’s permission, usually with an adjournment. See the special defences.
Amending a criminal charge
An information is amended under sections 32 to 34, which allow a variance to be corrected at the hearing but not a different offence to be substituted, and which give the defendant a mandatory adjournment if misled. See mistakes in the charge.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.