A complainant sometimes realises mid-hearing that the case is going badly: a witness has not come, a document is missing, the claim was framed wrongly. The Act allows a retreat, at a price, and it fixes the point after which no retreat is possible.
Withdrawing before the decision
On the hearing of a complaint or set-off the complainant, or in case of set-off the defendant, in order to avoid a dismissal may, on the immediate payment to the defendant or complainant, as the case may be, of such reasonable costs as are fixed by the Court, withdraw or discontinue the complaint or set-off before it is determined, and then the complaint or set-off shall not be dismissed and the complainant or defendant may sue afresh in respect of the same matter.
The Magistrates’ Manual explains the balance the section strikes: it lets a party whose evidence has fallen short reserve the right to try again, but because that exposes the opponent to further litigation and expense, the Court redresses it by an order for immediate costs. Three points follow.
| Element | Consequence |
|---|---|
| “Before it is determined” | The right ends when the magistrate announces the decision. A complainant who waits for the ruling and loses is bound by s 152 |
| “Immediate payment” of costs fixed by the Court | The withdrawal is conditional. If the costs are not paid there and then, the Court proceeds to determine the complaint, and if the evidence is deficient it is dismissed |
| “May sue afresh” | A new complaint may be filed, subject to the limitation period, the money limit and any new s 5 notice if the defendant is the State |
Finality once determined
When a complaint or set-off for a civil debt or damages has been heard and determined by a Court, no action is maintainable in any other court in the country for the recovery of the debt or damages.
This is the District Court’s res judicata rule, and it works in both directions. A complainant who loses cannot start again in the National Court on the same debt; a complainant who wins cannot go to the National Court for more. Section 38(2) reinforces it for a claim above the money limit: the order is conclusive evidence that the excess was abandoned and is in full discharge of all demands on that cause of action. The only escapes are an appeal under section 219 and an application under section 25 to set aside an order made in a party’s absence.
The certificate of dismissal
If the Court dismisses a complaint or set-off, it shall make an order of dismissal and shall, on application, give the defendant or complainant a certificate of the order. The certificate is, on its production, a bar to any other complaint or legal proceeding in any Court in the country (other than on appeal) for the same matter against the same party.
A defendant who has had a complaint dismissed should ask for the certificate at once. Whether a dismissal for non-appearance of the complainant under section 144, as opposed to a dismissal on the merits, attracts the full bar is not spelt out in the Act; the safer view for a complainant is that it may, and the safer course is to apply under section 25 to set the dismissal aside rather than to file a fresh complaint and meet a section 162 certificate.
Withdrawing a criminal charge
An informant withdraws an information under section 61A, at any time and without paying costs, subject to the Public Prosecutor’s consent for section 420 offences; the defendant is discharged, but the withdrawal is not a dismissal and a fresh charge is possible. See withdrawing a charge.
When to use section 147
The section is worth using whenever the complainant can see that the evidence on the day will not carry the claim but the claim itself is good: the key witness is overseas, the invoices are at the office, the particulars omitted a head of claim that section 137 now excludes. The costs fixed will be within the Regulation scale and modest. Losing after a determination costs the claim outright. A complainant should also consider the alternatives first: an adjournment under section 89, which the Court may grant on terms as to costs under section 260(1)(e) without ending the case, or an amendment of the particulars under section 133(4) or the summons under section 138. See amending a claim.
The same rule for a set-off
Section 147 gives the defendant the identical right to withdraw a set-off before determination on paying the complainant’s costs, and section 152 applies equally to a set-off that has been determined. A defendant whose set-off evidence is not ready should withdraw it under section 147 rather than lose it, and can bring it as a fresh complaint later.
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.