A default summons puts the onus on the defendant to act. The Magistrates’ Manual explains the design: a greater onus is placed on a defendant to take immediate steps to defend, in the absence of which a complainant may seek judgment without a hearing. The steps are simple, but the deadline is short.
The notice of intention to defend
If the defendant or his legal representative does not give notice of his intention to defend by serving notice at least 48 hours before the time appointed for the return of the default summons on the Clerk at the place where the Court sits, and (a) personally or by post on the complainant at his address specified in the summons; or (b) on his legal representative at his address if specified, the complainant need not attend or prove his claim, and an order in his favour may be made in his absence.
| Step | Detail |
|---|---|
| 1. Find the two notices attached to the summons | Section 157(1) requires them to be attached; if they were not, service was defective |
| 2. Complete a notice with your name and address and sign it | A short statement of the defence helps but is not required by s 157 |
| 3. Serve one copy on the Clerk | At the courthouse named in the summons; get it stamped and keep a copy |
| 4. Serve one copy on the complainant | Personally, or by post to the address for service in the summons; or on the lawyer if one is named |
| 5. Do both at least 48 hours before the return date | Sundays and public holidays are not counted (Interpretation Act s 11(4)); serve early |
| 6. Attend on the return date | The Manual says a defendant who has served the notice is entitled to a contested hearing; the Court will hear the case or fix a date |
Posting to the complainant satisfies the section, but proof of posting should be kept. Service on the Clerk alone, which is the common mistake, does not satisfy it.
If you did not give notice
(1) If a defendant on whom a default summons is served does not give notice to defend within the time specified, he shall not be allowed on the hearing of the complaint to make a defence to the claim except by permission of the Court and then only on such terms as to costs and otherwise as the Court determines.
(2) If permission to defend is given, the hearing (a) may be adjourned to another day if the complainant desires or the Court thinks fit; and (b) shall be adjourned if the complainant is not present, and the Clerk shall give the complainant written notice of the adjournment.
The Manual describes the position of a defendant who turns up on the return date without having served a notice: the magistrate has a discretion, but is not obliged, to grant a hearing, and the onus is on the defendant to satisfy the Court that he should be granted an opportunity to defend. The considerations are the same as for setting aside a default judgment: whether there is a defence on the merits, why the notice was not given, and promptness. Permission is usually granted where a real defence is shown, on terms that the defendant pay the costs thrown away, and the case is adjourned because the complainant, relying on section 157(4), will not have come ready to prove the claim.
What can be raised
Once the defendant is in, the ordinary rules apply. The defendant may deny the debt, dispute the amount, or raise any defence. But some defences need their own notice under section 153 and regulation 24: set-off, illegality, infancy, coverture, a statute of limitations, discharge in insolvency, tender and payment into court. Those notices must reach the complainant and the Clerk a reasonable time, and under the Regulation at least 24 hours, before the hearing. A defendant who intends to set off a counter-debt should say so in the notice of intention to defend and serve the section 153 notice as well. See the special defences and set-off.
If the claim should never have been a default summons
Section 156 allows a default summons only for a debt or liquidated demand. If the claim is really for damages to be assessed, the defendant should object at the return date; the Manual says such claims “should not be allowed to proceed” by default summons, and the Court should treat the matter as an ordinary complaint requiring proof. The same applies if the claim exceeds the money limit, or if the summons was served less than six days before the return date, or without the two notices, or otherwise than personally on an individual.
If an order has already been made
A defendant who learns of a default order after the event applies under section 159 to set it aside, with an affidavit showing a good defence, on 48 hours’ notice to the complainant. See setting aside a default judgment. An appeal to the National Court under section 219 within one month is the alternative, but the section 159 application is quicker and cheaper.
If the defendant is the State
Section 9(d) of the Claims By and Against the State Act gives the State 90 days from service of a District Court summons to respond, so the 48-hour rule does not bite on the State. See suing the State.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
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.