A District Court claim can be started in an afternoon without a lawyer. The steps are few, but each has a rule attached, and a claim that skips one is likely to stall at the first hearing.
Before you file
| Question | Where the answer is |
|---|---|
| Is the claim within the money limit, or will I abandon the excess? | ss 21(1), 38: the money limit |
| Is it an excluded subject, such as title to land or false imprisonment? | s 21(4): excluded claims |
| Which District Court? | s 21(5): venue |
| Who exactly is the defendant, and is it a legal person? | parties |
| Is the claim in time under the Frauds and Limitations Act? | ss 16–20 of that Act; six years for most contract and tort claims |
| Is the defendant the State? | Section 5 notice first: suing the State |
| Is the claim a fixed sum, so that a default summons is available? | s 156: default summons |
The complaint
Proceedings before a Court shall be commenced by a complaint, which may be laid by the complainant in person, or by his legal representative or other person authorized for the purpose.
The complaint is Form 15 of the Regulation. The Magistrates’ Manual describes it: it provides for the complainant to state the subject matter of the claim, and formal pleadings are not required. It should name the parties correctly, state what is claimed and why in a few sentences, and state the amount. Section 37 allows more than one matter in a single complaint. Regulation 2(2) allows a similar form and regulation 44 forgives departures. The Manual cautions court staff against giving legal advice on drafting, so a complainant who is unsure of the legal basis of the claim should get advice before filing. See what is a complaint.
Particulars of demand
Concise particulars of the complainant’s demand with dates, items and prices or value shall be endorsed on or annexed to the summons on a complaint made in respect of a debt recoverable before a Court and shall be deemed to be part of the summons.
For a debt this is an itemised account: each delivery, invoice or loan, its date and its amount. Section 134 allows a shorter prescribed form where the particulars have already been delivered to the defendant or entered in a pass-book. Section 137 makes the particulars the boundary of the case: no evidence may be given of a demand not stated in the summons, if the defendant objects. Regulation 16 requires the Clerk or magistrate to stamp or initial the particulars. For a damages claim the same discipline is wise even though section 133 speaks of debts: say what happened, when, and what loss is claimed.
The summons
Section 41(2) allows a magistrate to issue a summons on a complaint within the limits of his jurisdiction, and section 45 allows the Clerk to do so. Regulation 7 requires the summons to be issued only on the application of the complainant, a lawyer or an authorised person. Under section 42(2) the summons is directed to the defendant, requires him to appear at a stated time and place before a Court, and must be lodged with the Clerk before the hearing; under section 45(3) it sets out the complainant’s address for service. The return date is fixed by the Clerk with the Court’s sittings in mind and can be extended under section 46.
If the claim is for a debt or other liquidated demand, section 156 obliges the Clerk to issue a default summons if the complainant asks for one. It is served at least six days before the return date with two notices of intention to defend attached, and if the defendant does not serve a notice at least 48 hours before the return date the complainant need not attend or prove the claim. For anything else, including damages to be assessed, the ordinary summons is used.
Fees
Section 262 requires the prescribed fees to be paid in advance. Schedule 3 of the Regulation lists them: a fee for the summons and a copy, an additional fee if the Clerk prepares it, and a service fee that depends on distance from the courthouse. Regulation 47(3) refunds the service fee if the process is unserved within 60 days. The figures are old and the registry will state the current amounts. See fees and costs.
Service
The summons must be served on the defendant personally, or at his last known abode on an apparent inmate aged 16 or over, at least 72 hours before the hearing, and the server must swear an affidavit of service within seven days and return the original to the Clerk (section 47). A company is served under the Companies Act; the State under section 7 of the Claims By and Against the State Act. If the defendant cannot be found, apply under section 48 for substituted service. See service of a summons.
What happens next
On the return date the Court will, under section 139, state the substance of the complaint to the defendant and ask whether he shows cause against an order. If he admits it, an order follows. If he disputes it, the Court may hear the case at once or fix a hearing. The complainant should therefore come with the witnesses and documents on the first date, or be ready to explain why an adjournment is needed. If the defendant does not appear and service is proved, section 143 allows an ex parte hearing. See the civil hearing.
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.