The District Court has no pleadings, so a complainant normally learns the defence at the hearing. For a handful of defences that would take a complainant by surprise, the Act requires advance notice.
The section
(1) Without the permission of the Court, the defendant in a complaint for a debt recoverable before a Court shall not (a) set off a debt or demand claimed by him from the complainant; or (b) set up by way of defence illegality, infancy, coverture, or a Statute of Limitations or his discharge under a law relating to bankrupt or insolvent debtors, unless, a reasonable time before the hearing, written notice of his intention has been given to the complainant personally or by post or at his usual or last-known abode or business or at his address for service in the summons.
(2) The defendant shall produce a copy of the notice at the hearing and, unless it is admitted, prove that it was given, and in default no set-off or defence shall be set up except by consent.
What the Regulation adds
Where on a complaint for a civil debt the defendant intends to rely on (a) set-off; (b) infancy; (c) coverture; (d) any Statute of Limitations; (e) discharge under a law relating to bankrupts or insolvent debtors; (f) tender; or (g) payment into Court, he shall forward to the complainant and to the Clerk a notice stating his name and address, together with a concise statement of the ground, delivered or posted so as in the ordinary course to reach them 24 hours at least before the time at which the summons is returnable. In case of non-compliance, if the complainant does not consent to the defence being raised, the Court may on terms adjourn to enable notice to be given.
The Regulation’s list adds tender and payment into court to the Act’s, and drops illegality; the safe course is to give notice of any of the eight. Schedule 3 prescribes a small fee for every notice of special defence lodged with the Clerk.
Each defence and what the notice must say
| Defence | Meaning | Notice must state |
|---|---|---|
| Set-off | The complainant owes the defendant money to be deducted | Particulars with dates, items and amounts (s 133(2)); see set-off |
| Illegality | The contract sued on is illegal or unenforceable, for example an unlicensed money-lending transaction | The ground concisely (s 153) |
| Infancy | The defendant was a minor when the liability was incurred and the contract is not enforceable against him | Place and date of birth, so far as known (reg 26) |
| Coverture | The historical defence that a married woman was not liable on her own contracts | Place and date of marriage, husband’s name, address and occupation (reg 25). The defence is largely obsolete; see a husband’s liability for his wife’s debts |
| Statute of limitations | The claim is out of time under the Frauds and Limitations Act 1988 | The date from which the defendant says time began to run (reg 27) |
| Insolvency | The defendant has been discharged from the debt under the Insolvency Act | Dates of the material orders or certificates and the court that made them (reg 28) |
| Tender | The defendant offered the full sum before the claim and it was refused | The ground; and the sum must be paid into court before the hearing (reg 31) |
| Payment into court | The defendant has paid a sum into court in satisfaction | Notice in Form 6 (regs 30, 33); see payment into court |
Why these defences need notice
Each of them is a defence that does not deny the facts of the claim but says the claim should nonetheless fail, and each depends on facts the complainant may know nothing about: a birth date, a bankruptcy order, an earlier offer of payment. The Magistrates’ Manual explains that defendants in claims for debt have a specific obligation to notify these defences, and that unless notice is given in compliance with section 153 the defendant is prevented from raising them. A complainant met with a limitation defence at the hearing would otherwise have no chance to prove an acknowledgment or part payment that restarted time.
If notice was not given
First, the complainant may consent (section 153(2)). Second, the Court may give permission (section 153(1)), which it will usually do on terms that the hearing be adjourned and the defendant pay the costs thrown away. Third, regulation 24(3) allows the Court to adjourn so that notice can be given. What the defendant cannot do is spring the defence and insist on it being heard that day. A limitation defence is not lost forever by the omission, but it costs an adjournment and costs.
Defences that need no notice
Every other defence can be raised at the hearing without notice: that the goods were never delivered, that the work was defective, that the money was a gift, that the defendant is the wrong person. Section 140 lets the magistrate call for a concise statement of the defence before evidence is taken, and a defendant who volunteers a written one avoids the risk of being confined to what he said orally.
Criminal cases
None of this applies to an information. A defendant charged with an offence need give no notice of any defence, though section 64 places on him the burden of proving an exception or excuse in the offence provision. See who has to prove what.
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.