How are proceedings brought and defended?

A proceeding in the District Court is usually now commenced by filing a “notice of claim” in the court closest to where the defendant resides.  The notice of claim is a standard form which sets out the facts justifying the plaintiff’s claim, the legal principles relied on and the remedy that the plaintiff is seeking.  The notice of claim must contained a signed statement that the facts are believed to be true and correct.

The notice of claim is served on the defendant, which then has 30 working days from that date to serve a “notice of response” on the plaintiff.  The notice of response is not filed with the Court.  If the defendant does not serve a notice of response within that time then the plaintiff may seek a default judgment from the Court.

The notice of response sets out whether the defendant agrees with or disputes the plaintiff’s claim, the defendant’s view of the facts and the facts that it disputes with the plaintiff.  The notice of response must also contained a signed statement that the facts are believed to be true and correct.

If the defendant wishes to make a counterclaim against the plaintiff then it must file and serve a separate notice of counterclaim.  This is in similar format to the notice of claim.

Once the notice of response/notice of counterclaim is received then the plaintiff has 30 working days in which to serve on the defendant an “information capsule” and any response to a counterclaim. 

What is an “information capsule”?

This is a standard form which sets out the plaintiff’s response to each issue raised by the defendant, the plaintiff’s response to any settlement offers, a list of all essential documents relied on by the plaintiff, a list of the plaintiff’s witnesses together with a summary of what each witness will say, commonly referred to as a “will-say” statement.  The information capsule must be sworn/affirmed on oath by the plaintiff.

A defendant then has 30 working days from the date of receipt of the plaintiff’s information capsule to serve its own information capsule on the plaintiff.

If the plaintiff does not serve an information capsule in time then the proceeding will come to an end.  Similarly, if the defendant does not serve an information capsule in time then the plaintiff may again proceed to obtain a judgment.  It is possible to seek an extension of those time limits from the Court.

What happens once information capsules have been exchanged?

In order proceed further, the plaintiff is required to serve and then file a “notice of pursuit of claim” with the Court within 90 working days from the date that the plaintiff receives the information capsule from the defendant.

If a defendant wishes to join a “third party” to the proceeding then it must file a third party notice and notice of claim within 15 working days of receiving the notice of pursuit of claim.  The defendant also has 15 working days to serve those documents on the third party.

When a notice of pursuit of claim is filed the Court will decide whether to allocate a “short trial” or a judicial settlement conference. 

What is a short trial?

A short trial is conducted with oral evidence given by each party’s witnesses based on witness summaries.  There are also time limits on the questioning of those witnesses and making submissions.

What is a judicial settlement conference?

A judicial settlement conference is similar to a mediation.  The Judge does not make a decision but facilitates discussion between the parties to try and resolve the dispute.  If the dispute is not settled then the Judge will decide whether the dispute should be dealt with by way of a simplified trial, summary judgment or a full trial. 

What is a simplified trial?

A simplified trial involves the parties serving on the other parties affidavits of evidence and the documents that they intend to rely on 15 working days prior to the trial.  It is possible to apply to the Court for an order that another party disclose particular documents prior to the trial. 

A witness who has sworn an affidavit will only be required to appear at the trial if the other party gives notice that the witness is required for cross-examination.  Each party is limited to only one expert witness unless the court permits additional expert witnesses.  There are also time limits on cross-examination, re-examination and submissions by each party. 

What is summary judgment?

A plaintiff seeking summary judgment must prove that there is no arguable defence to the claim.  Similarly, a defendant can seek summary judgment if there is no arguable claim by the plaintiff.  The party seeking summary judgment is required to file affidavit(s) in support of the application which sets out the factual background and why the party believes there is no arguable claim/defence.

What is a full trial?

A full trial follows the High Court rules for trials.  A party has the ability to seek a wide range of interlocutory (pre-trial) applications.  Prior to the trial each party will be required to prepare briefs of evidence for each witness, the plaintiff will have to prepare an agreed bundle of documents and there are no time limits on the conduct of the trial.