Overview

After the Federal Circuit and Family Court of Australia (Division 2) (the Court) makes final orders in your proceeding, you can take further steps to ‘enforce the judgment’, if a person does not comply with those orders.

If a person has been ordered to pay you money, the money owed is a ‘judgment debt’.

Recovering a judgment debt may involve:

• seeking financial information about the person who owes you money
• having the Sheriff seize and sell some types of property that the person owns to satisfy the debt to you, or
• directing that some or all of the person’s earnings or income from a bank or other financial institution be paid to you.

If a person has been ordered to do, or not to do, an act or thing (distinct from an order to pay an amount), but they have not complied, you may also be able to take steps to enforce that order.

Enforcing a judgment debt

You will have the same remedies for enforcing a judgment debt as exist in the supreme court of the state or territory in which the judgment is made. You will have to use the enforcement procedures of the relevant supreme court.

While the terminology may differ between states and territories, the following methods of enforcing a judgment debt are broadly available:

Examination notice

This document is served on the person who owes you money, requiring them to answer questions about their financial circumstances and provide copies of documents to you.

Examination order

If the person who owes you money does not provide sufficient answers or documents as specified in the examination notice, you can apply to the Court for an examination order directing the person to attend court for examination under oath as to their financial capacity to satisfy the judgment debt.

Writ / warrant for seizure and sale of property

The writ authorises and directs the Sheriff’s Office to go to the address of the person who owes you money, seize property owned by that person and sell it at auction to satisfy the judgment debt. This requires a court order.

Redirection / attachment / garnishee of debts or earnings / instalment order

This is an order from a court, directed to a third party (for example, a bank or employer), to have a certain amount of money taken from the person who owes you money and given to you to satisfy the debt to you. This kind of order will usually be served on either a bank (usually requesting money from a business account) or an employer (requesting part of an employee’s wage).

The order bypasses the judgment debtor, but it only helps if you know whom to serve the order on. Also, if there is no money in the account, or less than a certain amount, no money will be deducted. If the judgment debtor is an individual receiving Centrelink, it may be difficult to recover any substantial amount through this method.

Each method has its own procedural requirements, which can differ, depending on the state or territory where the judgment is being enforced.

The time limit for enforcing a judgment debt varies between the states and territories. In some jurisdictions, it is 6 years; in others it is 12 years.

The procedures and forms for each state and territory can be found on the relevant court’s website.

• Supreme Court of the Australian Capital Territory
• Supreme Court of New South Wales
• Supreme Court of the Northern Territory
• Supreme Court of Queensland
• Supreme Court of South Australia
• Supreme Court of Tasmania
• Supreme Court of Victoria
• Supreme Court of Western Australia

It may also be possible to commence bankruptcy proceedings (against an individual debtor, for debt equal to or exceeding $10,000) or serve a creditor’s statutory demand for payment of debt (against a company) to enforce a judgment debt. You will need to apply to a court to take these steps.

In deciding which enforcement method to pursue, consider:

• how long it will take to pursue enforcement, including recovery of the debt
• the cost involved in the particular enforcement method, taking into account court fees and other costs (such as when the Sheriff must execute a writ)
• the difficulty of the process
• the suitability of the method (consider the judgment debtor’s financial position and means),
• whether the judgment debtor is an individual, a company, or some other legal entity.

It is recommended that you seek legal advice before trying to enforce a judgment debt.

Enforcing an order to do, or not to do, an act or thing

If a person has been ordered to do, or not to do, an act or thing, such as transfer property or deliver goods, and they do not comply with the order, you may be able to apply to the Court for certain orders that would compel the action through arrest of the person (committal) or seizing of the property (sequestration).

You can also sometimes get an order from the Court that another person, appointed by the Court, can do the act or thing that has not been done.

In some circumstances, you may be able to apply to the Court for the person who has not complied with the order to be dealt with for contempt, which may lead to the person’s arrest.

Committal, sequestration and contempt are complicated processes. It is recommended that you get legal advice before trying to file an application for any such order.

Failure to comply with a subpoena

If a person does not comply with a Subpoena - General federal law and migration to produce documents or things or to attend court to give evidence, and has no lawful excuse for not complying, the Court may issue a warrant for the person’s arrest.

Advice

Enforcement is a complex area of law. If you have any legal questions about enforcement, you should get legal advice.

What is an appeal?

If you think the judge in your case has made a legal mistake in deciding your case, you can appeal to the Federal Court of Australia, asking it to set aside the decision made. Your appeal is likely to be heard by a single judge unless a judge thinks the appeal should be heard by a Full Court (three Judges).

An appeal is not a re-hearing of the original dispute. Rather, it is an examination of whether the law was applied correctly in your case.

The judge hearing the appeal:

• does not consider any new evidence or information that was not presented in the original case (except in special circumstances)
• does not call witnesses to give evidence
• does read all the relevant documents filed by the parties for the original case
• does read the relevant parts of the transcript of the original case, if available, and
• does listen to legal argument from both parties to the appeal.

To succeed in your appeal, you must show that the judge who heard your original case made a legal mistake and that the mistake was of such significance that the decision should be overturned. For example, the judge who heard the original case might have applied an incorrect principle of law.

See the Federal Court of Australia website for more information about appeals to the Federal Court.

Do I need a lawyer to appeal?

You are strongly encouraged to get legal advice before you begin an appeal. Court staff are not permitted by law to provide legal advice. Only a lawyer can give you independent, expert legal advice. Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know the law, and its practices and procedures.

A lawyer will:

• define whether you have a legal issue suitable for consideration on appeal
• provide practical options available to you, and
• explain the costs involved in appeal litigation.

Appeals can be costly. You will need to pay a filing fee when you file your notice of appeal and a separate ‘setting down’ fee. The current fees are set out in regulations. If you lose the appeal, you will probably be ordered to pay the other party’s legal costs, as the Court normally awards costs to a successful party in general federal law proceedings. So, even if you plan to run the appeal yourself, it is important to get legal advice on whether you have valid grounds on which to appeal.

Will my appeal be successful?

An appeal will only be successful if the judge has not applied the law correctly. Therefore, to be successful, you must be able to convince the appeal court of how the law should have been interpreted. This will mean you have to develop an argument that may be quite technical and complex and will have to present the essence of it in your notice of appeal.

It is difficult to draft a notice of appeal, so it is strongly recommended that you get legal assistance to prepare your notice of appeal.

If you do not have a lawyer, there are organisations that may be able to give you free or low-cost legal advice or assistance.