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CHAPTER 20 – ENFORCEMENT

20.1 INTRODUCTION

Making a court order does not guarantee that the order will be complied with. Sometimes a person who is the subject of a court order will comply with the order. In many cases it is necessary to take further steps to enforce an order. This chapter deals primarily with the enforcement of orders that are made for the payment of money, either in the form of a fine or as compensation in a civil matter. It does not deal with the enforcement of family maintenance orders, which are dealt with in Chapter 16.

In addition to the enforcement of orders for the payment of money, this chapter also deals with the enforcement of fines against a corporation. Finally, the chapter deals briefly with the subject of contempt of court, the powers that a District Court Magistrate has in this regard, and how they may be exercised.

Part IX of the District Courts Act sets out a procedure for the enforcement of court orders. This part of the Act is complex, and uses terminology that is archaic in any other context. Although orders that may be enforced by means of Pt IX usually originate in the District Court, it may, in some circumstances, also be utilised to enforce orders that originate elsewhere, for instance, orders of a Village Court that have been endorsed by a District Court Magistrate.

20.2 ENFORCEMENT OF CIVIL JUDGMENTS

Enforcement orders for the payment of money that have been made in order to compensate a person or persons, result from orders made in civil proceedings either in the District Court or pursuant to an order for execution made under s 65 of the Village Courts Act and endorsed by a District Court Magistrate: see 18.5 and 18.6. An order for compensation made under the Adultery and Enticement Act that is not complied with may also be enforced as a civil order using the provisions of the District Courts Act.

Enforcement of orders for the payment of a fine is dealt with below at 20.6.

All enforcement proceedings in relation to orders to pay money originate from a minute or memorandum that is made by a Magistrate when the order is made. Section 160(2) of the District Courts Act provides that, while the minute does not form part of a subsequent warrant of execution, it is prima facie evidence for all purposes of the making of the order. The Act does not require a formal order to be drawn up pursuant to s 161 in order to commence enforcement proceedings.

20.2.1 Lump sum and instalments

Most orders made for compensation in civil proceedings provide that compensation be made in a lump sum of money. However, an order may provide for payment of compensation by instalments. Regulations 14 and 15 of the District Courts Regulations provide record-keeping procedures to be followed by the clerk of a District Court where such an order is made. Where a person who is subject to an order to pay instalments does not make an instalment payment, the entire remaining amount becomes due and may be enforced as a lump sum: District Courts Act, s 165.

20.2.2 Orders against more than one defendant or partner

Regulations 22 and 23 of the District Courts Regulations provide that where an order is made jointly against more than one defendant, the order may be fully enforced against any one of the jointly named defendants. This may include partners where they are named as co-defendants in an action and where an order is jointly made against them. Where an order is enforced against one of the jointly named defendants, it is open to that defendant to seek indemnity from other jointly liable defendants. However, this does not affect the right of a person in whose favour an order is made to fully enforce the order against any one of the defendants. This allows a person in whose favour an order is made to enforce the order against whichever defendant provides the easiest target for enforcement of the order.

20.2.3 Place of enforcement

The District Court that made the original order retains the jurisdiction to enforce the order and, in most circumstances, this will suit the circumstances of the person in whose favour the order is made. However, enforcement proceedings may be “delegated” to another District Court for enforcement where the clerk is of the opinion that it would be “more convenient” to do so. Section 166 of the District Courts Act provides procedures for the transfer of enforcement proceedings to another District Court. However, the original District Court remains involved with the enforcement proceedings. It is sent an acknowledgment of receipt of the file by the court to which the matter is transferred. Any steps taken by the court to which the matter is transferred must be reported to the original District Court. Any moneys recovered must be sent to the original District Court.

Section 166 also provides for the further transfer of the file to a third court or back to the original court. Such transfers are governed by convenience. Only one court may engage in enforcement proceedings at any one time.

20.2.4 Oral examination of debtor

A person who is entitled to enforce an order for the payment of money is sometimes hampered by a lack of knowledge about what, if any, assets or entitlement to money the judgment debtor has. Without this knowledge, it is difficult for the judgment creditor to know whether or how the order may be enforced. The determination of this matter is often the first step towards enforcement of an order. Regulation 43 of the District Courts Regulations provides that, immediately upon the making of an order for payment of money, a Magistrate may cause the person who is liable to make the payment to be examined. At a subsequent time, an examination may take place on application under s 181 of the District Courts Act. A summons is issued in order to bring the person who is liable to make payment before the court.

The oral examination of a person under reg 43 or s 181 may be directed towards the determination of whether the person has any property that may be used to satisfy the order, whether there are any debts owing to the person that may be used to satisfy the order, or whether there are any other means of satisfying the order. Questioning may take the form of cross-examination. Where the party in whose favour the order is made is represented, their lawyer may conduct the examination. Where a party is unrepresented and unable to conduct an effective examination, the Magistrate should conduct the examination.

The examination of a judgment debtor may yield information that results in a warrant of execution.

20.2.5 Warrant of execution

A warrant of execution is an order that has the effect of ordering a person (usually a police officer) to seize and sell assets that belong to a judgment debtor. The procedure is designed to ensure that the sale of assets is at, or close to, the fair market price. The proceeds of sale are then used to satisfy the costs of the execution proceedings and the judgment debt. There is no punitive element to a warrant of execution. Any surplus moneys realised by a successful warrant of execution are paid to the judgment debtor.

Warrants of execution issued in the District Court normally arise from judgments made in the District Court. However, warrants of execution may also be issued in a Village Court. If a District Court Magistrate endorses a Village Court order for execution, the proceedings that govern the execution are those of the District Court: see 18.6.

20.2.6 Procedure on warrant of execution

The District Courts Act does not specifically state that a judgment creditor shall make an application for a warrant of execution, but this is implicit in the other provisions. In any event, no notice to the judgment debtor is required before initiation of proceedings for the issue of a warrant of execution.

A Magistrate, on hearing an application for a warrant of execution, may include terms in the warrant of execution as seem just in the circumstances. One condition may be that the warrant does not take effect until a given date: s 172.

The police officer or other person to whom a warrant of execution is directed may delegate the power to another person. Section 174 sets out the procedure that is to be followed by the person acting under authority of the warrant for execution. It provides for certain possessions of a judgment creditor to be exempt from seizure. Goods seized are to be sold by public auction. Except with respect to the sale of perishable goods, a public notice must be made at least five days before the sale of the goods. A sale must take place within 14 days of the seizure.

A person authorised to carry out the seizure and sale of goods under a warrant of execution may also “seize” money belonging to the judgment debtor, and may assume the rights of the judgment debtor in relation to cheques and other financial instruments. These rights include the right to demand payment and sue in the place of the judgment debtor: see s 175.

20.3 THIRD PARTY CLAIMS AGAINST PROPERTY

Sometimes, in the course of enforcement by a judgment creditor, either by seizure of property or attachment of debts, a third party may claim that he or she has a right to the property that ranks higher in priority than the interest of the judgment debtor. In such a situation, it is necessary to resolve the relative interests of the third party and the judgment debtor before any execution proceedings are concluded on behalf of the judgment creditor.

For instance, a third party may be a bank or other holder of a chattel mortgage. A third party may also be a spouse or other person who claims that the property in question does not belong to the judgment debtor at all.

20.3.1 Procedure on third party claims against property

Whenever a third party claims entitlement to property that is subject to enforcement proceedings, s 178 of the District Courts Act provides that a Magistrate may direct a summons to each of the third party and judgment creditor. The purpose is to bring the issue before the court. Once the summonses are issued, the enforcement proceedings are stayed until the third party claim is resolved. Although the Act does not specify the issuance of a summons to the judgment debtor in relation to the resolution of third party claims, that party might be a useful witness in the resolution of third party claims.

The resolution of a third party claim takes place in accordance with the requirements of s 179. This section provides for service of the summons, the provision of particulars, the timing of the hearing and the awarding of costs in relation to the hearing.

20.4 ATTACHMENT OF DEBTS

A judgment creditor may utilise the provisions of Pt IX, Div 4 of the District Courts Act to, in effect, step into the shoes of a judgment debtor with respect to moneys owning to the judgment debtor. The process of discerning the details of any debt owing to a judgment debtor, and requiring payment of that debt to the judgment creditor, is referred to in the District Courts Act as the “attachment of debts”. Section 180 defines a person from whom debts are owing or accruing to the debtor, and in respect of whom an order is made under s 182(1), as a garnishee. The same section defines a debtor as “the person liable under an order of the Court for recovery or payment of money or costs, or both”. This chapter uses the expression “judgment debtor” to describe the same person.

Where a garnishee makes a payment to the clerk of the court, it operates as a valid discharge of any liability that the garnishee has to a judgment debtor, to the extent of the payment made.

The provisions relating to the imprisonment of judgment debtors do not apply to claims for the payment of money prior to judgment. No order for imprisonment may be made unless the person who is the subject of an application has already been ordered by a court to pay moneys or deliver goods to a judgment creditor.

20.4.1 Identification of moneys owing to judgment debtor

Proceedings in relation to the attachment of debts may be preceded by an examination of the debtor under s 181 of the District Courts Act, already described in 20.2.4. Such an examination may reveal the existence and details of moneys owing to a judgment debtor.

20.4.2 Order attaching moneys owed to judgment debtor

An application to attach moneys owing to a judgment debtor may be made to a Magistrate. An application for such an order may be made ex parte, pursuant to s 182 of the District Courts Act. The meaning of s 182 is unclear and does not appear to have been clarified by an available judgment of the National Court. However, it appears to indicate the following. An order attaching moneys owed may be made pursuant to s 182(2) where there is proof on affidavit, or otherwise, that:

·           an order for recovery of payment of money or costs is unsatisfied; and

·           another person who is in the country is indebted to the judgment debtor.

On an application for an attachment order, a Magistrate may order the garnishee to appear before the court to show cause why he or she should not pay moneys owed by him or her to the judgment debtor.

If a garnishee does not dispute a debt and does not pay the amount of the debt owing to the judgment debtor, an order may be made, pursuant to s 184, to order the payment of the debt, or that portion necessary to satisfy the judgment creditor, to the clerk of the court.

If a garnishee does dispute the debt, a hearing under ss 185, 186 and 187 takes place. The procedure for this hearing is that which would occur in a civil dispute between the judgment creditor and the garnishee in respect of entitlement to the moneys in question. Any third party with an alleged interest in the moneys may also be ordered to appear at the hearing.

A Magistrate, at the conclusion of a hearing, may make an order that determines the issue of liability of the garnishee to the judgment debtor and, in accordance with this finding, may order execution against the amount due from the garnishee. Section 188 also provides for a determination of related questions regarding a third party’s claim to the moneys. Section 191 provides for the awarding of costs at the discretion of the Magistrate.

20.5 DELIBERATE NON-PAYMENT OF JUDGMENT DEBTS

The law does not normally permit the imprisonment of a judgment debtor as a means of enforcing an order for the payment of money. However, where a judgment debtor is clearly able to pay, but refuses to do so or takes steps to deliberately make payment of a judgment debt impossible, the law does provide for imprisonment in some circumstances. Division 5 of Pt IX of the District Courts Act contains provisions that govern the circumstances and procedures relating to the imprisonment of judgment debtors. The Act uses the word “fraudulent” in relation to judgment debtors. However, the range of circumstances that may give rise to an order for imprisonment goes beyond the strict meaning of the word “fraud”.

20.5.1 Types of orders that may be enforced by imprisonment

Section 192 of the District Courts Act restricts the types of orders that may be enforced by an order for imprisonment.

20.5.2 Conditions for order for imprisonment

Sections 192 and 193 of the District Courts Act set out the grounds upon which an order for imprisonment of a judgment debtor may be made. These grounds are summarised as follows:

·           A judgment debtor has, or did have, sufficient means to satisfy the order but has refused or neglected to do so.

·           A judgment debtor is about to leave the country without satisfying the order for payment of money. (Exemptions apply in the case of persons about to leave for Australia.)

·           A judgment debtor is about to depart for another part of Papua New Guinea with the intent of avoiding payment of the order for the payment of money.

·           A person subject to an order for the delivery of goods has, after due notice and without reasonable cause, refused to comply with the order.

·           A person subject to an order for the payment of money or delivery of goods incurred the liability that resulted in the order:

(i)         by means of fraud or breach of trust; or

(ii)        wilfully, knowing that there was no reasonable expectation of being able to discharge the liability.

·           A judgment debtor has deliberately transferred, disposed of or concealed property with the intent of defrauding creditors.

If a person has been declared insolvent (see Insolvency Act, Cap 253) since the order for payment of money or delivery of goods was made, that person is not subject to an order for imprisonment pursuant to the provisions of s 192 of the District Courts Act.

20.5.3 Procedure and proof

The onus of satisfying a court that conditions for the imprisonment of a judgment debtor are satisfied is on the party applying for an order for imprisonment. The judgment debtor may be summoned to court and examined in relation to the preconditions for imprisonment. The standard of proof required is not set out in the District Courts Act, other than requiring proof to be “to the satisfaction of the Court”. Because the issue entails the possible deprivation of liberty of a person, a court will demand a high standard, beyond the normal civil standard of balance of probabilities. The evidence must be convincing and commensurate with the seriousness of the matter in question. The evidence must be real and substantial.

Because the result of an application under s 192 of the District Courts Act may be the deprivation of a person’s liberty, it is also important that the judgment debtor is afforded all the benefits of natural justice. Section 192 provides that the judgment debtor (person making default) may be:

·           personally served with a summons; and

·           examined on oath.

It further provides for the summoning of witnesses, their attendance and examination under oath.

Proceedings in relation to an application for the imprisonment of a judgment debtor are judicial in nature. The examining Magistrate must record the evidence: s 197.

Section 195 provides that where special circumstances exist, an order may be made ex parte on the basis of affidavit or other evidence that may be permitted by a Magistrate. What constitutes special circumstances is not specified. Some guidance may be gained by reference to the occasions where an ex parte hearing might be held in other civil matters. For instance, where a judgment debtor wilfully fails to attend a hearing, despite being served, a Magistrate might consider proceeding ex parte. However, the requisite standard of proof also governs ex parte hearings: see 14.6.7 and 14.6.8.

20.5.4 Orders for imprisonment – term and effect

Where a Magistrate is satisfied on the evidence that an order for imprisonment should be made, the maximum term is two months. An order for imprisonment does not extinguish the liability of the judgment debtor pursuant to the original order for payment of money or the delivery of goods. However, a judgment debtor who has been imprisoned may pay the amount specified in the warrant of committal at any time, and when this is done must be discharged immediately from prison.

A Magistrate may also discharge a person imprisoned under Div 5 (even though payment has not been made) where he or she is satisfied that special circumstances exist.

20.6 ENFORCEMENT OF FINES

A fine imposed in a criminal matter against a natural person is always enforced by means of imprisonment. The term of imprisonment, often referred to as being “in default”, is stated when the fine is imposed. Section 201 of the District Courts Act provides the scale of maximum terms of imprisonment that may be imposed in default of fines of various amounts.

Where a corporation is the legal entity that is convicted of a criminal offence, and a fine is imposed, the fine is not enforced by way of a default term of imprisonment. Rather, the fine is enforced in the same way that an order for the payment of a sum of money arising out of a civil judgment is enforced. Therefore, the provisions set out above apply to the enforcement of fines that are imposed on a corporation in a criminal matter.

20.7 CONTEMPT

District Court Magistrates do not have the inherent power to punish persons for contempt of court in the same manner as do National and Supreme Court Judges. Therefore, where an order is made directing a person to do or not do an act, and the person does not comply with the order, the consequences (either by way of punishment or enforcement) must derive from a specific statutory source: see 3.1.3 and 14.5.5. Section 277 of the District Courts Act provides measures that may be employed where a person behaves in an inappropriate manner in court. However, this section does not provide for a means by which orders to do or not do something out of court may be enforced.

The enforcement of orders to pay money has been covered above. However, in the case of an order directing a person to do an act, s 171 of the District Courts Act applies. This section can be applied to enforce such things as interim orders in the nature of injunctions, as well as final orders for the delivery of a thing or for some other act.