Enforcing Federal Circuit Court orders

Updated 4 January 2021

This resource covers:

  • What is enforcement?
  • An explanation of the types of enforcement processes
  • Choosing an enforcement method
  • Steps to take before beginning enforcement
  • How to enforce an order from the Federal Circuit Court in NSW (New South Wales), Victoria, ACT (Australian Capital Territory) and Tasmania

What is enforcement?

Many people think that once you have won your Court case, and had orders made in your favour, that the matter is over and all that is needed is for the other party to do what the Court ordered.

Unfortunately, even when ordered to do something by the Court, a party may not follow those orders voluntarily and needs to be compelled to do so.

If a losing party refuses to or cannot pay you, you can use the Court process to recover the money from the other party. These Court processes are known as enforcement and can involve:

  • Seeking financial information about the party that owes you money; (the judgment debtor).
  • Having certain types of property owned by the party recovered by the Sherriff and sold; or
  • Directing the party’s wages or income from a financial institution be paid to you (the judgment creditor).

The amount of money you are owed is called the judgment debt and may include the debt amount, filing and service fee amounts, professional costs (if you have a lawyer), and interest (if the debt is more than $1,000).

Enforcement can be a complex process as there are various methods and the interaction between the State and Federal Courts can sometimes be complicated. If the judgment debtor does not pay you after final orders are made, you may want to seek advice.

We have outlined in this self-help resource the most simple and inexpensive methods of enforcing a judgment debt. There may be other enforcement methods available to you depending on which State or Territory you are in.

How long do I have to enforce the judgment debt?

There are limits on how long you have to enforce the judgment debt. Check the table below to see how many years you have to pursue the judgment debt in your State or Territory. If your limitation date has passed, you will normally need to seek permission from the applicable Court. This permission is called leave.

State Deadline to enforce  Legislation
New South Wales Twelve (12) years  Section 134(2) of the Civil Procedure Act 2005 (NSW)
Victoria Six (6) years  Rule 68.02 of the Supreme Court (General Civil Procedure) Rules 2005 (VIC)
Australian Capital Territory Six (6) years  Rule 2012(1)(a) of the Court Procedures Rules 2006 (ACT)
Tasmania Six (6) years  Rule 121 of the Magistrates Court (Civil Division) Rules 1998 (TAS)
Western Australia Twelve (12) years  Section 12 of the Civil Judgment Enforcement Act 2004 (WA)
Northern Territory Twelve (12) years  Section 15 of the Limitation Act 1981 (NT)
Queensland Six (6) years  Rule 799(1) of the Uniform Civil Procedure Rules 1999 (QLD)
South Australia Six (6) years  Section 38(1)(a) of the Limitation of Actions Act 1936 (SA)

Methods of enforcement

One of the difficult things about enforcing a judgment debt is that the different methods are sometimes referred to by slightly different names in each of the States and Territories. The forms and processes will also be particular to that jurisdiction.

Below is a basic list of the commonly available enforcement methods. These may not be available for every jurisdiction so refer to the factsheets linked at the bottom for more specific information on enforcement for your State or Territory.

Examination Notice

An examination notice is a form sent to the judgment debtor requiring them to answer questions about their income, assets, other debts, and to supply related documents. This is an important step to see whether the judgment debtor has enough money or assets to pay your order and to decide on the most effective way to enforce the judgment debt.

Unfortunately, an examination notice is a request for information, which the judgment debtor may choose to ignore, in which case a more forceful request may need to be made.

Examination Order

If the judgment debtor does not return the examination notice, you can ask the Court to compel them to attend a hearing where you are able to ask questions about their finances and ask they provide financial documents. This examination will usually be conducted by you, though the presiding Judge or Registrar may help if they think that it is necessary.

Garnishee Order

A garnishee order is an order from a Court, directed to a third party, to have a certain amount of money taken from the judgment debtor and given to you. A garnishee 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 garnishee 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.

Writ for Property

A writ for property is an order to a Sheriff (a law enforcement officer from the Office of the Sheriff) to take property belonging to the other party and sell it at an auction. The money from the sale of that property is then used to pay the judgment debt owed to you. Some types of property cannot be taken and sold. The types of property that cannot be taken under a writ vary by State and Territory. A writ for property can be used for one year from the date it was issued. If the writ expires and you are still owed money, you can apply for another writ.

Choosing an enforcement method

You should consider the following to decide which enforcement method is right for you:

  • The time the enforcement method will take and how long it will take you to recover the judgment debt.
  • Court fees and other costs you will incur in using the enforcement method.
  • How difficult the enforcement process is to follow.
  • The suitability of the method (consider the judgment debtor’s financial position and means).
  • Whether the judgment debtor is an individual, company, or some other legal entity.

It may be difficult to work out what steps to take to enforce your order so you may want to seek legal advice at this stage.

For some enforcement methods, there are fees payable, such as when the Sheriff must execute a writ. You should check for associated fees and factor this in when deciding your next steps.

Steps to take before beginning enforcement

Before beginning the enforcement process, you should take the following steps which apply to all judgments regardless of the State or Territory.

Step 1 - Perform an ASIC search

If you have a judgment in your favour against a company, you should conduct an ASIC company search to make sure that the judgment debtor is still active. An ASIC search will show if the judgment debtor is:

  • registered
  • deregistered
  • SOFF (strike off status), meaning it’s in the process of being deregistered
  • in external administration
  • in liquidation

For more information on confirming the status of the judgment debtor see this resource. If the judgment debtor is deregistered this will make the enforcement process more difficult. You can read more about it here.

Step 2 - Send a letter of demand

A letter of demand is a letter to the judgment debtor asking for money to be paid to you. You may also wish to tell them that you plan to take further legal action if they do not pay you by a certain date. This letter of demand should be sent to the judgment debtor as your first step before beginning any of the enforcement methods described above.

This letter of demand will help you if you decide to take enforcement action because:

  • You will often have to serve the Court order on the judgment debtor anyway, which you can do by attaching the order to the letter of demand.
  • The judgment debtor may pay you after receiving your letter of demand. This can save you money and the time of pursuing other enforcement actions.
  • It may result in the judgment debtor ‘coming to the table’ and trying to reach an agreement about paying the debt.
  • If you do take more formal enforcement action, a letter of demand may help you in Court to show that you have acted in good faith and tried to seek payment informally from the judgment debtor

 

Step 3 - Calculate your interest

If you do not receive a response after sending a letter of demand, prepare to take steps for enforcement by calculating the interest owing on the judgment debt.

If the judgment debtor does not pay, you can ask for the Court to add further interest on top of the judgment debt. Each State and Territory sets their own interest rates (see table below for rates that apply to judgments handed down from 1 July 2020), but the process to calculate the amount of interest owed is the same and can be found on the LawAccess website or you can use the calculator here.

State Interest rate information
New South Wales Set at 6.25% as of 1 July 2020 – found on the Local Court website
Victoria Set at 10% as of 1 July 2020 – found on the Magistrate’s Court website
ACT Set at 6.25% as of 1 July 2020 – found on the Magistrate’s Court website
Tasmania Set at 6.25% as of 1 July 2020 – found on the Supreme Court website
Western Australia Set at 6% as of 1 July 2020 – found on the Magistrate’s Court website
Northern Territory Set at 6.25% as of 1 July 2020 – found on the Supreme Court website
Queensland Set at 6.25% as of 1 July 2020 – found on the Queensland Courts website
South Australia Set at 6.25% as of 1 July 2020 – found on the Supreme Court website
Federal jurisdiction Set at 6.25% as of 1 July 2020 – found on the Federal Court website

Enforcing a Federal Circuit Court order in your state or territory

When enforcing a Federal Circuit Court order in your State or Territory, you should use the applicable forms for your State or Territory to begin the enforcement process but referring to the Federal Circuit Court in the forms.

As you have already obtained a judgment, you start the enforcement process using an interlocutory or interim application. There should not be a further application fee.

Your completed State/Territory form will be accompanied by an Application in a Case and an Affidavit, which you can download from the Federal Circuit Court website.

The process for each type of enforcement method canvassed above will be explained in more detail in the applicable State/ Territory factsheet:

Factsheet – Enforcing FCC orders in NSW Download PDF (300 KB)