Civil for Beginners (Magistrates Courts)rtidocs.justice.qld.gov.au/140310/140310_File01.pdf · Let’s check this Affidavit of Service ... Defence and Counter Claim What’s a counterclaim?

Civil for Beginners (Magistrates Courts)

By theTraining and Development Unit

v2.3 RTI 140310 Page 1

Welcome

Introductions

Amenities

Agenda & Breaks

Your Expectations?

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Outcomes

By the end of this course you’ll be able to:

Describe the basic civil process from lodgement of Claim to Judgment by defaultProcess Claims, Originating Applications, Defences and JudgmentsGive procedural advice regarding Civil processesAccurately enter matters, documents and court events into CLAIMS

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Slow Down – Be Careful!

Slow down - don’t race ahead – you might miss some tips and tricks.

Be careful – you’ll be working with paper binders (split-pins), so be careful not to jab yourself.

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SomeGeneralBasics

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Evolve Review

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Common Abbreviations

UCPRUniform Civil Procedure Rules 1999

CLAIMSCivil Listing and Information Management

System

QCATQueensland Civil and Administrative

Tribunal

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Completing documents for the public

Do we complete documents for the public?

Why not?

What if the client claims they can’t read or write?

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Accepting a claim when client insist on filing

What do you do if a client wants to lodge an incomplete document or one with mistakes in it?

After you’ve filed it (at the client’s insistence) what should you do straight away?

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Legal Advice

What is legal advice?

What is procedural advice?

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CLAIMS Database

Other Enquiry Facilities

Help Menu

Electronic Lodgements

Data Integrity

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What’s this?

It’s the principle!

What does itrepresent?

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Claims

Claim

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What is a Claim?

A way to help collect a debt, being a liquidated or unliquidated amount.

It is always advisable to use a Solicitor for this process. Why?

Professional Costs as per schedule can be claimed, as long as…?

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Evolve Review

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Things to know about Claims

JurisdictionWhat does Monetary jurisdiction mean?What does District jurisdiction mean?What time limits exist for filing a Claim?

Cause of actionWhat is a liquidated claim?What is an unliquidated claim?

FeesHow is the Filing Fee determined?What is the Appeal Cost Fund (ACF)?How are the Professional Costs determined? How are Service fees determined?

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Things to know about Claims (cont)

InterestCan interest be claimed?At what rate?Simple or Compound?Must be pleaded?

Who can sign a Claim for the Plaintiff?

What colour ink should be used for signing and stamping, and why?

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Checking a Claim

Names are provided in sufficient detail ACN provided for companysame on the Claim as the Statement of Claim

Basis of claim section has basic details or refers to Statement to Claim

Jurisdiction (monetary, district and time)

All fees and costs are correctalso check the judgment part of Notice under Rule 150(3)

If Interest claimed, check that it has been correctly pleaded and calculated

Total (if provided) is correct

All necessary parts of the Claim are completed

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Activity 1

Landlord Properties Pty Ltd -v-

Barts Machinery Hire Pty Ltd

Let’s check this Claim together and find the errors.

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Activity 2

Pink and Blue Taxis Pty Ltd -v-

Xena Pushover

Check this one on your own and find the errors.

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Caffeine time!

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How to File a Claim

1. Allocate a file number and write on all copies(don’t forget the prefix letter)

2. Seal the Claim and Statement of Claim

3. Endorse Fees paid stamp

4. Date and sign (if authorised to) the Claim

5. Input Claim onto CLAIMS application

6. Complete/print File Index Sheet

7. Number the documents

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Activity 3

M3/09Landlord Properties Pty Ltd

-v-Barts Machinery Hire Pty Ltd

Process and register a Claim – follow along with your trainer and don’t rush

ahead!

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Activity 5

M5/09Pink and Blue Taxis Pty Ltd

-v-Xena Pushover

Process and register a Claim

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Activity 6

M6/09Heavenly Transport Company Pty

Ltd-v-

Denny Compo and Davida Compo

Process and register a Claim

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Evolve Review

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SERVICE

Claim

Service

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Service – Uniform Civil Procedure Rules 1999

To serve a Claim (or Minor Debt Claim) on a person Personal Service must be effected.

Magistrates Court matters can also be served by what other methods?

Post, where the person is more than 50km from their nearest Courthouse.Some types of Ordinary service. Such as?

Leaving it with someone at their place of residenceSending it by DX, fax or email to the person’s solicitor

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Activity 7

Pink and Blue Taxis Pty Ltd -v-

Xena Pushover

Let’s check this Affidavit of Service together and find the errors.

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Corporations Act 2001

Provides that a Claim (or Minor Debt Claim) can be posted to or served in person at…?

The company’s Registered Office

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Applications to the Court

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Documents and Hearing types

All applications to the Court must be prepared on a Form 9 Application and accompanied by one or more supporting Affidavit Form 46.

Applications can be heard ex-parte oron notice. What’s the difference?

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For example: Application for Substituted Service

When a document isn’t able to be served in accordance with the rules, an application for Substituted Service will be made.

When a Substituted Service order is made for a document, the Order must be served with the copy of the document.

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Activity 8


Ltd-v-


Process and register an Application to Court

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Defences

Claim

Service

Defence

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What is a Defence?

A defence is the Civil equivalent of pleading ‘not guilty’.

Filing a defence means that the defendant wants to contest the Claim (or Minor Debt Claim).

The defendant is saying that they are not responsible for the allegations contained in the plaintiff’s Statement of Claim.

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Types of Defence

Form 6 - Notice of Intention to DefendMust be accompanied by what?

Form 17 - Defence

Form 18 - Defence and Counter ClaimWhat’s a counterclaim?

Form 7 - Conditional Notice of Intention to Defend

Can it be lodged on its own?Indicates a defence on what grounds?What does the defendant have to lodge afterwards? How long to do that?What happens if the application isn’t made?

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Activity 9


Ltd-v-


Process and register a Defence

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Lets eat!

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DirectionsConferences

Claim

Service

Defence

DirectionsConference

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What is a Directions Conference?

A directions conference is a conference chaired by the Registrar to attempt to settle the claim and not proceed to trial.

Parties and their legal representatives are required to attend.

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Why hold a Directions Conference?

It’s an attempt to:

Settle the proceedings without hearing or mediationSimplify issuesObtain admissionsPrompt further pleadings or amendments to pleadingsSettle the amount of damagesReduce the possible length of the trialReduce the burden of costs on the parties

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Things to know about Directions Conferences

Personal attendance by parties may be excused if it would cause unreasonable hardship, inconvenience or excessive cost.

Formal orders made at conference must be recorded on file, otherwise confidential – signed memorandum may include admissions or results of conference (Rule 524(4)).

Costs of the conference are costs in the proceeding and may be assessed at the conference, at a later hearing or otherwise under the rules.

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How parties are to apply for a Directions Conference

A party requests the conference in writing (simply a letter).The written request and file is given to magistrate, who then makes the order, writes it on the file cover sheet and returns the file.A date for the conference is allocated by the registrar.

Alternately -When the parties file a Request for Trial Date (Form 48) the matter will ordinarily be set for a Directions Conference. Refer to Magistrates Courts Practice Direction No. 16 of 2010

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When the Directions Conference date is set

The documents and the conference event are entered into CLAIMS application. Notices will then print automatically.

The Notices are posted to parties and solicitors at their address for service.

An affidavit of posting the notice is completed on the back of the file copy of the notice (proof of parties receiving the notice: Rule 525(2))

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Conducting a Directions Conference

The Civil Advanced course covers actually conducting a Directions Conference.

Prior to attending the Civil Advanced course you will be required to sit in a Directions Conference to observe and take notes for discussions during the course.

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Interrogatories

Claim

Service

Defence

DirectionsConference Interrogatories

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Interrogatories are Other Documents filed within a proceeding

ReplyRequest for Further and Better particularsFurther and Better particularsList of DocumentsDiscoveryRequest for DisclosureDisclosure

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Payments

Payments should always be paid to the Plaintiff or the Plaintiff’s Solicitors unless ordered otherwise by a Court.

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When a Claim has been Finalised

Notice of Discontinuance (Form 27) may be lodged

The filing of this Notice finishes the file – it can’t be re-opened except by Order of the Court

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Judgments

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Evolve Review

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Default Judgment

Claim

Service

Defence No Defence

DefaultJudgment

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Default JudgmentsWhen can a Default Judgment be given?

1. Defendant hasn’t filed a Notice of Intention to Defend; and

2. Service of the Claim or MDC on each defendant Judgment is requested against is proved by a separateaffidavit of service; and

3. Plaintiff has filed a Request for Judgment (Form 25) for an amount of not more than amount of the claim, supported by affidavit (Form 46) that the amount is still owing; and

4. The claim is for a debt or liquidated demand; and

5. Only prescribed costs are being claimed; and

6. Interest is being claimed at a rate no higher than under practice direction or an agreement, or not being claimed at all.

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Activity 10

M3/09Landlord Properties Pty Ltd

-v-Barts Machinery Hire Pty Ltd

Process and register a Default Judgment

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Electronic Judgments

Activity

Navigate to the Electronic Request for Judgment Screen and action an Electronic Judgment.

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Default Judgment - Damages

The Registrar can give Default Judgment for unliquidated damages - called a Conditional Judgment.

Same requirements must be met – no defence filed, service proved and the Plaintiff files the approved forms.

If Claim is for damages for repair to a motor vehicle up to $50,000, must also file additional affidavit(s) to prove the amount of damages.

If Claim is for damages for repair to a motor vehicle over $50,000, or other damages in any amount, the matter is then referred to a Magistrate for assessment of damages.

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Activity 11

M5/09Pink and Blue Taxis Pty Ltd

-v-Xena Pushover

Process and register a Default Judgment for Damages

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Summary Judgment

Claim

Service

Defence

DirectionsConference Interrogatories Summary

Judgment

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Summary Judgment

Summary judgment is an application, on notice, made to the Court (i.e. Magistrate) for judgment after a defence has been filed and served.

Can a Registrar determine a Summary Judgment?

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Judgment by a Court

Claim

Service

Defence


Judgment

Judgment by Court

Judgment by Court

Judgment by Court

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Judgment by a Court

When Judgment is given by a Magistrate at the end of a court hearing:

The successful party must file a Judgment document (Form 58) to enter the Judgment on the Court file before it can be enforced

Check the amounts on the Judgment document against the Magistrates Order – they must be the same.

Registrar signs the Judgment

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Activity 12

M223/09Car Repairers Pty Ltd

-v-Horace Plumber

Process and register a Judgment (by Court)

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Interstate Judgment

What is it?

Why register it in Queensland?

What Act allows this to happen?

What needs to be lodged?

Is there a fee?

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Activity 13

M7/09Broken Thumbs Loanshark Co Pty Ltd

-v-John Desperate and Jane Desperate

Process and register an Interstate Judgment

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Other Foreign Judgments

There are a number of other possible monetary orders from Tribunals (e.g. QCAT) or other bodies that may need to be registered with Courts for enforcement.

Why would they register the order in the Magistrates Court?

What does the lodging party need to file?

Is there a fee?

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Activity 14

M8/09Rentals Rentals Rentals Pty Ltd

-v-Don Thadash

Process and register a Foreign Judgment

(Small Claims Tribunal order)

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Claim

Service

Defence No Defence

DefaultJudgment


Judgment

Judgment by Court

Judgment by Court

Judgment by Court

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Caffeine time!

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OriginatingApplications

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Evolve Review

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What is an Originating Application

An Originating Application is an application that is an originating process. It’s filed when the matter can’t be started by a Claim but comes under the UCPR and they are sourced from other legislation, e.g.:

Application to change of a child’s name (Births, Deaths and Marriages Registration Act)

Application for compensation for injuries arising from a criminal act (Criminal Offence Victims Act)

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Originating Applications

What documents must be lodged?

What specifics must be shown in the application?

Draft Orders may be lodged with the Originating application documents.

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Originating Applications

Set for Chamber Application date

Might be heard on notice or ex-partedepending on circumstances

Hearing date endorsed on all copies

Service copies (if relevant) returned to lodger

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Activity 15

M9/09Cassandra Mother

-v-Joseph Father

Process and register an Originating Application

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Thank you for coming

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Uniform Civil Procedure Rules Training Manual

Uniform Civil Procedure Rules

Training and Development Unit 2012

Uniform Civil Procedure Rules Training Manual | Courts Capability Development Unit | 1

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Edoc #1870135 Uniform Civil Procedure Rules Training Manual |Training and Development Unit | 2

TABLE OF CONTENTS

1 INTRODUCTION____________________________________________________ 11

2 CIVIL BASICS _____________________________________________________ 13

2.1. TERMINOLOGY 132.1.1. Abbreviations Used In This Manual 15

2.2. JURISDICTION OF COURTS 162.2.1. Monetary Jurisdiction 162.2.2. Locality Jurisdiction (where claims should be filed) (Rule 35) 162.2.3. Central Registries (Rule 33) 162.2.4. Time limits (Limitation of Actions Act 1974) 162.2.5. Statutory Limitations 172.2.6. Renewal of Claim 172.2.7. Magistrates Courts to be courts of record (MCA Section 14) 172.2.8. Filing records and inputting into CLAIMS 172.2.9. Statistical information - data integrity 182.2.10. Giving legal advice 182.2.11. Lost files 212.2.12. Police Clerks of the Court 22

2.3. FILING CIVIL DOCUMENTS IN THE MAGISTRATES COURT (GENERALLY) 222.3.1. Initial proceedings 222.3.2. Applications 222.3.3. Parties who can sign claims (Rule 19(1)) 232.3.4. Parties who can sign documents in a Minor Debt Claim (MDC) proceeding 232.3.5. Numbering claims and applications (Rule 964) 242.3.6. Documents cannot be filed at other courts 252.3.7. Filing claims when defendant is in another State or Territory 252.3.8. Ink colour when sealing, signing or writing on files or forms 252.3.9. Filing documents over the counter 25

2.4. REGISTRY PROCEDURE - FILING CLAIMS AND OTHER DOCUMENTS 262.4.1. Correct filing fees and calculations 272.4.2. Jurisdiction 272.4.3. Statement of Claim or Statement of Particulars of Claim - pleadings 272.4.4. Signed by correct party 272.4.5. Name and address of parties 272.4.6. Contact details and address for service (Rule 17) 272.4.7. Sufficient copies 282.4.8. Endorse date and/or receipt particulars on CLAIMS and documents filed 282.4.9. Initial all claims and documents that are filed 282.4.10. Claims and initiating applications must be numbered when filed 282.4.11. Sealing documents with Court Seal 282.4.12. Registrar must sign claims and other documents 282.4.13. Files inputted into CLAIMS Computer System 292.4.14. Create a civil file 292.4.15. CLAIMS Computer System 292.4.16. Service copies 292.4.17. File the civil file in general filing 292.4.18. Filing other documents 292.4.19. Affidavits and statements (Rule 430) 302.4.20. Application within a proceedings (Rule 31 and 32) 312.4.21. Registry procedure - Application within a proceeding not on notice 322.4.22. Registry procedure - Application within a proceeding on notice 332.4.23. Filing by lawyers and licensed agents 342.4.24. Filing by persons not represented by a lawyer or licensed agents 34

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2.5. REGISTRY PROCEDURE - FILING CLAIMS AND OTHER DOCUMENTS - CHECKLIST 35

2.6. PAYMENTS OF CLAIMS, MDCs AND MONEY ORDERS 35

3 STARTING PROCEEDINGS (ORIGINATING PROCESS) (Rule 8) ____________ 373.1.1. Originating Proceedings in a Magistrates Court 373.1.2. Originating Proceedings in the Supreme Court and District Court 373.1.3. Title on Forms 37

3.2. CLAIMS (Rule 22, 146) – REQUIREMENTS 373.2.1. Claim and attachment must be filed 383.2.2. Statement of claim 383.2.3. Statement of particulars of claim – Minor Debt Claim 383.2.4. Interstate service 39

3.2.4.1. Example - Claim [Form 2] 413.2.4.2. Example - Claim [2nd page] 423.2.4.3. Example - Statement of Claim [Form 16] 433.2.4.4. Example - Notice Under Rule 150(3) 443.2.4.5. Example - Minor Debt Claim [Form 3] 453.2.4.6. Example - Minor Debt Claim [2nd page] 46

3.3. DISTRICT WHERE CLAIMS ARE FILED (Rule 35) 47

3.4. MAGISTRATES COURTS DISTRICT (Rule 37) 47

4 DOCUMENT LAYOUT AND COPIES (Rule 961) __________________________ 48

4.1. APPROVED FORMS – TITLE (Rule 6) 484.1.1. Full title 494.1.2. Abbreviated title 494.1.3. Footer 49

4.2. ISSUE OF DOCUMENTS (Rule 978) 504.2.1. Registrar’s (or appropriate officer’s) Signature 504.2.2. Sealing Multiple-Page Documents 50

4.3. COPIES OF DOCUMENTS (Rules 662 AND 980) 50

4.4. SEARCH FILES OR DOCUMENTS (Rule 981) 514.4.1. Certificate of Search (Rule 981(4)) 51

4.5. SERIAL NUMBERING – CLAIMS, APPLICATIONS, NOTICES OF APPEAL (Rule 964) 53

4.6. LODGING AND FILING DOCUMENTS (Rule 967) 534.6.1. Documents filed personally 534.6.2. Documents filed by post or Document Exchange 53

4.7. AFFIDAVIT ABOUT A DEBT (Rules 430-441) 54

4.8. ENDORSE FILING DETAILS AND INITIALS ON DOCUMENTS FILED 54

4.9. COPY OF ORIGINATING PROCESS TO BE KEPT BY COURT (Rule 20) 54

4.10. CONTACT DETAILS AND ADDRESS FOR SERVICE (Rule 17) 544.10.1. Address for service if filed by plaintiff or applicant 554.10.2. Address for service if filed by a solicitor 55

4.11. CHANGE OF ADDRESS OF PARTIES AND CHANGE OF PARTIES 55

4.12. ORIGINATING PROCESSES MUST BE SIGNED (Rule 19) 554.12.1. Authority to act as an agent in a minor debt claim 55

4.13. NAMES AND ADDRESS OF PARTIES IN A MAGISTRATES COURT 554.13.1. Searching business names and companies 56

5 REGISTRAR TO KEEP RECORDS (Rule 977) ____________________________ 57

5.1. LOCATING FILES 57

5.2. COURT FILE (CLAIMS AND APPLICATIONS) 57

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5.3. FILE COVER SHEET 585.3.1. Cover sheet example 585.3.2. File index example 585.3.3. Producing the cover sheet and file index 585.3.4. Noting the file cover 59

5.4. INITIATING APPLICATIONS (Rule 25-30) 59

6 DELAY (Rule 389) __________________________________________________ 61

6.1. NOTICE TO PROCEED 61

7 AMENDMENT (Rule 375-388) _________________________________________ 62

7.1. POWER TO AMEND 627.1.1. Amendment after limitation period 627.1.2. Amendment of originating process (Rule 377) 627.1.3. Amendment before request for trial date (Rule 378) 627.1.4. Disallowance of amendment (Rule 379) 637.1.5. Amendment after request for trial date (Rule 380) 637.1.6. Failure to amend after order (Rule 381) 63

7.2. MISTAKES IN ORDERS OR CERTIFICATE OF THE COURT (Rule 388) 63

7.3. PROCEDURE FOR AMENDING (Rule 382) 63

7.4. REGISTRY PROCEDURE - AMENDING 647.4.1.1. Examples – Endorsements for amendments 65

7.5. CHANGE OF VENUE 66

8 SERVICE (Rules 100-133) ____________________________________________ 67

8.1. GENERAL PARTICULARS REGARDING SERVICE 678.1.1. Personal service in Magistrates Courts proceedings (Rule 111) 688.1.2. Ordinary service (Rule 112) 688.1.3. Relevant address (Rule 112(3)) 698.1.4. Other rules regarding service 698.1.5. Service on business names 698.1.6. Service interstate 708.1.7. Service outside Australia 708.1.8. Proof of service 70

8.2. AFFIDAVIT OF SERVICE (Rule 120) 718.2.1. Acceptable affidavits of service 718.2.2. Service by fax (Rule 122) 718.2.3. Other service – outside Queensland: outside Australia 72

8.3. REGISTRY PROCEDURE - AFFIDAVITS OF SERVICE FILED 728.3.1.1. Example - Affidavit of Service (describing document served) 728.3.1.2. Affidavit of Service [Form 46] 74

9 DEFENCE (Rules 134 – 144) – PROCEEDING STARTED BY CLAIM _________ 759.1.1. Objection to Court (Rule 39) 76

9.2. THE DEFENDANT MAY ACT BY THEIR SOLICITOR OR IN PERSON (Rule 136) 769.2.1. Time allowed for notice of intention to defend (Rule 137) 769.2.2. Late filing of notice of intention to defend (Rule 138) 779.2.3. Conditional notice of intention to defend (Rule 144) 779.2.4. Notice of intention to defend – business name (Rule 91) 779.2.5. Minor debt defence form 78

9.2.5.1. Example - Notice of Intention to Defend and Defence to a Minor Debt Claim [Form 4] 789.2.5.2. Conditional Notice of Intention to Defend [Form 7] 809.2.5.3. Notice of Intention to Defend [Form 6] 81

9.2.6. Defendants defence must be attached to notice of intention to defend 829.2.6.1. Defence [Form 17] 82

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9.2.7. Counterclaim to be attached if pleaded 839.2.7.1. Defence and Counterclaim [Form 18] 839.2.7.2. Defence and Counterclaim [2nd page] 84

9.3. REGISTRY PROCEDURE – DEFENCE GENERALLY 85

10 MINOR DEBT CLAIMS (Rules 513 - 522) ________________________________ 8710.1.1. Liquidated or unliquidated debt or demand 8710.1.2. Commencing and signing a MDC 8710.1.3. Authorisation of agent 8710.1.4. Filing other documents and appearances at MDC hearings 88

10.2. SIMPLIFIED PROCEDURES OUTLINES (Rule 514) 8810.2.1. Defending a minor debt claim (Rules 514(b), 521) 89

10.3. THE HEARING OF A MINOR DEBT CLAIM (Rules 514(1)(D) – 522) 8910.3.1. Appearance at hearing of minor debt claim (Rule 522) 8910.3.2. Failure of both parties to appear at hearing 9010.3.3. Failure of plaintiff to appear at hearing 9010.3.4. Failure of defendant to appear at hearing 90

10.4. SETTING (MINOR DEBT CLAIM) JUDGMENT ASIDE (RULE 522(5-6)) 90

10.5. SIMPLIFIED PROCEDURES MAY APPLY TO MINOR CLAIMS (Rule 514) 90

10.6. FORMS IN RELATION TO MINOR DEBT CLAIM 9010.6.1.1. Example - Notice of Hearing of a Minor Debt Claim 9210.6.1.2. Example - Notice of Hearing of MDC [2nd page - certificate of service] 93

10.7. REGISTRY PROCEDURE - MINOR DEBT CLAIMS 94

10.8. REGISTRY PROCEDURE - JUDGMENT SET ASIDE 9510.8.1.1. Affidavit Supporting Application to Set Aside Judgment [Form 46] 9610.8.1.2. Application to Set Aside Judgment [Form 9] 97

11 COUNTERCLAIMS (Rules 175 – 185) __________________________________ 98

11.1. COUNTERCLAIM AGAINST ADDITIONAL PARTY (Rule 178) 9811.1.1. Pleading and serving a counterclaim (Rule 179) 99

11.2. REGISTRY PROCEDURE - (DEFENCE AND) COUNTERCLAIM 9911.2.1. Registry procedure - Answer to counterclaim 99

12 THIRD PARTY PROCEDURES (Rules 191 – 208) ________________________ 10112.1.1. Content of Third Party Notice (Rule 193) 10112.1.2. Time for filing Third Party Notice (Rule 194) 10112.1.3. Application for leave to file Third Party Notice 10112.1.4. Serving Third Party Notice (Rule 195) 10112.1.5. Third Party’s Intention to Defend (Rule 197) 10212.1.6. Judgment against Third Party (Rule 201) 102

12.2. REGISTRY PROCEDURE – THIRD PARTY NOTICE 10212.2.1.1. Third Party Notice 103

13 DIRECTIONS CONFERENCE (Rule 523 – 526) __________________________ 105

13.1. CONFERENCE CONSTITUTED BY A MAGISTRATE OR REGISTRAR (Rule 524) 105

13.2. FAILURE TO ATTEND CONFERENCE (Rule 525) 106

13.3. REGISTRY PROCEDURE - DIRECTIONS CONFERENCE 10613.3.1.1. Affidavit of Service – Directions Conference Notice [Form 46] 10713.3.1.2. Notice of the Holding of a Directions Conference 10813.3.1.3. Memorandum of agreement following a directions conference 109

13.4. CONDUCTING A DIRECTIONS CONFERENCE 11013.4.1. Directions Conference 11013.4.2. Before the conference 110

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13.4.3. When the conference starts 11013.4.4. Commencing the conference 11113.4.5. Closing the conference 112

14 DEFAULT – CHAPTER 9 (COMMENCING AT RULE 280)__________________ 113

14.1. PROCEEDINGS DISMISSED FOR WANT OF PROSECUTION 113

14.2. JUDGMENT BY DEFAULT – LIQUIDATED DEBT OR DEMAND (Rule 283) 11314.2.1. Judgment by default – liquidated claim - forms 11414.2.2. Judgment by default – MDC and liquidated claim – Registrar’s order 114

14.3. INTEREST FOR A DEBT OR LIQUIDATED DEMAND (Rule 283(6-9)) 11514.3.1. Interest rates by Practice Direction 115

14.4. JUDGMENT BY DEFAULT – UNLIQUIDATED DAMAGES (Rule 284) 11614.4.1. Judgment by default given by registrar 11614.4.2. Judgment by default – unliquidated claim - Forms 117

14.5. INTEREST GENERALLY (Rule 159) 117

14.6. REGISTRY PROCEDURE - JUDGMENT BY DEFAULT GIVEN BY REGISTRAR 11714.6.1. Request for Default Judgment 119

14.6.1.1. Example - Request for Default Judgment [Form 25] 12014.6.1.2. Example - Affidavit in Support of Request for Default Judgment [Form 46] 12114.6.1.3. Example - Judgment by Default [Form 26] 12214.6.1.4. Example - Copy of Judgment by Default 12314.6.1.5. Example - Judgment Given by Magistrate [Form 58] 124

15 SUMMARY JUDGMENT_____________________________________________ 125

15.1. SUMMARY JUDGMENT FOR PLAINTIFF (Rule 292) 125

15.2. SUMMARY JUDGMENT FOR DEFENDANT (Rule 293) 126

15.3. CLAIMS NOT DISPOSED OF BY JUDGMENT (Rule 294) 126

15.4. SETTING ASIDE OR VARYING A SUMMARY JUDGMENT (Rule 302) 126

15.5. STAY OF ENFORCEMENT OF A SUMMARY JUDGMENT (Rule 300) 126

15.6. REGISTRY PROCEDURE - SUMMARY JUDGMENT 126

16 DISCONTINUANCE AND WITHDRAWAL (Rules 303 – 312) _______________ 128

16.1. DISCONTINUANCE BY PARTY REPRESENTING ANOTHER PERSON (Rule 303) 128

16.2. DISCONTINUANCE BY PLAINTIFF OR APPLICANT (Rule 304) 128

16.3. DISCONTINUANCE BY DEFENDANT OR RESPONDENT (Rule 305 – 306 & 308) 130

16.4. COST ON DISCONTINUANCE (Rule 307) 130

16.5. NOTICE OF DISCONTINUANCE OR WITHDRAWAL (Rule 309) 13016.5.1.1. Notice of Discontinuance [Form 27] 13116.5.1.2. Notice of Withdrawal of Notice of Intention to Defend [Form 28] 132

17 TRIALS AND OTHER HEARINGS (Rules 461 – 470)______________________ 133

17.1. TYPES OF HEARINGS 133

17.2. ORIGINATING APPLICATION 133

17.3. AFFIDAVITS [Form 46] 133

17.4. ESTIMATION OF TIME FOR HEARING 134

17.5. ADJOURNMENT (Rule 464) 134

17.6. REGISTRY PROCEDURE - ADJOURNMENT 13417.6.1.1. Notice of adjournment 136

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17.6.1.2. Example - Notice of Adjournment [2nd page - affidavit of service] 13717.6.2. Consent adjournment of originating application (Rule 30) 137

17.7. SETTING TRIAL DATES (Rule 466) 13717.7.1. Request for trial date (Rule 467 – 469) 13817.7.2. Alternative Dispute Resolution or Directions Conference 138

17.8. REGISTRY PROCEDURE - ALLOCATING TRIAL DATES 139

18 CONSENT ORDERS (Rule 666) ______________________________________ 140

18.1. Consent Orders that may be made by Registrar 140

18.2. Consent Orders that should be made by Magistrate 140

18.3. Registry Procedures – Consent Order of the Registrar 141

19 COSTS (Rules 678 – 743) ___________________________________________ 143

19.1. COSTS ASSESSMENTS – APPOINTMENT OF COSTS ASSESSOR – LEGAL PROFESSION ACT 2007 143

19.2. COSTS ASSESSMENTS – APPOINTMENT OF COSTS ASSESSORS – other than under the Legal Profession Act 2007 143

19.3. COSTS IN A PROCEEDING BEFORE A MAGISTRATES COURT (Rule 683) 14319.3.1. Powers of the registrar in assessing costs (Rule 714) 144

19.4. DISCRETION OF A COSTS ASSESSOR IN ASSESSING COSTS (Rule 721) 14419.4.1. Party to party costs (Rule 702) – standard basis of assessment 14419.4.2. Solicitor and client costs (Rule 703) – indemnity basis of assessment 144

19.4.2.1. Application for Costs Assessment [Form 60] 14619.4.2.2. Cost Statement [Form 60A] 14819.4.2.3. Notice of Objection [Form 61] 15119.4.2.4. Costs Assessor’s Certificate [Form 62] 15319.4.2.5. Application for Approval as a Costs Assessor 15419.4.2.6. Registrar’s Order for Costs 155

20 FEES AND COSTS_________________________________________________ 156

20.1. SERVICE AND EXECUTION FEES CLAIMABLE 156

21 APPEALS (Rules 782 – 792) _________________________________________ 157

21.1. NOTICE OF APPEAL (Rule 786) 15721.1.1. Notice of Appeal Subject to Leave (Rule 786(5)) 158

21.2. REGISTRY PROCEDURE - MAGISTRATES COURT APPEAL 158

22 ENFORCEMENT OF MONEY ORDERS (Rules 793 – 920) _________________ 159

22.1. DEFINITIONS (Rule 793) 15922.1.1. Enforcement period for money orders 15922.1.2. Stay of enforcement of money order (Rule 800) 160

22.2. WHERE TO ENFORCE MONEY ORDER (Rule 801) 16022.2.1. Orders of higher courts enforced in Magistrates Court (Rule 801) 16122.2.2. Orders of the Magistrates Court can be enforced in the higher courts 16122.2.3. Costs of enforcing money orders are awarded on amount of order 161

22.3. ENFORCING A MONEY ORDER IN A DIFFERENT COURT (Rule 802) 16122.3.1. Registry procedure – Enforce money order in another court (Rule 802) 161

22.4. ENFORCING A MONETARY ORDER OF A TRIBUNAL 162

22.5. Enforcing a Monetary Order of an Interstate Court 162

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23 ENFORCEMENT HEARING (Rules 803 – 816)___________________________ 163

23.1. RELEVANT QCSE POLICIES OR PROCEDURES 163

23.2. WHEN CAN AN ENFORCEMENT HEARING TAKE PLACE (Rule 804) 163

23.3. END OF TRIAL ENFORCEMENT HEARING (Rule 805 – 806) 163

23.4. REQUIREMENT FOR STATEMENT OF FINANCIAL POSITION (Rule 807) 164

23.5. ENFORCEMENT HEARING AFTER ORDER IS MADE (Rule 808) 164

23.6. LOCATION FOR ENFORCEMENT HEARING (Rule 809) 165

23.7. WHO CAN AN ENFORCEMENT HEARING SUMMONS BE DIRECTED TO (Rule 810) 166

23.8. CONDUCT MONEY (Rule 811) 166

23.9. SUBPOENA (Rule 812) 167

23.10. ENFORCEMENT HEARING (Rule 813) 168

23.11. ORDERS AT ENFORCEMENT HEARING (Rule 814) 168

23.12. FAILURE TO CO-OPERATE AT ENFORCEMENT HEARING (Rule 815) 168

23.13. ENFORCEMENT HEARING WARRANT (Rule 816) 16923.13.1. Enforcement Hearing Warrant sent to another court 169

23.14. ENFORCEMENT HEARING FORMS 17023.14.1.1. Example - Application for Enforcement Hearing [Form 9] 17023.14.1.2. Example - Affidavit in Support of Application for Enforcement Hearing [Form 46] 17223.14.1.3. Example - Enforcement Hearing Summons [Form 70] 173

23.15. REGISTRY PROCEDURE - ENFORCEMENT HEARING 174

24 ENFORCEMENT WARRANTS GENERALLY (Rules 817 – 827 _____________ 176

24.1. APPLICATION TO SET ASIDE ENFORCEMENT – RULE 819 17624.1.1. Issue and enforcement of enforcement warrant (Rule 820) 17624.1.2. Renewal of enforcement warrant (Rule 821) 177

24.2. REGISTRY PROCEDURE - ENFORCEMENT WARRANTS GENERALLY 178

24.3. REGISTRY PROCEDURE - RENEWAL OF ENFORCMENT WARRANT 17924.3.1.1. Order for Renewal of Warrant [Form 59] 180

24.4. RETURN OF ENFORCEMENT WARRANT (Rule 822 AND 889) 180

24.5. PRIORITY OF ENFORCEMENT WARRANTS (Rule 823) 18124.5.1. Only one enforcement warrant allowed for each Money Order 181

24.6. KEEPING TRACK OF WARRANTS AND RULE 889 181

24.7. REGISTRY PROCEDURE - APPLICATION TO SET ASIDE ENFORCEMENT (Rule 819) 181

24.8. ENFORCEMENT THROUGHOUT QUEENSLAND (Rule 824) 18224.8.1. Enforcement of Money Order in another State or Territory 18324.8.2. Certified Copy of Judgment 183

24.9. CONCURRENT ENFORCEMENT WARRANTS – MAGISTRATES COURT (Rule 825) 183

24.10. ENFORCEMENT BEYOND THE DISTRICT (Rule 826) – EWSSP ONLY 184

24.11. REGISTRY PROCEDURE - ENFORCEMENT OF WARRANT BEYOND THE DISTRICT 184

24.12. DECEASED ENFORCEMENT DEBTOR (Rule 818) 185

24.13. CROSS ORDERS (Rule 827) 185

24.14. WHAT HAPPENS IF A THIRD PARTY IGNORES A WARRANT 186

25 ENFORCEMENT WARRANTS________________________________________ 187

25.1. ENFORCEMENT WARRANT – SEIZURE AND SALE OF PROPERTY (Rules 828 – 838) 187

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25.1.1. Registry procedures - Warrant for seizure and sale of property 18725.1.2. Enforcement Officers Reports 18925.1.3. Warrant enforced over real property (land) (Bailiffs auction) 19025.1.4. What fees and expenses can the bailiff claim - poundage 19125.1.5. Registry procedure - EWSSP to and from another court 192

25.1.5.1. Example - Application for EWSSP [Form 9] 19325.1.5.2. Example – Statement Supporting Application for EWSSP [Form 74] 19425.1.5.3. Example - Enforcement Warrant – Seizure and Sale of Property [Form 75] 19625.1.5.4. Example - Enforcement Warrant – Seizure and Sale of Property [back] 197

25.1.6. Exempt property under the EWSSP warrant (Rule 828) 197

25.2. ENFORCEMENT WARRANT FOR REDIRECTION OR DEBTS (Rules 839 – 854) 19825.2.1. Enforcement warrant for redirection of debts – enforce beyond district 19925.2.2. Registry procedure - Enforcement warrant for redirection of debts 20025.2.3. Registry procedure - Enforcement warrant for redirection of debts 201

25.2.3.1. Example - Application for EWRD [Form 9] 20225.2.3.2. Example - Statement Supporting Application for EWRD [Form 74] 20325.2.3.3. Example - Enforcement Warrant – Redirection of Debt [Form 76] 20425.2.3.4. Example - Enforcement Warrant - Redirection of Debt [back] 205

25.3. ENFORCEMENT WARRANT FOR REGULAR REDIRECTION (Rules 847 – 854) 20625.3.1. Enforcement warrant for regular redirection – enforce beyond district 20625.3.2. Registry procedure - Enforcement warrant for regular redirection 206

25.3.2.1. Example - Application for EWRR [Form 9] 20925.3.2.2. Example - Statement Supporting Application for EWRR [Form 74] 21025.3.2.3. Example - Enforcement Warrant - Regular Redirection [Form 77] 21225.3.2.4. Example - Enforcement Warrant - Regular Redirection [back] 213

25.4. ENFORCEMENT WARRANT FOR REDIRECTION OF EARNINGS (Rules 855 – 867) 21425.4.1. Enforcement warrant for redirection of earnings – enforce beyond district 21425.4.2. Registry procedure - Enforcement warrant for redirection of earnings 21525.4.3. How to calculate the amount to be deducted from wages 21525.4.4. What happens if the EDE does not pay 21625.4.5. What forms are served with the EWRE 216

25.4.5.1. Example - Enforcement Warrant - Redirection of Earnings [Form 78] 21725.4.5.2. Example - Enforcement Warrant - Redirection of Earnings [back] 21825.4.5.3. Example - Notice to Employer [Form 79] 21925.4.5.4. Example - Application for EWRE [Form 9] 22125.4.5.5. Example - Statement Supporting Application for EWRE [Form 74] 22225.4.5.6. Notice that Debtor not Employee [Form 80] 22325.4.5.7. Notice of Cessation of Employment [Form 81] 224

25.4.6. Ordering an Enforcement hearing and/or earnings statement (Rule 857) 22425.4.6.1. Order for Earnings Statement [Form 59] 22625.4.6.2. Earnings Statement form 227

25.5. ORDER FOR PAYMENT OF ORDER DEBT BY INSTALMENTS (Rule 868 – 873) 22825.5.1. Instalment orders – Enforce beyond district 22825.5.2. Registry procedure - Instalment orders – applications not on notice 22925.5.3. Registry procedure - Instalment orders – applications on notice 230

25.5.3.1. Example - Application for OAPI [Form 9] 23125.5.3.2. Example - Statement Supporting Application for OAPI [Form 74] 23225.5.3.3. Example - Statement of Financial Position [Form 71] 23325.5.3.4. Example - Order Authorising Payment by Instalments [Form 82] 234

25.6. ISSUING MORE THAN ONE TYPE OF WARRANT 235

26 MONEYS IN COURT (Rules 881 – 882) ________________________________ 236

26.1. SUITORS FUND 23626.1.1. Registrars Ledger 236

26.1.1.1. Example - Registrars Ledger* 23726.1.2. Paying money out of the Suitors Fund Account 23726.1.3. Six monthly return – court suitors fund 237

26.1.3.1. Example - Six Monthly Return – Court Suitors Fund* 23826.1.4. How to calculate interest – court suitors fund – general rules 238

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27 SERVICE AND ENFORCEMENT FEES_________________________________ 239

27.1. CALCULATING SERVICE AND ENFORCEMENT FEES 23927.1.1. Examples to calculate service fees 23927.1.2. Additional examples to calculate service fees 24027.1.3. Examples to calculate enforcement and execution fees 240

27.2. RECORDING OF ENFORCEMENT FEES AND NOTING BAILIFF CORRESPONDENCE 241

27.3. DOCUMENTS AND CORRESPONDENCE RECEIVED ON BEHALF OF THE BAILIFF 24127.3.1. Bailiffs Correspondence Register (BCR) 241

27.4. INQUIRIES REGARDING SERVICE AND ENFORCEMENT AND EXECUTION 242

27.5. LIST OF BAILIFFS NAMES, ADDRESS AND CONTACT DETAILS FOR SERVICE 242

28 BAILIFFS PROCESS BOOK (BPB)____________________________________ 243

28.1. NOTING THE BAILIFFS PROCESS BOOK 243

28.2. NOTING THE BPB WHEN WARRANT RETURNED BY EO 244

28.3. ADDITIONAL TRAVEL FEES 244

28.4. USING THE BPB 244

28.5. CHECKING COLLECTIONS IN THE QWIC BAILIFFS POOL AGAINST ENTRIES 24428.5.1. Transferring a warrant to another court 24528.5.2. QWIC bailiff pool transfers from one court to another court 24528.5.3. Receiving a warrant transferred from another registrar 245

28.6. BALANCING THE BPB AGAINST THE BAILIFFS POOL 24628.6.1. Paying the bailiff 24628.6.2. Carrying the balances of the BPB into the next month 247

28.7. SUMMARY - BALANCING THE BPB AGAINST COLLECTIONS IN THE BAILIFFS POOL 247

28.8. CERTIFICATION OF MONTHLY BALANCE 24828.8.1. Certification of monthly balance for multiple bailiffs 248

28.9. TRANSFERRING ENTRIES AT THE END OF THE CALENDAR YEAR 249

28.10. BALANCING HINTS 249

29 EMPLOYMENT CLAIMS ____________________________________________ 25029.1.1.1. Employment Claim [Form 2A] 25229.1.1.2. Notice of Intention to Defend an Employment Claim [Form 6A] 25429.1.1.3. Conciliation Certificate [Form 36A] 256

Version Control Version Date Author Notes7.04 08/03/2012 Malcolm Ace Initial Creation

eDOC 1870135 5/11/2012 PR Approved


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1 INTRODUCTION

Welcome to the Uniform Civil Procedure Rules (UCPR). These rules commenced on 1/7/99 and were introduced to bring uniform procedures in all civil courts jurisdictions in Queensland. The rules do not affect the procedures or processes of the Queensland Civil and Administrative Tribunal (QCAT), except where the QCAT Act and Rules refer to the provisions of the UCPR.

Rule 5 sums up the philosophy and overriding obligations of parties and the court. Have a look at this rule. Basically it means that all parties to any proceedings and the court have to do all things necessary for a quick, easy and inexpensive determination or completion.

This Manual has been developed to bring uniformity of procedures throughout all Magistrates Courts in Queensland and is published by authority of the Executive Director, Magistrates Courts Branch, who is the Principal Clerk of Courts (PCOC) for the whole of Queensland. It is designed to assist staff assigned to perform duties of a Civil Clerk in the civil jurisdiction of a Magistrates Court. This manual is to be read in conjunction with relevant Acts, the Uniform Civil Procedures Rules 1999, the Manual of Civil Registry Procedures and Circular Memoranda issued by the Procedures Officer (Capability & Development Unit).

Procedures detailed in this Manual accord with current practice as provided for in relevant legislation, Rules and departmental circulars. These procedures are being used in the majority of Magistrates Courts in Queensland. The Civil Registry of the Brisbane Magistrates Court has been used as the benchmark, with relevant modification for registries outside Brisbane.

Civil Clerks are responsible for the processing of documentation in relation to civil debts. The Civil Clerk's job is to ensure documentation is lodged correctly, processed promptly and to maintain the records of the court.

The person performing civil duties must work consistently, diligently and accurately in all areas of work associated with civil duties. The Civil Clerk must be systematic and methodical in their approach to this work.

This manual will not be the final solution to every situation that will be encountered from day to day, however, when the basics are known, more complicated procedures will be easier to follow.You are therefore encouraged to read the current legislation associated with 'civil' work.

On the 1st of December 2009 a fundamental shift occurred in the Magistrates Courts Civil jurisdiction, with the commencing of operations of the Queensland Civil and Administrative Tribunal (QCAT). QCAT brought together under one banner a number of Tribunals and jurisdictions, one of which was Minor Debt Claims issued by Magistrates Courts under the provisions of the UCPR.

There are transitional provisions in place that affect Minor Debt Claims filed prior to the 1st

December 2009, depending on what action is taken in the proceeding. These provisions are described in the appropriate section of this manual.

Any procedures and processes in this manual that are stated as applying to Minor Debt Claims should be taken as only applying to Minor Debt Claims that are still in the Magistrates Court, unless the text specifically says otherwise. Any Minor Debt Claim that has been transferred to QCAT is subject to QCAT’s own processes and procedures, which are not covered in this manual.

Outside of the Brisbane CBD, all Magistrates Courts Registries are also QCAT Registries.

The development of this manual is an ongoing process and your valued comments on its contents for inclusion in future editions or updates can be forwarded to:

Courts Capability Development Unit, Magistrates Courts Branch, 8th Floor, GPO Box 1649, Brisbane Q 4001

Uniform Civil Procedure Rules Training Manual | Courts Capability Development Unit | 11

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Phone (07) 3239 0008 Fax (07) 3239 3038 Fax (07) 3239 3038 Phone (07) 3239 0008

Email Paul Ramage ([email protected]) Email Paul Ramage ([email protected]) It is acknowledged that minor differences exist in various Registries. Whilst not encouraged, the manual may be modified by the Registrar. If the manual is modified you must forward a copy of the modification to the CCDU. The current unmodified manual will be available on JAGNET.

It is acknowledged that minor differences exist in various Registries. Whilst not encouraged, the manual may be modified by the Registrar. If the manual is modified you must forward a copy of the modification to the CCDU. The current unmodified manual will be available on JAGNET. As amendments to the manual are notified to you, make the amendments and note that it has been done in the amendment section in the back of this manual.As amendments to the manual are notified to you, make the amendments and note that it has been done in the amendment section in the back of this manual.

Note: The manual contains examples of completed forms using colours. When viewed on screen, red is used to indicate what the Plaintiff or Defendant should complete and blue is used to indicate what the registry completes and where to place stamps.


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2 CIVIL BASICS

2.1. TERMINOLOGY

New term Meaning Old term Affidavit Sworn document Affidavit

Application

Proceedings may be commenced by an application in the approved form. An application may be made within a proceeding in the approved form (e.g. application for an enforcement warrant.

Similar meaning

Approved form Forms approved by the Rules Committee for use in accordance with the Uniform Civil Rules – includes substantial compliance with the approved form

Similar meaning

ClaimAn approved form to commence an action. Most actions are commenced by claim in the Magistrates Court

PlaintWrit

Date of Hearing The date of hearing or date of trial of a claim or application Same

Date of Mention No hearing will take place but submissions may be made for a determination or a date of Hearing will be set

Same

Defendant Person against whom an action has been commenced Defendant

DirectionsConference

A conference involving the parties to a proceeding before the magistrate or registrar to try to resolve the action or narrow the issues

Pre-TrialConference

Document Any document filed – it can also refer to a claim, application, affidavit or other written material Similar meaning

EnforcementCreditor

The person who has judgment in their favour and is enforcing that judgment

JudgmentCreditor

Enforcement Debtor The person who has a judgment against them and the enforcement creditor is enforcing that judgment

JudgmentDebtor

EnforcementHearing

An examination of an enforcement debtor to determine their personal and financial affairs

OralExamination

Enforcement Officer A person appointed by the court to serve documents and execute enforcement actions Bailiff

EnforcementWarrant for redirection of debts

A document authorising payment to an enforcement creditor for a debt owed by a third party to the enforcement debtor

GarnisheeSummons (not earnings)

EnforcementWarrant for redirection of earnings

A document authorising payment to an enforcement creditor for earnings owed by a third party to the enforcement debtor

GarnisheeSummons – wages/salary

EnforcementWarrant for seizure and sale of property

A document authorising an enforcement officer to seize and sell real and personal property belonging to an enforcement debtor

Warrant of Execution

EnforcementWarrant

General term for various warrants enforced by an enforcement officer for money owing under a money order

Warrant of Execution or GarnisheeSummons

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New term Meaning Old term

Minor Civil Dispute – Minor Debt

An application to QCAT to resolve a debt dispute involving disagreements about a fixed or agreed sum of money up to $25,000.

Minor Debt Claim

Minor Debt Claim

A claim endorsed as a minor debt claim for claims up to $7,500. Minor Debt Claims ceased as from 1st

December 2009, however Courts will still have MDC proceedings begun before that date.

Plaint and Action for a Small Debt

Money Order An order by the court or registrar for the payment of money including an amount of claim, costs and interest Judgment

Notice of Intention to Defend

An approved form notifying the plaintiff and court that the defendant is defending the claim

Entry of Appearanceand Defence

Order Authorising Payment by Instalments

A document directing an enforcement debtor to pay a debt by instalments

InstalmentOrder

Originating process A document, including a claim or application, that commences an action

Plaint, Writ, Application

Plaintiff The person who takes out an action against a defendant Plaintiff

Proceeding A legal action or application before a Court. Proceeding

Summary Judgment An application to the court to grant judgment on a claim after a notice of intention to defend has been filed

JudgmentSummons

For further definitions, please consult the online Civil Glossary, which can be found at: http://www.evolve.justice.webcentral.com.au/JAGPresenter/CivilGlossary/engage.html

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2.1.1. Abbreviations Used In This Manual

Abbreviation MeaningBCR Bailiffs Correspondence Register BPB Bailiffs Process Book CFF Central Finance Facility – deals with finance in relation to monies in QWIC

Cwth Commonwealth, usually used to indicate particular legislation is a Commonwealth act or regulation

D/C District CourtDRB Dispute Resolution Branch – mediation – phone 3239 6269 or 1800 017 288 EC Enforcement CreditorED Enforcement DebtorEDE Enforcement Debtors Employer EHS Enforcement Hearing Summons EMO Enforceable Money Order EO Bailiff; Enforcement Officer EOPB Enforcement Officers Process Book; Bailiffs Process Book EW Enforcement WarrantEWRD Enforcement Warrant – Redirection of Debt EWRE Enforcement Warrant – Redirection of Earnings EWRR Enforcement Warrant - Regular Redirection EWSSP Enforcement Warrant – Seizure and Sale of Property FI Financial InstitutionM/C Magistrates CourtMCA Magistrates Courts Act 1921 (as amended) MCD Minor Civil Dispute MDC Minor Debt Claim MO Money Order (i.e. the judgment) OAPI Order Authorising Payment by Instalments OR Original Registrar (Registrar of court that issued something) QCAT Queensland Civil and Administrative Tribunal QCSE Queensland Courts Service Executive RR Receiving Registrar (Registrar that received something from the OR) RTA Residential Tenancies Authority S/C Supreme CourtSCT Small Claims Tribunal SL Subordinate LegislationTP Third PersonUCPR Uniform Civil Procedure Rules 1999

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2.2. JURISDICTION OF COURTS The civil jurisdiction of a Magistrates Court is the type of claims that may be determined in the Magistrates Court. Jurisdiction includes considerations of:

Monetary limits of claims that may be made; and Where the claim may be lodged; and The types of claims; and Time limits in making the claim.

2.2.1. Monetary Jurisdiction

The monetary jurisdiction of a Magistrates Court is an amount of not more than $150,000: i.e. a claim of $150,000 or less, unless the parties agree in writing to the contrary.

The jurisdiction of a Magistrates Court is defined under Sect. 4 of the Magistrates Courts Act 1921.The monetary jurisdictions of the various courts are:

Supreme court UnlimitedDistrict court Maximum $750,000 Magistrates court Maximum $150,000

2.2.2. Locality Jurisdiction (where claims should be filed) (Rule 35)

Simply, the proceeding for a claim may be commenced (i.e. may only be properly filed) at the nearest Magistrates Court in the district where:

1. The defendant (or one more defendants) reside or carries on business; or 2. The claim or cause of action, either wholly or in some material point, arose; or 3. The defendant, in writing, said the debt would be paid (i.e. by contract or agreement) 4. The court where the parties consent in writing.

A proceeding may also be started in any Central Registry (@2.2.3)

Queensland is divided into various Magistrates Courts Districts with other Court Registries within the District, in accordance with Sect 10 (Schedule 1) of the Justices Regulation 1993.

2.2.3. Central Registries (Rule 33)

Regardless of the rules on Locality Jurisdiction [@2.2.2], a proceeding for a claim may be started in any Central Registry of the court.

Central Registry for a Magistrates Court is the registry of a Magistrates Court in the central division of the Brisbane District, or at Rockhampton, Townsville or Cairns (UCPR Schedule 4 –Dictionary).

2.2.4. Time limits (Limitation of Actions Act 1974)

In accordance with the Limitation of Actions Act 1974 an action must be commenced within a certain time. The basic time is 6 years (Section 10) or 3 years for personal injury (Section 11).

Very simply, this means that if this time has lapsed since the grounds for the action arose, the plaintiff cannot properly issue proceedings against the defendant.

As court staff we are obliged to accept actions even though the time has lapsed. We may, however, point out to the plaintiff that the time limit has expired and let the plaintiff decide what to do - the onus is on the defendant to defend the action - if undefended, the plaintiff may not be given Judgment.

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Note: A judgment may only be enforced within 12 years from the date of judgment S.10 (4)).

2.2.5. Statutory Limitations2.2.5. Statutory Limitations

A claim cannot be issued for certain causes of action as detailed in the MCA Sect. 7.

This means that if the statement of particulars of claim outlines a cause of action for title of land or interpretations of a will, then it must be heard in a higher court (District Court or Supreme Court depending on the particular cause of action) - it cannot be determined in a Magistrates Court. The Magistrates Court can only give a monetary judgment. It cannot make any order that involves the question of Title to Land, or involve the court ordering a person to do a specific thing such as give back particular goods.

2.2.6. Renewal of Claim

There is also a statutory limitation on how long a claim lasts. A Claim is 'alive' for 12 months from the date of filing. If it has not been served within 12 months, and the plaintiff still requires it to be served, application must be made to renew. A claim can only be renewed four (4) times by the registrar. If an application is made to renew it more than four (4) times a Magistrate must deal with it. (UCPR Rule 24(4))

When a claim is renewed, an endorsement similar to the following must be placed on the original and all service copies, and signed, dated and sealed:

This claim is renewed as at [date] for a period of 1 year or [x] months.

An endorsement similar to the following must then be made on the file coversheet and signed and dated:

Renewed for a period of: (X months or 1 year)

2.2.7. Magistrates Courts to be courts of record (MCA Section 14)

Each Magistrates Court is a court of record. A court of record, basically, has the power to fine and/or imprison (i.e. for contempt of court) and is required to keep written records of its processes and proceedings.

For the purposes of the Magistrates Court Act, the rules require that documents are filed and records kept.

The records of a Magistrates Court (civil jurisdiction) are the filed claims (and previous Plaints) and all the correspondence, documents and forms attached to those files.

The records also include other processes which have been filed from other courts and jurisdictions. This might include judgments from interstate courts and judgment of tribunals in Queensland such as the Anti-Discrimination Tribunal or the Queensland Civil and Administrative Tribunal. In Courts with the CLAIMS computer application (Civil Listing and Information Management System), the records also include the information stored on that system.

It is therefore crucial that court records be kept up to date and filed in a neat and tidy condition and in a secure place.

2.2.8. Filing records and inputting into CLAIMS

Filing of all records and inputting onto the CLAIMS computer system properly is very important.The file is entered into CLAIMS using the names of the plaintiff and defendant.


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Although considered boring, filing is one of the more important tasks in a registry. If the filing is not done consistently and accurately, relevant files cannot be located easily and quickly.

Documents must also be filed on the correct file. A file which does not contain all relevant documentation may have other processes improperly filed (e.g. judgment given after a defence has been filed).

Records also include the manual records used prior to CLAIMS. It is vital that this register, or computer record, is completed properly. The Claims Register is a photocopy of the first page of the original claim (and other processes), filed in numerical order. As action is taken on a file, the Record of Proceedings (i.e. the back of the relevant page in the Claims Register) is appropriately endorsed.

When processing documents filed or filing it is very important to be diligent, 100% accurate, consistent and always up to date, so that the court can properly determine the issues in dispute between the parties.

2.2.9. Statistical information - data integrity

Statistical information is derived from CLAIMS at the end of each month. It is vital that data entry of all documents filed, matters listed before the court and outcomes of the matters are inputted correctly. These statistics are used to determine (amongst other things) staffing levels so it the information isn’t entirely accurate the Department will not get a true reflection of the workload of your registry.

2.2.10. Giving legal advice

The Registrar or Court Staff cannot give legal advice to any party or representative of a party in any circumstances. Breach of this process can result in legal action against the court staff member as it is against the law.

The only advice that may be given is procedural. If Court Staff have any confusion regarding the difference between legal advice and procedural advice, they must discuss it with their Registrar. If the Registrar has any confusion of the difference, they should discuss it with their Regional Manager (RM) or Magistrate.

Very simply, giving legal advice involves making a decision about what course of action to take for a party to a court action. By contrast, giving procedural advice means explaining all the options open to a party and leaving the decision to that party. If in doubt do not do it. As the difference between procedural versus legal advice may be difficult to ascertain, it may be better to simply advise the person that you cannot give legal advice and then advise them to see a Solicitor.

The sort of procedural advice that may be given is to explain the various jurisdictions and let the person decide. If they cannot decide, then refer them to a Solicitor. The following table outlines the various civil jurisdictions and steps which may be explained:

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Claim(MagistratesCourt)

A claim may be filed and issued for any sort of civil action (asking for money judgment (excluding land title, estate, and equitable orders such as injunctions in the Magistrates Court up to a maximum of $150,000 [@ 2.2 – 0].

Defended by Notice of Intention to Defend and Defence; Objection to court [@ 8.0.1] must be included in the Notice of Intention to

Defend Conditional Notice of Intention to Defend – for objection to jurisdiction or

irregularity (14 days for defendant to file application to set aside process); Counterclaim; Numerous steps before Trial (discovery) – Directions Conference – Request

for Trial Date; May be expensive as certain steps must be taken – better to see a Solicitor. Only a money order may be given – suggest mediation before filing – advise

to see solicitor. Minor Civil Dispute - Minor Debt (QCAT)

A Minor Civil Dispute – Minor Debt may be filed in QCAT and issued for a debt or liquidated demand up to a maximum of $25,000 [@ 10.1.1] – No counterclaim allowed – suggest mediation before filing application to QCAT. Disputed by Response to Minor Civil Dispute – Minor Debt and set for hearing immediately – no Solicitors at hearing – absent party at hearing may apply for review. Only a monetary Order may be given – Appeal to QCAT Central Registry

Minor Civil Dispute – ResidentialTenancyDispute(QCAT)

A Minor Civil Dispute – Residential Tenancy Dispute is filed in QCAT for disputes about residential tenancies or boarding accommodations (unpaid rent, warrant of possession, damages) up to a maximum of $25,000 – mediation via the Residential Tenancies Authority (RTA) is required before lodgement if the matter is non-urgent.

Hearing set when claim filed. Absent party at the hearing may apply for review.No Solicitors at hearing. Appeal to QCAT Central Registry. A monetary order of QCAT is enforced by filing a certified copy of the decision in the Magistrates Court where it becomes a judgment of the court and can be enforced as a money order of the Magistrates Court.

The decision can include payment of money and/or a variety of non-monetary orders for things to be done or not done.

Minor Civil Dispute – ConsumerDispute(QCAT)

A Minor Civil Dispute – Consumer Dispute is filed in QCAT for the following types of actions up to a maximum of $25,000 - – suggest mediation before filing application to QCAT:

Consumer –v- Trader Trader –v- Trader Property damage by motor vehicle Dividing Fences (for an Order to Fence – before the fence is constructed)

Hearing set when claim filed. Absent party at the hearing may apply for review.No Solicitors at hearing. Appeal to QCAT Central Registry. A monetary order of QCAT is enforced by filing a certified copy of the decision in the Magistrates Court where it becomes a judgment of the court and can be enforced as a money order of the Magistrates Court.

The decision can include payment of money and/or a variety of non-monetary orders for things to be done or not done.

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General information may be given on how the proceeding is served and what happens if it is defended or what they have to do to get judgment by default and enforce the judgment (simply explain the procedure). Always remind the person that there is no guarantee that they will collect their money or successfully defend it. The person making the inquiry should always be referred to a Solicitor, particularly if the initiating proceeding is a claim. You can always suggest that mediation may be successful – if they want to – complete an DRB referral form or advise them to contact the nearest DRB office or phone DRB Brisbane on 3239 6269 (1800 017 288 outside Brisbane for nearest DRB office).


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2.2.11. Lost files

Lost files are always a problem. Filing is a very important responsibility of all staff. It is important that files are not left on desks, cupboards etc for any length of time.

A file should be located in general filing, correct court hearing dates, or with the civil clerk.

If a file is taken or retained by any other person for any length of time, the civil clerk should be advised and a note as to its current location left in general filing corresponding to where the file would normally be filed. It is a good idea to input a “note” on CLAIMS as to the location of a file, if it will be out of filing for any length of time and note the reason why they have it (e.g. file located in Magistrates………Chambers for reserved decision). When the file is returned, remember to delete the note.

When locating a file you should look in general filing where they are filed in numerical and year order.

If the file is not where it should be, there are some basic steps to follow in locating it:

1. Check CLAIMS computer system if applicable for hearing dates as the file should be in a folder etc. relevant to that hearing day.

2. If it is set for hearing the file could be misfiled in another hearing day’s folder – check the relevant folder for other hearing dates – check the criminal folders as well.

3. The file may be with the Magistrate or Deps Clerk – ask them if they have it.

4. Check the same file number in different years (e.g. the year before or after).

5. Check for transposed numbers (e.g. File number 1713 filed in 1731) and a combination of transposed numbers (i.e. also at 1371).

6. Check for numbers that may look similar (e.g., for above, 1913 or 1918 etc).

7. Check files above and below it as the file may be stuck to another one.

8. Ask other staff if they have the file or if they’ve seen it.

When you cannot locate a file, make up a 'dummy' file until the original civil file is found. The registrar must be advised that the file is lost.

If all alternatives fail to locate the file you can reconstruct it from the document history in CLAIMS. A 'dummy (reconstructed) file' is produced as a last resort. Copies should be requested from the parties or their legal representatives, explaining that the file has been temporarily mislaid. Copies of documents forwarded to you can be checked against entries in CLAIMS.

Make certain that each page of the reconstructed file (i.e. the Cover Sheet, File Index Sheet, and documents received from other parties) is clearly marked 'duplicate'. Make all staff aware of the lost file and instruct them to keep a lookout for it.

When the file is found check it with the duplicate file and place any additional documents on the original file, in order of receipt, then destroy whatever is left of the duplicate file.

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2.2.12. Police Clerks of the Court2.2.12. Police Clerks of the Court

A Police Clerk of the Court (Registrar) has very limited jurisdiction in accordance with the Uniform Civil Procedure Rules 1999, as most functions of the Registrar of a Magistrates Court are now judicial.


A Police Clerk of the Court may:

File an initiating proceeding Amend a claim or pleading in accordance with the rules Set an application for determination by the Magistrate Set hearings down for the Magistrate in accordance

with the Magistrates instructions Sign Orders after determination by the Magistrate

A Police Clerk of the Court cannot:

Give judgment Issue an enforcement

hearing Issue an enforcement

warrant

2.3. FILING CIVIL DOCUMENTS IN THE MAGISTRATES COURT (GENERALLY) All steps must be taken by a relevant party completing and signing the appropriate approved forms. When a document is filed, it means that:

It is correct; and

If an initiating process, it can be:

Numbered; and Civil File created; and

If applicable fees may be receipted; and

Receipt and/or date of filing noted on document; and

Sealed with the seal of the court; and

If applicable, signed by the Registrar; and

Signed and sealed copies returned to the party filing it; and

Signed and sealed copies placed on the Civil File; and

File cover sheet and/or Index Sheet noted; and

Entered into CLAIMS system; and

Filed in general filing or in particular court hearing date pigeonhole.

2.3.1. Initial proceedings

Initiating proceedings are commenced mainly by a claim (note that an originating application (Rules 25 – 30) can be filed in accordance with the Credit Act). All claims (and originating applications) must be typed.

2.3.2. Applications

There are four (4) types of applications:

1. A written application initiating proceedings (Rule 25). 2. A written application within a proceeding not on notice (Rule 31 & 50). 3. A written application within a proceeding on notice (Rule 31 & 50). 4. An oral application within a proceeding (Rule 32).

Initiating proceedings commenced by an application [@ 5.4] are a minority (though a significant one) in the Magistrates Court.

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Written applications however, can be made to the magistrate or registrar, for steps taken on a claim (Rule 32 and Rule 50). Written applications however, can be made to the magistrate or registrar, for steps taken on a claim (Rule 32 and Rule 50). If all the parties to any application consent to an adjournment of the determination of the application, they can apply for the adjournment in writing without formal appearances before the Magistrate (Rule 32(6)). The adjournment will be granted by the court and the civil file cover sheet noted and signed by the Magistrate.

If all the parties to any application consent to an adjournment of the determination of the application, they can apply for the adjournment in writing without formal appearances before the Magistrate (Rule 32(6)). The adjournment will be granted by the court and the civil file cover sheet noted and signed by the Magistrate. The Registrar will then issue an adjournment notice, if not supplied by the parties, in the terms of the Magistrates order and post it to the parties (and complete an affidavit of posting endorsed on the back of the file copy of the adjournment notice).

The Registrar will then issue an adjournment notice, if not supplied by the parties, in the terms of the Magistrates order and post it to the parties (and complete an affidavit of posting endorsed on the back of the file copy of the adjournment notice).

2.3.3. Parties who can sign claims (Rule 19(1))2.3.3. Parties who can sign claims (Rule 19(1))

A Claim can only be signed by:

The plaintiff; or The plaintiff’s solicitor

The plaintiff or applicant or their solicitor must sign the originating process. An agent cannot sign a claim.

When a solicitor signs an initiating proceeding, it should be signed in the name of the solicitors firm (e.g. Smith Lawyers) with the actual name of the solicitor representing the plaintiff endorsed on the claim in the appropriate position (e.g. Jason Smith).

An initiating proceeding cannot be signed by a solicitor who is an employee of an agent or the plaintiff (unless the plaintiff is a firm of solicitors). The solicitor signing the claim must be the person’s solicitor (Rule 19(1) (a) or the party’s solicitor (Rule 985(1)).

Every act required or permitted to be done by a party in the conduct of a proceeding in a court may be done by the party's solicitor EXCEPT a document that must be signed by a party (e.g. affidavit; answers to interrogatories) (Rule 985).

The use of signature stamps, scanned signatures or other technological means of reproducing a signature are acceptable.

CAG Recommendations: Solicitors that act as Town Agent on instructions of a principal must file a Notice of Appointment of Solicitor - Form 91 or Notice of Change of Solicitor - Form 93.

2.3.4. Parties who can sign documents in a Minor Debt Claim (MDC) proceeding

Documents lodged in a Minor Debt Claim may be signed by:

The party on whose behalf they’re being lodged; or That party’s solicitor (in the same manner as a claim); or The agent of that party.

If a document in an MDC proceeding is signed by an agent, and there is no previous authorisation in writing on the Court file that the agent is acting for a party, the Registrar may require that such an authorisation be filed. An agent means a licensed commercial agent, not a private individual.

There is no approved form authorising an agent. The authorisation should be written or typed by the party, on the party’s letterhead or suitably endorsed sheet of paper (it may also be written on the agent’s letterhead). It must be signed by the party. The authorisation must contain words to the effect of:


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I ........party name........ the plaintiff/defendant in the Minor Debt Claim of ...Plaintiff...-v-...Defendant... hereby authorise .......agent’s name...... to be my agent in these proceedings

ORI hereby authorise .......agent’s name...... to be my agent in the attached proceedings ANDsigned and dated by the party

The agent can then continue to act for the party and sign documents in relation to other steps in those proceedings. Only the party can authorise an agent. An agent cannot authorise themselves or another agent. A solicitor cannot authorise an agent, unless the solicitor (or firm) is the actual party.

If required, an original written authorisation should be filed in each individual MDC proceeding where the agent is acting on behalf of a party.

Agents cannot file one authorisation to cover all MDC proceedings that a party is involved in. It is acceptable for the agent to supply a photocopy of the authorisation for each individual MDC proceeding – court staff are not to photocopy the authorisation themselves (this practice is for convenience only).

When an agent has been authorised and the authorisation filed, that agent can then act for the party in all other matters in relation to the MDC proceeding (at hearing and enforcement).

Agents should only be required to provide the authorisation in exceptional circumstances (e.g. where the Registrar suspects that the agent is not licensed). Documents in an MDC proceeding should be accepted in most cases without having to file an authorisation.

2.3.5. Numbering claims and applications (Rule 964)

Initiating proceedings are numbered from 1 to whatever suffixed by the year filed (e.g. Claim No. 1/2010 or 1/10 is the number of the first claim filed in 2010 – 1/10 is preferred. Be aware that numbering machines won’t add the year suffix; this will have to be handwritten in.

Applications within a proceeding are not separately numbered. As they are part of an already-existing Claim or MDC proceeding, they are numbered with the same number as the initiating claim.

Because of the limited number of applications that will be filed in a Magistrates Court, Initiating applications (e.g. under Credit Act) are given claim numbers.

All initiating proceedings are numbered by the Registrar (i.e. court staff) and a separate file must be kept for each separate proceeding. The person filing it is informed of this number. All subsequent documents that are filed in relation to the same process are numbered with the same number by the person filing it. All initiating applications and claims will receive a unique claim number. When numbered:

The court serial number must be placed on all documents at top right corner

o By registrar for initiating proceedings; and o Party filing it on other documents

Supreme Court claim and application numbers are prefixed by an ‘S’

District Court claim and application numbers are prefixed by a ‘D’

Magistrate Court claim numbers are prefixed by an ‘M’

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2.3.6. Documents cannot be filed at other courts

All payments, documents, applications, affidavits and other forms must be paid or filed at the court that issued the initiating proceedings. Other courts cannot accept any documents or any payments required for another courts.

Initiating processes must be filed in the court of correct jurisdiction. One Magistrates Court cannot accept Claims and relevant fees which must be filed at and paid to another Magistrates Court.

An Application within a Proceeding on Notice must be determined by the Magistrate [@ 2.4.22].Therefore it may be filed in another court if the original court does not have a Magistrate there at the time and the application is deemed urgent - Rule 50 (refer also to Rules 800, 819, 835, 844, 854, 862 and 871 for some of the type of applications that may be urgent).

2.3.7. Filing claims when defendant is in another State or Territory

When the defendant resides or carries on business in another State or Territory and the proceedings must be commenced in Queensland, the Claim is filed in the normal course together with a Form 1 under the provisions of the Service and Execution of Process Act 1992 (Cwth) (Sect 16).

The Form 1 contains important information for the defendant and must be served with the claim or MDC. If the Form 1 is not served, or the affidavit of service does not state that it was served, then judgment by default cannot be given and the claim must be served again with the Form 1 attached.

2.3.8. Ink colour when sealing, signing or writing on files or forms

Sealing documents with violet or blue ink is preferred, as this helps distinguish an original from a photocopy.

It’s also recommended that all approved forms, processes and other documents be sealed, signed, stamped or otherwise endorsed by Civil clerks in blue or violet ink (black ink may be used, but it will then be difficult to immediately distinguish the original from any photocopy).

Scanned signatures (or signatures reproduced by other technological means) of a party or their representative are acceptable, as are signature stamps.

2.3.9. Filing documents over the counter

Persons who file documents over the counter should have them attended to immediately, wherever possible, particularly when they elect to wait for service copies etc. The following classes of documents should be able to be filed immediately at the counter:

All initiating proceedings; Judgments from other courts or jurisdictions; Defences (refer to CLAIMS first and input into CLAIMS that defence filed); Basic judgment (refer to CLAIMS first and input into CLAIMS that judgment given); Applications on notice Documents that do not require the Registrar’s signature.

Applications for enforcement and some judgments may be more involved, but can still be attended to immediately if requested.

All initiating proceedings (i.e. Claims and Originating Applications) should be checked, numbered, sealed and signed at the counter and not taken away to be attended to later by the Civil Clerk. The documents can be signed by the:

Registrar; or Clerk for Registrar (Rule 984); or Assistant Clerk of the Court (to sign as Assistant Registrar)

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As solicitors and licensed agents should be aware of the Rules, their documents can be more quickly attended to [@ 2.4.23].As solicitors and licensed agents should be aware of the Rules, their documents can be more quickly attended to [@ 2.4.23]. It is more efficient to quickly check documents at the counter and return signed and sealed service copies to the Plaintiff. This eliminates double handling and saves in postage costs.It is more efficient to quickly check documents at the counter and return signed and sealed service copies to the Plaintiff. This eliminates double handling and saves in postage costs. The Civil Clerk can then complete the remaining steps to file and input the document later. The Civil Clerk can then complete the remaining steps to file and input the document later. However, you should always check with your Registrar, as to whether documents are to be returned immediately, or are to be processed, and returned by mail at a later date.However, you should always check with your Registrar, as to whether documents are to be returned immediately, or are to be processed, and returned by mail at a later date.

2.4. REGISTRY PROCEDURE - FILING CLAIMS AND OTHER DOCUMENTS 2.4. REGISTRY PROCEDURE - FILING CLAIMS AND OTHER DOCUMENTS All of 2.4 and its sub-parts contain a summary of registry procedures to file processes. All of

2.4 and its sub-parts contain a summary of registry procedures to file processes.

The correct approved form must be filed. It must be formatted correctly. Before accepting it, the document is checked to ensure the proper approved form is filed. For example, the following are some common forms to commence an action or commence a file:

The correct approved form must be filed. It must be formatted correctly. Before accepting it, the document is checked to ensure the proper approved form is filed. For example, the following are some common forms to commence an action or commence a file:

Claim – Form 2 with attached Statement of claim Form 16 attached Claim – Form 2 with attached Statement of claim Form 16 attached Judgment – certified copy or copy with an original seal and stamped ‘COPY’ Judgment – certified copy or copy with an original seal and stamped ‘COPY’ Originating Application – Forms 5 Originating Application – Forms 5 Other document (e.g. certified copy of an Order of QCAT) Other document (e.g. certified copy of an Order of QCAT)

All forms in accordance with the UCPR must be on A4 paper, with a minimum left margin of about 40mm and other margins at least 10mm. It must contain the ‘title’ and ‘footer’ in accordance with Form 1 and the form must be completed as required in the other relevant approved form.

All forms in accordance with the UCPR must be on A4 paper, with a minimum left margin of about 40mm and other margins at least 10mm. It must contain the ‘title’ and ‘footer’ in accordance with Form 1 and the form must be completed as required in the other relevant approved form. Orders or Judgments from other jurisdictions (e.g. Interstate judgment or QCAT Orders) may be formatted differently. Orders or Judgments from other jurisdictions (e.g. Interstate judgment or QCAT Orders) may be formatted differently. The sorts of things that are done to file documents include: The sorts of things that are done to file documents include:

Substantial compliance with the relevant approved form Substantial compliance with the relevant approved form Correct filing fees and calculations; and Correct filing fees and calculations; and Correct jurisdiction (geographical and monetary) Correct jurisdiction (geographical and monetary) Statement of claim is sufficient Statement of claim is sufficient Signed Signed Name and address of plaintiff and defendant are sufficient Name and address of plaintiff and defendant are sufficient Contact details and address for service and telephone no. endorsed Contact details and address for service and telephone no. endorsed Sufficient copies filed Sufficient copies filed Date documents received and/or receipt no., amount and initials endorsed Date documents received and/or receipt no., amount and initials endorsed Serial numbering Serial numbering Sealing documents Sealing documents Signed by Registrar Signed by Registrar Civil file created Civil file created Inputted into CLAIMS computer system Inputted into CLAIMS computer system Service copies Service copies Date of hearing or mention Date of hearing or mention

Note: The special provision for initiating proceedings filed by lawyers and licensed mercantile agents, whereby claims are not fully checked [@1.3.25].


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2.4.1. Correct filing fees and calculations

Court fees and Solicitors costs must be correct according to the scale of fees and costs and all additions and calculations must be correct for:

Claim Filing fee; Appeal cost fund fee; Solicitor’s costs; service and travelling fee

Interstate judgement Filing fee Other orders Filing fee (except when from Qld Court or Tribunal, e.g. QCAT) Intrastate judgement No fee Originating application Filing fee; Appeal cost fund fee; service and travelling fee

Court filing fees can be paid by cash, cheque, bank cheque or postal money order or credit card or EFTPOS. No payment into court, bailiff fees, or otherwise, may be paid by credit card or EFTPOS.

2.4.2. Jurisdiction

Refer to 2.2; 2.2.1; 2.2.2; 2.2.4, 2.2.4 & 2.2.5.

2.4.3. Statement of Claim or Statement of Particulars of Claim - pleadings

Claims and MDCs must contain a cause of action for the plaintiff’s claim against the defendant [also @ 3.2.2 and 3.2.3]. A MDC has a Statement of Particulars of Claim contained within the Form (Form 3). A Claim has a Statement of Claim as a separate approved form (Form 16) securely attached.

The statement of (particulars of) claim must include:

Place where claim originated Relevant date or dates Claim was incurred with the knowledge of the defendant (or otherwise) Defendant was aware of the claim Interest If a liquidated claim (not a MDC), summary how total amount calculated - Rule 150(3) and

contained at the back of the Form 16. A statement that your Magistrates Court has jurisdiction to try the matter.

The Statement of Claim may also be referred to as pleadings in the claim (Rule 145 and 149-163).

2.4.4. Signed by correct party

Refer to 2.3.3.

2.4.5. Name and address of parties

The name and addresses of all the parties must be fully and properly described [@ 4.13].

Full names of parties or at least full initials including gender – street address & no. Full business/company name with BN or ACN – registered address

2.4.6. Contact details and address for service (Rule 17)

The contact details and address for service and telephone number of the party filing all claims and other documents in the approved form must be included in the footer of the first page of every document – Rule 17.

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All documents, including initiating proceedings and enforcement proceedings, must have the name and address and telephone number of the person or firm filing it, as well as their email address if they have one.

If the plaintiff does not have a telephone number, a telephone number must still be provided as a means of contacting the plaintiff.

2.4.7. Sufficient copies

Sufficient copies of claims and other documents should be filed as:

Original + 1 copy per defendant

However the person filing it may only file an original. This is acceptable. If the person filing it later requires a copy to serve, then copy fees of $1-70 per page apply (the copy supplied is stamped with the word ‘COPY’ at the top right corner.

2.4.8. Endorse date and/or receipt particulars on CLAIMS and documents filed

The following particulars must be endorsed on every initiating proceeding and all other documents filed:

Date of filing; and Receipt number (if a receipt was issued); and Amount of the receipt (if a receipt was issued); and Initials of the person accepting the document Time of filing (if a defence, judgment or warrant); and

These particulars are endorsed on the first page in the middle of the left margin in (preferably) blue ink.

2.4.9. Initial all claims and documents that are filed

The person who accepts any claim or document for filing must write their initials in (preferably) blue ink directly under the endorsement of the date [@ 2.4.8].

2.4.10. Claims and initiating applications must be numbered when filed

Refer to 2.3.5.

2.4.11. Sealing documents with Court Seal

All claims and documents that are filed must be sealed with (preferably) blue or violet ink at:

Bottom left margin of each page; or Near registrars signature where applicable.

If the form requires the registrar’s signature to be sealed there is no requirement to also seal that particular page at the bottom left corner in the margin.

If a document to be stamped has two or more pages, only one page of the document is required to be stamped (Rule 978(2)).

2.4.12. Registrar must sign claims and other documents

The Registrar must sign all claims, warrants, orders and other documents in the approved form requiring that signature. They are signed as:

Registrar signs in area indicated on approved form Use blue ink (preferably)

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A signature stamp on original and all copies is acceptable A file index sheet must be completed

2.4.13. Files inputted into CLAIMS Computer System

Each action taken on a matter must be inputted into the CLAIMS computer system.

2.4.14. Create a civil file

Every originating proceeding filed (Claim, MDC and Originating Application) must have a civil FileCover Sheet which is created by the Civil Clerk. The civil file is made up from top to bottom as:

File cover sheet; then Documents and correspondence filed in order of filing from most recent to first filed Original Claim, MDC, Judgment or Order (last document on file)

For consistency, a cover sheet should be produced for each new claim or initiating application – however, it is acceptable to follow individual registry practices and not produce these sheets until something else has happened (e.g. judgment) on the file.

The cover sheet is designed to protect the file and to note court orders, judgments and notations from Magistrates.

Refer also to 5.3.3.

2.4.15. CLAIMS Computer System

Every originating process must be entered into CLAIMS and every document and court event thereafter. The record on CLAIMS must be identical to the physical file.

2.4.16. Service copies

All copies that are filed must be signed and sealed as applicable, and returned to the person filing them or returned in the self addressed envelope if filed by post (Rule 969).

Documents should be filed as an original and one copy for each person to be served. The Registrar should sign and seal and return service copies as applicable (Rule 978).

It is not strictly necessary for a party to actually file any copies. If only the original is filed and copies are requested later or at the time of filing, then the Registrar is to photocopy the file copy of the document as requested. A copy fee must be collected. The copy is sealed and stamped with the ‘COPY’ stamp at the top right corner (Rule 980).

2.4.17. File the civil file in general filing

When the file has been constructed and entered into CLAIMS put the civil file in the civil general filing in bundles of 100, in claim number order with the highest number on the bottom.

When filing, have the first 50 files turned around so the whole bundle of 100 lies nearly flat.

2.4.18. Filing other documents

Other documents and applications are received and checked in a similar manner to a claim

a) Can only be received at court where claim is filed

Or if an application in a proceedings and there is no Magistrate available at the court, an application may be may to another court where a Magistrate is presiding (Rule 50)

b) Numbered with the claim number by party filing it with the same number as the claim

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c) Title on first page:

Full title for orders; and Where a person who is not a party to the proceedings is to be served; or Otherwise an abbreviated title is acceptable

d) Footer on first page:

Description of form, if filed by plaintiff/defendant, Form No. and Rule No. Contact details. address for service and telephone no. of person who filed form

e) Sealed and signed:

Signed/sealed copies returned for service if necessary

f) Date received endorsed in middle of left margin (and receipt no. with initials)

g) Filed on the civil file in order of receipt directly under the cover sheet in order from top

File cover sheet Order, if applicable Application Affidavit or statement Correspondence Previous documents filed

h) Sufficient copies filed

i) Date of hearing written on coversheet (if application)

2.4.19. Affidavits and statements (Rule 430)

The general rules regarding affidavits and statements are:

Statements must be sworn within 2 business days of the hearing - Rule 817(1)(b) {this means that when an application for an (EW– Enforcement Warrant) is made, the statement supporting the application must be dated no more then 2 days before it is filed, or not more than 5 business days if filed by post}

o A posted affidavit about a debt can only be relied on until the end of the fifth business day after it is sworn or affirmed (Rule 970) - a business day is Monday to Friday when the Registry is normally opened;

o An affidavit to be relied on by an applicant at a hearing of an application on notice must be filed and then served on each respondent at least 3 business days before the day set for the hearing;

o Affidavit of service may be dated anytime

Signed by person taking the oath or making the statement

Must be sworn or affirmed

Must have place and date of signing endorsed

Title relevant to the claim, application or request and footer endorsed

o Form name, filed on behalf of, and Form number and relevant rule number o Contact details and address for service of the person filing it

Witnessed by Commissioner for Declarations, Justice of the Peace or solicitor

Attachments to the affidavit must be identified in the affidavit

Attachments must have the exhibit marking and signed by both the deponent and JP

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Exhibit Marking example

These are the particulars marked ‘A’ mentioned and referred to in the affidavit of Joe Bloggs.

Dated at.................... this................. day of .................... 20.....

signature of deponent signature of C/Dec, JP or solicitor

An affidavit in an application (e.g. to enforce a money order) should be sworn and signed by the person who was actually involved in the event (e.g. an Affidavit of Service). If the affidavit is sworn by somebody else then that other person must state their sources of information and grounds of belief (Rule 430(2)) – this means that a person can swear an affidavit about somebody else serving a document or an affidavit supporting judgment or enforcing a judgment (money order).

2.4.20. Application within a proceedings (Rule 31 and 32)

An application within a proceeding means a party making an application desires to take a step in a proceeding. The application may be in writing or made orally (oral applications may be made to the court constituted by Magistrate or Registrar and are normally limited to requests for adjournment or as otherwise allowed by the Magistrate). Depending on the type of written application, the application may be:

Not on notice; or On notice.

An application not on notice (e.g. EH or EW - Enforcement Hearing and Enforcement Warrant) which is determined by the court constituted by the Registrar and can only be filed at the court where the claim is filed or the judgment has been given or subsequently filed.

An urgent application not on notice (e.g. stay of enforcement) may be determined by the court constituted by the Magistrate and can be filed at the court where the claim is filed or the judgment or EW has been given or subsequently filed. If no Magistrate is available, the application may be made to any Magistrates Court (Rule 50).

An application on notice must be determined by the court constituted by a Magistrate and is made to the Court where the claim is filed or the judgment has been given or otherwise filed. If the application is urgent and there no Magistrate present, it may be made at any other another Magistrates Court for determination by the Magistrate there (Rule 50).

The application on notice must be filed and served on each respondent named at least 2 business days (not including the date of service) before the day set for hearing the application (Rule 31(5))

The application Form 9 is adapted for each type of application including an:

Application for enforcement hearing Application for an enforcement warrant

These applications are not on notice

Seizure and sale of property Redirection of debts Redirection of earnings Payment by instalments Application to set aside or stay enforcement (application on notice to other parties, but may

be made not on notice and the Magistrate can order the other party served)

An oral application may be made to the court constituted by a Magistrate (or in some circumstances, e.g. at an EH, to the Registrar) for any appropriate order (e.g. an adjournment).

An application for an adjournment of any proceeding or hearing may be made with the consent of the parties with or without a formal appearance (Rule 31(6)). If no appearance is required, all parties or their solicitor(s) will write to the Registrar and request the adjournment. The adjournment Edoc #1870135 Uniform Civil Procedure Rules Training Manual |

Training and Development Unit | 31

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can then be granted, noted on the file. The Registrar will then prepare, sign, seal and post a Notice of Adjournment to the parties in the terms as ordered by the court. The File Index is then noted, and the file copy of each posted Notice of Adjournment is endorsed with an affidavit of posting.

2.4.21. Registry procedure - Application within a proceeding not on notice

The forms required are:

Application - Form 9 - original Supporting affidavit - Form 46 - original Relevant summons or warrant – original + copy per other parties and Third Party Affidavit of Service (of summons or warrant) – Form 46 (filed after service if necessary)

The application within a proceeding not on Notice is:

Received at the court where claim is filed

Check claim number is correct and retrieve file

Correct wording of application for the purpose

Signed by party, solicitor or authorised agent (signed by agent only if an MDC proceeding)

All approved forms must:

o Contain title (may be abbreviated) o Footer on first page of each document o Description of form, if filed by plaintiff/defendant, Form No. and Rule No. o Contact details, address for service, telephone no. and email address (if any) of

person who filed form

Seal same as a claim (bottom left margin or near Registrars signature)

Registrar signs application

Date of receipt of form and initials of person accepting form in middle of left margin

If fees taken, the amount of fees, date and receipt no. in middle of left margin

List the documentation on the file index sheet

Enter the documents into CLAIMS

Other documents (e.g. enforcement) are dealt with as necessary.

In all cases, the Civil File is extracted from general filing for the Registrar to consider the application.

The Registrar constitutes a court when considering all applications. The Registrar makes a judicial decision based on the information contained in the application and supporting statement or affidavit.

Therefore the wording of the application must be in accordance with the wording of the warrant or summons required and the wording of the affidavit or statement must support the application. For example, an Enforcement Hearing Summons cannot be issued to require the Enforcement Debtor to produce certain documents if the application does not apply for it.

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2.4.22. Registry procedure - Application within a proceeding on notice

In addition to the above [@ 2.4.21] additional copies of the documents are required to be filed and served on other party and determined by a Magistrate when the application is on notice. An order Form 59 is also required.

The forms required are:

Application - Form 9 - original + 1 copy per other party Supporting affidavit - Form 46 - original + 1 copy per other party Order - Form 59 – original + 1 copy per other party Affidavit of Service (of application) – Form 46 (filed after served)

The application must be filed and served on each other party to the proceedings at least 2 business days (not including the date of service) before the day set for hearing the application

The Registrar then:

Endorses the date of Hearing or Mention on the application (callover or date allocated by Magistrate)

o Urgent application may be made to another court if no Magistrate in home court (Rule 59)

o The new court must advise the home court of the application and order o The new court files the application and allocates their next claim number o The new court endorses date of hearing, signs and seals etc

Sealed service copies returned to applicant for service on other party(s)

Order Form 59 is not signed or sealed or noted until after the magistrates decision

Civil file noted with the date of hearing as:

o / / at am/pm For Applicant:(note that the applicant can be either the Plaintiff or Defendant) For Respondent:

(note that the respondent can be either the Plaintiff or Defendant)


Documents and court event inputted into CLAIMS

File then placed in relevant court date’s pigeon hole

The Magistrate will write their decision on the file cover sheet.

If an order is made in the terms of the order filed, then the Registrar signs and seals all copies of the order. The original is put on file (Outcome of hearing inputted into CLAIMS) and the copies are returned to the applicant for serving on other party(s).

If the order of the Magistrate is not the same as the filed order, then the applicant prepares the correct order and files the original and copies (the incorrect order is returned to applicant).

The registrar then files the order and returns sealed copies in the same manner (note that the EC is entitled to a free Certified Duplicate under Rule 662).

If the order was made by the Magistrate at another court under Rule 50, the new court’s Registrar must forward a copy of the order to the home court’s Registrar and relevant parties. This may be extremely important, particularly if the application relates to an application to stay the enforcement of a warrant. At determination a copy of the order should be faxed to the home court registrar.

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2.4.23. Filing by lawyers and licensed agents

As solicitors, barristers and licensed agents should be aware of the Rules there is no requirement to completely check the contents of initiating proceedings filed by them. (Only Solicitors and Licensed Agents can file documents on behalf of a party – while the rules permit a Barrister to draft a pleading (i.e. Statement of Claim/Defence the Rules do not permit a Barrister to file documents).

The Rules provide safeguards for the defendant in relation to issues of jurisdiction and irregularity. The Rules also have provision for amendment of claims and pleadings for the Plaintiff to correct any of these sorts of deficiencies.

It is not the responsibility of court staff to question initiating proceedings filed by lawyers and agents. The Supreme Court Case of Vignes v. Clarke states that court staff should not question initiating proceedings filed by lawyers and agents but should leave any question about the legality of the document to be determined by the Court.

The Rules, including Rule 38, Rule 39, Rule 31(2) in particular and Rule 144, place the onus on the defendant to defend a claim on jurisdiction and irregularities. If the defendant does not defend a claim, these issues cannot be taken into account for judgment by default. If the defendant files a Notice of Intention to Defend and Defence and does not plead jurisdiction, they cannot raise issues of jurisdiction or irregularity later.

Therefore all initiating proceedings, filed by lawyers or agents representing plaintiffs, should be simply filed. The only sorts of things to check include:

Format and layout; and Signed by lawyer or agent; and Correct filing fee.

It is not necessary that cause of action, jurisdiction (either monetary or geographical) or identity of parties be considered in order to file.

The initiating document can be filed at the counter and numbered, signed and sealed service copies returned immediately to the person filing it. If filed by post, it should be attended to and returned on the day it is received.

All other steps in filing the document can be done later, including:

Noting particulars of date, receipt number, amount and initials in middle left margin; Create Civil File and input into CLAIMS

2.4.24. Filing by persons not represented by a lawyer or licensed agents

Initiating proceedings and documents filed by lay people should be fully checked and Court staff should point out any deficiencies (but not give legal advice).

However Court staff cannot refuse to file initiating proceedings (decision in Vignes –v- Clark).

If the person insists on it being filed the File Cover Sheet should be noted that the person insisted it be filed in that form (simply a pencilled notation near the title of the cover sheet to the effect plaintiff insisted on filing in this format – no jurisdiction), or a file note can be created and brought to the attention of the registrar or court when judgment is sought. This will indicate that Court staff made the person aware of a problem.

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2.5. REGISTRY PROCEDURE - FILING CLAIMS AND OTHER DOCUMENTS - CHECKLIST

The claim, applications, affidavits and other documents must be in the approved form. The registrar ensures the document is correct and:

Signed by correct party

o Claim by plaintiff or solicitor o Affidavits and Statements signed by the person making the statement o Other by plaintiff, defendant, solicitor or authorised (MCD proceedings only) agent

Correct district/court e.g.

o Where defendant resides or carries on business o Where claim arose o As agreed to by parties or contract

Correct jurisdiction

o Claim $150,000 Names and address of parties fully described

Contact details and address for service of party filing

Correct fees submitted and issue receipt, where applicable

Sufficient copies filed (filing original only is acceptable)

o Original + 1 copy per defendant

Sealed at bottom left margin or near registrar’s signature where applicable

Payments particulars noted in the left margin towards middle of page

Date and time of filing noted in the middle of the left margin, if applicable

Placing the initials of the person who accepted filing the document under date details

Allocating the next serial number and endorsed at top right prefixed with ‘M’

o Or checking other documents to ensure the correct claim number is endorsed

Signing by registrar and seal near signature, where applicable

Creating a civil file

Entering on CLAIMS

Returning sealed service copies to plaintiff

Attaching document to file in order of receipt with documents above letter

Filing in relevant court’s day pigeon hole or file in general filing

2.6. PAYMENTS OF CLAIMS, MDCs AND MONEY ORDERS Payments of claims (and costs etc) in civil proceedings should not be accepted. Parties wanting to pay these sums should be referred to the Plaintiff or the Plaintiff’s solicitor or agent. Payment of outstanding claims, etc, should not be accepted unless the court has ordered otherwise.

If it is unavoidable that payment is to be accepted, then full payment only of a Claim, MDC or Money Order etc may be made. The payment should be made at the registry where the claim, warrant or judgment is filed, given or registered.

Other courts should not accept payment of civil matters on behalf of another court unless it is by virtue of an enforcement warrant (seizure and sale).

If a court accepts payment of another court’s claim, MDC, judgment etc, the receiving court must confirm the amount with the home court before accepting the payment and then immediately

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advise the home that the payment has been made. The advice may be made by e-mail or fax and always followed with a telephone call. The receiving court must forward the payment to the home court as soon as practicable.

advise the home that the payment has been made. The advice may be made by e-mail or fax and always followed with a telephone call. The receiving court must forward the payment to the home court as soon as practicable. All payments must be in cash, bank cheque or postal money order. Private cheques should not be accepted, particularly if a warrant has issued. Payment cannot be made by credit card or EFTPOS. All payments must be in cash, bank cheque or postal money order. Private cheques should not be accepted, particularly if a warrant has issued. Payment cannot be made by credit card or EFTPOS. If any payments are accepted, the registrar must immediately advise the plaintiff or plaintiff’s solicitor of such payment. This will prevent the plaintiff or solicitor taking further action. If any payments are accepted, the registrar must immediately advise the plaintiff or plaintiff’s solicitor of such payment. This will prevent the plaintiff or solicitor taking further action.


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3 STARTING PROCEEDINGS (ORIGINATING PROCESS) (Rule 8)

Proceedings start when an originating process is issued by the court for a

Claim (in all courts) (Rule 22) Application (in all Courts) (Rule 25) Notice of appeal (not Magistrates Court) Notice of appeal subject to leave (not Magistrates Court)

3.1.1. Originating Proceedings in a Magistrates Court

In the Magistrates Court proceedings will be mostly commenced by claim. Under Rule 10, other legislation may allow proceedings to be initiated by Originating Application – e.g. Credit Act, applications under the Property Law Act 1974.

Remember to distinguish between an application that initiates a proceeding from an application that is a step in the proceedings after issuing a claim. All claims and applications must be in writing and in the approved form.

3.1.2. Originating Proceedings in the Supreme Court and District Court

Proceedings in the higher courts may be commenced by claim or application (including oral applications) (Rules 11-12).

3.1.3. Title on Forms

The full names and or descriptions of all parties must be included in the title on all of the following (Rule 6):

Originating processes (e.g. claim) Documents served on persons not a party to the proceedings (e.g. third party notice) All final orders (e.g. judgment)

An abbreviation of the name or description of the parties may be in the title on all other documents filed. This means that if a party is described in the title of the claim as William James Jones, Jean Audrey Jones, Jack Mellino and Billy Ray Mellino then affidavits or applications (etc) may simply describe that party as William James Jones and Others or William James Jones and Ors (Rule 6(2)). Examples of the title can be found @ 4.1.

The title on all forms also must include the name and place of the court and claim number. If the names of parties change, documents filed after the change must be in the new names (Rule 6(3)).

3.2. CLAIMS (Rule 22, 146) – REQUIREMENTS A claim is comprised of two approved forms:

Claim – Form 2; and Statement of Claim – Form 16.

Claims must:

Be in approved form (Form 2); and Contain a brief statement of claim; and Have statement of claim attached (Form 16); and Show the court has jurisdiction to decide the claim (Rule 22(2)(c))

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Notice if claim is a liquidated debt or demand (end of Form 16) (Rule 150(3))

3.2.1. Claim and attachment must be filed

The claim:

And attachment must be filed by the plaintiff then served on each defendant Is in force for 1 year from the filing date May be renewed by the Registrar for up to 4 renewals, renewed for 1 year at a time, and

then further renewed by leave of the court (Rule 24)

3.2.2. Statement of claim

Also refer @ 2.4.3.The statement of claim (pleadings) must outline the plaintiff’s claim against the defendant and include:

Place where claim originated Relevant date or dates Claim was incurred with the knowledge of the defendant (or otherwise) Defendant was aware of the claim Interest if claimed If a liquidated claim a summary how total amount calculated (Rule 150(3))

The statement of claim is attached to the Claim and all service copies. When the claim is served, a copy of the statement of claim must also be served.

The claim in a Magistrates Court is limited to $150,000-00 and cannot be in relation to title or ownership of land or beneficiary in a will or estate (or for an equitable cause of action other than for money damages) (Magistrates Court Act – Section 7).

The claim can be for liquidated or unliquidated amounts (liquidated basically means a claim that is identifiable and able to be calculated at the time of incurring the debt) and (unliquidated basically means that the actual amount of the debt is unknown or must be proven – e.g. motor vehicle accident damages or contractual arrangements).

3.2.3. Statement of particulars of claim – Minor Debt Claim

This section is shown for information and reference purposes for existing Minor Debt Claim proceedings only. No new Minor Debt Claims are able to be lodged now that the Queensland Civil and Administrative Tribunal (QCAT) has commenced operations.

The statement of particulars of claim refers to a MDC only – it is part of the Form 3. It must outline the plaintiff’s claim against the defendant. The claim must be a liquidated debt or demand. The statement must include at least the following:

Place where claim originated Relevant date or dates Claim was incurred with the knowledge of the defendant (or otherwise) Defendant was aware of the claim Interest, if claimed

The following are examples of claims for a liquidated debts or demands:


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The plaintiff claims the amount of $......... for goods sold and delivered (describe goods) {and/or services rendered – describe services} by the plaintiff to the defendant on (date) (or between a range of dates) in this district at the request of the defendant particulars whereof have been delivered to the defendant and the plaintiff claims interest in accordance with the Supreme Court Act from (date) (or at ....% per annum on $..... as agreed) down to the date of entering judgment (or as the case may be).

The plaintiff claims the amount of $......... for materials furnished and work and labour done (state materials supplied and work done) under a written agreement entered into by the plaintiff with the defendant on the.... day of.... 20... in this district particulars whereof have been delivered to the defendant and the plaintiff claims interest in accordance with the Supreme Court Act from (date) (or at ...% per annum on $... as agreed) down to the date of entering judgment (or as the case may be).

The plaintiff claims the sum of $......, being the sum of $....... for the amount of a cheque drawn by the defendant on the Bank of ....... at........ on the ...... day of ....... 20.., payable to the plaintiff or bearer and dishonoured on presentation and includes Bank fees in the amount of $......

The plaintiff claims $...., the amount of money lent by the plaintiff to the defendant at the request of the defendant on the.... day of.... 20... in this district and which has not been repaid.

The Statement of particulars of Claim may be attached to the minor debt claim as a separate page, but it is not treated the same as the Statement of Claim attached to the claim Form 2. It is preferable for the statement to form part of the MDC.

A Minor Debt Claim is one approved Form 3.

In all cases, all pages of a MDC must be A4 paper [@ 4]. Invoices and the like are not to be accepted when attached to a MDC. The only acceptable method of outlining a cause of action in a MDC is to use the wording as above (or similar) in the statement of particulars of claim. The invoices etc may be produced at the hearing of the MDC if the defendant files a defence.

3.2.4. Interstate service

When a defendant’s address for service is in another State or Territory it is served in accordance with the provisions of the Service and Execution of Process Act 1992 (Cwth). This Act states that a Form 1 - Notice to Defendant under that Act must be served with the Claim or MDC.

The Form 1 gives instructions to the defendant regarding action that may be taken following service.

The Form 1 must be served with the initiating proceeding and the affidavit of service must state that it was served with the claim or MDC.

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CAG Recommendation: Interest on interstate judgments is payable at the same rate or rates as in the Court of Rendition. Refer to S108 of the Service and Execution of Process Act 1992. The lodging party has the option of electing to recover interest at a lower rate.

“Interest on the amount of a judgment that is registered under subsection 105(1):

a) Is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the court of rendition.

b) Is recoverable to the extent that the judgment creditor satisfies the court in which the proceedings by way of enforcement of the judgment are taken as to the amount of the interest.”


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3.2.4.1. Example - Claim [Form 2] 3.2.4.1. Example - Claim [Form 2]

MAGISTRATES COURT OF QUEENSLAND MAGISTRATES COURT OF QUEENSLAND

REGISTRY: BrisbaneREGISTRY: Brisbane NUMBER: M 18000/00 NUMBER: M 18000/00Plaintiff: Thomas Croose and Nicole CroosePlaintiff: Thomas Croose and Nicole Croose

AND AND

First Defendant: Neil Parr First Defendant: Neil Parr

AND AND

Second Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name - BN 000 000


CLAIM CLAIM

The plaintiff claims: $10,000 for damages in a motor vehicle accident at Brisbane on 1/7/99. The

Magistrates Court at Brisbane has jurisdiction to decide this claimThe plaintiff claims: $10,000 for damages in a motor vehicle accident at Brisbane on 1/7/99. The

Magistrates Court at Brisbane has jurisdiction to decide this claim The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim. The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim. ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURT OF QUEENSLAND ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURT OF QUEENSLAND And filed in the Brisbane Registry on 1 July 2000.And filed in the Brisbane Registry on 1 July 2000.

IM Registrar IM Registrar Registrar Registrar

To the defendant(s): TAKE NOTICE that you are being sued by the plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the plaintiff, you must within 28 days of the service upon you of this claim file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiff’s address for service shown in this claim as soon as possible.

To the defendant(s): TAKE NOTICE that you are being sued by the plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the plaintiff, you must within 28 days of the service upon you of this claim file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiff’s address for service shown in this claim as soon as possible. Address of Registry: Ground Floor, Central Courts Building, 179 North Quay, Brisbane Address of Registry: Ground Floor, Central Courts Building, 179 North Quay, Brisbane GPO Box 1649, Brisbane Q 4001 – Telephone: 07 3247 4626 GPO Box 1649, Brisbane Q 4001 – Telephone: 07 3247 4626 If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice.

If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice. If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend. If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.

Claim Claim Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 2 Rule 22 Form 2 Rule 22

Fox and Griddle, Solicitors, Suite 19, 147 Queen Street (GPO Box 181), Brisbane Q 4001: Telephone 07 5555 4444: Fax 07 5555 4445

Fox and Griddle, Solicitors, Suite 19, 147 Queen Street (GPO Box 181), Brisbane Q 4001: Telephone 07 5555 4444: Fax 07 5555 4445

Filed 1/7/00 Rec 02345 Init. @#$

SEAL BRIS


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3.2.4.2. Example - Claim [2nd page] 3.2.4.2. Example - Claim [2nd page] PARTICULARS OF THE PLAINTIFF: PARTICULARS OF THE PLAINTIFF: Name: Thomas Croose and Nicole CrooseName: Thomas Croose and Nicole CroosePlaintiff’s residential or business address: 18 Main Esplanade, Bryon Bay NSW 2481Plaintiff’s residential or business address: 18 Main Esplanade, Bryon Bay NSW 2481Plaintiff’s solicitors name: Jean Griddle Plaintiff’s solicitors name: Jean Griddle and firm name: Fox and Griddle, Solicitors and firm name: Fox and Griddle, Solicitors Solicitors business address: 147 Queen Street, Brisbane Qld 4001Solicitors business address: 147 Queen Street, Brisbane Qld 4001Address for service: GPO Box 181, Brisbane Q 4001 Address for service: GPO Box 181, Brisbane Q 4001 Dx: DX 45 Brisbane UPTOWN Dx: DX 45 Brisbane UPTOWN Telephone: 07 5555 4444Telephone: 07 5555 4444Fax: 07 5555 4445Fax: 07 5555 4445E-mail address: [email protected] address: [email protected] Fox&GriddleFox&GriddleSigned: Signed: Description: Solicitors for the Plaintiff Description: Solicitors for the Plaintiff

Dated: 1 July 2000 Dated: 1 July 2000 This Claim is to be served on: This Claim is to be served on:

SEALBRIS

First Defendant: Neil Parr First Defendant: Neil Parr of: 10 Charlotte Street, Caboolture Q 4510 of: 10 Charlotte Street, Caboolture Q 4510 and on: and on: Second defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers

a registered business name BN 000 000 Second defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers

a registered business name BN 000 000 of: trading at 30 King Street, Caboolture Q 44510 of: trading at 30 King Street, Caboolture Q 44510


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3.2.4.3. Example - Statement of Claim [Form 16] 3.2.4.3. Example - Statement of Claim [Form 16]

MAGISTRATES COURT OF QUEENSLAND MAGISTRATES COURT OF QUEENSLAND REGISTRY: Brisbane REGISTRY: Brisbane NUMBER: M 18000/00 NUMBER: M 18000/00 Plaintiff: Thomas Croose and Nicole Croose Plaintiff: Thomas Croose and Nicole Croose

AND AND First Defendant: Neil Parr First Defendant: Neil Parr

AND AND

Second Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered

Business Name - BN 000 000 Second Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered

Business Name - BN 000 000 Filed in the Brisbane registry on 1 July 2000 Filed in the Brisbane registry on 1 July 2000

STATEMENT OF CLAIM STATEMENT OF CLAIM This claim in this proceeding is made in reliance on the following facts: This claim in this proceeding is made in reliance on the following facts: 1. The Plaintiff claims the amount of $10,000-00 for damages sustained in a motor vehicle

accident between a Ford Sedan motor vehicle (Regd No. CRZN 00) registered in the name of the plaintiff and a Toyota Sedan motor vehicle (Regd No. BEEZ 01) registered in the name of the second defendant and driven by the first defendant at the Corner of Queen Street and George Street, Brisbane on 1 July 1999 at 1.30am.

1. The Plaintiff claims the amount of $10,000-00 for damages sustained in a motor vehicle accident between a Ford Sedan motor vehicle (Regd No. CRZN 00) registered in the name of the plaintiff and a Toyota Sedan motor vehicle (Regd No. BEEZ 01) registered in the name of the second defendant and driven by the first defendant at the Corner of Queen Street and George Street, Brisbane on 1 July 1999 at 1.30am.

2. At all the material times the plaintiff’s motor vehicle was driven by Nicole Croose with the permission of the registered owners.

2. At all the material times the plaintiff’s motor vehicle was driven by Nicole Croose with the permission of the registered owners.

3. At all material times the defendant’s motor vehicle was driven Neil Parr, the first defendant. 3. At all material times the defendant’s motor vehicle was driven Neil Parr, the first defendant. 4. The accident was cause by excessive speed of the defendant’s vehicle under the circumstances,

the unskilfulness of the driver and the driver’s failure to keep a proper lookout and avoid the collision.

4. The accident was cause by excessive speed of the defendant’s vehicle under the circumstances, the unskilfulness of the driver and the driver’s failure to keep a proper lookout and avoid the collision.

5. The plaintiff also claims an amount of $10.00 for a Business Name search, Court filing fees of $141.00, Bailiff Service and Travelling fees of $82.50 and Professional costs of $502.00 making a total claim including costs and incidentals of Ten thousand seven hundred and thirty-five dollars and fifty cents ($10,735.50).

5. The plaintiff also claims an amount of $10.00 for a Business Name search, Court filing fees of $141.00, Bailiff Service and Travelling fees of $82.50 and Professional costs of $502.00 making a total claim including costs and incidentals of Ten thousand seven hundred and thirty-five dollars and fifty cents ($10,735.50).

Fox&GriddleFox&GriddleSigned Signed Description: Solicitors for the Plaintiff Description: Solicitors for the Plaintiff

NOTICE AS TO DEFENCE NOTICE AS TO DEFENCE Your defence must be attached to your notice of intention to defend. Your defence must be attached to your notice of intention to defend.

Statement of Claim Statement of Claim Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 16 Rules 22, 146 Form 16 Rules 22, 146

Name and address for service, telephone number and fax number of solicitor or party filing document


SEALBRIS


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3.2.4.4. Example - Notice Under Rule 150(3)

(This notice is only required if the plaintiff files a claim and the claim is for a liquidated debt or liquidated demand only. It is not required for unliquidated debts, demands or claims for damages or otherwise.)

NOTICE UNDER RULE 150(3) The plaintiff claims:

$ amt of claim$ amt of interest for interest $ amt of costs for costs of issuing the claim and this statement of claim.

The proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $ ............. (additional costs) costs of entering judgment in default.

The notice may be included as a separate page and attached at the back of the claim, but it is acceptable if it is endorsed immediately after the last paragraph of the Statement of Claim.

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3.2.4.5. Example - Minor Debt Claim [Form 3] 3.2.4.5. Example - Minor Debt Claim [Form 3]

This form is shown for information and reference purposes for existing Minor Debt Claim proceedings only. No new Minor Debt Claims are able to be lodged now that the Queensland Civil and Administrative Tribunal (QCAT) has commenced operations.


REGISTRY: BrisbaneREGISTRY: Brisbane NUMBER: M 18001/00 NUMBER: M 18001/00 Plaintiff: Thomas Croose and Nicole Croose Plaintiff: Thomas Croose and Nicole Croose

AND AND Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name - BN 000 000 Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name - BN 000 000

MINOR DEBT CLAIM MINOR DEBT CLAIM STATEMENT OF PARTICULARS OF CLAIMSTATEMENT OF PARTICULARS OF CLAIM The plaintiff claims the amount of $500-00 for goods sold and delivered, being beekeeping supplies, hives and frames, by the plaintiff from the plaintiff’s warehouse in Brisbane to the defendant on 30 September 1999 in this district at the request of the defendant particulars whereof have been delivered to the defendant and the plaintiff claims interest in accordance with the Supreme Court Act from that date down to the date of entering judgment. The plaintiff also claims an additional amount of $10.00 for a business names search fee.

The plaintiff claims the amount of $500-00 for goods sold and delivered, being beekeeping supplies, hives and frames, by the plaintiff from the plaintiff’s warehouse in Brisbane to the defendant on 30 September 1999 in this district at the request of the defendant particulars whereof have been delivered to the defendant and the plaintiff claims interest in accordance with the Supreme Court Act from that date down to the date of entering judgment. The plaintiff also claims an additional amount of $10.00 for a business names search fee. The plaintiff claims the amount set out below and elects to have this claim heard and decided in the Magistrates Court under the simplified procedures as a Minor Debt Claim:- The plaintiff claims the amount set out below and elects to have this claim heard and decided in the Magistrates Court under the simplified procedures as a Minor Debt Claim:- Claim $510-00 Claim $510-00

Filing fee $ 38-00 Filing fee $ 38-00 Bailiff’s service fee $ 55-00 Bailiff’s service fee $ 55-00

Total $603-00 Total $603-00

Filed 1/7/00 Rec 05246 Init. IMR

To the defendant(s): TAKE NOTICE that you are being sued by the plaintiff in the Magistrates Court. If you intend to dispute this claim you must within 28 days of service upon you of this claim file a Notice of Intention to Defend and Defence to a Minor Debt Claim in this Registry. If you do not comply with this requirement judgment may be given against you for the amount claimed without further notice to you. The Notice should be in Form 4 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiff’s address for service shown in this claim as soon as possible.

To the defendant(s): TAKE NOTICE that you are being sued by the plaintiff in the Magistrates Court. If you intend to dispute this claim you must within 28 days of service upon you of this claim file a Notice of Intention to Defend and Defence to a Minor Debt Claim in this Registry. If you do not comply with this requirement judgment may be given against you for the amount claimed without further notice to you. The Notice should be in Form 4 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiff’s address for service shown in this claim as soon as possible. Address of registry: Ground Floor, Brisbane Magistrates Courts Building, 363 George Street, Brisbane

Qld 4001 – Telephone 07 3247 4626 Address of registry: Ground Floor, Brisbane Magistrates Courts Building, 363 George Street, Brisbane

Qld 4001 – Telephone 07 3247 4626 If you object that these proceedings have not been commenced in the correct district or that this Court does not have jurisdiction in this matter, that objection should be included in your Notice of Intention to Defend and Defence to a Minor Debt Claim.

If you object that these proceedings have not been commenced in the correct district or that this Court does not have jurisdiction in this matter, that objection should be included in your Notice of Intention to Defend and Defence to a Minor Debt Claim.

Minor debt claim Minor debt claim Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 3 Rule 22, 514 Form 3 Rule 22, 514

Thomas Croose, The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q 4001 – Telephone 07 5555 4440 Fax 07 5555 4400

Thomas Croose, The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q 4001 – Telephone 07 5555 4440 Fax 07 5555 4400

SEAL

BRIS


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3.2.4.6. Example - Minor Debt Claim [2nd page] 3.2.4.6. Example - Minor Debt Claim [2nd page] PARTICULARS OF THE PLAINTIFF: PARTICULARS OF THE PLAINTIFF: Name: Thomas Croose and Nicole CrooseName: Thomas Croose and Nicole CroosePlaintiff’s residential orPlaintiff’s residential or business address: The Warehouse, Shed 15, Industrial Avenue, 147

Oxley Road, Brisbane Q 4001Plaintiff’s address for service: The Warehouse, Shed 15, Industrial Avenue, 147

Oxley Road, Brisbane Q 4001Telephone: 07 5555 4440Fax: 07 5555 4400

Tom Croose SignedDescription: for Thomas Croose and Nicole Croose Dated: 1 July 2000

This Claim is to be served on: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered business name BN 000 000

of: trading at 30 King Street, Caboolture Q 44510

ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURT OF QUEENSLAND

And filed in the Brisbane Registry on 1 July 2000.

IM Registrar SEALBRISRegistrar

Note: All relevant documents must be brought with you and made available to the Court at any hearing of this proceeding.


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3.3.DISTRICT WHERE CLAIMS ARE FILED (Rule 35) 3.3. DISTRICT WHERE CLAIMS ARE FILED (Rule 35) Refer 2.2.2 and 2.2.3.Refer 2.2.2 and 2.2.3.

3.4. MAGISTRATES COURTS DISTRICT (Rule 37) 3.4. MAGISTRATES COURTS DISTRICT (Rule 37) Magistrates Courts Districts are provided for in Schedule 4 of the Justices Regulations 1993. This defines boundaries as following local Shire boundaries as at a certain date and shire map reference number. The streets, suburbs, towns and/or courts within those boundaries are deemed to be within a certain Magistrates Courts District.

Magistrates Courts Districts are provided for in Schedule 4 of the Justices Regulations 1993. This defines boundaries as following local Shire boundaries as at a certain date and shire map reference number. The streets, suburbs, towns and/or courts within those boundaries are deemed to be within a certain Magistrates Courts District. The boundary of these defined districts is extended by Rule 37 to: The boundary of these defined districts is extended by Rule 37 to:

Brisbane District – within 1km of common boundary Brisbane District – within 1km of common boundary Elsewhere – within 35km of common boundary Elsewhere – within 35km of common boundary

If a party desires to commence proceedings within the extended boundary, the statement or claim or the statement of particulars of claim should be suitably endorsed to identify the district. If a party desires to commence proceedings within the extended boundary, the statement or claim or the statement of particulars of claim should be suitably endorsed to identify the district.


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4 DOCUMENT LAYOUT AND COPIES (Rule 961)

For consistency of registry procedures, it is important that all like documents look the same and are formatted the same. This will make it easier for all staff in all Registries to check the document for correctness and subsequently file it.

It will also make it easier for parties to proceedings to complete documents and for them to easily recognise them. Registry staff must not refuse to file a document because it does not look the same as the documents created there. As long as there is substantial compliance with the approved form, the document must be accepted.

All documents (including claims and applications) must:

Be on A4 paper, white or cream in colour; good & durable quality; free from discolouration or blemishes

Have clear margins at least 10mm on top, bottom and right sides Have the left margin wide enough for seal of court to be stamped (about 40mm) Be typed with type no smaller than 1.8mm (10 point Ariel) Have all pages securely bound to satisfaction of registrar Have a copy filed for all originating processes (it is desirable if the original is filed plus 1

copy to be served on each defendant). If the rules do not require a document to be filed, then an additional copy per defendant is required to be attached as an exhibit to the affidavit of service - see Rule 120. If document that was served has a copy or original already filed then the affidavit of service may describe the document and it is not necessary to have a copy attached to the affidavit.

All documents, including originating processes, may be printed on both sides. This should be discouraged as important information may be missed. If required, the affidavit of service may be endorsed on the back of the first page of the document.

This manual contains examples of approved forms suitably completed to conform to basic requirements of the legislation (excluding margins).

4.1. APPROVED FORMS – TITLE (Rule 6) All approved forms must have a title and footer. The title includes all the relevant party names, the name and location of the court and claim number. There are two types of titles – a full title and an abbreviated title.

The title and footer appear only on the first page of all documents filed.

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4.1.1. Full title

The full title must be used for all originating processes, orders and documents that are to be served on a party that is not a party to the proceedings.

The full title is:

MAGISTRATES COURT OF QUEENSLAND

REGISTRY: Brisbane NUMBER: M 18000/00 Plaintiff: Thomas Croose and Nicole Croose

AND

First Defendant: Neil Parr AND


4.1.2. Abbreviated title

The abbreviated can be used for all documents that do not require a full title. It makes no difference if the full title is used in all cases.

The Abbreviated Title Rule 6(2) is:


REGISTRY: Brisbane NUMBER: M 18000/00 Plaintiff: Thomas Croose and Anor

AND

First Defendant: Neil Parr AND

Second Defendant: Neil Parr and Ors

The footer contains the name of the form, form number and relevant rule and the address for service and telephone and fax numbers of the party filing it. The footer is required only on the first page of each approved form or document.

4.1.3. Footer

The footer forms part of the title and is located at the bottom of the first page of the approved form (the approved form is commenced directly under the title and between the title and footer).

The footer is:

Name of Form Filed on behalf of the plaintiff/defendant Form No Rule No


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4.2. ISSUE OF DOCUMENTS (Rule 978) All documents issued by the court must be signed by the appropriate offier and stamped with the Court Seal. Service copies of these document (if provided) must also be sealed [@2.4.16]. The seal is a round rubber stamp with the name of the court and crest.

Documents are sealed at the bottom left hand side in the margin of the first page, or sealed at the registrar’s signature when required by the approved form. It is recommended that only violet or dark blue ink be used for stamping the seal.

4.2.1. Registrar’s (or appropriate officer’s) Signature

The Registrar signs in the space provided on any relevant approved form. It is recommended that blue ink be used rather than black. Alternately a signature stamp (in blue or violet ink) may be used on the original and all copies of a document.

4.2.2. Sealing Multiple-Page Documents

If a document to be stamped with the Court seal has two or more pages, only one page of the document is required to be stamped (Rule 978(2)). If the registrar’s signature is required on any page other than the first, it is recommended that a seal be stamped in the bottom-left corner of the first page and an additional seal stamped at the registrar’s signature.

For example, for an affidavit [form 46], only one stamp of the Court seal on the front page in the left margin at the bottom is required. No other pages need be sealed.

In the case of an Enforcement Warrant – Regular Redirection [form 77], which is a three-page document, only one stamp of the Court seal on the front page in the left margin at the bottom and one stamp of the Court seal next to the signature of the appropriate officer issuing the warrant (which would be on the last page) is required. No other pages need be stamped.

4.3. COPIES OF DOCUMENTS (Rules 662 AND 980) A person may ask the Registrar for a copy or certified copy of a document filed (Rule 980). When a copy is requested:

The person must pay the scheduled fee The registrar must issue copy The copy of document must have an original seal and have the words ‘COPY’ stamped on

it placed towards top right hand corner under the Claim Number (a copy does not have to be signed).

A certified copy must be certified by the Registrar. The person must pay the prescribed fee (a certified copy costs more than a copy). The certification is:

I ...name ... Clerk of the Court at ...place of Court... being the officer ordinarily in charge of the records of the court hereby certify that the within ...claim/judgment/document... is a true copy of the document of which it purports to be a copy. signature and seal and dates

A certified duplicate of a filed order must be supplied at no cost within 1 business day after the order is filed (Rule 662). A certified duplicate is an order or judgment that has an original seal and signature and endorsed with the words:

‘CERTIFIED DUPLICATE COPY’

Copies of documents are summarised in the following table:

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Type/Cost Description Example of Use Copy - $1-70 Photocopy filed document and stamp

with the word ‘COPY’ and original seal. Filing a copy in another Court (e.g. Judgment for an EH)

Certified Copy – $18-50

Document (photocopy) certified with the certification stamp – original seal and signature on the certification

Filing a judgment interstate – SEPA. Seizure and Sale warrant registered on land title

Certified Duplicate Copy – Free

Original judgment stamped ‘CERTIFIED DUPLICATE COPY’

Filing a copy in another Court (e.g. Judgment for an EH)

4.4. SEARCH FILES OR DOCUMENTS (Rule 981) A person may ask the registrar to search or inspect a document in a court file (provided there is no court order restricting access or the file is not required for the courts use).

Practice Direction 3/99 (CSM) and Rule 981(3-4) direct that Registrars are to conduct a search and supply a Certificate of Search when the request is in writing giving sufficient particulars and fees paid.

Fees must be paid, however a party to the proceeding is not required to pay any fee.

The party requesting the search must specify the particular file and/or particular document.Requests like ‘please supply a copy of any civil proceeding involving one or more of the following persons ....... during the years 1992 to 1998’ cannot be easily done. If the person insists the search to take place, then a search fee for each file in each year should be charged (at the present time there is a search fee (to inspect records) of $9.40 for files inside 4 years and $17.50 outside 4 years – Item 5 part 1- Court Fees).

4.4.1. Certificate of Search (Rule 981(4))

The following is an example of a certificate of search. The certificate is completed with relevant information depending on the request.

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REGISTRY: ....place .... NUMBER: ... claim no ... Plaintiff: Name of Plaintiff

ANDDefendant: Name of Defendant

CERTIFICATE OF SEARCH

I ...... name of registrar...... Registrar, Magistrates Court at ... place ... hereby certify that a search of the courts records in accordance with the request and instructions of.... name of person/firm requesting the search.... in relation to the above proceedings has resulted in the followinginformation being revealed:

1. On ..../..../....a ...... describe document and number .......was issued in the abovementioned action.

2.

3.

Registrar (signature and seal) Date:

Certificate of Search Rule 981(4)

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4.5. SERIAL NUMBERING – CLAIMS, APPLICATIONS, NOTICES OF APPEAL (Rule 964)

Refer to 2.3.5.

4.6. LODGING AND FILING DOCUMENTS (Rule 967) Documents may be filed personally or by post. In those registries that have the CLAIMS computer application some organisations can file claims and requests for judgment electronically by complying with a practice direction (e.g. fax, electronic). A practice direction may require a particular class of document to be delivered to the registry personally.

A document is filed when the registrar records the document and stamps the seal of the court on it (Rule 968(4)).

No fees are payable if a party is the State [e.g. a Govt dept] (Rule 972).

The registrar may refuse to accept any document that is considered scandalous (Rule 973).

Before issuing an originating process the registrar may refer it to the court (i.e. Magistrate) if it is considered to be an abuse of the process of the court or frivolous or vexatious (Rule 15) (e.g. a claim issued for a very small amount). The court may direct the registrar to issue it or refuse to issue it.

4.6.1. Documents filed personally

A document is filed by personal delivery when registrar receives the document and:

Seals it (Rule 968); and Applicable fees paid (Rule 971) by cash, cheque, bank cheque or postal money order; and The Registrar is satisfied that the document complies with the Rules

4.6.2. Documents filed by post or Document Exchange

Documents may be filed by post by posting or using DX facilities. Any document forwarded by post or DX, including originating processes, must be securely held within an envelope suitable for the purpose. The envelope must:

Have correct applicable prepaid post Have the envelope marked that it contains court documents Contain sufficient copies Contain stamped pre-addressed envelope for return (correct postage and suitable size) Have correct fees (no fee if party is the State)

After filing, the registrar seals and returns documents in envelope provided (Rule 969). If the documents are defective and not filed, the registrar must return them in the envelope provided – a party files a document by post at the party’s risk.

In all cases use the envelope provided. If the envelope provided is too small, use an office envelope and glue the received envelope onto the office envelope. Do not use office postage and retain the envelope.

There may be a dealing fee if lodged by post (Rule 971(2)) – There is no postal dealing fee in the Magistrates Court.

If default judgment documents are filed by post (Rule 969(7)), the registrar must return the default judgment in the envelope provided (the free certified duplicate copy – Rule 662) [@ 4.3].

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If documents are filed by post without the stamped self-addressed envelope, the registrar processes them in the normal course and returns appropriate copies etc and advises the party, in writing, of the requirements of Rule 969.

If solicitors and/or agents continue in not providing the stamped self-addressed envelope, the registrar is required to process the documents (or not process them if applicable) and retains service copies (or as the case may be) in the registry until the party contacts the registrar.

4.7. AFFIDAVIT ABOUT A DEBT (Rules 430-441) An affidavit about a debt filed by post may be relied on only until the end of the 5th business day after the day it is sworn (Rule 970). This does not apply to an Affidavit of Service.

Therefore if more than six business days have lapsed, the affidavit (e.g. Affidavit of Debt accompanying a Request for Default Judgment) is no good and must be returned to the party requiring it to be filed.

An affidavit in an application (e.g. to enforce a money order) should be sworn and signed by the person who was actually involved in the event (e.g. an Affidavit of Service). If the affidavit is sworn by somebody else then that other person must state their sources of information and grounds of belief (Rule 430(2)) – this means that a person can swear an affidavit about somebody else serving a document or an affidavit supporting judgment or enforcing a judgment (money order).

4.8. ENDORSE FILING DETAILS AND INITIALS ON DOCUMENTS FILED All initiating proceedings and subsequent documents must be endorsed by the registrar with the date filed, fees paid (if any), receipt number and initials of the person accepting it.

The endorsement is made in the left margin of the front of the first page of the document and towards the middle of that margin, above the seal.

The application for a warrant, defence and judgment documents must also have the time of filing endorsed in the margin. The reason the time is required for defence and judgment documents is to ascertain which one will be accepted if they are received on the same day. For example, documents received by post are “received” at 9:00am. Therefore, if a defence is received in the post and the plaintiff attempts to file a default judgment at 11:00am, the defence takes precedence.

4.9. COPY OF ORIGINATING PROCESS TO BE KEPT BY COURT (Rule 20) The plaintiff or applicant must file with the court a copy of the originating process to be filed and kept by the court.

In practice, in the Magistrates Court, the original claim will be kept on file with sealed and signed service copies returned to the plaintiff, if required.

If the party filing the claim or document insists on the return of the original, then, simply, return it and file a copy. Advise them that the registry prefers the original filed.

4.10. CONTACT DETAILS AND ADDRESS FOR SERVICE (Rule 17) Refer to 2.4.6.

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4.10.1. Address for service if filed by plaintiff or applicant

If the originating process is filed by the Plaintiff or Applicant, the address for service of the plaintiff or applicant must be:

Residential or business address of plaintiff or applicant; or In Supreme Court & District Court an address for service in Queensland or another address

approved by court; and also contain Telephone number or way of contacting plaintiff or applicant by telephone Fax number of plaintiff or applicant (if any) Email address of plaintiff or applicant (if any)

4.10.2. Address for service if filed by a solicitor

If the originating process is filed by a solicitor, the following details regarding an address for service of the plaintiff or applicant are required:-

Name of solicitor and firm if applicable Address of solicitors place of business Address for service in Queensland or approved by court Solicitors telephone and fax number Document exchange address (if any) The firm’s email address (if any)

4.11. CHANGE OF ADDRESS OF PARTIES AND CHANGE OF PARTIES If an address changes, there is no requirement to include the old address (as in formerly of/now of). The new address of parties is simply written in the relevant place on the form when further documents are filed.

If the parties to a proceeding change, the names of the parties on each document after the change are used from then on (Rule 6(3)).

4.12. ORIGINATING PROCESSES MUST BE SIGNED (Rule 19) Refer to 2.3.3 for a claim and 2.3.4 for a MDC.

4.12.1. Authority to act as an agent in a minor debt claim

Refer to 2.3.4.

4.13. NAMES AND ADDRESS OF PARTIES IN A MAGISTRATES COURT The claim must be in the approved form (Forms 2 + 16) and properly completed and in correct format and layout (Rule 961)

The name and address of the plaintiff and defendant must be fully and properly named or described including street number and name, registered numbers and registered address where applicable – not Post Office box numbers unless otherwise ordered by the court. For example:

Neil Parr (is better than N Parr) (not a nickname e.g. Nobby Parr) of 10 Charlotte Street, Caboolture Qld 4510

Neil Parr and Jennifer Parr (not Neil & Jennifer Parr) Neil Parr and Jennifer Parr trading as Fruit Peelers Queensland, an unregistered business

name trading at Shed 4, 47 Pear Court, Banana Neil Parr and Jennifer Parr trading as Parr and Ender Bee Keepers a registered business

(BN 000 000) trading at 30 King Street, Caboolture Qld 4510 Parr Ender and Company Pty Ltd (ACN 999 000 999) a company duly incorporated in the

State of Queensland and having its registered address at 38 Queen Street, Brisbane

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The correct name of the plaintiff and/or defendant is important as the defendant may be able to successfully defend a proceeding if the action is commenced in the wrong name. The correct name of the plaintiff and/or defendant is important as the defendant may be able to successfully defend a proceeding if the action is commenced in the wrong name. The correct name and address of the defendant is important for the plaintiff to prove successful service by affidavit when applying for judgment by default. The correct name and address of the defendant is important for the plaintiff to prove successful service by affidavit when applying for judgment by default. A company must be properly described, as above, to later prove service by affidavit. A company must be properly described, as above, to later prove service by affidavit.

4.13.1. Searching business names and companies4.13.1. Searching business names and companies

There are different provisions applicable to service of companies and business names (or firms). This is particularly the case in relation to registered or unregistered business names (or firms).

A business name must be described correctly and identified if it is registered or unregistered (as above). If the business name is not properly identified, then service may be difficult to prove later. It is the responsibility of the Plaintiff to search business name records to obtain the correct name of the members of the business and if the name is, in fact, registered.

The plaintiff may search a business name or company name by contacting the Office of Fair Trading Ph 3246 1500 or 3246 1581 (fees apply). It is not the responsibility of the Registrar to conduct any search or verify business name or company name particulars.


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5 REGISTRAR TO KEEP RECORDS (Rule 977)

The registrar must keep a record in documentary or electronic form of all claims, applications, orders and other things required to be kept under these rules, including under a practice direction about case management.

Therefore all documents on all files must be inputted into CLAIMS. The electronic record must accurately reflect the physical file.

5.1. LOCATING FILES To locate a file, a search is made CLAIMS under the file number to ascertain the current status of the file and its location.

Claims and applications should only be in general filing, in court hearing pigeon holes, or temporarily on a desk having other documents checked, filed and actioned.

5.2. COURT FILE (CLAIMS AND APPLICATIONS) Also refer @ 2.4.14. A court file is required for every claim numbered. The Court File is created immediately a claim or Originating Application is filed with the file containing (in order from top to bottom):

A cover sheet; and Originating proceeding.

A court file is also created when other processes are filed, including:

A judgment from another court A warrant from another court A file from another court An order from a court in another jurisdiction (e.g. from S/C or D/C – Rule 802) An order from a commission or tribunal (e.g. QCAT)

In all cases these are numbered with the next claim number, inputted into CLAIMS and filed in your court (seal, cover sheet and index sheet etc).

All subsequent documents and correspondence that are filed are placed directly under the coversheet in order of receipt. All correspondence with a document attached is filed by placing the correspondence under the relevant document. (I.e. from top down: Cover Sheet, then document, then letter, then claim).

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5.3.FILE COVER SHEET 5.3. FILE COVER SHEET Refer 2.4.15.Refer 2.4.15.

5.3.1. Cover sheet example5.3.1. Cover sheet example

The title of the claim cover is produced on a separate full page as:

CLAIM/ORIGINATING APPLICATION

MAGISTRATES COURT

REGISTRY NUMBER: M

Plaintiff/Applicant: Defendant/Respondent

/ / @ am/pm

For Plaintiff/Applicant: For Defendant/Respondent

5.3.2. File index example

The File Index is produced on a separate full page as:

FILE INDEX NUMBER: M

Plaintiff/Applicant:Defendant/Respondent:

Folio No Date filed Description Filed on behalf of 1 24/9/99 Claim Plaintiff

Note: It is not recommended that both of these forms be produced on a single page.

5.3.3. Producing the cover sheet and file index

The cover sheet and File Index may be produced as blank documents [@ 5.3.2 and 5.3.3] for each claim and the particulars handwritten as required (the claim number and particulars regarding the parties may be computer generated). Once the proceeding has been registered in the CLAIMS application, cover sheets and File Indexes can be printed on demand.


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5.3.4. Noting the file cover

At trial, or on applications made to the court, the magistrate will write their order on the file cover. Money orders (judgment by default) and most callover dates are noted on the File Cover by the registrar.

When a file has a date allocated for mention or hearing, the file cover sheet must be noted:

/ / @ am/pm For: appln to stay enforcement

For Plaintiff: Mention/Hearing/Trial

For Defendant: as case may be

5.4. INITIATING APPLICATIONS (Rule 25-30) An Initiating Application is an application that is an originating process. It is filed in the same manner as a claim. The application must:

Be in approved Form 5 (or substantial compliance) (Rule 26) Name all respondents directly affected List affidavits, Form(s) 46, to be relied on by applicant at hearing Specify orders or other relief sought If made under another Act it must be named with the section Specify date for hearing (also endorsed on service copies) Be filed and served at least 3 business days before hearing (Rule 27) or other time as

ordered by court

Affidavits to be relied on in the application must be filed and served within 3 business days of the hearing (Rule 28). The Respondent:

May not file and serve notice of intention to defend an application Must file and serve notice of address for service at least 1 day before hearing (Rule 29)

with information contained in Rule 17 (contact details and address for service)

The parties may also consent to an adjournment of the application (Rule 30), or any applications may be made orally to the Court (Rule 32).

The required forms are:

Application – Form 5 - original + 1 copy for each respondent

o Original – filed o Copy served on each respondent

Supported by Affidavit Form 46 – original + 1 copy for each respondent

Affidavit of Service – Form 46 (filed after service if necessary) – original

Order – Form 59 – original + 1 copy for each respondent

It is acceptable for the applicant to retain the original, file a copy of the application and serve unsealed copies. The Registrar cannot insist on them filing multiple copies or insist on filing the original, although filing the original should be encouraged.

The application is given a claim number, sealed and signed, and a date is allocated for the hearing of the application. This date will normally be a civil call over day or other date as allocated by the Magistrate.

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Signed and sealed (with the mention or hearing date endorsed) service copies are returned to the person filing it. The person filing it arranges service. The parties attend court on the designated date and the Magistrate determines the application (or sets it for hearing at a later date).

Signed and sealed (with the mention or hearing date endorsed) service copies are returned to the person filing it. The person filing it arranges service. The parties attend court on the designated date and the Magistrate determines the application (or sets it for hearing at a later date). If the respondent(s) does not appear, the applicant may produce the affidavit of service and the Magistrate may determine the application in the absence of the absent respondent(s). If the respondent(s) does not appear, the applicant may produce the affidavit of service and the Magistrate may determine the application in the absence of the absent respondent(s). Orders that are made by the Magistrate are dealt with in the same manner as an order made in relation to a claim. The applicant prepares the order. The Registrar checks it against the Magistrate’s Order written on the file cover sheet and returns sealed copies to the applicant (the applicant is entitled to a free certified duplicate of the order – Rule 662) and files the order.

Orders that are made by the Magistrate are dealt with in the same manner as an order made in relation to a claim. The applicant prepares the order. The Registrar checks it against the Magistrate’s Order written on the file cover sheet and returns sealed copies to the applicant (the applicant is entitled to a free certified duplicate of the order – Rule 662) and files the order.


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6 DELAY (Rule 389) 6 DELAY (Rule 389)

Parties are expected to prosecute or proceed in relation to all proceedings in an expeditious manner. Continuation of proceeding after a delay has the following time frames: Parties are expected to prosecute or proceed in relation to all proceedings in an expeditious manner. Continuation of proceeding after a delay has the following time frames:

No step taken for 1 year from last step, the party who wants to proceed must give a months notice to every other party of that party’s intention to proceed

No step taken for 1 year from last step, the party who wants to proceed must give a months notice to every other party of that party’s intention to proceed

No step taken for 2 years– order of the court required to proceed (with or without notice to other party)

No step taken for 2 years– order of the court required to proceed (with or without notice to other party)

An application in which no order has been made is not taken to be a step An application in which no order has been made is not taken to be a step A step in a proceeding is action taken on file in accordance with the Rules up to and including judgment. A step does not include correspondence, notice of change of solicitors or other party/party litigious items. A step includes:

A step in a proceeding is action taken on file in accordance with the Rules up to and including judgment. A step does not include correspondence, notice of change of solicitors or other party/party litigious items. A step includes:

Service of a claim; Service of a claim; Directions hearing; Directions hearing; Pleadings Pleadings Applications within a proceeding Applications within a proceeding Other steps in accordance with the UCPR Other steps in accordance with the UCPR

Rule 389 does not apply to enforcing a judgment (see Rule 799 where judgment may be enforced without leave any time within 6 years of the judgment or section 10(4) of the Limitation of Actions Act 1974 where judgment cannot be enforced after 12 years).

Rule 389 does not apply to enforcing a judgment (see Rule 799 where judgment may be enforced without leave any time within 6 years of the judgment or section 10(4) of the Limitation of Actions Act 1974 where judgment cannot be enforced after 12 years). If a claim has been served more than 12 months ago and the plaintiff applies for judgment, then notice to proceed under Rule 389 must be given to the defendant or other parties to the proceeding.

If a claim has been served more than 12 months ago and the plaintiff applies for judgment, then notice to proceed under Rule 389 must be given to the defendant or other parties to the proceeding.

6.1. NOTICE TO PROCEED 6.1. NOTICE TO PROCEED The notice to proceed is not an approved form. The party wanting to proceed can simply write to the other parties and give them formal notice that they intend to proceed, or a notice in the following form may be served:

The notice to proceed is not an approved form. The party wanting to proceed can simply write to the other parties and give them formal notice that they intend to proceed, or a notice in the following form may be served:

Notice must contain a header and footer (Form 1) TAKE NOTICE THAT the Plaintiff hereby gives notice to the defendant that the plaintiff intends to proceed to judgment and enforcement in one month from the date of service of this notice. DATED at ............................... this ....................day of ......................... 19......

signed by plaintiff/solicitor

Proof of service (affidavit of service Form 46) of the notice must be provided before judgment can be given. Judgment can then be given in the normal course (i.e. judgment by default by court constituted by the Registrar).

If more than 2 years has lapsed, the plaintiff must make an application to the court for an order by the Magistrate to proceed to judgment. This is an application within a proceeding not on notice with a Form 9 application supported by a Form 46 affidavit. The application is not on notice; however the magistrate may direct that it must be on notice.


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7 AMENDMENT (Rule 375-388)

After an initiating process has been filed, it may be amended to correct deficiencies, inaccuracies and other problems.

A claim is in two parts (although it is simply referred to as a claim): the first part is the claim (approved Form 2) and the second part is the pleadings (approved Form 16 – Statement of Claim). The claim has the Statement of Claim attached.

Different procedures are followed to amend each part. Simply, leave of the court is required to amend the claim (unless the amendment is of a technical nature). The pleadings (i.e. the Statement of Claim) can be amended anytime without leave.

Any amendment must be distinguished from the original. If amended after service of the original, the amended claim and/or statement must also be served. The other party may apply to the court to have such amendment disallowed.

7.1. POWER TO AMEND At any stage of a proceeding the court may allow or direct a party to amend a claim, or anything written on a claim, a pleading, an application or a document in a proceeding in the way and on the condition the court considers appropriate (Rule 375(1)).

Subject to Rule 376, the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started (Rule 375(2)).

7.1.1. Amendment after limitation period

The court may give leave to make an amendment (Rule 376)

After the end of a relevant period limiting an amendment Correcting the name of a party Changing the capacity in which a party sues Even if it includes a new cause of action

7.1.2. Amendment of originating process (Rule 377)

An originating process may not be amended except

If the amendment is a technical matter (e.g. misspelt name/address; miscalculation of amounts, but not wrong amount of claim)- with the leave of registrar or the court; or

Otherwise by the leave of the court

This does not apply to amending a pleading or a particular included in an originating process (a pleading includes the Statement of Claim). Therefore the statement of claim can be amended anytime before a request for a trial date, but the claim requires leave to amend.

7.1.3. Amendment before request for trial date (Rule 378)

Before filing the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required.

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7.1.4. Disallowance of amendment (Rule 379)7.1.4. Disallowance of amendment (Rule 379)

The other party may apply to court within 8 days after service of the amendment for an order to disallow the amendment.

7.1.5. Amendment after request for trial date (Rule 380)

An amendment after filing the request for trial date may only be made with the leave of the court (i.e. an application within a proceeding on notice).

7.1.6. Failure to amend after order (Rule 381)

If the amendment has not been made, the order to amend expires on day specified by the court or, if no time, within 14 days after the order to amend was made.

7.2. MISTAKES IN ORDERS OR CERTIFICATE OF THE COURT (Rule 388) Clerical errors (because of an accidental slip or omission) of the court may be amended on application by a party or the courts own initiative at any time.

That is, errors in any order or certificate that is generated by the registrar may be amended or corrected by the registrar without application by any party; or a party may request the amendment on application (i.e. an application, not on notice, within a proceeding: application Form 9 supported by affidavit Form 46).

The application (oral or written) is determined by the Registrar (or Magistrate if the original order was made by the Magistrate). The amendment is made by crossing out the mistake with a single line and correcting it as necessary. The Registrar endorses the document with the words Amended by Registrar pursuant to Rule 388 and signs and seals and dates near the amendment, e.g:

second Amended by RegistrarThe Judgment of the court is that the first defendant pay ....pursuant to Rule 388

IM Registrar 1 July 2000

SEAL

7.3. PROCEDURE FOR AMENDING (Rule 382) When an amendment has been requested or ordered, the amendment, when made on the document, must be distinguishable from the remainder of the document (e.g. underlined in red ink or typed in different font and underlined), and

The document must have a notation on it, in a conspicuous position, the date of the amendment and date of the order giving leave (if any). If the amendment is made without an order or the court, the notation must include the rule under which the amendment was made [refer to the example @ 7.2]:

o Amended by order of XXXXXX Magistrate on dd/mm/yy or o Amended pursuant to Rule No. on dd/mm/yy

The amendment may be in writing on the document being amended

The amendment and notations may be handwritten in block letters (preferably in blue ink).

If the amendment is inconvenient or makes it difficult to read the document, a revised document incorporating the amendment and distinguishing the amendment (underlined, preferably in red ink, or typed in different font and underlined) must be filed and served

If a revised document is filed, the registrar seals, signs and dates the amendment near to the position where party endorsed the document as to identifying it as an amendment as (the reason for the amendment must also be included – as in the first dot point herein) [refer to the example @ 7.2]:


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o Amended claim filed dd/mm/yy (Registrar signs & seals & dates)

The court may direct how an amendment is to be made

If a court considers an amendment should be made, the court may direct a party, registrar, judge’s associate or other appropriate person to make the amendment. Therefore, the amendment is made at the registry counter on the original claim filed by the party requesting the amendment (and other copies as necessary). The file cannot leave the registry – the magistrate may direct the registrar to actually endorse the amendment rather than have the party requesting it do so (Rule 383)

If order made changing or affecting the identity or designation of a party, the plaintiff or applicant must (Rule 74)

o File amended copy of the originating process within time specified (or 10 days if no time specified) of date of order, and

o Serve the amended originating process on any new party

All amendments must be served (Rule 384)

Court may dispense with service or give directions regarding service

The defendant may plead (defend) the amendment, but if a defence has been filed on the original claim, the defendant does not have to file another defence as the original defence can still be relied on (Rule 385);

Costs of the amendment under Rule 378 are to be paid by the party making the amendment

The amend does not effect any timings in relation to the original claim – the amendment takes effect on and from the date of the document that was amended – but if a new cause of action is substantiated in the amendment, the amendment takes effect on and from the date of the order giving leave to amend (Rule 387).

7.4. REGISTRY PROCEDURE - AMENDING A pleading and/or a particular in a pleading may be amended at any time before a Request for Trial Date is filed. A pleading includes:

Statement of particulars of claim Statement of claim Defence Counterclaim

No application to amend is required. The Plaintiff simply files the amended document, with the amendment underlined in red ink. The amendment must be made on all service copies – it is not the responsibility of court staff to underline the amendment for the plaintiff.

The amended document must be endorsed by the party filing it: amended pursuant to Rule 377(2) {or as the case may be} and contain the date. The Registrar then files the amended document and writes on it amended Statement of Claim filed / / . The Registrar then signs and seals this endorsement. Service copies, if required, are returned. The Registrar then files the amended document on the Civil File and inputs document into CLAIMS.

A technical amendment in an originating process may be amended at any time before a Request for Trial Date is filed with the leave of the Registrar (or court). A technical matter includes:

Misspelt name/address Miscalculation of amounts

A technical matter is not a change in the amount of the claim or change in the name of the parties. An amendment requiring the leave of the Registrar is applied for in exactly the same manner as an application to the court constituted by the Magistrate.

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It is not the responsibility of court staff to argue points of law regarding the definition of a technical matter or other required amendments. The defendant may challenge the amendment under Rule 379. Court staff should make a notation on the file stating the plaintiff insisted on filing the amendment in that format without leave of the court.

It is not the responsibility of court staff to argue points of law regarding the definition of a technical matter or other required amendments. The defendant may challenge the amendment under Rule 379. Court staff should make a notation on the file stating the plaintiff insisted on filing the amendment in that format without leave of the court. All other amendments in other cases can only be made with the leave of the court (Magistrate). The forms required for leave to amend are: All other amendments in other cases can only be made with the leave of the court (Magistrate). The forms required for leave to amend are:

Application - Form 9 – original Application - Form 9 – original Supported by Affidavit - Form 46 – original (not always required) Supported by Affidavit - Form 46 – original (not always required) Order - Form 59 – original (completed by applicant) Order - Form 59 – original (completed by applicant)

This is an Application within a proceedings not on notice [@ 2.4.21] but it is determined by the Magistrate (or the Registrar for a technical amendment). This means that the procedures outlined for an application on notice are followed [@ 2.4.22] but the other party is not served with a copy of the application or order. The Order is filed (free certified duplicate [@ 4.3]).

This is an Application within a proceedings not on notice [@

2.4.21] but it is determined by the Magistrate (or the Registrar for a technical amendment). This means that the procedures outlined for an application on notice are followed [@ 2.4.22] but the other party is not served with a copy of the application or order. The Order is filed (free certified duplicate [@ 4.3]).

The amendment is filed (and identified) and endorsed by the applicant ‘amended by order of (the name of the Magistrate or Registrar as the case may be) on / / ‘. When filed, the Registrar checks the Order against the amendment and notes the document ‘amended Claim filed / / ‘. The Registrar then signs and seals this endorsement. Service copies, if required, are returned. The Registrar then files the amended document on the file, list the documentation on the file index sheet and inputs amended document and outcome of court event into CLAIMS.

The amendment is filed (and identified) and endorsed by the applicant ‘amended by order of (the name of the Magistrate or Registrar as the case may be) on / / ‘. When filed, the Registrar checks the Order against the amendment and notes the document ‘amended Claim filed / / ‘. The Registrar then signs and seals this endorsement. Service copies, if required, are returned. The Registrar then files the amended document on the file, list the documentation on the file index sheet and inputs amended document and outcome of court event into CLAIMS.

7.4.1.1. Examples – Endorsements for amendments 7.4.1.1. Examples – Endorsements for amendments

The following is examples of two of the most common types of amendments (the amendment is underlined):The following is examples of two of the most common types of amendments (the amendment is underlined):

1. The plaintiff is the owner of a Ford sedan motor vehicle registered number

Amended pursuant FORD 001 to Rule 377 Amended 2. At all material times the defendant was the owner of the Toyota sedanStatement of motor car registration number 995-FIKClaim filed 1/7/2000IM Registrar IM RegiSeal

Claim amended 1. The plaintiff is the owner of a Ford sedan motor vehicle registered number by Order of FORD 001 J Bloggs Magistrate on 28/6/2000 Amended 2. At all material times the defendant was the owner of the Toyota sedanClaim filed motor car registration number 995-FIK1/7/2000IM Registrar IM RegiSeal


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When the above is viewed on a computer monitor the endorsement made by the person requiring the amendment is red and the endorsement made by the Registrar is blue. When the above is viewed on a computer monitor the endorsement made by the person requiring the amendment is red and the endorsement made by the Registrar is blue.

7.5. CHANGE OF VENUE 7.5. CHANGE OF VENUE Change of venue basically means that the trial of the proceedings is to take place at another court.This relates to a proceeding started by claim or application – a MDC cannot be transferred (Rule 42(1) (a)).

Change of venue basically means that the trial of the proceedings is to take place at another court.This relates to a proceeding started by claim or application – a MDC cannot be transferred (Rule 42(1) (a)). The change of venue can be ordered by the magistrate at any time – change of venue by court order (Rule 40) – this will occur where a party applies to the court (an application on notice [@ 2.4.22] and supported by affidavit) and/or at the commencement of a trial the court is satisfied that the proceedings may be more conveniently or fairly heard at another court - the Magistrate will make the order and endorse it on the file cover sheet. If not filed by the parties with the application, the Registrar prepares the Order Form 59 as:

The change of venue can be ordered by the magistrate at any time – change of venue by court order (Rule 40) – this will occur where a party applies to the court (an application on notice [@

2.4.22] and supported by affidavit) and/or at the commencement of a trial the court is satisfied that the proceedings may be more conveniently or fairly heard at another court - the Magistrate will make the order and endorse it on the file cover sheet. If not filed by the parties with the application, the Registrar prepares the Order Form 59 as:

Original (signed by the Registrar and filed); and Original (signed by the Registrar and filed); and Copy for each party forwarded to their respective address for service. Copy for each party forwarded to their respective address for service.

The change of venue can also be arranged by the parties by change of venue by agreement (Rule 41). The parties can only do this before the trial of the proceedings and by all parties signing and filing an agreement in the approved Form 12 – Change of Venue by Agreement. The Order Form 59 is required and should be prepared by the parties and filed at the same time as the agreement. The Order may be made by the Registrar. The forms required are:

The change of venue can also be arranged by the parties by change of venue by agreement (Rule 41). The parties can only do this before the trial of the proceedings and by all parties signing and filing an agreement in the approved Form 12 – Change of Venue by Agreement. The Order Form 59 is required and should be prepared by the parties and filed at the same time as the agreement. The Order may be made by the Registrar. The forms required are:

Change of Venue by Agreement (signed by all parties) – Form 12 – original; and Change of Venue by Agreement (signed by all parties) – Form 12 – original; and Order Form 59 – original. Order Form 59 – original.

The Registrar then makes an order transferring the proceedings and notes the file cover sheet (inaccordance with signed change of venue by agreement and subject to the following conditions, I hereby order the within proceedings be transferred for hearing to ....... magistrates court – endorse conditions (e.g. for trial) and signature and date). Sealed copies of the agreement and order may be returned if requested.

The Registrar then makes an order transferring the proceedings and notes the file cover sheet (inaccordance with signed change of venue by agreement and subject to the following conditions, I hereby order the within proceedings be transferred for hearing to ....... magistrates court – endorse conditions (e.g. for trial) and signature and date). Sealed copies of the agreement and order may be returned if requested. In both cases the application and affidavit or agreement form and relevant order is filed on the civil file (sealed, signed, and noted in the file index). In both cases the application and affidavit or agreement form and relevant order is filed on the civil file (sealed, signed, and noted in the file index). The registry procedures to transmit the file to the other court are the same irrespective if the change of venue was by court order or agreement. The transferring court (original court) photocopies the entire civil file then:

The registry procedures to transmit the file to the other court are the same irrespective if the change of venue was by court order or agreement. The transferring court (original court) photocopies the entire civil file then:

Seals each page; and Seals each page; and Stamps each page with the COPY stamp. Stamps each page with the COPY stamp.

The transferring court then prepares a letter (original + 2 copies) like: The transferring court then prepares a letter (original + 2 copies) like:

An order of change of venue to your court was made by the court on / / . In accordance with order and subject to Rule (40 or 41) I forward a copy of my file herein. Please acknowledge receipt of this file and advise me of your Claim No. on the duplicate of this letter which attached.

The original and copy of the letter is sent to the other Court with the copy of the file. The other copy of the letter is filed on the transferring court’s civil file.

The transferee court (receiving court) endorses their claim number on the duplicate of the letter and returns it to the transferring court. The transferee court then completes a file index sheet, files the proceeding as one of their claims and sets a hearing date or as the case may be.


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8 SERVICE (Rules 100-133)

The basic principle of serving anything (an originating process processes or any other application or document) is to bring it to the attention of the person to be served. Normally, no action can be taken on a process until it is served.

Judgment by default cannot be given unless the Claim or MDC has been properly served, proven by a properly completed Affidavit of Service.

8.1. GENERAL PARTICULARS REGARDING SERVICE The rules allow for various types of service. The following is a summary:

Service is not allowed on Good Friday or Christmas Day (unless court orders otherwise) (Rule 101)

If served at a document exchange, the document exchange must be approved by the Chief Justice. The Chief Justice may approve , by practice direction, a document exchange for service to be ordinary service (Rule 102) – deemed served on the business day after it is left in the DX box (Rule 112(2))

If served after 4.00pm service deemed to be served on the next day (Rule 103)

Originating process must be served personally on the person intended to be served (Rule 105) (does not apply to service on a corporation – Rule 104) For service on a Corporation see Corporations Act 2001 section 109X or Associations Incorporations Act 1981 section 138.

Personal service Rule 106: is performed by giving the document or copy thereof to the person intended to be served – if the person does not accept it, the person serving it may serve it by putting it down in the persons presence and telling them about it – it is not necessary to show the person the original of the document

o Personal service in the Magistrates Court may also be effected by leaving it with an adult living at the relevant address; or serving it on the person’s solicitor at a document exchange or by fax (Rule 111(2).

A document to be served on a corporation is served under the Corporations Act 2001 or Associations Incorporation Act 1981 section 138 (i.e. posted to registered address, delivered to registered address or served on the director)

Ordinary service is defined in Rule 112 and applies for documents that are not required to be served personally (initiating proceedings must be served personally – e.g. a claim)

Personal service: Young people (under 18yrs) (Rule 108) Serve on litigation guardian; or if none Serve on parent or guardian; or if none Serve on adult who has their care or with whom they live

Personal service: persons with impaired capacity (Rule 109) Serve on litigation guardian; or if none Serve on person authorised by or under an Act (Rule 94(2)); or if none Serve on an adult who has the care of the impaired person

Personal service: Prisoners (Rule 110) Serve on Public Trustee if proceedings relate to property or damage and the P/T is

managing the prisoners estate; or if not Serve on prisoners litigation guardian; or if none Serve on the manager of the prison where prisoner confined

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8.1.1. Personal service in Magistrates Courts proceedings (Rule 111)8.1.1. Personal service in Magistrates Courts proceedings (Rule 111)

All originating processes must be served personally – Rule 105. However, service of any documents in a Magistrates Court proceeding can also be served in accordance with Rule 111.

In effect this means that, in the Magistrates Courts, initiating proceedings (i.e. all Claims, Minor Debt Claims and Originating Applications) may also be served by certain methods of ordinary service. The combined list of allowable service methods is:

Personally; or

By leaving it with someone who is apparently an adult living at relevant address; or

By posting it to the persons residential or business address if more than 50 km from the nearest court (Rule 111(3); or

If the solicitor for the person has –

a) An exchange box at a document exchange – leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitors exchange box; or

b) A fax – faxing the document to the solicitor; or c) An e-mail address – emailing the document to the solicitor

CAG Recommendation 6: Minor Debt Claim, Claim and Origination Applications must be served personally on the person intended to be served and the person serving the document(s) must sufficiently identify the person intended to be served. However, personal service can also be affected in other forms and Part 7 of the UCPR Manual (edit 4, volume 1) contains additional material on the rules of service.

Note: In relation to the above CAG Recommendation 6, Part 7 of the UCPR Manual (edit 4, volume 1) should now be read as Part 8 of this version of the UCPR Training Manual.

Essentially, when the person intended to be served has been served personally, it must be shown that the person served was sufficiently identified.

For example, the affidavit of service might contain a sentence similar to “I identified Joe Citizen by asking him his name and if he was the person named in the Claim and he said he was the same person.”

8.1.2. Ordinary service (Rule 112)

All documents that do not have to be served personally (e.g. Application within a Proceeding on Notice), may be served by ordinary service as defined in Rule 112(1):

Leaving it with someone who is apparently an adult living at relevant address

If there is no-one at the relevant address - leaving it at relevant address in a position where is it reasonably likely to come to the person’s attention;

If the relevant address is within a building or area to which the person serving the document has been denied access - leaving it at the building or area where is it reasonably likely to come to the person’s attention;

Posting it to the relevant address

If person has given

a) A fax number under these rules – faxing the document to the person; or b) An e-mail address under these rules – emailing the document to the person;

If the solicitor for the person has –


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a) An exchange box at a document exchange – leaving the document in the b) Exchange box or another exchange box available for documents to be transferred to

the solicitors exchange box; or

a) An exchange box at a document exchange – leaving the document in the

c) A fax – faxing the document to the solicitor; or

b) Exchange box or another exchange box available for documents to be transferred to the solicitors exchange box; or

d) An email address – emailing the document to the solicitor c) A fax – faxing the document to the solicitor; or d) An email address – emailing the document to the solicitor

An electronic means prescribed by practice direction. An electronic means prescribed by practice direction.

8.1.3. Relevant address (Rule 112(3))8.1.3. Relevant address (Rule 112(3))

Relevant address means:

Persons address for service; or

For an individual who does not have an address for service –

o The individuals last known place of business or residence; or o If individual being sued in name of a partnership – the principal or last known place

of the partnership; or

For a corporation that does not have an address for service - its head office or registered office

Note: Service on a person is not allowed, under the rules, by leaving it with someone in charge of, or at, the persons business at the registered business name address (see Rule 112(1)(a) which mentions leaving with adult living at relevant address), unless the person who receives it on behalf of another actually lives at that registered address. An order for substituted service (application, not on notice, Form 9 supported by affidavit Form 46) by a magistrate is required for service of a registered business name if not served by personal or ordinary service.

8.1.4. Other rules regarding service

Other rules regarding ordinary service:

Service in relation to a unregistered business – may also be served by leaving with someone who is apparently in charge of the business

Rule 113

Service in relation to a partnership – may also be served on 1 or more partners or on person apparently in charge – may also be served at registered office of partnership is registered under Partnership (Limited Liability) Act.

Rule 114

Other service:

Acceptance of service (by solicitor) Rule 115 Substituted service (service in accordance with court order) – the plaintiff makes an application to the court (Magistrate) for service to be effected in a special manner (e.g.. advertise in paper or leave at certain address) – the application is determined without notice to the other party – the forms required are: Application Form 9; Affidavit Form 46 and Order Form 59.

Rule 116

Informal service means that the actual service was incorrect, but the document still came into the possession of the person; the court may order (on application not on notice) that the service is satisfactory.

Rule 117

Service on agent Rule 118 Service under contract Rule 119

8.1.5. Service on business namesEdoc #1870135 Uniform Civil Procedure Rules Training Manual |

Training and Development Unit | 69

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A business name is the trading name of one or more people. A business name may be registered or unregistered. If the business name is registered it is allocated a Business Number (BN) [refer @ 4.13 and searching records @ 4.13.1].

A registered company is a legal entity and may sue and be sued in its own name. A business name, whether registered or unregistered, is not a legal entity. The individual members of the business name are responsible for all debts of the business. Therefore the members of the business must be served for the plaintiff to obtain judgment.

After searching through the Office of Fair Trading the plaintiff will be aware of the names and addresses of the members of the business and if the name is registered [@ 4.13.1] or not registered. Service is effected on a registered business name by serving the claim or MDC on one business name member or on all members by personal service [@ 8.1.1]. Judgment by default can be obtained against any registered member served who does not file a defence (see also Rule 91 – defence).

The members of a registered business name can not be served at the trading address by leaving a copy of the claim or MDC with someone else (unless the person to be served and person accepting service actually live at the address).

Service is effected on an unregistered business name by serving the Claim or MDC at the place of business by leaving a copy with a person who appears to have control or management of the business at that place (Rule 113(2)). The plaintiff may not know who owns the unregistered business (as there are no records to search) and therefore service is effected at the trading address by serving someone there. Judgment by default cannot be obtained against an unregistered business. If undefended the plaintiff must make an application to the court (i.e. an application within a proceedings not on notice [@ 2.4.21]) (see also Rule 92) to obtain judgment against the person served.

In reality, judgment by default may be obtained against the actual business name (whether registered or not), but this judgment may not be able to be enforced as their may be nothing in the actual name of the business. The judgment can be enforced against the members of the business.

To prove service the affidavit of service must state the method of service.

8.1.6. Service interstate

Refer to 3.2.4.

8.1.7. Service outside Australia

Service is allowable outside Australia (Rule 124), but to obtain judgment the service should be personal (i.e. personally delivered or by substituted service by Magistrates order). It is considered improper to allow postal service outside Australia without a court order. If an EC requires judgment when served outside Australia, look at any court orders relating to service and check the Affidavit of Service to ensure compliance with the order – if no order has been made then refer the judgment to the Magistrate. (Refer also to Rule 130 – Service in convention countries).

8.1.8. Proof of service

Service is proved by the person serving the claim or document completing and executing an affidavit of service. The affidavit is then filed at the registry where the originating process is filed or transferred to – [@ 8.2].

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8.2. AFFIDAVIT OF SERVICE (Rule 120) When the document is served personally, the Affidavit must be made by the person who served the document and must include:

The full name of the person who actually served it

Time, day and date document served (e.g. 8.30am on Monday the 15th day of November 1999)

Place of service (the address where it was served)

Name of person served and how the person was identified

o Identity of person (Rule 121): for proving service, a (spoken) statement by a person of their identity or that they hold a particular office or position is evidence of the identity or that the person holds the office or position

o If left with another person, the identity of that person should be ascertained and it must be confirmed that the intended person still resides there, and some time when the intended person to be served should receive the document.

Otherwise the affidavit must include:

Relevant dates and facts showing service, and Made on information given to or the belief of the person causing service, and If made on information given, must state the source of information If the affidavit is sworn by somebody else then that other person must state their sources of

information and grounds of belief (Rule 430(2)) – this means that a person can swear an affidavit about somebody else serving a document

8.2.1. Acceptable affidavits of service

There are three acceptable affidavits of service:

1. A separate affidavit with a copy of the document filed with it as an exhibit; or 2. A separate affidavit endorsed on the back of a copy of the document; or 3. If the document has been filed, a separate affidavit mentioning the document in such a

way for the document to be easily identified (stand-alone affidavit).

Note that it is not necessary to have an original sealed copy or a photocopy of the sealed copy to accompany the affidavit of service. A photocopy of the document is acceptable.

All affidavits of service must conform to the approved affidavit Form 46 (i.e. include a header and footer as outlined in Form 1 – the footer must contain the relevant Rule number under which the document was served).

If the document that was served has previously been filed, the title of the affidavit may have abbreviated parties. The body of the affidavit must describe the document that was filed (e.g. I served a copy of the above claim number M....... filed on ......../......../........ at the Magistrates Court at ................) [@ 8.3].

8.2.2. Service by fax (Rule 122)

If a document is served by fax, the faxed document must include a cover page stating:

The senders name and address The name of the person to be served The date and time of transmission The total number of pages, inclusive of the cover page Fax number from which transmitted Telephone number of person faxing in case there is a transmission problem The rule under which it is being served

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The affidavit regarding service must include as an exhibit, the transmission advice generated by the senders fax machine indicating that the transmission was successful. The affidavit regarding service must include as an exhibit, the transmission advice generated by the senders fax machine indicating that the transmission was successful.

8.2.3. Other service – outside Queensland: outside Australia8.2.3. Other service – outside Queensland: outside Australia

For the following types of service, refer to the rules (this does not form part of this manual)

Rule 123 Service outside Queensland (serve in accordance with SEPA Cwth) Rule 124 Service outside Australia (see also Rules 125 - 129) [and @ 8.1.7]

8.3. REGISTRY PROCEDURE - AFFIDAVITS OF SERVICE FILED All affidavits of service must be checked to ensure they contain proper and sufficient information to prove service in accordance with Rule 120 or otherwise. If the affidavit is incorrect, return it to the party who required it to be filed.

If the affidavit of service relates to a document that has been filed, it is not necessary to include or attach a copy of the document to the affidavit. The affidavit must simply describe the document for it to be easily identified. An example of this type of affidavit is:

8.3.1.1. Example - Affidavit of Service (describing document served)


Registry: Brisbane Number: M18,001/00 Plaintiff: Thomas Croose and Anor

AND

Defendant: Neil Parr and Ors

I William Charles Dalton of 83 Kessell Parade, Brighton, Bailiff, make oath and say that on Tuesday the 4th day of July at 9.20am I served a copy of the above claim number M18001/00 filed on 1 July 2000 at the Magistrates Court at Brisbane on Neil Parr at 30 King Street, Caboolture personally. I identified Neil Parr by asking him his name and if he was the person mentioned in the Claim and he said he was the same person.Taken and sworn before me at Brisbane on 5 July 2000 in the presence of: WC Dalton John WilliamsonDeponent Justice of the Peace

Affidavit of Service Filed on behalf of the plaintiff Form 46 Rule 22(3); 106; 120

Fox and Griddle, Solicitors, Suite 19, 147 Queen Street, Brisbane Q 4001 Telephone 07 5555 4444 Fax 07 5555 4445

Filed 5/9/2000 Rec n/a

Seal

All affidavits of service are to be filed on the civil file. When filed, the affidavit must be sealed (bottom left margin) and date of filing and initials of the person accepting it endorsed (middle left margin) and inputted into CLAIMS computer system.


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Plaintiffs and their representatives should be discouraged from filing affidavits of service unless it is required for enforcement or otherwise.

Note that there is no approved form for an Affidavit of Service. The only information required on the affidavit is that as contained in Rule 120 and may be prepared with only relevant information pertaining to a particular service with no deletions as in multiple choice types of service. The only approved type of affidavit is Form 46. At the footer of the affidavit of service, the relevant rules under which the document was served must be included (e.g. Rule 106 relates to personal service).

The basic rules for signing any affidavit apply – signature witnessed by a Solicitor, JP or Com Dec – all alterations or deletions initialled – dated with the place of signing inserted – if the affidavit is not sworn but affirmed, the word sworn is crossed out and the word affirmed inserted.

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8.3.1.2. Affidavit of Service [Form 46] 8.3.1.2. Affidavit of Service [Form 46]


Registry: Registry: Number: Number: Plaintiff: Plaintiff:

AND AND

Defendant Defendant

AFFIDAVIT OF SERVICE AFFIDAVIT OF SERVICE I, (full name) I, (full name) of (address) , (occupation) of (address) , (occupation) make oath and say that on the day of , 19 make oath and say that on the day of , 19 at am/pm , I served (name of person served) at am/pm , I served (name of person served) with a copy of the (Claim/MDC/etc) for Claim No. filed on / / at (Place) with a copy of the (Claim/MDC/etc) for Claim No. filed on / / at (Place) (together with the statement of particulars of claim [delete if applicable]): (together with the statement of particulars of claim [delete if applicable]):

a) by delivering a copy of thereof to him/her personally at (address): a) by delivering a copy of thereof to him/her personally at (address): I identified the person served by: I identified the person served by:

b) by leaving a copy thereof for the defendant at his/her place of residence at with (name) a person who is apparently an adult living at the relevant address

b) by leaving a copy thereof for the defendant at his/her place of residence at with (name) a person who is apparently an adult living at the relevant address

I identified the person served by: I identified the person served by:

c) *by leaving a copy thereof at/*by posting a copy thereof by prepaid post addressed to/the registered office of the defendant company at (address);

c) *by leaving a copy thereof at/*by posting a copy thereof by prepaid post addressed to/the registered office of the defendant company at (address);

d) By posting a copy thereof by prepaid post addressed to the defendant’s place of

residence/place of business at as the defendant resides/carries on business more than 50km from the nearest court

d) By posting a copy thereof by prepaid post addressed to the defendant’s place of residence/place of business at as the defendant resides/carries on business more than 50km from the nearest court

And that I necessarily made …….. (number) trips and travelled ………. (distance) kilometres in all, for the purpose of effecting such service. And that I necessarily made …….. (number) trips and travelled ………. (distance) kilometres in all, for the purpose of effecting such service.

Additional travelling fees claimed $...................... Additional travelling fees claimed $......................

Sworn by the abovenamed deponent at (place) on / / , before me: Sworn by the abovenamed deponent at (place) on / / , before me:

.................................................. .................................................................................................... ..................................................Justice of the Peace Deponent Justice of the Peace Deponent

Affidavit of service Affidavit of service Filed on behalf of the plaintiff/defendant Filed on behalf of the plaintiff/defendant Form 46 Rule 120: (& other rule relating to document) Form 46 Rule 120: (& other rule relating to document)

Name and address for service, telephone number and fax number of solicitor or party filing document Name and address for service, telephone number and fax number of solicitor or party filing document

Strike out Alternativesnot required


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9 DEFENCE (Rules 134 – 144) – PROCEEDING STARTED BY CLAIM

9 DEFENCE (Rules 134 – 144) – PROCEEDING STARTED BY CLAIM

Filing a defence means that the defendant desires to contest the claim or MDC – the defendant is saying that they are not responsible for the allegations contained therein. Filing a defence means that the defendant desires to contest the claim or MDC – the defendant is saying that they are not responsible for the allegations contained therein. A defence to a claim or minor debt claim is commenced by the defendant filing the appropriate approved forms at the court where the originating process is filed. The defence document cannot be filed at any other court. Filing the defence prevents Judgment by Default being given against the defendant. The defendant must serve a copy of the defence on the plaintiff at their address for service. It is imperative that the defence documents are entered on CLAIMS immediately to prevent a judgment by default be granted in error.

A defence to a claim or minor debt claim is commenced by the defendant filing the appropriate approved forms at the court where the originating process is filed. The defence document cannot be filed at any other court. Filing the defence prevents Judgment by Default being given against the defendant. The defendant must serve a copy of the defence on the plaintiff at their address for service. It is imperative that the defence documents are entered on CLAIMS immediately to prevent a judgment by default be granted in error.

Form 7 - Conditional notice of defence (does not apply to a MDC)

o Challenges jurisdiction of the court where claim filed o Asserts some irregularity in the claim o Original + 1 copy for each plaintiff or plaintiffs address for service o Cannot be filed in a Minor Debt Claim

Form 18 - Counterclaim (does not apply to a MDC)

o Must be included and attached with the defence Form 6 and 17 o Original + 1 copy for each plaintiff or plaintiffs address o Additional copy for each new party added to proceedings

The required approved forms are:

Form 4 - Notice of intention to defend and defence to a minor debt claim

o Defence to a MDC only - 1 + 1 copy for each plaintiff or plaintiffs address for service

Form 6 - Notice of Intention to defend

o Defence to a claim - 1 + 1 copy for each plaintiff or plaintiffs address for service o Must include Form 17 Defence and attached to the Form 6 and all copies

The basic rules for filing a defence are that the defence must be signed; it must outline a defence and not merely filed as a delaying tactic. It must be served on the plaintiff at the plaintiff’s address for service (on footer of first page of claim or MDC). When a defence is filed in relation to a Claim, the defence is filed, and sealed copies are returned to the defendant – no further action is required by the registry (the parties will proceed as they require).

The basic rules for filing a defence are that the defence must be signed; it must outline a defence and not merely filed as a delaying tactic. It must be served on the plaintiff at the plaintiff’s address for service (on footer of first page of claim or MDC). When a defence is filed in relation to a Claim, the defence is filed, and sealed copies are returned to the defendant – no further action is required by the registry (the parties will proceed as they require). When a defence is filed in relation to a MDC sealed copies are returned to the defendant. The registrar must then refer the file to the Magistrate, who will then decide whether the proceeding is to be transferred to QCAT for hearing and determination, as allowed for by Section 268(4) of the Queensland Civil and Administrative Tribunal Act 2009.

When a defence is filed in relation to a MDC sealed copies are returned to the defendant. The registrar must then refer the file to the Magistrate, who will then decide whether the proceeding is to be transferred to QCAT for hearing and determination, as allowed for by Section 268(4) of the Queensland Civil and Administrative Tribunal Act 2009. If the proceeding is to be transferred to QCAT’s jurisdiction, follow the procedures as outlined at the end of 7.5 (Change of Venue) if you’re at Brisbane Magistrates Court. The original file is then physically sent to the central QCAT Registry at Level 9, Bank of Queensland Building, 259 Queen Street (GPO Box 139) Brisbane.

If the proceeding is to be transferred to QCAT’s jurisdiction, follow the procedures as outlined at the end of

7.5 (Change of Venue) if you’re at Brisbane Magistrates Court. The original file is then physically sent to the central QCAT Registry at Level 9, Bank of Queensland Building, 259 Queen Street (GPO Box 139) Brisbane.

For Magistrates Courts other than Brisbane, the proceeding must be given a QCAT Minor Civil Disputes (Other) file number and set for a hearing date in accordance with relevant QCAT procedures. It is strongly suggested that you then place a dummy sheet in your Civil filing area, with the original file number and parties and a notation similar to the following:

For Magistrates Courts other than Brisbane, the proceeding must be given a QCAT Minor Civil Disputes (Other) file number and set for a hearing date in accordance with relevant QCAT procedures. It is strongly suggested that you then place a dummy sheet in your Civil filing area, with the original file number and parties and a notation similar to the following:


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Transferred to the Queensland Civil and Administrative Tribunal (QCAT) for determination and renumbered as xxxx/xx.

If the Magistrate decides to keep the proceedings in the Magistrates Court they will set a date for the hearing. The registrar also forwards a copy of the defence to the plaintiff with the Notice of the Hearing of a Minor Debt Claim (the defendant is also forwarded a copy of the Notice, but there is no need to forward a copy of the defence).

Except with the courts leave, a defendant cannot take a step in a proceeding unless a notice of intention to defend or a conditional notice of intention to defend is filed (Rule 135) and:

Defendant may defend (i.e. defence signed) by a solicitor, defendant and for a MDC, by an authorised agent in writing (if required by the registrar) (Rule 136) [@ 2.3.4]Must be in approved form and have defendants defence attached (Rule 139 )

Must have contact details and address for service under Rule 17 or an address for service specified under the Service and Execution of Process Act 1992 (Cwlth)(Rule 140)

Must be signed and dated (Rule 139(2)) Must be filed in registry that issued the claim (Rule 141) Sealed copy must be served by the defendant (or solicitor or agent) at plaintiffs address for

service on day filed or as soon as practicable thereafter (Rule 142)

9.1.1. Objection to Court (Rule 39)

A defendant may object to proceedings being started by a Claim in a particular Magistrates Court’s District by including the objection in their Notice of Intention to Defend (Rule 39).

A respondent may object by making an application (within a proceedings on notice) for dismissal of the proceeding (Application Form 9; supporting Affidavit Form 46; Affidavit of Service Form 46; Order Form 59 [@ 2.4.22].

If the defendant or respondent does not object (i.e. include in their defence or make the application that the proceedings were commenced in the wrong district), the court of its own initiative cannot decide the proceedings should have been started in another district (Rule 39(2)).

The court (i.e. Magistrate), on deciding the objection, may dismiss the objection or the proceeding or make an order that the proceedings be transferred to another court. If the court makes an order, the Registrar prepares an Order Form 59 in the terms of the Court’s Order, transfers the proceedings to the other Court, if ordered, (Rule 40) and supplies the EC with a free certified duplicate of the order (Rule 662).

9.2. THE DEFENDANT MAY ACT BY THEIR SOLICITOR OR IN PERSON (Rule 136) The defence document must be signed by the defendant or their solicitor. A defence to a minor debt claim may be signed by the defendant, solicitor or an agent. If signed by an agent, and the registrar requires it, the defence must be filed with an authority (letter from defendant authorising the agent – same provisions as filing a MDC with an agent acting for the plaintiff [@ 2.3.4]).

If the defendant is a person with a legal incapacity, the defendant may defend proceedings only by the person’s litigation guardian who may act only by a solicitor

9.2.1. Time allowed for notice of intention to defend (Rule 137)

To prevent judgment being given by default, the defence must be filed within:

28 days after claim served Or as allowed by the Service and Execution of Process Act 1992

This means that if a claim or MDC was served on 1 September at 10.00am, the earliest date the plaintiff may file for judgment is 30 September (do not count the actual day of service).

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If the defendant was served after 4.00pm, service is deemed to be the next day and therefore judgment cannot be entered until 1 October [@ 8.1 - Rule 103].

9.2.2. Late filing of notice of intention to defend (Rule 138)

The defendant may file and serve their defence at any time before judgment even if in default of Rule 137.

If a defendant files a defence after time allowed the defendant is not, unless court orders, entitled to further time for doing anything else

9.2.3. Conditional notice of intention to defend (Rule 144)

A conditional defence is filed where the defendant is challenging the jurisdiction of the court where the claim was filed or asserting an irregularity in the claim. There is no requirement to attach a defence to a conditional defence.

The defendant must then apply for an order to set aside the originating process under Rule 16 within 14 days after filing the Conditional Notice of Intention to Defend. This is an application within a proceeding on notice [@ 2.4.22]. It is not up the court staff to advise the defendant or do anything in relation to the application as it may be legal advice – staff should refer the defendant to a solicitor. Staff may inform the plaintiff or defendant about the 14 days though.

If the defendant does not file the application, after the 14 days the Conditional Notice of Intention to Defend becomes an unconditional Notice of Intention to Defend (i.e. it becomes the same as a Form 6). It is up the plaintiff or defendant to make other applications to the court.

If the defendant files and serves an unconditional notice of intention to defend it is deemed to have accepted the jurisdiction of the court and waived any irregularity in the proceedings – i.e. to challenge the jurisdiction of the Court or allege and irregularity in the Claim, the defendant must file and serve a conditional notice to defend.

9.2.4. Notice of intention to defend – business name (Rule 91)

If a proceeding is brought against a person in relation to a business name (not being their own name – e.g. Parr Ender Bee Keepers only as the defendant), the defendant must defend it in their own name and not the name of the business.

This means that when only a business name is named as the defendant (whether the business is registered or not) the Notice of Intention to Defend must be in the name of a person and not the business name (Rule 91(2)). The Notice of Intention to Defend is headed the same as the Claim (to properly identify the proceeding), but signed by a person representing the business, e.g. Neil Parr, proprietor of Parr Ender Bee Keepers.

When the defence is filed, the person filing it must also include a statement of the names and addresses of all the people who were carrying on the business at the time the proceeding was started. This statement is served on the plaintiff at the same time as the defence is served.

The court may set aside the defence of a person who does not comply with this Rule.

This Rule does not apply to a MDC.

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9.2.5. Minor debt defence form9.2.5. Minor debt defence form

The following is an example of a completed defence to a MDC and an example of the registrar’s endorsement at filing:

9.2.5.1. Example - Notice of Intention to Defend and Defence to a Minor Debt Claim [Form 4]


REGISTRY: BrisbaneNUMBER: M 18,001/00

Plaintiff: Thomas Croose and Nicole Croose

AND

Defendant: Neil Parr and Jennifer Parr T/a Parr Ender Bee Keepers a regd Bus. Name BN 000 000

NOTICE OF INTENTION TO DEFEND AND DEFENCE TO A MINOR DEBT CLAIM

TAKE NOTICE that the Defendant intends to defend this proceeding The facts relied on by the Defendant are set out in the Defence included in this document.

[The Defendant says this proceedings has not been started in the correct district] [The Defendant says this court does not had jurisdiction in this matter]

Filed in the Brisbane Registry on 26 July 2000.IM Registrar Registrar:

DEFENCEThe defendant relies on the following facts in defence of the claim:

1. The defendant admits the allegations in paragraph … of the statement of claim (If not able to be identified by number – set out any allegation admitted)

2. The defendant does not admit the allegation in paragraph …. of the statement of claim. (if not able to be identified by number – set out allegations not admitted)

3. The defendant denies the allegation in paragraph … of the statement of claim and after making reasonable inquiries believes that the allegation is untrue or cannot be admitted or sustained because the goods supplied were defective and returned to the Plaintiff within 2 weeks of delivery.

4. The defendant admits delivery of the goods in the statement of claim and asserts that such goods were of an unworkmanlike standard and could not be used. The goods were delivered on 12 October 1999 and returned to the Plaintiff on 5 November 1999.

SEAL

BRIS

Filed 26/7/00 Rec: n/a Init: IMR


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PARTICULARS OF THE DEFENDANT

Name: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a regd business BN 000 000 and trading at 30 King Street, Caboolture

Defendant’s business address: 30 King Street, Caboolture Qld 4510Defendant’s address for service: 30 King Street, Caboolture Qld 4510Defendant’s telephone number: 07 5495 1200 Defendant’s fax number (if any) nilDefendant’s E-mail address nil

Neil Parr Signed:Description: Neil Parr for and behalf of the defendants Dated: 25 July 2000 Note: All relevant documents must be brought with you and made available to the Court at any

hearing of this proceeding. If signed by an agent, written authority must be filed with this defence

Notice of intention to defend and defence to a minor debt claim Filed on behalf of the defendant Form 4 Rules 139, 146, 514

Neil Parr, 30 King Street, Caboolture Qld 4510Telephone No. 07 5495 1200

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9.2.5.2. Conditional Notice of Intention to Defend [Form 7]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

TAKE NOTICE that the [First] Defendant disputes the jurisdiction of this court to entertain the Plaintiff's claim against the [First] Defendant without the [First] Defendant's consent [or: that the [First] Defendant says that the proceeding is irregular] for the following reasons: (set out reasons) Filed in the Registry on / / . Registrar PARTICULARS OF THE [FIRST] DEFENDANT: Name: Defendant's residential or business address: Defendant's solicitors name: and firm name: Solicitor's business address: Address for service:Dx (if any): Telephone: Fax: E-mail address (if any): [If the defendant has no solicitor: defendant's address for service: defendant’s telephone number or contact number: defendant’s fax number (if any): defendant’s e-mail address (if any)]

Signed: (defendant or solicitor) Description: (of signatory) Dated:

Conditional notice of intention to defend Filed on behalf of the defendant [Form 7] Rule 144


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9.2.5.3. Notice of Intention to Defend [Form 6]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

TAKE NOTICE that the [First] Defendant intends to defend this proceeding. The facts relied on by the [First] Defendant are set out in the attached defence [and counterclaim]. [The [first] defendant says that this proceeding has not been started in the correct district.]

Filed in the Registry on / / .

RegistrarPARTICULARS OF THE [FIRST] DEFENDANT: Name: Defendant’s residential or business address: Defendant’s solicitors name: and firm name: Solicitor’s business address:Address for service:Dx (if any): Telephone: Fax: E-mail address (if any): If the defendant has no solicitor: defendant’s address for service: defendant’s telephone number or contact number: defendant’s fax number (if any): defendant’s e-mail address (if any)]


Notice of Intention to defend

Filed on behalf of the defendant [Form 6] Rule 139


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9.2.6. Defendants defence must be attached to notice of intention to defend

The defendants defence must be attached to this notice of intention to defend (Rule 139). The defence is the approved Form 17.

9.2.6.1. Defence [Form 17]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

Filed in the (place) registry on (date).

DEFENCE OF THE [FIRST] DEFENDANT

The [first] defendant relies on the following facts in defence of the claim:

1. The [first]defendant admits the allegations in paragraphs of the statement of claim.

2. The [first] defendant does not admit the allegation in paragraph of the statement of claim. The [first] defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because (give explanation).

The [first] defendant believes the allegation cannot be admitted because (give explanation).]

3. The [first] defendant denies the allegation in paragraph of the statement of claim and believes that the allegation is untrue or cannot be admitted because (give explanation).

4. (set out as briefly as the nature of the case permits the material facts on which the defendant relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules)

Signed: (defendant or solicitor) Description: (of signatory) [This pleading was settled by (name) of Counsel].

NOTICE AS TO REPLY

You have fourteen days within which to file and serve a reply to this defence. If you do not do so, you may be prevented from adducing evidence in relation to allegations of fact made in this defence.

Defence Filed on behalf of the defendant [Form 17] Rule 146


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9.2.7. Counterclaim to be attached if pleaded

If the defendant is alleging a counterclaim (e.g. the plaintiff owes them money), the notice of intention to defend must have attached a defence and counterclaim – approved Form 18.

The defendant cannot file a counterclaim unless they file a defence (Rule 179). If the defendant requires action against the plaintiff and cannot file a defence, the defendant can only file a claim against the plaintiff.

No counterclaim can be filed for a Minor Debt Claim (MDC).

9.2.7.1. Defence and Counterclaim [Form 18]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

File in the (place) registry on (date).

DEFENCE AND COUNTERCLAIM

DEFENCE

The defendant relies on the following facts in defence of the claim: 1. The defendant admits the allegations in paragraphs of the statement of claim. 2. The defendant does not admit the allegation in paragraph of the statement of claim.

The defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because (give explanation).

The defendant believes the allegation cannot be admitted because (give explanation).] 3. The defendant denies the allegation in paragraph of the statement of claim and believes

that the allegation is untrue or cannot be admitted because (give explanation). 4. (set out as briefly as the nature of the case permits the material facts on which the defendant

relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules)

Defence and Counterclaim Filed on behalf of the defendant [Form 18] Rule 179


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9.2.7.2. Defence and Counterclaim [2nd page]

COUNTERCLAIMFile in the (place) registry on (date). This counterclaim is made by the [First] Defendant against: 1. The [First] Plaintiff; 2. The [Third] Plaintiff; 3. The [Second] Defendant; 4. (Name any other relevant person not already a party in the proceeding) called “[First]

Defendant added by counterclaim”;

This counterclaim is made in reliance upon the following facts: (Set out as briefly as the nature of the case permits a statement of all the material facts relied on in accordance with the Uniform Civil Procedure Rules, Chapter 6.) The Defendant claims the following relief: (Set out in full all relief claimed by the counterclaim in the same way as is required for a claim


NOTICE AS TO REPLY AND ANSWER To the Plaintiff(s): You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading. To the [Second] Defendant: You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading.[To each Defendant added by Counterclaim: TAKE NOTICE that you are being sued by the [First] Defendant in the Court. If you intend to dispute this claim or wish to raise any counterclaim, you must within 28 days of the service upon you of this counterclaim file a NOTICE OF INTENTION TO DEFEND in this Registry. If you do not comply with this requirement, judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the Defendant’s address for service shown in this counterclaim as soon as possible.] Address of Registry: street address, PO address, telephone number & fax number

Particulars of the [First] Defendant: (Here give the particulars required of a Plaintiff and Plaintiff’s Solicitor in Form 2. Include name and address of each party to be served with the counterclaim.)

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9.3. REGISTRY PROCEDURE – DEFENCE GENERALLY The defence document can only be accepted and filed at the court where the initiating process is filed. A court cannot accept a defence for another court.

When a defence is received, the registrar:

Checks CLAIMS to ensure that it is the correct claim

Checks CLAIMS to ensure that judgment has not been given

Ensures the defence is properly signed

o If a claim, by the defendant or solicitor o If a minor debt claim, by the defendant, solicitor or authorised agent in writing

Checks if all defendants are defending the proceeding

o Judgment by default can be given against those defendants who have not signed

Ensures that there are contact details and address for service on the forms

Ensures sufficient copies are filed (original + 1 per service address of the plaintiff(s))

Seals defence documents – bottom left margin

Returns sealed service copies to defendant for service on plaintiff


Immediately enter into CLAIMS (this will prevent judgment being given)

Files original on civil file

If the defence is in relation to a claim, the registrar then returns the civil file to general filing.

If the defence is a defence in a MDC, the registrar does not return the civil file to general filing, but refers the proceeding to Magistrate for decision on whether to transfer it to QCAT.

If the proceeding is transferred, the registrar:

(Brisbane Magistrates Court only) Copies the entire file and stamps each page with the Court seal and COPY stamp Forwards the original file to Central QCAT registry with a covering letter

(Magistrates Courts other than Brisbane) Issues the proceeding is issued a new QCAT Minor Civil Dispute – Other file number. In CLAIMS, the file is transferred to the Minor Civil Dispute – Other jurisdiction using the

new file number. The hearing date is set in accordance with QCAT procedures. A dummy sheet is placed in the Civil files where the physical file was originally stored.

If the proceeding is not transferred:

Allocates a minor debt claim hearing date (or obtain date from magistrate). Enters the hearing date in CLAIMS Notes the hearing date and time on the file Cover Sheet Prepares the hearing notice for all parties or DRB notices for abbreviated mediation notice Seals the notices and sign the notices Posts the notice to the defendant and plaintiff at their address for service with a copy of the

defence for the plaintiff Completes the affidavit of service on back of the file copy of the notice Puts the file in the court hearing date pigeon hole

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After the hearing, the registrar inputs outcome of hearing into CLAIMS. The plaintiff (or defendant if the defendant was successful) will then prepare relevant documents to enforce the order of the court (e.g. judgment documents).

After the hearing, the registrar inputs outcome of hearing into CLAIMS. The plaintiff (or defendant if the defendant was successful) will then prepare relevant documents to enforce the order of the court (e.g. judgment documents).


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10 MINOR DEBT CLAIMS (Rules 513 - 522) 10 MINOR DEBT CLAIMS (Rules 513 - 522)

Section 10 is shown for information and reference purposes for existing Minor Debt Claim proceedings only. No new Minor Debt Claims are able to be lodged now that the Queensland Civil and Administrative Tribunal (QCAT) has commenced operations. Some of the UCPR Rules referred to in this section have now been repealed.

A minor debt claim is a claim of not more than $7,500, including interest, being for a liquidated debt or demand. A minor debt claim is a claim of not more than $7,500, including interest, being for a liquidated debt or demand. To reduce costs and expedite finalisation of the claim, specific simplified procedures apply to minor debt claims. These procedures may also apply to minor claims or claims that are not minor claims where the parties have requested the simplified procedures to apply (Rule 514).

To reduce costs and expedite finalisation of the claim, specific simplified procedures apply to minor debt claims. These procedures may also apply to minor claims or claims that are not minor claims where the parties have requested the simplified procedures to apply (Rule 514). The parties to a MDC cannot (unless they and the court agree) be represented by a Solicitor at any hearing if the MDC is defended. The parties to a MDC cannot (unless they and the court agree) be represented by a Solicitor at any hearing if the MDC is defended.

10.1.1. Liquidated or unliquidated debt or demand10.1.1. Liquidated or unliquidated debt or demand

A liquidated debt or demand is a claim for any amount of money where payment was agreed to by the parties to the action. It is also liquidated if the amount of claim is obvious by inspection and known by all parties to the action. A liquidated claim also includes money owing, plus interest, on a credit card (e.g.. Bank Card), and money owing, plus interest, on a continuing credit account where the amount of interest or charges is known prior to incurring the debt.

An unliquidated debt or demand is where the exact amount of money owing is not known, or if known, is not accepted by all parties: e.g. damages to motor vehicles in a motor vehicle accident or breach of contract.

Definition:

Whenever the amount to which the Plaintiff is entitled can be ascertained by calculation or fixed by any scale or charges or other positive data it is said to be liquidated or ‘made clear’.But an action in which the amount to be recovered depends upon the circumstances of the case and no one can say positively beforehand whether the Plaintiff will recover a cent or twenty dollars or a thousand dollars is an action for unliquidated damages.

A simple explanation of a liquidated debt is where an item is purchased for a set price, or works done at an agreed price, and is not paid for. The price is known. The plaintiff can sue for non-payment of the debt under these simplified procedures.

10.1.2. Commencing and signing a MDC

Minor debt claims are filed in the same jurisdiction as a Claim [@ 2.2.2 and 2.2.3] and have the same limitations in initiating proceedings as a Claim [@ 2.2.4].

A MDC was commenced by the plaintiff, solicitor or agent completing and signing the approved form and filing it in the correct Magistrates Court (signed by agent [@ 10.1.3]).

10.1.3. Authorisation of agent

If signed by an agent, the plaintiff’s written authorisation, if required by the Registrar, must have been filed with the MDC [@ 2.3.4]. For consistency of registry practices it is suggested that Registrars do not insist on the authorisation.


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10.1.4. Filing other documents and appearances at MDC hearings

In minor debt claim proceedings the plaintiff, plaintiff’s solicitor or the plaintiff’s agent can file required documents for the plaintiff; however a solicitor cannot appear for the plaintiff at any hearing. The plaintiff can be represented at hearings themselves or by their agent.

Solicitors may appear at hearings only if parties agree or the court gives leave to appear (i.e. the magistrate allows a solicitor to appear and represent a party at the hearing).

The same applies when a defendant is defending a minor debt claim. The defendant, defendant’s solicitor or defendant’s agent can sign, file and serve defence documents. The defendant’s solicitor can not represent the defendant at any hearing.

Only by leave of the court or when the parties agree are solicitors permitted to represent the plaintiff and/or defendant at a minor debt hearing. The hearing date for a minor debt claim is set when a notice of intention to defend and defence to a minor debt claim is filed.

10.2. SIMPLIFIED PROCEDURES OUTLINES (Rule 514) A minor debt claim was commenced when:

Plaintiff filed a claim in the approved form (Form 3) stating

o That the claim is a minor debt claim • Liquidated amount (including interest) not more than $7,500

o The amount or amounts claimed (including interest and filing fee) o How the amount is worked out and came to be owing.

The MDC must have contact details and address for service of the plaintiff (Rule 17) and must be signed by the plaintiff, solicitor or agent (Rule 19(2)) [@ 10.1.3 and 2.3.4].

Minor debts claims are numbered consecutively with claims – they do not have a different numbering sequence.

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10.2.1. Defending a minor debt claim (Rules 514(b), 521)

If the defendant wishes to defend the MDC, they must file a Notice of Intention to Defend and Defence to a Minor Debt Claim – Form No. 4. This notice may be filed anytime before judgment is given – Rule 521 - (judgment by default may be given 28 days after service – the judgment is given in the same manner as judgment on an undefended claim and using the same approved form).

The defence, in the approved form, must include a response answering the plaintiff’s assertions and state any amount the defendant says they may owe (if any), how the amount is calculated and why the amount is owed. It must also include contact details and an address for service of the defendant (Rule 17). The defence must be signed (Rule 136).

Once the defence is filed, the registrar must refer the proceeding to the Magistrate for a decision on whether the proceeding is to be transferred to QCAT under the provisions of section 268(4) of the Queensland Civil and Administrative Act 2009.

If the proceeding is to be transferred, the process for doing so is outlined [@9] .

If the proceeding is not to be transferred, the registry practice is that, normally, the Magistrate will set the hearing date and the Registrar then prepares and posts the notices for hearing to addresses for service of the parties. Note: abbreviated mediations are usually now set for before the actual hearing of the MDC.

10.3. THE HEARING OF A MINOR DEBT CLAIM (Rules 514(1)(D) – 522) The hearing of the minor debt claim is not open to the public (i.e. heard in camera or closed court). There are other considerations like:

No enforced disclosure of documents between parties unless court orders

All parties must have all relevant documents available at the hearing

No lawyers or qualified advocates at a hearing unless parties agree or court orders (court must consider difficulty of question of law or fact raised or likely to be raised; any prejudice to a party; parties rights and insurers)

The court (constituted by Magistrate) may hear claim in private

o Is not bound by laws of evidence or procedure o May inform itself of the facts in any way court considers appropriate o Must observe rules of natural justice o No recording of evidence taken but record reasons for decision o May give directions to enable mediation to take place (DRB Process) o May attempt to settle dispute o Continue to hear action that can not be settled by mediation o May make orders to give effect to agreement reached by mediation or otherwise o Must make orders court considers fair and equitable or dismiss the claim

Only allowable costs are filing fees and bailiff service, travelling fees, search fees and eLodgement transaction fees.

No counterclaim (Rule 520) however court may order it as separate minor debt claim.

There is no appeal to a decision on a minor debt claim or claims dealt with under simplified procedures (Magistrates Courts Act - Sect. 48) although a party may apply to the S/C for a review of the Magistrates decision (complete a Form 56 – Application for Review and file in the S/C – advise the applicant to see a solicitor before proceeding).

10.3.1. Appearance at hearing of minor debt claim (Rule 522)

A party is taken to have appeared at the hearing if the party

RTI 140310 Page 165


• Files in the court an affidavit of facts (including relevant documents exhibited to affidavit), and sends a copy of the affidavit to the other party; and/or

• Appears in person at the hearing; and/or • Appears by their authorised (in writing) agent

10.3.2. Failure of both parties to appear at hearing

If neither party appears the court may dismiss the proceeding.

10.3.3. Failure of plaintiff to appear at hearing

If the plaintiff does not appear, but the defendant does, the court may

• Grant judgment for the claim (or part) as defendant admits • Dismiss proceeding if defendant does not admit any part of claim

10.3.4. Failure of defendant to appear at hearing

If the plaintiff appears, but the defendant does not, the court may

• Give judgment • Or other order the Court considers just with or without plaintiff giving evidence of the claim

10.4. SETTING (MINOR DEBT CLAIM) JUDGMENT ASIDE (RULE 522(5-6)) An absent party may apply to the court within a reasonable time (as determined by the Magistrate) to have judgment (and its enforcement) set aside. The court, if satisfied there was enough reason for the party’s absence; the court may set aside the judgment and its enforcement. The application, on notice, is made in Form 9 and supported by an affidavit - Form 46 (application within a proceeding on notice [@ 2.4.22]).

The application does not require the Order – Form 59 as the Magistrate does not make an order to set the judgment aside, but re-hears the MDC.

When the application is made, the magistrate will set a date and the registrar:

• Forwards a signed and sealed copy of the application with the hearing date endorsed (and the affidavit) to all parties (affidavit of posting the application on back of file copy)

• Notes the Claims Register • Writes the date of hearing on the file cover sheet • Puts the file in relevant court date pigeon hole

When the court sets the judgment aside, the court:

• Must re-hear a proceeding then or at a later time set by the court • May give directions it considers appropriate and necessary for justice to be done between

the parties.

10.5. SIMPLIFIED PROCEDURES MAY APPLY TO MINOR CLAIMS (Rule 514) The simplified rules may also apply to minor claims (i.e. not more than $25,000 including interest) when proceedings were initiated by filing and serving a Claim. They may also apply to any claim that isn’t a minor claim if the parties agree in writing and file a copy of the agreement for the claim to continue under the simplified procedures.

10.6. FORMS IN RELATION TO MINOR DEBT CLAIM An example of a Minor Debt Claim is @ 3.2.4.5 and defence @ 9.2.5.

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The Notice of Hearing @ 10.6.1.1 (next page) is produced by CLAIMS once the hearing date is entered when a Notice of Intention to Defend and Defence to a Minor Debt Claim is completed and filed by the defendant.

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10.6.1.1. Example - Notice of Hearing of a Minor Debt Claim 10.6.1.1. Example - Notice of Hearing of a Minor Debt Claim

NOTICE OF THE HEARING OF A MINOR DEBT CLAIM NOTICE OF THE HEARING OF A MINOR DEBT CLAIM

REGISTRY: BrisbaneREGISTRY: Brisbane NUMBER: M18001/00 NUMBER: M18001/00 PLAINTIFF: Thomas Croose and Anor PLAINTIFF: Thomas Croose and Anor ADDRESS: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q

4001ADDRESS: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q

4001DEFENDANT: Neil Parr and Anors DEFENDANT: Neil Parr and Anors ADDRESS: 30 King Street, Caboolture Q 4510 ADDRESS: 30 King Street, Caboolture Q 4510 THE HEARING OF THIS MINOR DEBT CLAIM WILL TAKE PLACE IN THE MAGISTRATES COURTTHE HEARING OF THIS MINOR DEBT CLAIM WILL TAKE PLACE IN THE MAGISTRATES COURTAT: Brisbane Magistrates Court AT: Brisbane Magistrates Court PLACE: Court 9, 3rd Floor, Central Courts Building, 179 North Quay, BrisbanePLACE: Court 9, 3rd Floor, Central Courts Building, 179 North Quay, BrisbaneDATE: 3 August 2000DATE: 3 August 2000TIME: 10.30am TIME: 10.30am

SEALBRIS

IM Registrar IM Registrar Registrar Registrar 20/7/2000 20/7/2000

TAKE NOTICE: TAKE NOTICE: Failure to appear in a minor debt claim Failure to appear in a minor debt claim 522.(1) If neither party appears at the hearing of a minor debt claim, the court may dismiss the proceeding522.(1) If neither party appears at the hearing of a minor debt claim, the court may dismiss the proceeding(2) If the plaintiff does not appear at the hearing but the defendant does, the court may– (2) If the plaintiff does not appear at the hearing but the defendant does, the court may– (a) if the defendant admits part of the claim–give judgement for the plaintiff for the part of the claim the defendant admits: or (a) if the defendant admits part of the claim–give judgement for the plaintiff for the part of the claim the defendant admits: or (b) if the defendant does not admit any part of the claim–dismiss the proceeding. (b) if the defendant does not admit any part of the claim–dismiss the proceeding. (3) If the plaintiff appears at the hearing but the defendant does not, the court may give the judgement or make the order the court considers just without requiring the plaintiff to give any evidence of the plaintiff’s claim, unless it considers the giving of evidence desirable.

(3) If the plaintiff appears at the hearing but the defendant does not, the court may give the judgement or make the order the court considers just without requiring the plaintiff to give any evidence of the plaintiff’s claim, unless it considers the giving of evidence desirable. (4) For this rule, a party is taken to have appeared at the hearing if the party– (4) For this rule, a party is taken to have appeared at the hearing if the party– (a) files in the court before the date of the hearing an affidavit of the facts in issue with a copy of the documents the party considers relevant to the facts in issue as exhibits to the affidavit; and (a) files in the court before the date of the hearing an affidavit of the facts in issue with a copy of the documents the party considers relevant to the facts in issue as exhibits to the affidavit; and (b) sends to the other party a copy of the affidavit. (b) sends to the other party a copy of the affidavit. (5) If the court is satisfied, on application made to it within a reasonable time after judgment given the absence of a party came to the notice of the absent party. There was enough reason for the party’s absence; the court may set aside the judgment and its enforcement.

(5) If the court is satisfied, on application made to it within a reasonable time after judgment given the absence of a party came to the notice of the absent party. There was enough reason for the party’s absence; the court may set aside the judgment and its enforcement. (6) The court must rehear a proceeding set aside under subrule (5) then or at a later time set by the court.(6) The court must rehear a proceeding set aside under subrule (5) then or at a later time set by the court.(7) At any time during the hearing the court may give the direction for the conduct of the proceeding it considers appropriate and necessary to enable justice to be done between parties. (7) At any time during the hearing the court may give the direction for the conduct of the proceeding it considers appropriate and necessary to enable justice to be done between parties.


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10.6.1.2. Example - Notice of Hearing of MDC [2nd page - certificate of service] 10.6.1.2. Example - Notice of Hearing of MDC [2nd page - certificate of service]

CERTIFICATE OF POSTING CERTIFICATE OF POSTING

REGISTRY: BrisbaneREGISTRY: Brisbane NUMBER: M18001/00 NUMBER: M18001/00 PLAINTIFF: Thomas Croose and Anor PLAINTIFF: Thomas Croose and Anor ADDRESS: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q

4001ADDRESS: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q

4001DEFENDANT: Neil Parr and Anors DEFENDANT: Neil Parr and Anors ADDRESS: 30 King Street, Caboolture Q 4510 ADDRESS: 30 King Street, Caboolture Q 4510 I, Ian Maurice REGISTRAR of the Magistrates Court at: Brisbane Hereby Certify that on: 20/7/2000I, Ian Maurice REGISTRAR of the Magistrates Court at: Brisbane Hereby Certify that on: 20/7/2000copies of the within Notice of the Hearing of a Minor Debt Claim were posted to the above named Plaintiff and Defendant at their respective address’ listed above and last known to me. copies of the within Notice of the Hearing of a Minor Debt Claim were posted to the above named Plaintiff and Defendant at their respective address’ listed above and last known to me. IM Registrar IM Registrar 20/7/2000 20/7/2000

SealBris

Note: The notice and certification are not approved forms. The certification is endorsed on the back of the file copy of the notice.

The CLAIMS Application will automatically produce a Notice of Hearing of a Minor Debt Claim, with an affidavit of service on the back, when a Minor Debt Hearing court event is registered.


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10.7. REGISTRY PROCEDURE - MINOR DEBT CLAIMS A Minor Debt Claim was checked and filed in the same manner as outlined in 2.4 and its sub-parts and adjusted as necessary. A MDC is served in the same manner as a claim, although sufficient service copies should be supplied to non-represented plaintiffs. The registrar ensures the correct form is used and:

• Ensures the claim is for a liquidated amount

• Claim of $7,500 including interest, or less

• Signed by plaintiff or agent (if agent written authorisation from Plaintiff filed with MDC)

• Contact details and address for service

• Sufficient copies – original + 1 copy for each defendant

o Affidavit of service to assist for non-represented plaintiffs

• Correct fees – filing fee submitted and other fees are within the fee scale

• Seals, signs and returns sealed service copy for plaintiff to arrange service

• Creates civil file

• List the documentation on the file index sheet

• Inputs into CLAIMS system

• Files the civil file in general civil filing

After the MDC is served, the defendant can ignore it, pay the amount or file a defence. If the defendant pays the amount, the MDC is finalised. If the defendant ignores it, the plaintiff can either take no further action or file default judgment 28 days after service.

If the defendant files the Notice of Intention to Defend and Defence to a Minor Debt Claim, the MDC is either transferred to QCAT or set for hearing. The defence is filed as an original and one copy per plaintiff (or plaintiff’s address for service). The registrar then:

• Checks the defence document

• Checks CLAIMS system to see if judgment given

o If judgment properly given, the defence cannot be accepted o Defendant must then apply to the court for the judgment to be set aside [@ 10.8]

• Extracts the relevant civil file (defence only lodged at registry where claim filed)

• Seals it and returns sealed service copies to defendant to serve on the plaintiff

• Particulars of date of filing is noted in middle left margin

• Inputs defence into CLAIMS (judgment cannot then be given)

• Files the original sealed defence

• Refers the proceeding to the Magistrate for decision on whether to transfer to QCAT or not

If proceedings is to be transferred to QCAT:

Prepares a copy of the file [@7.5] and sends to Central QCAT Registry with cover letter (Brisbane Magistrates Court)

Allocates a new QCAT Minor Civil Dispute – Other number and sets proceeding down for hearing in accordance with QCAT procedures (all other locations)

If not to be transferred:

Allocates hearing date (or obtains a hearing date and time from the magistrate)

Allow at least 7 days for the hearing after the date service would be effected

Endorses hearing date and time on file cover

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Enters date in CLAIMS

Prepares, signs and seals Notice of hearing of MDC

Original notice + copy for each party per address of service Posts notice to plaintiff and defendant A copy of the defence is posted with the notice to the plaintiff

Completes and signs the affidavit of posting the notice

Places the file in the relevant court hearing date pigeon hole

The magistrate will determine the matter. The Magistrate will endorse their order on the file cover sheet. Input the outcome of the hearing in CLAIMS and file relevant documents in accordance with the order (e.g. judgment and/or enforcement). A judgment in a MDC is enforced exactly the same way as a judgment given on a claim in the Magistrates Court, using the same approved form.

10.8. REGISTRY PROCEDURE - JUDGMENT SET ASIDE To make an application to have judgment by default set aside, the following forms are required (the same basic procedures apply to any judgment by default):

1. Application Form 9 – original + 2 2. Affidavit. Form 46 – original + 2 3. Order Form 59 – original + 2 (not required for a Minor Debt Claim)

The registrar extracts the relevant Civil File and:

• Checks the application and ensures it relates to their claim or minor debt claim • Checks the affidavit to ensure properly signed and witnessed with annexure marked • Retrieves file, signs and seals all documents • Allocates hearing date (normally civil call over day or date allocated by magistrate) • Endorses the date and time on the application • Returns sealed copies to party filing application for service on other party • Endorses the date and time on the file cover • List the documentation on the file index sheet • Inputs documents and court event into CLAIMS • Puts file in relevant court days pigeon hole

If the Magistrate makes the order, the filed order is checked and, if correct, the original is filed and the signed and sealed copies returned to the applicant for service on the other party(s). If the Order is incorrect, the applicant must file new correct orders for filing etc. (the Registrar may prepare the order for an unrepresented party).

Once order made, the outcome is to be entered into CLAIMS.

This is an application within a proceeding on notice [@ 2.4.22]

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10.8.1.1. Affidavit Supporting Application to Set Aside Judgment [Form 46]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

AFFIDAVIT - SET ASIDE MINOR DEBT CLAIM JUDGMENT

I, (name of person making affidavit) of make oath and say that:

1. I am the plaintiff/defendant in this action 2. On the day of 19 , Judgment was entered against me (the defendant) for

$ for claim and interest and $ for costs, a total of $ . 3. The grounds for my application to set aside Judgment are as follows: Judgment was given on a

minor debt claim hearing in my absence. The reason I was not in attendance at the hearing was:

SWORN by the abovenamed deponent at on / /20 , before me:

Justice of the Peace Deponent

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10.8.1.2. Application to Set Aside Judgment [Form 9]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

APPLICATION TO SET ASIDE JUDEGEMENT FOLLOWING MINOR DEBT CLAIM HEARING

TAKE NOTICE that the (party applying) is applying to the Court for the following orders:

1. that the judgment in the amount of $ given on / / be set aside.

2. that the Enforcement Warrant for Seizure and Sale (or as case may be) be set aside

This application will be heard by the Magistrates Court at (insert street name, no and Town) on: / / , at am/pm.

Filed in the (insert town) Registry on: / / .

Registrar: (registrar to sign and seal) If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you.

On the hearing of the application the applicant intends to rely on the following affidavits: 1. Affidavit of (name of deponent) sworn (date);

THE APPLICANT ESTIMATES THE HEARING SHOULD BE ALLOCATED: 30 minutes

Signed: (party applying or solicitor) Description: (of signatory) Dated:

This application is to be served on: (name of party) or(name and address of respondent if not already a party)

Application to set aside judgment Filed on behalf of the plaintiff/defendant [Form 9] Rule 522(5)


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11 COUNTERCLAIMS (Rules 175 – 185)

A counter claim basically means that the defendant is saying the plaintiff owes them money in relation to the claim that they were served with. A counterclaim cannot be made by itself, but must form part of the defendant’s defence. If there is no defence, the defendant must initiate a separate action against the plaintiff. There is no counterclaim to a minor debt claim.

A counterclaim may be made after the issue of a claim (Rule 176). The defendant may make a counterclaim against a plaintiff instead of bringing a separate proceeding (Rule 177).

The approved forms required in relation to a counterclaim are:

• Notice of intention to defend Form 6

o Original + 1 copy for each plaintiff or plaintiffs address for service; and

• Defence Forms 17 attached to each notice Form 6; and

• Counterclaim Form 18 attached to each defence Form 6 and 17.

The basic registry function when a defence and counterclaim is filed is to seal the documents and return sealed copies for the defendant to serve on the plaintiff, and input into CLAIMS. Also refer to Defence [@ 9] and service at Rule 128.

As the ramifications of a counterclaim may be serious, staff must not give legal advice in relation to anything to do with a counterclaim (or any other proceeding). Staff may only give procedural advice. If the parties to the action require further information, refer them to a Solicitor.

11.1. COUNTERCLAIM AGAINST ADDITIONAL PARTY (Rule 178) A defendant may make a counterclaim against a person other than the plaintiff (whether or not already a party to the proceeding) if:

• The plaintiff is also made a party to the counterclaim; and

• Either:

o Defendant alleges the other person liable with the plaintiff; or o Defendant claims relief against other person relating to the original claim And the

defendant must make a counterclaim; and

• Serve the defence and counterclaim together with the plaintiffs statement of claim on the person within time allowed for service (e.g. 28 days) – the person so served then becomes a party to the proceeding.

If a party, not already a party to the proceedings, is served with a counterclaim, the title of the counterclaim must be the full title as contained in the originating claim.

The additional party then may defend the counterclaim under Rule 178(4) by filing and serving a Notice of Intention to Defend. If the additional party does not defend the counter within 28 days after being served with it, the defendant may obtain judgment by default documents against the additional party, by filing the affidavit of service of the Counterclaim together with judgment documents [@ 14].

The defendant then may reply and answer the defence of the counterclaim with 14 days of being served (Rule 164(2)).

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11.1.1. Pleading and serving a counterclaim (Rule 179)

A counterclaim must be in the approved form and must be included in the same document and served within the same time as the defence.

• A defendant to a counterclaim may plead by filing and serving an answer to the counterclaim (i.e. the plaintiff in the originating claim may serve the answer on the defendant in the originating claim) within 14 days of service (Rule 164(1)(a))

o There is no approved form for an answer to a counterclaim, but it should be in similar form to the Notice of Intention to Defend and Defence and headed Answer to Counterclaim (the answer is simply the plaintiffs defence to the counterclaim)

• A counterclaim may proceed after judgment is given or after the original claim proceeding is stayed, dismissed or discontinued (Rule 183).

• Judgment may be given for the balance of a claim and counterclaim (Rule 184).

• If no defence is pleaded (i.e. counterclaim only) court may stay enforcement of a judgment given against the defendant until the counterclaim is decided (Rule 185).

• The original’s defendant’s reply to the original plaintiff’s answer to the counterclaim should be filed and served within 14 days of being served with the answer (Rule 164(2)).

11.2. REGISTRY PROCEDURE - (DEFENCE AND) COUNTERCLAIM The defence and counterclaim must be filed at the court of issue of the claim. The registrar then:

• Checks for correctness for:

o Approved form with contact details and address for service of defendant o Signed by appropriate person (defendant or solicitor) o Original + 1 copy for each plaintiff or plaintiff’s address for service o If new party added or included to the proceedings, the counterclaim must have the

full title as on the claim

• Notes the date (and time) of filing in the middle of the left margin

Seals original and copies (at Registrars signature then bottom left margin)

• Files the document on the civil file

• Inputs documents into CLAIMS

• Sealed copies are returned to the defendant for service on the plaintiff or other parties (it is the responsibility of the defendant to serve the plaintiff(s) at their address for service (as endorsed on the Claim) and other parties with a sealed copy of the defence and counterclaim) (the service copies are not stamped with the COPY stamp)

o If filed by post, returned in the self-addressed stamped envelope provided

• The Registrar then files the civil file. The parties to the proceedings then may file other documents as they require.

11.2.1. Registry procedure - Answer to counterclaim

If the Plaintiff files an answer to the Counterclaim (within 14 days after service), the registrar:

• Checks for correctness for

o Suitable form with contact details and address for service of plaintiff o Signed by appropriate person (plaintiff or solicitor) o Original + 1 copy for each defendant or defendant’s address for service

• Notes the date (and time) of filing in the middle of the left margin

• Seals original and copies (bottom left margin)

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• Files the document on the civil file • Files the document on the civil file

• Inputs documents into CLAIMS • Inputs documents into CLAIMS

• Sealed copies are returned to the plaintiff for service on the defendant(s) and/or other parties (it is the responsibility of the plaintiff to serve the defendant(s) with a sealed copy of the reply) (the service copies are not stamped with the COPY stamp)

• Sealed copies are returned to the plaintiff for service on the defendant(s) and/or other parties (it is the responsibility of the plaintiff to serve the defendant(s) with a sealed copy of the reply) (the service copies are not stamped with the COPY stamp)

o If filed by post, returned in the self-addressed stamped envelope provided o If filed by post, returned in the self-addressed stamped envelope provided



Note: The Plaintiff (defendant to the counterclaim) “replies” to the defence and “answers” the counterclaim. Generally they will file a document called a “Reply and Answer”.


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12 THIRD PARTY PROCEDURES (Rules 191 – 208)

A defendant may file a Third Party Notice if the defendant wants to claim a contribution, indemnity or relief against a person who is not already a party to the proceeding. In essence, the defendant is claiming that the third party is partly or wholly responsible or liable for the debt or damage being claimed by the plaintiff.

The approved form for the Notice is: Third Party Notice (Form 14)

o Original + 1 copy for each third party, plaintiff, and other party who has filed a Notice of Intention to Defend

12.1.1. Content of Third Party Notice (Rule 193)

A third party notice must be in the approved form (Form 14). The Notice must state the nature of the claim made or relief sought against the third party and a statement of claim must be attached, unless the Court orders otherwise.

The following rules also apply to a Third Party Notice, just as if it was a Claim:

Rule 17 – the Defendant’s contact details and address for service must be shown [refer @2.4.6 and @4.10.1]Rule 18 – if the Defendant is represented by a solicitor their details must also be shown [refer @4.10.2]Rule 20 – a copy of the Notice must be provided for the Court to keep [[email protected]]Rule 23 – the Notice must include a statement about filing notice of intention to defend the third party proceeding

12.1.2. Time for filing Third Party Notice (Rule 194)

Unless the Court gives leave, a Third Party Notice can’t be filed until the defendant has filed a defence. The Third Party Notice must be filed within 28 days of the end of:

the time limit for the filing of the Defendant’s defence (the prescribed period); or the period agreed to, if the plaintiff has agreed to an extension of the prescribed period.

12.1.3. Application for leave to file Third Party Notice

If the Defendant wishes to file a Third Party Notice, and the filing wouldn’t otherwise comply with the UCPR, they must obtain the leave of the Court (i.e. a Magistrate) by making an application within a proceedings on notice (@2.4.22).

The application must be served on the plaintiff and the Court may also order that it be served on another party who has filed a notice of intention to defend (Rule 194(2) & (3)).

12.1.4. Serving Third Party Notice (Rule 195)

After it’s been issued, the Defendant must serve the Third Party Notice on the third party as soon as practicable. It must be served in the same way as an originating process is served on a Defendant. For the Magistrates Court this means personal service and some of the methods of ordinary service – the list of all acceptable methods can be found @8.1.1.

A copy of the following documents must also be served with the Third Party Notice: any Order giving leave to file or serve the Third Party Notice

the Claim all pleadings that have been filed in the proceeding

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After the third party has been served, the defendant must also serve a copy of the Notice on the plaintiff and all parties who have filed a notice of intention to defend.

12.1.5. Third Party’s Intention to Defend (Rule 197)

Once served with a third party notice, the third party becomes a party to the proceeding and is able to lodge a Notice of Intention to Defend against the claim contained within the Notice. Chapter 5 of the UCPR (Notice of Intention to Defend, Rules 134-144) applies, with necessary changes, to a proceeding started by a third party notice as if the third party were a defendant to a Claim. Also refer @9 through to @9.3, ignoring the sections about Minor Debt Claims.

The third party may file and serve a defence within 28 days after the day the third party notice is served on them (Rule 198).

The third party may make a counterclaim against the defendant, plaintiff or another person (Rule 200).

Pleadings to be served on Third Party (Rule 199) A party who files a pleading after the filing of a third party notice must serve the pleading on all other parties (including the third party) who have an address for service.

12.1.6. Judgment against Third Party (Rule 201)

This section applies in any proceeding where a default judgment has been given against a defendant who has included a third party into the proceeding, and the third party has failed to file an intention to defend or defence within the allowed time.

Because these situations will be very rare and probably complex, any request for default Judgment against the Third Party should be referred to your Registrar or Magistrate (as appropriate) for determination, to ensure proper compliance with the Rules.

12.2. REGISTRY PROCEDURE – THIRD PARTY NOTICE The third party notice must be filed at the court of issue of the claim. The registrar then:

• Checks for correctness for:

o Approved form with contact details and address for service of defendant o Signed by appropriate person (defendant or solicitor) o Original + 1 copy for each third party, plaintiff and other party who has filed notice of

intention to defend • Notes the date (and time) of filing in the middle of the left margin

Seals original and copies (at Registrars signature then bottom left margin)

• Files the document on the civil file

• Inputs documents into CLAIMS

• Sealed copies are returned to the defendant for service on the other parties as appropriate. It is the defendant’s responsibility to ensure that they serve copies of other documents as required by Rule 195(2) – refer @12.1.4.

o If filed by post, returned in the self-addressed stamped envelope provided


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12.2.1.1. Third Party Notice


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

THIRD PARTY NOTICE

ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURT: And filed in the Registry on :

Registrar:

To the third party: TAKE NOTICE that the plaintiff has brought a claim against the defendant in the Court. In it the plaintiff claims against the defendant (here state concisely the nature of the plaintiff’s claim) asappears in the claim. A copy of the claim and attached statement of claim of the plaintiff1 is served on you with this notice.

The defendant claims against the third party the following:

1. (Set out the nature of the claim against the third party as for instance to be indemnified against the plaintiff’s claims and costs or contribution to the extent of (one half, for example) of the plaintiff’s claim)

[or

(state the relief or remedy sought and the grounds of the claim against the third party)]

The defendant makes the claim(s) in reliance on the facts alleged in the attached statement of claim of the Defendant.

AND TAKE NOTICE if you intend to dispute the claim against you, you must within 28 days of service upon you of this notice file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed without further notice to you and you will be bound by any judgment or decision given in this proceeding. Further, by Rule 201, if the plaintiff obtains default judgment against the defendant and you have filed no notice of intention to defend or defence, you are taken to admit the defendant’s claims and will be bound by the default judgment so far as it is relevant to the claim and the defendant may obtain a judgment for contribution or indemnity against you after satisfying the default judgment or with the court’s leave before satisfying it. The Notice of Intention to Defend should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a copy of it at the defendant’s address for service shown in this notice as soon as possible.

Address of Registry:

Third Party Notice Filed on behalf of the defendant [Form 14] Rule 193


PARTICULARS OF DEFENDANT

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Name: Residential or business address: Name of solicitor or agent (if any)Business address of solicitor or agent: Address for service: Telephone:Fax:DX:E-mail address (if any):

[If the defendant has no solicitor:- Address for service: Telephone:Fax:E-mail address (if any):]

Signed:

Description:

Dated:

This notice is to be served on

1Rule 195 requires service of copies of all pleadings filed and of any order giving leave to serve a third party notice.

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13 DIRECTIONS CONFERENCE (Rule 523 – 526)

A directions conference is simply the parties attending a conference chaired by the Registrar to attempt to settle the claim and not proceed to trial.

At any time after a notice of intention to defend and defence is filed in a proceeding started by a claim (a directions conference cannot be held for a MDC or originating application), the court may direct that a directions conference be held at a certain date, time or place and that all relevant parties attend with their lawyers if necessary. The conference may consider:

• Settling the proceedings without hearing or mediation • Simplify issues • Use of simplified procedures • Obtain admissions • Further pleadings or amendments to pleadings • Amount of damages • Possible length of trial • Burden of costs • Anything else to help dispose of the proceeding • Personal attendance by parties may be excused if it would cause unreasonable hardship,

inconvenience or excessive cost. • Formal orders made at conference must be recorded on file, otherwise confidential –

signed memorandum may include admissions or results of conference (Rule 524(4)) • Costs of the conference are costs in the proceeding and may be assessed at the

conference, at a later hearing or otherwise under the rules (Rule 524 (6))

13.1. CONFERENCE CONSTITUTED BY A MAGISTRATE OR REGISTRAR (Rule 524)

The court must hold a directions conference in private and may be constituted by a magistrate or registrar (in practice the Registrar will conduct all conferences). At the conference, the court (registrar) may:

• Adjourn it • Direct a further conference be held • Make suggestions to effect prompt disposal of the proceeding • Make any order to give effect to a memorandum signed by the parties; • Give other directions as appropriate

The registrar must record on the civil file any formal orders made (e.g. an adjournment), but must not keep a record of anything discussed at the conference.

The parties or their legal representatives may sign a memorandum of the results of the conference including any admissions made by the parties. The memorandum must be attached to the civil file in a way the court (registrar) directs at the conference. Any costs associated with the conference are costs in the proceeding and may be assessed by the court (registrar), or the court hearing the proceeding or otherwise under the rules.

General directions for arranging and conducting the conference may be given to the registrar by the magistrate (Rule 526)

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13.2. FAILURE TO ATTEND CONFERENCE (Rule 525) If the court (including when constituted by the Registrar) is satisfied by affidavit that a person has been served with a notice and has failed to attend a directions conference, the court may:

• If the plaintiff is absent

o Stay or dismiss the proceeding; or

• If the defendant is absent and the claim discloses a sufficient cause of action

o Make the orders or give judgment;

• Make an order for costs; and/or

• List for hearing; and/or

• List for a further directions conference

13.3. REGISTRY PROCEDURE - DIRECTIONS CONFERENCE Anytime after a notice of intention to defend and defence has been filed a party to the proceedings may request a directions conference. The following procedures apply:

• A party requests the conference in writing (simply a letter) • The written request and file is given to magistrate • The magistrate makes the order on the file cover sheet and returns the file • The registrar allocates an available date in about 4 weeks time • List the documentation on the file index sheet • Request in entered into CLAIMS where date is set and notices produced • Notices are posted to parties at their address for service • An affidavit of posting the notice is completed on the back of the file copy of the notice

(proof of parties receiving the notice: Rule 525(2)) • The file is placed in the registrars directions conference folder in date order

The order for the conference is made by the magistrate, not the registrar. Normally the registrar completes the necessary order on the file cover sheet and the magistrate signs it. The order is as follows:

A notice of intention to defend and defence having been filed, I hereby direct that a directions conference be held before the Registrar of this court on / / at am/pm and that the parties attend with their legal representatives. signature of Magistrate and date

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13.3.1.1. Affidavit of Service – Directions Conference Notice [Form 46] 13.3.1.1. Affidavit of Service – Directions Conference Notice [Form 46] The following affidavit of service is photocopied, and completed, on the back of the notice of holding of the directions conference: The following affidavit of service is photocopied, and completed, on the back of the notice of holding of the directions conference:

AFFIDAVIT OF SERVICE AFFIDAVIT OF SERVICE

R.120; 525(2) R.120; 525(2) I, (full name) of (address) , (occupation) I, (full name) of (address) , (occupation)

make oath and say that on the day of , 19 I served the within named parties with a Directions Conference and Notice by posting a copy thereof by prepaid post addressed to the parties at their address for service as endorsed on the face of the notice.

make oath and say that on the day of , 19 I served the within named parties with a Directions Conference and Notice by posting a copy thereof by prepaid post addressed to the parties at their address for service as endorsed on the face of the notice. SWORN by the abovenamed deponent at (place) on / / , before me: SWORN by the abovenamed deponent at (place) on / / , before me: .................................................. .................................................................................................... ..................................................Justice of the Peace Deponent Justice of the Peace Deponent

Note: An affidavit of service is automatically printed on the back of any Notice of the Holding of a Directions Conference produced by the CLAIMS application.


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13.3.1.2. Notice of the Holding of a Directions Conference


REGISTRY:NUMBER: M

Plaintiff: AND

Defendant:

NOTICE OF THE HOLDING OF A DIRECTIONS CONFERENCE

A NOTICE OF INTENTION TO DEFEND AND A DEFENCE has been filed in this action.

YOU ARE HEREBY NOTIFIED that a Court has directed that this matter be listed for a DIRECTIONS CONFERENCE between the parties to the action and their legal representatives.

TAKE NOTICE that the DIRECTIONS CONFERENCE will be held at:-

Place: street address & number and town of court, room number, phone no.

Time: am/pm

and the parties themselves are required to attend with their legal representatives.

Dated at (place) on / /

Registrar (sign and seal)

TO:- (names and addresses for service of all parties including reference no’s of solicitors)

NOTE: The proceedings of a directions conference SHALL BE CONFIDENTIAL and are not disclosed to the Court without the consent of all parties should this matter proceed to trial. If not settled or otherwise disposed of as a result of the Directions Conference, a date of trial will be allocated by the Stipendiary Magistrate or Registrar who presides at the Directions Conference. If this matter settles before the directions conference, please notify this office by telephoning PH. NO. Rule 525 of the Uniform Civil Procedure Rules provides:- 1. This rule applies if a person directed to attend a directions conference fails to attend the conference. 2. if the court is satisfied by affidavit that the person who failed to attend was given notice of the date, time

and place of the directions conference, the court may- a. if the party failing to attend is the plaintiff or the plaintiff’s counsel or solicitor – stay or

dismiss the proceeding; or b. if—

i. the party failing to attend is a defendant or the defendant’s counsel or solicitor; and ii. the claim discloses a sufficient cause of action;

c. make the orders or give the judgment the court considers just; or make the order for costs the court considers appropriate, whether or not the court makes an order under paragraph (a) or (b) or gives judgment under paragraph (b).

3. Also, the court may give the directions for listing the proceeding for hearing or for holding another directions conference the court considers appropriate in the circumstances.

4. If the court makes an order or gives judgment under subrule (2), the court may, on application made within the time the court considers reasonable, set aside the order and order a new trial.

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13.3.1.3. Memorandum of agreement following a directions conference

The following is an example of the Memorandum of Agreement signed by the parties when agreement has been reached at the Directions Conference.


REGISTRY:NUMBER: M

Plaintiff: AND

Defendant:

MEMORANDUM OF AGREEMENT FOLLOWING A DIRECTIONS CONFERENCE

Following a Directions Conference held by the Magistrates Court at (place) constituted by the Registrar on / / in respect of the within proceedings;

We, the undersigned, hereby certify that the following is a true and correct recital of the results of the conference, including all admissions made at the said conference:

That these proceedings are settled on the following terms: 1.

2.

3

4. Upon the terms of settlement being carried out, this memorandum may be pleaded in bar to any further suits, actions or proceedings arising out of the same or similar circumstances in respect of the Plaintiffs claim and the Defendants counterclaim.

5. Should the defendant(s) default in compliance with paragraph [ ] this memorandum may be treated as an admission of the claim in the amount $ and costs of $ and the court constituted by the Registrar may make an order for judgment by default for the total amount of $ , less any amount paid, in accordance with Rule 524(2)(d) and Chapter 9 Part 1 – Default..

It is fully understood by all the parties to this conference that this Memorandum is binding on the parties.

Dated at this day of 19

.................................. .................................... Plaintiff signature Defendant signature

.................................. .................................... Witness Witness

Memorandum of Agreement Filed on behalf of the plaintiff and defendant Rules 523; 524(4)

Contact details and address for service as per previous documentation filed herein

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13.4. CONDUCTING A DIRECTIONS CONFERENCE The following is a recommended procedure in conducting a Directions Conference. You are encouraged to learn the basic steps and put them into your own words to personalise your conference.

13.4.1. Directions Conference

A directions conference (Rule 523) may be ordered by the court to consider:

• Settling the matter • Simplifying or clarifying the issues • To use simplified procedures (if claim under limit) • Obtaining admissions to facilitate the hearing or reduce costs • If pleadings should be amended before trial • Any damages amount (quantum) • Possible length of trial and number of witnesses

13.4.2. Before the conference

1. Allow enough time to prepare the conference room – table, chairs, maybe water jug & glasses, paper & pens.

2. Read the file – make certain all documents are on file - know what the issues are: claim and defence.

3. Know who the parties are, what solicitors are representing the parties.

4. Partially complete the file cover sheet with:

• Date • For Plaintiff: • For Defendant:

and allow enough space between plaintiff and defendant to note who is appearing.

5. Gather the parties together and proceed to the conference room. It is not necessary to introduce yourself at this time, simply call the conference parties and instruct them to follow you.

6. Guide the parties into the conference room and request them to sit down in their respective “corners”. You should sit at the head of the table. When all have seated and the shuffling has stopped, start the conference.

13.4.3. When the conference starts

Get appearances: write them on the file cover sheet – include barristers, solicitors and firms names, names of other parties and their representative capacity at the hearing – if non-parties are present, write their name down and then ask if there are any objections to them being present – if there are any objections, request them to leave and note the file cover sheet accordingly – (this is a judgment call). – Ask for first names and note them on the file (this makes for a more relaxed conference – however be aware that some people will not feel comfortable using first names)

Introduce yourself: Say: “my name is Nev Bawden (i.e. your first name and surname), I am the Registrar of this court. Please call me ‘Nev’”

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13.4.4. Commencing the conference

General Spiel: My function is to chair this conference. The conference has been requested by the (Plaintiff or Defendant) following a claim for (e.g. breach of contract) and defence being filed on (date).

The philosophy of holding a directions conference is to settle the matter and not proceed to trial – to this end, we can lay our cards on the table and say things and produce documents at the conference that may not be able to be said or produced at a trial.

We are not bound by any rules of evidence here – anything produced or said here is confidential and cannot be used at trial unless, of course, they may be produced or said in accordance with the rules of evidence and/or with the consent of the parties present – this does not mean that you do not listen to your legal advice or your solicitor/barrister here today.

Are the persons present in a position to accept offers of settlement [yes/no: yes is good, no is not so good – explore how settlement can be affected e.g. by a phone call – mention that all relevant parties should be at the conference].

Explain if it does proceed to trial, costs may be enormous – legal fees on both sides with normally the loser (as there are losers and winners at trial) paying both sets of costs and a court ordered judgment against them.

Explain that here, at the conference the parties have some control over what happens – explain that sometimes even if the court orders in their favour, the legal fees in getting that judgment may be more than the actual monetary order as Magistrates are bound by the Act to award costs according to a scale, whereas solicitors may charge more.

Explain that it may be better to accept a less amount now than spend more money with a smaller reward at the end by going to trial.

Explain that they should consider the other parties ability to pay – if the loser has limited financial resources, then the winner will have a better chance of collecting a smaller amount today, then go to trial, spend more money on legal fees and get a court ordered judgment with no hope of getting any money, or the same amount that was offered today.

Explain how Magistrates make their decisions – based on the facts produced at trial, expert evidence, exhibits, expertise of legal representatives, relevant law involved including case law in higher courts and the credibility of witnesses. Credibility means that witness present forthright and consistent evidence even under cross examination – not that they are necessarily telling the truth – therefore a witness could be telling the absolute truth, but deemed not credible and likewise a witness could lie (or bend the truth) and be deemed credible.

Explain that they should consider all these things as the conference proceeds and decide what they should do – basically can they prove their case on the balance of probabilities at trial? (evidence etc weighed up by the court to assist in making its decision). Re-affirm that they should listen to the legal people because that is what they are paid for.

Explain that the parties can talk through their solicitor/barrister or talk for themselves. The parties can talk and discuss things between themselves – depending on what their solicitor/barrister advises or what they particularly want (the idea is to get them talking as this assists the process).

Instruct them not to say derogatory things to each other and not to raise their voices or get personal as this is counterproductive to the process.

When spiel finished, ask if they have any questions. Then get the plaintiff to outlines their case (through solicitor or party). Then the defendant outlines their case.

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Keep the process focussed and allow minimal interruptions – make notes if you want to – don’t make notes on the file. Do not become involved or be seen to take sides or favour one person over another – keep your questions to clarify points balanced (i.e. don’t favour one side over another). Every so often, when there is a natural break, summarise what has been said, discussed or agreed and/or strongly contested – any agreements may be noted on the file with the permission of the parties (e.g. they may agree on quantum – with their permission, you can note the file that quantum has been agreed at $...)

Keep the process focussed and allow minimal interruptions – make notes if you want to – don’t make notes on the file. Do not become involved or be seen to take sides or favour one person over another – keep your questions to clarify points balanced (i.e. don’t favour one side over another). Every so often, when there is a natural break, summarise what has been said, discussed or agreed and/or strongly contested – any agreements may be noted on the file with the permission of the parties (e.g. they may agree on quantum – with their permission, you can note the file that quantum has been agreed at $...) Summarising what has been said, agreed to or even not agreed to is helpful when the parties stop talking or at bottlenecks (or impasses) in discussions and they, or one of the parties insist they want to go to trial.

Summarising what has been said, agreed to or even not agreed to is helpful when the parties stop talking or at bottlenecks (or impasses) in discussions and they, or one of the parties insist they want to go to trial. Allow breaks as requested to allow discussions between the parties’ lawyers in private or as required.Allow breaks as requested to allow discussions between the parties’ lawyers in private or as required. Any agreements etc can be put in writing – signed memorandum see Rule 524(4 & 5) and free sealed copies supplied to the parties. Any agreements etc can be put in writing – signed memorandum see Rule 524(4 & 5) and free sealed copies supplied to the parties.

13.4.5. Closing the conference13.4.5. Closing the conference

If the conference was successful and settled, thank the parties and congratulate them (tell them they can obtain a sealed copy of the memorandum at the registry counter, if applicable).

If the conference is going nowhere but in circles or the parties simply stop talking, then again summarise what has been said and discussed (agreed to or not agreed to – even mentioning considerable differences of opinion or considerable movements in position is a good tactic to get them thinking again) and say something like “this conference looks like not being successful, now is a good time to forget about what has happened and to just focus on an amount – the claim is for $....... and offers of $...... have been made (or counterclaim of $.......) this make a difference of $...... – to make the matter go away now and not have a total waste of time and money, is any party prepared to make a final offer”: perhaps take a short break and let them discuss it with their lawyer – then bring them back together and let discussion proceed.

If no offers made, note the file that the conference was held and adjourn to either a callover to set a trial date, or a DTBF or a set day as advised by the Magistrate (find out how many witnesses for each side and how long the trial will take and note this on the file).

Finally try again to get an offer based on the possible costs of going to trial – then thank the parties and wish them every success.

Do not set a trial date if it appears that pleadings have to be amended: simply note the file that the conference was unsuccessful and advise the parties that it appears they are not ready for trial as ......?...... has to be done. You can tell the parties that the file will be noted as “Directions Conference held – [proceedings adjourned to a date to be fixed] or [conference adjourned to a date to be fixed or to a certain date] or [adjourned to DTBF for hearing on parties filing a fresh Request for Trial Date]”.

Note: Before the matter can be listed for trial, pursuant to Rule 467 the Request for Trial Date must be filed.


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14 DEFAULT – CHAPTER 9 (COMMENCING AT RULE 280)

Default simply means that a party has failed to take a step in a proceeding. If a defendant does not file a defence, for example, judgment by default (i.e. the default of the defendant in not filing a defence) may be given in favour of the plaintiff. A proceeding includes initiating actions up to and including judgment.

14.1. PROCEEDINGS DISMISSED FOR WANT OF PROSECUTION If the plaintiff or applicant is required to take a step under the rules or fails to comply with an order of the court, the defendant or respondent may apply to the court for an order that the proceeding be dismissed for want of prosecution (Rule 280).

This means that if the Defendant to the Claim requests information from the Plaintiff which is not supplied, the Defendant may apply to the court, constituted by a Magistrate, to have the Claim dismissed. The application is an application within a proceeding on notice to the other party(s) [@ 2.4.22]. At the hearing of the application, the court may dismiss it or make another order as appropriate

An order dismissing the Claim for want of prosecution may only be set aside:

• On appeal (to the D/C); or • By the parties agreeing to it being set aside

However if the order dismissing the proceeding for want of prosecution was made in the absence of the plaintiff or applicant the court may, without the need for an appeal, vary or set it aside on terms the court considers appropriate.

14.2. JUDGMENT BY DEFAULT – LIQUIDATED DEBT OR DEMAND (Rule 283)

Judgment by default may be given by the court (including constituted by a registrar) for a proceeding started by a Claim or MDC.

QCSE Procedure 13/10 Default Judgment – Lodgement and Determination on the Courts(Queensland) Policies and Procedures page on JAGNET sets out the procedures to be followed when processing and determining a Request for Default Judgment. What follows below is additional training and Database Application assistance in support of the QCSE procedure(s).

Judgment by default may be given only if [and @ 14.4.1]:

o With prescribed costs; (CAG recommends that costs associated with Electronic lodgement are also recoverable) and

• Service of the Claim on each defendant(s) must be proved by a separate affidavit of service (affidavit Form 46) (Rule 282) Note also that if the defendant(s) is served interstate, the affidavit of service must state that they were also served with a Form 1 under the Service & Execution of Process Act 1992.

• If interest claimed, the rate of interest can not be higher than under practice direction or an agreement [@ 14.3; 14.3.1; 14.5].

The judgment may be given for an amount of not more than the claim, interest and costs. The documents applying for judgment must be in the approved form [@ 14.2.1].

Judgment cannot be given if the defendant(s) have filed a defence. However judgment by default can be given against any defendant (28 days after being served) who has not filed a defence and

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service of that Defendant has been proved. A defendant may file and serve a defence that has been signed by one defendant if it is obvious on the defence document that all defendants are defending the Claim.

14.2.1. Judgment by default – liquidated claim - forms


• Form 25 – Request for default judgment – original [example @ 14.6.1]

• Form 26 – Default judgment – original + 2 copies [example @ 14.6.1.3]

o Original on file o Copy to party filing judgment (endorsed Certified Duplicate (Rule 662))

• Form 46 – Affidavit to prove service (Rule 282) – original for each defendant (filed)

• Form 46 – Affidavit to prove debt still owing – original (if served by post, the affidavit must be received within 6 business days of the date it was signed – Rule 970) [example @ 14.6.1.2] - filed

The Request for Default Judgment must be dated and signed more than 28 days after service on the Defendant(s). This is because the Plaintiff is requesting judgment by default to be given by a court constituted by the Registrar. As judgment cannot be requested or given until after 28 days from service, the request and other documents must be dated after the 28 days.

14.2.2. Judgment by default – MDC and liquidated claim – Registrar’s order

QCSE Procedure 29/10 Judgment and Orders – Issuing a Judgment, Order or Notice of Refusal on the Courts (Queensland) Policies and Procedures page on JAGNET sets out the procedures to be followed to issue a Default Judgment. What follows below is additional training and Database Application assistance in support of the QCSE procedure(s).

When satisfied that judgment by default can be given, i.e.:

properly served; no defence filed; at least 28 days lapsed since the defendant or defendants were served; and correct approved forms filed

Judgment can be given [and @ 14.4.1].

In addition to the approved forms required, the registrar is required to make a formal order on the file cover sheet. As there is no assessment of damages, the registrar endorses the file cover sheet with:

[Date]No appearance – on the papers Service proved. No Notice of Intention to Defend filed. JUDGMENT BY DEFAULT is given for the plaintiff against the Defendant(s)............. [name defendants].............. Judgment for: Claim $510-00 Costs $ 93-00 Interest $ 42-00 IM Registrar Total $645-00 Registrar (note – seal not required)

The judgment can then be given and the relevant approved forms filed.

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14.3. INTEREST FOR A DEBT OR LIQUIDATED DEMAND (Rule 283(6-9)) The plaintiff may abandon their claim for interest – this may be stated on the statement of claim or it may be stated in the Request for Default Judgment as: ‘.....and the plaintiff hereby abandons their claim for interest’. If interest is to be claimed, the statement of claim or the statement of particulars of claim must include a paragraph claiming an interest component like:

...and the plaintiff claims interest in accordance with the Supreme Court Act from and including/ / . OR..and the plaintiff claims interest at the rate of .......% in accordance with an agreement dated // . OR..and the plaintiff claims an amount of $..... interest from / / to / / calculated in accordance with the Supreme Court Act (or as the case may be).

The actual wording may differ from the above, but it may be allowed at judgment if the general meaning and intent is there.

Registrars should award interest on Claims and MDC using the following guidelines:

• Interest should not be allowed at judgment if the statement of claim contains no mention of claiming interest;

• Interest should only be allowed from the date of issue of the claim or minor debt claim if the statement contains an interest component with no mention of any dates;

• The Registrar may allow interest if the plaintiff claims interest at the rate specified by practice direction [@ 14.3.1];

• The Registrar may allow interest at a higher rate (e.g. credit card interest) if it is mentioned in the Statement of Claim and properly calculated;

• If the plaintiff seeks a higher rate of interest other than contractual (e.g. credit card), the court (Magistrate) may decide the interest;

• Interest is allowed only on the original amount of the claim (or claimed balance) – if the amount of the claim has interest added, interest cannot be awarded on the total amount (e.g. .. and the plaintiff claims an amount $X including interest ...) – before interest is calculated, the actual amount of the claim (less interest, if included) must be known;

• The annual interest allowable after judgment, unless the court orders otherwise, is 10% of the judgment amount (Section 48(1) Supreme Court Act 1995).

14.3.1. Interest rates by Practice Direction

The following rates of interest are amended by Practice Direction issued by the Chief Magistrate (always ensure that the interest rate used is current).

Rate From Practice Direction #days in effect 10.0 % 1/6/1994 to 30/6/1994 not known 395 11.5 % 1/7/1995 to 30/4/1997 not known 670 10.0 % 1/5/1997 to 30/06/1998 PD 1/1997 426 9.0 % 1/7/1998 to 6/11/2000 PD 1/1998 860 10.5 % 7/11/2000 to 31/8/2001 PD 5/2000 298 9.5 % 1/9/2001 to 31/3/2002 PD 3/2001 212 9.0 % 1/4/2002 to 30/6/2007 PD 2/2002 1917 10.0 % 1/7/2007 to current PD 4/2007 ongoing

This means that when interest is calculated for judgment, the above rates are used. The interest is calculated on the amount of claim for each rate period. Ensure that interest is not calculated on interest (i.e. simple interest, not compound interest).

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14.4. JUDGMENT BY DEFAULT – UNLIQUIDATED DAMAGES (Rule 284) This applies to judgment by default for unliquidated damages (e.g. motor vehicle accident). The same basic procedures for a liquidated debt or demand are followed for unliquidated damages – i.e. no defence filed, service proved and the Plaintiff files the approved forms including an additional affidavit(s) to prove the amount of damages. This type of Judgment can’t be given on a Minor Debt Claim, because the cause of action in an MDC can’t be unliquidated.

QCSE Procedure 13/10 Default Judgment – Assessment of Damages on the Courts (Queensland) Policies and Procedures page on JAGNET sets out the procedures to be followed when [nature of procedure]. What follows below is additional training and Database Application assistance in support of the QCSE procedure(s).

14.4.1. Judgment by default given by registrar

When judgment is requested by filing properly completed forms [@ 14.2.114.2.1 or 14.4.2], the civil file is extracted. The registrar may then give judgment by default only if:

• The Claim is in the approved form; and

o Completed properly; and o Signed by the proper party; and o States a valid cause of action in the pleadings; and o States interest if claimed [@ 14.5]; and o Claim filed within 6 years of the event (Limitations of Actions Act 1974)

• No defence has been filed; and

• Service proved by affidavit for each defendant; and

• Served at least 28 days before Request and other forms signed; and

• Not served more than 12 months ago (Rule 389 – Delay)

• Damages are proven by affidavit (and may include an interest component).

Before judgment can be given the pleadings [@ 2.4.3] must be considered. Each element of the claim (pleadings at Rule 146, 149 and particulars at Rule 157, 158 and interest at Rule 159) must be looked at and be sufficiently described so there is no doubt that the claim is genuine and proved. The claim must outline a proper cause of action (not an impossible or illegal action: e.g. breach of contract to kill somebody) [also @ 3.2.2] and describe at least:

• What the claim is about; • The amount of the claim • Where the cause of action arose; • The time period; • That the defendant was aware of the action.

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14.4.2. Judgment by default – unliquidated claim - Forms


• Form 25 – Request for default judgment – original

• Form 26 – Default judgment – original + 2 copies

o Original on file o Copy to party filing judgment (endorsed certified duplicate copy – Rule 662)

• Form 46 – Affidavit to prove service (Rule 282) – original

• Form 46 – Affidavit to prove debt still owing – original (if lodged by post, the affidavit must be received within 6 business days of the date it was signed – Rule 970)

• Form 46 – Affidavit – original – to prove damages

14.5. INTEREST GENERALLY (Rule 159) Interest should only be allowed at judgment if it is pleaded in the Statement of Claim (Claim) or the Statement of Particulars of Claim (MDC) [refer @ 14.3 & 14.3.1] and:

• May be claimed at a particular percentage of the claim by practice direction, Supreme Court Act or otherwise (e.g. Statutory interest, Bank Card or at an agreed rate)

• If interest is claimed, but no period is mentioned, then interest is recoverable only from the date of issue of the claim to the date of judgment

o Method of calculating interest must be pleaded (i.e. % claimed and period claimed under a contract or otherwise)

o It is not necessary to specify interest rate if claimed under a practice direction

• If the plaintiff abandons the claim for interest or does not plead an interest component, the claim is taken to be a claim for the debt or liquidated demand without interest

• If interest claimed under the Supreme Court Act [@ 14.3.1], the registrar may award interest whether or not the defendant has already paid the amount of the claim (for the period the claim amount was due and owing);

• Interest cannot be awarded on interest [@ 14.3.1];

• If interest claimed at higher rate than the practice direction, the court (magistrate) may

o Decide amount or rate of interest o Decide judgment be entered for the interest whether or not the defendant paid the

debt or liquidated demand after the action started o Direct judgment be entered against the defendant

Statutory Interest is provided for in legislation and by-laws (e.g. council rates; tax) and is normally at a higher rate than a Practice Direction. The percentage amount of the interest should be pleaded in the Statement of Claim (Claim or MDC) and cross-referenced to the relevant legislation (e.g. interest is claimed at the rate of 14% from / / in accordance with Sect ... Local Government Act). Statutory interest may be allowed even if the rate is not pleaded (i.e. interest is pleased but the actual rate is not mentioned in the Statement of Claim or Statement of Particulars of Claim).

14.6. REGISTRY PROCEDURE - JUDGMENT BY DEFAULT GIVEN BY REGISTRAR

The registrar can give judgment for liquidated or unliquidated claims, including minor debt claims, on the written request of the plaintiff with sufficient proof of service on the defendant and sufficient proof of the debt owed and outstanding. Unliquidated claims (e.g. damages following a motor

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vehicle accident) are proven by affidavit. Examples of judgment documents are at 14.6.1, 14.6.1.2and 14.6.1.3.

Judgment can only be given where the claim or minor debt claim is filed. The registrar may give judgment by default only if:

• No defence has been filed and service proved by affidavit

• 28 days after service (or other time if necessary - SEPA)

• The plaintiff must file

o Affidavit of service (Form 46) - original o Request for default judgment (Form 25) - original o Supporting affidavit (Form 46) - original o Affidavit to prove damages (Form 46) if required – original o Judgment form (Form 26) – original + 2 copies

Original filed Copy to plaintiff – endorsed CERTIFIED DUPLICATE COPY

The registrar checks the file and CLAIMS to ensure a defence has not been filed and:

• Checks that all judgment documents are correct

o Affidavits and the request for judgment may have abbreviated titles

o All documents must be signed by proper parties (if signed by someone other than the plaintiff - see Rule 430(2) where affidavit must contain information about source of information and grounds for the belief):

If a claim – signed by plaintiff or solicitor If minor debt claim – signed by plaintiff, solicitor or agent

o Judgment document must have full title the same as the claim or minor debt claim

o Affidavits must be signed within 6 business days before filing, if posted (Rule 970) o Affidavits proving claim must be signed by the person having actual knowledge o Registrar’s order for assessment of damages will be made at same time (if

damages)o The affidavit of service must include all information required [@ 8.2]o Claim must be served more than 28 days before request for judgment and filing

date

• Ensures interest, if claimed, is by Practice Direction [@ 14.3.1] or by agreement or court order

• Seals, dates and times all documents bottom left margin and at registrars signature on judgment

• File documents on file in order from bottom of:

o Affidavit of service o Request o Affidavits o Judgment document o File cover sheet then file index

• Endorses Registrars order on file cover sheet [@ 14.2.2]

• Returns a sealed copy to the plaintiff (Rule 662)

• Enters documents into CLAIMS

• Puts file in general filing

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14.6.1. Request for Default Judgment

Examples of the forms required for a simple default judgment for the minor debt claim in 3.2.4.5and 3.2.4.6 are detailed in 14.6.1.1, 14.6.1.2 and 14.6.1.3. An example of the affidavit of service is in 8.3 (note the affidavit serves Neil Parr only, another affidavit of service is actually required to prove service on Jennifer Parr).

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14.6.1.1. Example - Request for Default Judgment [Form 25]

14.6.1.1. Example - Request for Default Judgment [Form 25]

MAGISTRATES COURT OF QUEENSLANDMAGISTRATES COURT OF QUEENSLAND

REGISTRY: Brisbane REGISTRY: Brisbane NUMBER: M 18001/00 NUMBER: M 18001/00

Plaintiff: Thomas Croose and Anor Plaintiff: Thomas Croose and Anor

AND AND

Defendant: Neil Parr and Ors Defendant: Neil Parr and Ors The Plaintiff requests the Registrar to give judgment against the Defendant in default of filing of a Notice of Intention to defend in response to this claim. The Plaintiff requests the Registrar to give judgment against the Defendant in default of filing of a Notice of Intention to defend in response to this claim. The claim was served on the Defendant on 4 July 2000 as is shown by the affidavit of William Charles Dalton filed on 5 September 2000.The claim was served on the Defendant on 4 July 2000 as is shown by the affidavit of William Charles Dalton filed on 5 September 2000. The claim against Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers registered Business Name No. BN 000 000 is for $510-00 as a debt or liquidated demand with interest. The claim against Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers registered Business Name No. BN 000 000 is for $510-00 as a debt or liquidated demand with interest. No Notice of Intention to Defend has been served at the address for service of the plaintiff. No Notice of Intention to Defend has been served at the address for service of the plaintiff. The relief claimed remains unsatisfied as appears from the affidavit of Thomas Croose filed with this request. The relief claimed remains unsatisfied as appears from the affidavit of Thomas Croose filed with this request. The amount of interest claimed, calculated in accordance with the particulars in the statement of particulars of claim, is $42-00 calculated at the rate of 9% of the amount of the claim for a total of 334 days (from 30/9/1999, the date of incurring the debt to the date of this request).

The amount of interest claimed, calculated in accordance with the particulars in the statement of particulars of claim, is $42-00 calculated at the rate of 9% of the amount of the claim for a total of 334 days (from 30/9/1999, the date of incurring the debt to the date of this request). The plaintiff also claims $93-00 costs as prescribed, made up as follows: Court filing fees of $38-00 and Bailiff service fees of $55-00. The plaintiff also claims $93-00 costs as prescribed, made up as follows: Court filing fees of $38-00 and Bailiff service fees of $55-00.

The Plaintiff requests judgment be given against Neil Parr and Jennifer ParrThe Plaintiff requests judgment be given against Neil Parr and Jennifer Parrfor the amounts as detailed: for the amounts as detailed: Claim $510-00Claim $510-00Courts costs $ 38-00 Courts costs $ 38-00 Service and Travel fees $ 55-00Service and Travel fees $ 55-00Solicitors fees $ Solicitors fees $ Interest $ 42-00 Interest $ 42-00 Total amount of judgment $645-00Total amount of judgment $645-00

Signed: TomCroose Signed: TomCroose Description: for the plaintiffsDescription: for the plaintiffsDate: 31 August 2000Date: 31 August 2000

SEALBRIS

Filed 1/9/2000 Rec. No. n/aInit. IMR

Request for default judgment Request for default judgment Filed on behalf of the plaintiff Filed on behalf of the plaintiff [Form 25] Rules 283-287, 289 [Form 25] Rules 283-287, 289

Thomas Croose, The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q 4001 Telephone 07 5555 4440 Fax 07 5555 4400


Note: This document is sealed at the bottom left margin and the particulars relating to filing are endorsed in the middle of the left margin.


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14.6.1.2. Example - Affidavit in Support of Request for Default Judgment [Form 46] 14.6.1.2. Example - Affidavit in Support of Request for Default Judgment [Form 46]


REGISTRY: BrisbaneREGISTRY: BrisbaneNUMBER: M 18001/00 NUMBER: M 18001/00


AND AND

Defendant: Neil Parr and Ors Defendant: Neil Parr and Ors

AFFIDAVIT IN SUPPORT OF REQUEST FOR DEFAULT JUDGMENT AFFIDAVIT IN SUPPORT OF REQUEST FOR DEFAULT JUDGMENT I, Thomas CrooseI, Thomas Crooseof 147 Oxley Road, Brisbane, Manager, make oath and say that: of 147 Oxley Road, Brisbane, Manager, make oath and say that: I am one of the plaintiffs in this action and have a direct knowledge of the financial affairs of the Plaintiffs. I am one of the plaintiffs in this action and have a direct knowledge of the financial affairs of the Plaintiffs. The amount of the within claims remains outstanding as detailed hereunder: The amount of the within claims remains outstanding as detailed hereunder:

Amount of Claim $510-00 Amount of Claim $510-00Less amount received by Plaintiff $ nil Less amount received by Plaintiff $ nil Balance of claim for which judgment to be given $510-00 Balance of claim for which judgment to be given $510-00

Costs entered on claim or as determined by the Court $ 93-00 Costs entered on claim or as determined by the Court $ 93-00 Other costs $ Other costs $

Filed1/9/00Rec No/

Professional costs in obtaining judgment $ Professional costs in obtaining judgment $ Interest # (9% of claim for 334 days) $ 42-00 Interest # (9% of claim for 334 days) $ 42-00 TOTAL $645-00 TOTAL $645-00 I hereby request that Judgment be given in the above amount. I hereby request that Judgment be given in the above amount. SWORN by the abovenamed deponent at Brisbane on 31 August 2000, before me: SWORN by the abovenamed deponent at Brisbane on 31 August 2000, before me:

TomCroose John Williamson TomCroose John Williamson Deponent Justice of the Peace Deponent Justice of the Peace

# State how calculated # State how calculated

SEALBRIS

Affidavit in support of default judgmentAffidavit in support of default judgment Filed on behalf of the plaintiff/defendant Filed on behalf of the plaintiff/defendant Form 46 Rule 280 Form 46 Rule 280



Note: This document is sealed at the bottom left margin and the particulars of filing are endorsed in the middle of the left margin.


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14.6.1.3. Example - Judgment by Default [Form 26] 14.6.1.3. Example - Judgment by Default [Form 26]



Plaintiff: Thomas Croose and Nicole CroosePlaintiff: Thomas Croose and Nicole Croose

AND AND Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers as registered Business

Name BN 000 000 Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers as registered Business

Name BN 000 000

JUDGMENTJUDGMENT

Before: I M Registrar, Registrar of the Magistrates Court, BrisbaneBefore: I M Registrar, Registrar of the Magistrates Court, Brisbane Date: 1 September 2000 Date: 1 September 2000 Claim filed on: 1 July 2000 Claim filed on: 1 July 2000 The Defendant not having filed a Notice of Intention to Defend, The Defendant not having filed a Notice of Intention to Defend, THE JUDGMENT OF THE COURT IS THAT the Defendants Neil Parr and Jennifer Parr pay to the Plaintiff the amount of $645-00 including $42-00 interest to this day and $93-00 for costs.THE JUDGMENT OF THE COURT IS THAT the Defendants Neil Parr and Jennifer Parr pay to the Plaintiff the amount of $645-00 including $42-00 interest to this day and $93-00 for costs. IM Registrar IM Registrar Signed: Signed:

Default Judgment Default Judgment Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 26 Rules 283-287, 289 Form 26 Rules 283-287, 289



CERTIFIED DUPLICATE COPY

SEAL

BRIS

Filed1/9/2000Rec No. n/a

Note: This document is sealed at the Registrars signature and the particulars of filing are endorsed in the middle of the left margin. The judgment is also issued as a certified duplicate – the actual certified duplicate does not have the particulars of filing endorsed.


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14.6.1.4. Example - Copy of Judgment by Default 14.6.1.4. Example - Copy of Judgment by Default A copy of this judgment is made after it is filed (signed by Registrar, sealed and endorsed with the particulars of filing) by photocopying the filed judgment and endorsing the top right hand corner with the word copy then placing an original seal near it. Note the judgment document has black words now because it is photocopied. Note also this judgment has been filed at Caboolture and renumbered 269/00.

A copy of this judgment is made after it is filed (signed by Registrar, sealed and endorsed with the particulars of filing) by photocopying the filed judgment and endorsing the top right hand corner with the word copy then placing an original seal near it. Note the judgment document has black words now because it is photocopied. Note also this judgment has been filed at Caboolture and renumbered 269/00.


Caboolture M269/00 Caboolture M269/00 REGISTRY: BrisbaneREGISTRY: BrisbaneNUMBER: M 18,0001/00


AND

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers as registered Business Name BN 000 000

JUDGMENT

Before: I M Registrar, Registrar of the Magistrates Court, Brisbane

Date: 1 September 2000

Claim filed on: 1 July 2000

The Defendant not having filed a Notice of Intention to Defend,

THE JUDGMENT OF THE COURT IS THAT the Defendants Neil Parr and Jennifer Parr pay to the Plaintiff the amount of $645-00 including $42-00 interest to this day and $93-00 for costs.

IM Registrar Signed:

C O P Y SEALBRIS

Filed 1/9/00

Filed 5/9/00 Rec/Amt n/a Init IMR

Rec No n/a Init IMR

SEAL

SealCAB

BRIS

Default Judgment Filed on behalf of the plaintiff Form 268 Rules 283-287, 289



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14.6.1.5. Example - Judgment Given by Magistrate [Form 58] 14.6.1.5. Example - Judgment Given by Magistrate [Form 58]


REGISTRY: BrisbaneREGISTRY: BrisbaneNUMBER: M18,0001/00 NUMBER: M18,0001/00


AND AND Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers as registered Business

Name BN 000 000Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers as registered Business

Name BN 000 000

JUDGMENTJUDGMENT Before: Benjamin Charles CROSS Magistrate Before: Benjamin Charles CROSS Magistrate Date: 5 September 2000Date: 5 September 2000 Basis of judgment: Judgment after minor debt claim hearing on 5 September 2000 Basis of judgment: Judgment after minor debt claim hearing on 5 September 2000

THE JUDGMENT OF THE COURT IS THAT the Defendants Neil Parr and Jennifer Parr pay to l f the amount of $645-00 including $42-00 interest to this day and $93-00 for costs.

THE JUDGMENT OF THE COURT IS THAT the Defendants Neil Parr and Jennifer Parr pay to the Plaintiff the amount of $645-00 including $42-00 interest to this day and $93-00 for costs.the P aintifIM Registrar IM Registrar Signed: Signed:

SEAL

BRIS

Filed8/9/2000Rec No. n/a Init. IMR

CERTIFIED DUPLICATE COPY

Judgment Judgment Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 58 Rules 515; 661 Form 58 Rules 515; 661



This is an example of a judgment document following a minor debt hearing. There is no requirement to file the request or affidavit, but the judgment document must be filed to enforce the judgment.

Note that this document is sealed at the Registrars signature and the particulars of filing are endorsed in the middle of the left margin. The judgment is also issued as a certified duplicate – the actual certified duplicate does not have the particulars of filing endorsed.

A copy of this judgment is made after it is filed (signed by Registrar, sealed and endorsed with the particulars of filing) by photocopying the filed judgment and endorsing the top right hand corner with the word copy then placing an original seal near it [@ 4.3].


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15 SUMMARY JUDGMENT 15 SUMMARY JUDGMENT

Applies to any proceeding (Rule 291) but does not apply to a MDC (Rule 517(b)). Summary judgment is an application, on notice, made to the court (i.e. Magistrate) for judgment after a defence has been filed and served. The Registrar cannot determine a Summary Judgment.

Applies to any proceeding (Rule 291) but does not apply to a MDC (Rule 517(b)). Summary judgment is an application, on notice, made to the court (i.e. Magistrate) for judgment after a defence has been filed and served. The Registrar cannot determine a Summary Judgment. A summary judgment is normally applied for if the plaintiff asserts that a good defence has not been made. The application is made on notice to the defendant (i.e. the defendant must be served with the application and supporting documents and it is set for hearing before the magistrate).

A summary judgment is normally applied for if the plaintiff asserts that a good defence has not been made. The application is made on notice to the defendant (i.e. the defendant must be served with the application and supporting documents and it is set for hearing before the magistrate). The forms required are: The forms required are:

• Application – Form 9 – original + 2 copies (set for hearing on civil callover); and • Application – Form 9 – original + 2 copies (set for hearing on civil callover); and

o Original filed o Original filed o Copy for plaintiff o Copy for plaintiff o Copy for defendant o Copy for defendant

• Supporting affidavit – Form 46 (refer Rule 295) – original + 2 copies; and • Supporting affidavit – Form 46 (refer Rule 295) – original + 2 copies; and

• Order – Form 59 – original + 2 copies; or • Order – Form 59 – original + 2 copies; or

• Judgment – Form 58 – original + 2 copies • Judgment – Form 58 – original + 2 copies

• Affidavit of service of the application – Form 46 – original (filed after service) • Affidavit of service of the application – Form 46 – original (filed after service)

Note: The number of copies depends on the number of defendants or other parties. All parties to the proceedings must be served with a copy of the application and supporting affidavit(s).

Sufficient copies should be filed for each party to be served with a sealed copy; however it is acceptable that only an original is filed and the parties are served with an unsealed copy.

The Order is the order of the court following determination of the application. The court may give judgment (Form 58) or give leave for judgment to be given (Form 59). The order and/or judgment must be completed by the party filing the application and a sealed copy should be served on all other parties to the proceedings.

The copy of the order that the plaintiff receives is also stamped by the Registrar ‘Certified Duplicate copy’ - Rule 662.

The affidavit of service of the application is required if the party served does not appear, as the Magistrate may grant judgment (by default of their not appearing) or make any other order as necessary. The affidavit is proof that the other party(s) was aware of the application being made.

15.1. SUMMARY JUDGMENT FOR PLAINTIFF (Rule 292) 15.1. SUMMARY JUDGMENT FOR PLAINTIFF (Rule 292) In general: In general:

• Plaintiff may apply to court for summary judgment any time after defendant files a notice of intention to defend

• Plaintiff may apply to court for summary judgment any time after defendant files a notice of intention to defend

• Court may give summary judgment for the plaintiff for all or part of relief claimed in the application if the court is satisfied:

• Court may give summary judgment for the plaintiff for all or part of relief claimed in the application if the court is satisfied:

o Plaintiff has complied with this part and is entitled to the relief sought in the statement of claim; and

o Plaintiff has complied with this part and is entitled to the relief sought in the statement of claim; and


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o Defendant has no defence other than in relation to the amount of the claim; and o There is no need for a trial

• Court may give judgment for

o The assessment of the amount of the claim or value of the goods, or o Return of the goods without the option of retaining the goods and paying their

assessed value

• If claim can’t be assessed (e.g. insufficient evidence) the court may order the amount of the claim to be decided as the court directs and give leave for judgment to be entered for the amount decided and costs (e.g. by affidavits substantiating amounts)

15.2. SUMMARY JUDGMENT FOR DEFENDANT (Rule 293) The defendant may apply to the court at any time, after filing a notice of intention to defend, for judgment and the court may give judgment or make another appropriate order if satisfied:

• No reasonable cause of action disclosed, or • Proceeding is frivolous, vexatious or an abuse of process of the court, or • The defendant has a defence to the action

15.3. CLAIMS NOT DISPOSED OF BY JUDGMENT (Rule 294) Giving judgment that does not dispose of all claims or counterclaims does not prevent the continuation of any part of the proceeding or counterclaim not disposed of by the judgment (i.e. parts of a claim or counterclaim that are not finalised by giving judgment can still proceed). A second or later application for summary judgment can only be made by leave of court.

15.4. SETTING ASIDE OR VARYING A SUMMARY JUDGMENT (Rule 302) On the application of a party, the court may set aside or vary a summary judgment against a party who did not appear on the hearing of the application for judgment. This is an Application within a proceeding on notice [@ 2.4.22].

15.5. STAY OF ENFORCEMENT OF A SUMMARY JUDGMENT (Rule 300) The court may also, on application, order a stay of enforcement of a summary judgment. Again, this is an Application within a proceeding on notice [@ 2.4.22].

15.6. REGISTRY PROCEDURE - SUMMARY JUDGMENT A party will file the relevant forms:

• Application - Form 9 – original + 1 copy for plaintiff and defendant • Supporting affidavit(s) - Form 46 – original + 1 copy for plaintiff and defendant • Judgment Form 58 – original + 1 copy for plaintiff • Affidavit of Service of application – Form 46 – original (filed after service)

This is an Application within a proceeding on notice – on application being made the Registrar allocates a hearing date and endorses it on the application and all copies. The hearing date will normally be the next civil call-over day or other day allocated by the Magistrate, allowing at least 8 business days for service of the other party (Rule 296(1).

The application and all supporting documents are filed. Filing includes checking, signing, sealing, setting the hearing date, completing the file index sheet, inputting the documents and court date on CLAIMS and putting the file in the relevant court days pigeon hole [@ 2.4.22].

Sealed service copies are returned to the party filing them for service on the other party (it is acceptable if originals only are filed and the other parties to the application are served with

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unsealed copies). After service, the party filing the application may also file an affidavit of service of the application – this is required to prove service if a party does not appear.

Following the hearing and/or determination, the Magistrate will write their decision on the file cover sheet. The party filing the application should also complete the Order Form 58 and file an original and sufficient copies for the Magistrate to sign (or the Registry can complete the order). A certified duplicate copy (Rule 662) is supplied to the applicant and the original order filed. The registry enters the outcome of the hearing on CLAIMS. The civil file can then be filed away or dealt with according to any other order the magistrate made.

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16 DISCONTINUANCE AND WITHDRAWAL (Rules 303 – 312)

This section is concerned with solicitors (or other representative parties) who want to withdraw from a proceeding and/or where further action is required to be stopped against a party to the proceedings.

A discontinuance or withdrawal for which the courts leave is not required may be effected by filing a notice in the approved form. The approved form is:

• Notice of Discontinuance (Form 27) – original + copy for each other party (filing only the original is acceptable as the other parties may be served with unsealed copies).

A discontinuance or withdrawal for which the Court’s leave is required is effected by the order giving leave - a notice of discontinuance or withdrawal is not required (Rule 309(2)).

Notices of Discontinuance are not accepted for filing against a defendant who has had judgment entered against them unless the judgment has been set aside. See QCSE Policy 29 Notices of Discontinuance Filed After Judgment Entered on Courts (Queensland) Policies and Procedures page.

16.1. DISCONTINUANCE BY PARTY REPRESENTING ANOTHER PERSON (Rule 303)

The Court’s leave (i.e. Magistrate) is required for a party’s representative (e.g. solicitor) to discontinue a proceeding and/or withdraw from a proceeding (e.g. a solicitor does not want to proceed with a claim / application / defence or wants to withdraw parts of the pleadings or affidavits).

Leave is sought by making an application to a Magistrate and is an Application on Notice within a proceeding [@ 2.4.22]. The forms are:

• Application Form 9 – original + 1 copy for each other party • Supporting affidavit(s) Form 46 – original + 1 copy for each other party • Order Form 59 – original + 1 copy for each other party

16.2. DISCONTINUANCE BY PLAINTIFF OR APPLICANT (Rule 304) This section applies where a plaintiff wants to discontinue proceedings against a defendant. The plaintiff can discontinue proceedings at any time before being served with a defence – the leave of the court is not required. The plaintiff can discontinue proceedings against one or more defendants. The form required is:

• Notice of Discontinuance – Form 27 – original + copy for each person to the proceedings who the plaintiff is discontinuing proceedings – Rule 309 (filing an original only and serving unsealed copies is acceptable)

If a defence has been filed and served, the plaintiff may only discontinue with the leave of the court or the consent of the defendant.

If the defendant consents to the discontinuance, both parties can sign the Notice of Discontinuance Form 27 (original + 2 copies) and file it at the court where the claim is filed. The registry seals the notices (and notes the date of filing) and returns sealed copies to the parties. The file is then completed.

If the other party(s) does not consent, the application is an Application on Notice [@ 2.4.22]. The forms are:

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• Application Form 9 – original + 1 copy for each other party • Supporting affidavit(s) Form 46 – original + 1 copy for each other party • Order Form 59 – original + 1 copy for each other party

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16.3. DISCONTINUANCE BY DEFENDANT OR RESPONDENT (Rule 305 – 306 & 308)

16.3. DISCONTINUANCE BY DEFENDANT OR RESPONDENT (Rule 305 – 306 & 308)

This section applies where a defendant wants to discontinue a counterclaim against a plaintiff, or withdraw part of it. This section applies where a defendant wants to discontinue a counterclaim against a plaintiff, or withdraw part of it. The defendant can discontinue proceedings at any time before being served with the plaintiff’s reply and answer to counterclaim.The defendant can discontinue proceedings at any time before being served with the plaintiff’s reply and answer to counterclaim. If a reply and answer has been filed and served, the plaintiff may only discontinue with the leave of the court or the consent of the plaintiff.If a reply and answer has been filed and served, the plaintiff may only discontinue with the leave of the court or the consent of the plaintiff. A party may withdraw a notice of intention to defend (Rule 306) and/or a defence (Rule 308) at any time with the court’s leave or the consent of the other party. A party may withdraw a notice of intention to defend (Rule 306) and/or a defence (Rule 308) at any time with the court’s leave or the consent of the other party. If the plaintiff consents, the form required is: If the plaintiff consents, the form required is:

• Notice of withdrawal of notice of intention to defend (Form 28) – original + copy for each party that the defendant wants to discontinue proceedings against (it is acceptable to file an original only and serve the other parties with unsealed copies).

• Notice of withdrawal of notice of intention to defend (Form 28) – original + copy for each party that the defendant wants to discontinue proceedings against (it is acceptable to file an original only and serve the other parties with unsealed copies).

The registry seals the notices (and notes the date of filing) and returns sealed copies to the parties and enters the document into CLAIMS. The registry seals the notices (and notes the date of filing) and returns sealed copies to the parties and enters the document into CLAIMS. If the plaintiff does not consent the application is an Application on Notice within a proceeding – refer [@ 2.4.22].If the plaintiff does not consent the application is an Application on Notice within a proceeding – refer [@ The forms are: The forms are:

2.4.22].

• Application Form 9 – original + 1 copy for each other party • Application Form 9 – original + 1 copy for each other party • Supporting affidavit(s) Form 46 – original + 1 copy for each other party • Supporting affidavit(s) Form 46 – original + 1 copy for each other party • Order Form 59 – original + 1 copy for each other party • Order Form 59 – original + 1 copy for each other party

Note: The original only may be filed and the other parties served with unsealed copies.

16.4. COST ON DISCONTINUANCE (Rule 307) 16.4. COST ON DISCONTINUANCE (Rule 307) A party who discontinues may be liable for costs incurred by other party(s). Costs can be determined by agreement between the parties or by order of the court. A party who discontinues may be liable for costs incurred by other party(s). Costs can be determined by agreement between the parties or by order of the court.

16.5. NOTICE OF DISCONTINUANCE OR WITHDRAWAL (Rule 309) 16.5. NOTICE OF DISCONTINUANCE OR WITHDRAWAL (Rule 309) When leave of the court is not required, a party may discontinue or withdraw proceedings against one or more other parties by simply filing and serving notice in the approved form.When leave of the court is not required, a party may discontinue or withdraw proceedings against one or more other parties by simply filing and serving notice in the approved form.

Note: Leave of the court is not required: • For a plaintiff to discontinue or withdraw proceedings if a defence has not been filed

and served – approved Form 27 – Notice of Discontinuance;• For a defendant to discontinue or withdraw a defence if the other party consents (by

also signing the notice).

The notice is not required if the court gave leave to withdraw. The notice is not required if the court gave leave to withdraw.


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16.5.1.1. Notice of Discontinuance [Form 27]


REGISTRY:NUMBER:

Plaintiff: AND

Defendant:

TAKE NOTICE that the Plaintiff discontinues the whole of the claim against the [First] Defendant [or: withdraws that part of the claim against the [First] Defendant by which the Plaintiff claims (specify relief to be withdrawn).]

[or TAKE NOTICE that the Applicant discontinues the whole of the application against the [First] Respondent [or: withdraws that part of the application against the [First] Respondent by which the Applicant claims (specify relief to be withdrawn).]

The Plaintiff [or Applicant] does not represent any other person in the proceeding.

The Plaintiff has [has not yet] been served with the first defence. [The Applicant has [has not yet] been served with any affidavit in reply from a respondent].

Signed: (plaintiff, or solicitor) Dated:The [First] Defendant [or; Respondent] consents to this discontinuance [or: withdrawal].

Signed: (defendant, or solicitor) Description: (of signatory) Dated:

(If more than one defendant or respondent, each is to sign a consent in these terms)

Notice of discontinuance Filed on behalf of the plaintiff [Form 27] Rule 304


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16.5.1.2. Notice of Withdrawal of Notice of Intention to Defend [Form 28] 16.5.1.2. Notice of Withdrawal of Notice of Intention to Defend [Form 28]


REGISTRY:REGISTRY:NUMBER:NUMBER:

Plaintiff: Plaintiff: AND AND

Defendant:Defendant: TAKE NOTICE that the [First] Defendants Notice of Intention to defend is withdrawn TAKE NOTICE that the [First] Defendants Notice of Intention to defend is withdrawn Signed: ([first] defendant or solicitor) Signed: ([first] defendant or solicitor) Dated: Dated: The Plaintiff consents to this withdrawal of Notice of Intention to Defend. The Plaintiff consents to this withdrawal of Notice of Intention to Defend. Signed: (plaintiff or solicitor) Signed: (plaintiff or solicitor) Description: (of signatory) Description: (of signatory) Dated: Dated: (If more than one defendant each is to sign a consent in these terms) (If more than one defendant each is to sign a consent in these terms)

Notice of withdrawal of notice of intention toNotice of withdrawal of notice of intention todefend defend Filed on behalf of the defendant Filed on behalf of the defendant [Form 28] Rule 306 [Form 28] Rule 306




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17 TRIALS AND OTHER HEARINGS (Rules 461 – 470)

Most initiating proceedings in a Magistrates Court are commenced by a claim (Rule 21) or Minor Debt Claim (Rule 513).

Originating applications (Rule 25) [e.g. Credit Act] are filed in the same manner as a claim [@ 2.3to 2.5 as applicable], and immediately set for mention (Rule 462) in the same manner as an Application within a Proceeding – [@ 2.4.22 and as outlined below].

17.1. TYPES OF HEARINGS The different types of hearings are:

• A Minor Debt Claim is set for hearing when a defence is filed and the Magistrate doesn’t order the proceedings transferred to the Queensland Civil and Administrative Tribunal (QCAT) – the Registrar sets a hearing date as allocated by the Magistrate [@ 10.7].

• A Claim is set for hearing after a defence has been filed and served and other steps taken e.g. a Request for Trial Date [Form 48] must be filed before the Registrar sets it for mention on a civil callover (or other day allocated by the Magistrate).

• An Originating Application is set for mention on a civil callover day, or other day allocated by the Magistrate, by the Registrar when it is filed [@ 5.4].

• An Application within a Proceeding not on notice – an application of this type made to the Registrar is dealt with and determined by the Registrar immediately [@ 2.4.21]. If the application must be determined by the Magistrate – e.g. application for substituted service – it is dealt with the same as an Application within a Proceeding on Notice (below), except that the other party(s) is not notified.

• An Application within a Proceeding on Notice is set for mention on a civil callover day, or other day allocated by the Magistrate, by the Registrar when it is filed [@ 2.4.22] for determination by the Magistrate.

The Magistrate sets their own court calendar and decides what sorts of matters will come before them on certain days throughout the year.

The callover is a specific day where all matters (either criminal or civil or both) are adjourned to or have their first mention day to determine when they will be heard.

17.2. ORIGINATING APPLICATION An originating application is the same as an initiating application [@ 5.4].

17.3. AFFIDAVITS [Form 46] Applications are normally supported by an affidavit or a sworn statement. Normal signing and witnessing procedures apply to these documents, i.e.:

• Must be signed by the person who is making the statement (the deponent)

• Must be signed in the presence of the witness

• Must be witnessed properly:

o Commissioner for Declarations o Justice of the Peace o Solicitor

• The JP must give the warning (to tell the truth) to the Deponent and then swear or affirm the affidavit

• Must be dated and have the place of signing endorsed

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• Must be received on day signed or as soon as practicable thereafter

• If posted and relates to a debt (e.g. to obtain judgment), must be received within 5 business days of signing

• All amendments and deletions must be initialled by the deponent and witness

• There can be no blank spaces or spaces with a line or a dash

• Must be completed in ink

• Any attachment to the affidavit must be marked and contain an exhibit marking

• The exhibit marking must be signed by both the deponent and witness

17.4. ESTIMATION OF TIME FOR HEARING The plaintiff or applicant must note on any application an estimate of the duration of the hearing. The registrar must immediately be notified if the matter settles or duration times change (Rule 463).

An estimation of time is not required for an application within a proceeding not on notice [@ 2.4.21]if the application is to be heard by the Registrar. An estimate of time is required if the application is to be determined by the Magistrate.

17.5. ADJOURNMENT (Rule 464) A proceeding may be adjourned by the court or at the request of a party.

A proceeding can be adjourned for hearing or for mention (to decide a hearing date). An application for an adjournment may be made in court or in writing without the necessity of an appearance in court. The application may also be an oral application to the court (Rule 32).

If an application is adjourned to a particular date, the registrar, on a request for re-listing, must record it in the appropriate list for the adjourned date. If the application is adjourned to a date to be decided (DTBF or adjourned to registry), a party may ask for it to be re-listed for a particular day, but the registrar is not bound by the request and may list it for another date.

In all cases, any new dates for hearing or mention must be noted in CLAIMS computer system (to locate the file as required).

17.6. REGISTRY PROCEDURE - ADJOURNMENT The party requesting the adjournment should prepare the relevant notice. There is no approved form but the Procedures Officer has created two forms: Notice of Adjournment of the Trial when a trial date has been adjourned and another trial (or hearing) date set; and Notice of the Trial of a claim when an original trial date has been set.

Another example of an adjournment notice is @ 17.6.1.1.

If the proceedings were adjourned by the Magistrate, the registrar will prepare notices of adjournment for parties who were absent at the time or for all parties to the proceedings. The Magistrate will direct what parties are to be notified by writing on the file cover sheet words to the effect of ‘Registrar to notify defendant (or as the case may be)’. In all cases, a notice of adjournment or for trial should be forwarded to any party who was not in court (the party who was in court was there to hear what date the trial was adjourned to and should not require a written adjournment notice).

When completed by the Registrar, the Registrar signs and seals the original and one service copy for each party or each party’s address for service. The Registrar then photocopies an affidavit of service by post on the back of the original, completes and signs it (sworn or affirmed before a JP).

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When the notice is completed by a party to the proceedings, the Registrar will complete the details of the date of time etc on the notice and seals and signs the original and all copies. The original is filed and the service copies returned to the party requesting the adjournment for service.

If posted by the Registrar, the notice with the affidavit of posting on the back is filed. If served by a party, an affidavit of service should be filed.

The affidavit of service is the proof of service. The court may make an order against an absent party if the court is satisfied that that party was aware of the trial/mention date and did not appear (Rule 476(1)).

In summary, the registrar:

• Completes the adjourned details on the notice (or prepares the notice);

o Original + 1 copy per party or party’s address for service;

• Signs and seals it;

• Returns service copies;

o Or posts service copies; o Completes the affidavit of service by post on the back of the original;

• Files the original;

• Notes the hearing date and time on the CLAIMS computer system

• Notes the cover sheet with date and time of the hearing e.g.

o / / @ am/pm For Plaintiff: For Defendant:

• Puts the file in relevant court days pigeon hole

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17.6.1.1. Notice of adjournment 17.6.1.1. Notice of adjournment


REGISTRY: REGISTRY: NUMBER: NUMBER:


Defendant: Defendant:

NOTICE OF ADJOURNMENT OR OF TIME FIXED FOR HEARING

TAKE NOTICE THAT—

The Hearing of this ...Application/Claim/Enforcement Hearing... has been fixed for the Magistrates Court at: The parties are required to have all witnesses and evidence ready for this hearing.

The Hearing of this ...Application/Claim/Enforcement Hearing... has been adjourned to the Magistrates Court at: The parties are advised to have all witnesses and evidence ready for this hearing.

This ...Application/Claim... has been set for mention in the Magistrates Court at: This is not a hearing date however a hearing date may be set on the day. The parties are advised to be present.

Place of hearing: (street no & address & place of court, including court no.)

Date:Time: am/pm Registrar (signature & seal) Date:

TO:— names of parties and address for service including Solicitors reference Nos

Default of attendance – Rule 476 (1) If a defendant does not appear when the trial starts, the plaintiff may call evidence to

establish an entitlement to judgment against the defendant, in the way the court directs. (2) If the plaintiff does not appear when the trial starts, the defendant is entitled to dismissal of

the plaintiff’s claim and the defendant may call evidence necessary to establish an entitlement to judgment under a counterclaim against the plaintiff, in the way the court directs.

(3) Despite subrule (2), the defendant may submit to judgment if the plaintiff does not appear when the trial starts.

(4) The court may set aside or vary any judgment or order obtained because of subrule (1) on terms the court considers appropriate.

Note: An affidavit of posting, similar to 17.6.1.2 with relevant modifications, is to be done on back of this notice.


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17.6.1.2. Example - Notice of Adjournment [2nd page - affidavit of service] 17.6.1.2. Example - Notice of Adjournment [2nd page - affidavit of service]

MAGISTRATES COURT OF QUEENSLAND MAGISTRATES COURT OF QUEENSLAND Registry: BrisbaneRegistry: BrisbaneNumber: M18000/00Number: M18000/00

Plaintiff: Thomas Croose and Anor Plaintiff: Thomas Croose and Anor AND AND

Defendant: Neil Parr and OrsDefendant: Neil Parr and Ors I Shirley Ann Prost, Clerk, Magistrates Court, Brisbane make oath and say that on 24 July 2000 I served a copy of the within Notice of Adjournment by posting it to the parties endorsed on the within notice by prepaid post at their address endorsed on the within notice as last known to me and advised by them as the parties address for service.

I Shirley Ann Prost, Clerk, Magistrates Court, Brisbane make oath and say that on 24 July 2000 I served a copy of the within Notice of Adjournment by posting it to the parties endorsed on the within notice by prepaid post at their address endorsed on the within notice as last known to me and advised by them as the parties address for service. Taken and sworn before me at Brisbane on 24 July 2000 in the presence of: Taken and sworn before me at Brisbane on 24 July 2000 in the presence of: S A Prost John Williamson S A Prost John Williamson Deponent Justice of the Peace Deponent Justice of the Peace

SealBris

Affidavit of Service of Notice of AdjournmentAffidavit of Service of Notice of Adjournment Form 46 Rule 464 Form 46 Rule 464

Registrar (Civil), Ground Floor, Magistrates Court, GPO Box 1649 BrisbaneRegistrar (Civil), Ground Floor, Magistrates Court, GPO Box 1649 BrisbanePh. 07 3247 4626 Ph. 07 3247 4626

17.6.2. Consent adjournment of originating application (Rule 30)17.6.2. Consent adjournment of originating application (Rule 30)

The parties to an originating application may consent to an adjournment of the application by completing and filing the approved Form 11 (Rule 30). The Registrar then files the consent adjournment form and returns copies as required by the party filing it.

The application may be brought back before the court at the written request of any party. The Registrar then re-lists the application and the party who made the request, to re-list, must give all other parties reasonable written notice of the new hearing date (Rule 464(4)).

17.7. SETTING TRIAL DATES (Rule 466) Trial, or hearing, dates are set in accordance with individual registry practices.

Some Registrars set proceedings down for trial by their Magistrate, whereas some Magistrates do not allow their Registrar to set trial dates. Except in large Registries, trial dates are allocated by the Magistrate.

Rule 465 relates to proceedings for which a trial date has not been set. A date for the trial of a proceeding may be set:

• At a callover; or

• By a judge or magistrate; or

• By a registrar.

o Magistrates Court Registry practice is @ 17.8.


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17.7.1. Request for trial date (Rule 467 – 469)

A proceeding started by claim cannot be set down for trial unless all the parties sign a request for trial date in the approved form [Form 48 – Rule 467](unless the court otherwise orders – see below).

The party requiring the trial date must prepare the request and serve it on each other party who then signs it as ready for trial (provided that party is actually ready for trial) and returns it to the first party. The request, signed by all parties, is then filed at the court by the party who prepared it (Rule 467(3)). It is then filed for allocation of a trial date.

Magistrates Courts Practice Direction No 16 of 2010 states the parties must include the following in their Request for Trial Date:

(a) indicate whether they have engaged in ADR or settlement negotiations, stating which;

(b) if they have not engaged in ADR or settlement negotiations, set out the reasons; and

(c) give a realistic estimate of the length of the trial.

If the other party does not sign the Request for Trial Date, the party preparing it may make an application (Form 9 supported by a Form 46 affidavit - application within a proceedings on notice [@ 2.4.22]) for a trial date to be allocated (Rule 469). Discuss this procedure with your Magistrate, as the Magistrate may allocate a mention day to determine a trial date, or simply set it for hearing without a formal application on a written application by letter.

The Request for Trial Date (original only) may be accompanied by a Notice of the Trial of the Claim (or notice @ 17.6.1.1) (not an approved form - original + 1 copy per other party or other party’s address) to enable the Registrar to insert the trial date(s) and time particulars, file the documents and return service copies to the party filing the forms. However, CLAIMS now produces the Notice of Trial so there is no necessity to insist on parties filing it.

17.7.2. Alternative Dispute Resolution or Directions Conference

Magistrates Courts Practice Direction No 16 of 2010 states that, if a Request for Trial Date is lodged and the estimated length of trial is two days or more, the file must be referred to a Magistrate to decide whether the parties will be referred to Alternate Dispute Resolution (ADR). This must be done even if the Request indicates that there have been previous attempts at resolution.

Where the estimated length of trial as shown in the Request for Trial Date is less than two days, the registrar may still refer the file to a Magistrate for consideration as to referral to ADR.

Whether or not the parties have engaged in an ADR process (whether voluntarily or because of a referral by a Magistrate as described above) if the matter has not resolved, parties will normally be directed to attend a Directions Conference before a trial date will be allocated. The file must be given to a Magistrate to determine if the conference should be held. Or, if your Magistrate has given directions that all such matters will be set for conference, you can normally just set it down for a concerned date without the Magistrate needing to see the file. Consult with your Magistrate about their preferences..

Directions conferences are set following the procedures outlined @ 13.3).

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17.8. REGISTRY PROCEDURE - ALLOCATING TRIAL DATES On filing the Request for Trial Date and Notice of Trial of a Claim, the registrar or magistrate will allocate a date for the trial, or set it down for the next available civil callover day (where the court will allocate a trial date).

In all cases, the Registrar will:

• Check the request and ensure it is signed by all parties; or

o If not signed, have the application determined by the Magistrate; and

• Bring the file to the attention of the Magistrate to order Directions Conference; or

• Allocate a hearing date or dates and time; and

• Prepare the Notice of the Trial of the Claim and sign and seal the copies; and

• Return sealed copies for service; or

• If prepared by Registrar, post to the parties and complete affidavit of service; and

• File affidavit of service of the notice of trial; then

• Note the trial date(s) on the CLAIMS computer system and

• Endorse cover sheet as below and place file in relevant Court day’s pigeonhole:

o / / @ am/pm For Plaintiff: For Defendant:

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18 CONSENT ORDERS (Rule 666)

The registrar may give judgment or make another order if the parties consent to it in writing and the registrar considers that making the order is appropriate (Rule 666). The judgment or order then applies as if it had been given or made by the court.

Magistrates Courts Practice Direction No 17 of 2010 provides considerable guidance about consent orders by the registrar. The QCSE procedure 14/10 - Consent Orders – Lodgement and Assessment sets out the procedures regarding Consent Orders. The QCSE procedure 29/10 - Judgment and Orders – Issuing a Judgment, Order or Notice of Refusal sets out the procedures regarding the issuing of orders. Both procedures can be found on the Courts (Queensland) Policies and Procedures page on JAGNET. The below information is sourced mostly from those three documents, with additional training and database application assistance provided where relevant.

18.1. Consent Orders that may be made by Registrar

The following are examples (but not an exhaustive list) of consent orders which may be granted by the registrar:

(a) an order that an application continue as a claim (and in respect of which the Registrar may require payment of additional fees);

(b) an order seeking dispensation with a procedural requirement (eg dispensing with the signing of a Request for Trial Date form);

(c) the listing of a matter for trial; (d) the awarding or fixing of costs, including reserved costs; (e) the assessment of costs (an affidavit exhibiting a copy of the order or other authority

entitling the party to costs is required);(f) the appointment of an assessor to assess costs; (g) the adjournment of an application with a costs or other simple order; (h) the transfer of a Magistrates Court proceeding to the District Court (an affidavit justifying

the transfer is required);(i) the transfer of a Magistrates Court proceeding from one place at which the court sits to

another;(j) in a proceeding not under judicial case management, directions as to the conduct of a

proceeding which are considered appropriate by the Registrar;(k) extension of time for steps to be taken prior to, or in the course of, a proceeding (eg pre-

court procedural steps under the Personal Injuries Proceedings Act 2002);(l) provision of security for costs, or dealing with security held for that purpose (eg

substituting a bank guarantee for money, calling in a guarantee, paying monies out of court);

(m) the stay of a judgment or the enforcement of an order pending the determination of an appeal;

(n) the setting aside of a judgment (including a default judgment); (o) leave to discontinue a proceeding; (p) leave to commence a proceeding and other orders under the Personal Injuries

Proceedings Act 2002, Motor Accident Insurance Act 1994, and Workers’ Compensation & Rehabilitation Act 2003;

(q) orders for mediation or another alternative dispute resolution process.

18.2. Consent Orders that should be made by Magistrate

The following are examples of consent orders which should be made by a magistrate rather than a registrar:

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(a) expert evidence orders; (b) directions about limitations on evidence; (c) trial by affidavit; (d) directions in judicially case managed matters; (e) a “guillotine” order; (f) the sanctioning of a settlement (eg for children); (g) orders under Part 19 of the Property Law Act 1974 (de facto relationships); (h) consolidation of proceedings or a direction that proceedings be heard together; (i) an order containing an undertaking (other than the extension of an undertaking made or

given before a magistrate);(j) an order which a magistrate would not routinely make without submission, authorities or

detailed evidence or explanation;(k) an order directing the disclosure of information about a third party which is protected by

privacy legislation;(l) the delisting of a matter for trial; (m) an order waiving compliance with rule 467 UCPR (ie the filing of a request for trial date –

form 48).

18.3. Registry Procedures – Consent Order of the Registrar The following forms must be filed by the person seeking a Consent Order of the registrar:

a Request for Consent Order of Registrar (Form 59A) (original only); o however if respective parties have signed separate Request forms, all original forms

must be attached together when filed o if a party is legally represented the form must be signed by a solicitor personally and

must state the solicitor’s name and the firm name Consent Order (Form 59) – the proposed draft order (2 copies);

o must state the Order is given or made by consent Affidavit (Form 46) (original only – if necessary)

o must be as concise as possible o must not exhibit unnecessary or extensive material.

For a consent under Rule 743E - the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest;

The Request document and any affidavit or other materials is stamped with the date stamp, initialled by the processing officer, sealed in the bottom left-hand corner of the first page and placed on the court file. The copies of the draft Consent Order are not stamped, initialled or sealed until and unless the order is granted or made.

An event must be created on CLAIMS to record the request being considered by the registrar. The file and all documents are then referred to the registrar for determination.

The documents must contain sufficient, yet concise information (including copies of relevant statutory provisions), to persuade the registrar that the order should be made. The registrar should not need to search out legislation, or material in the court file, to check that pre-requisites for the making of the consent order have been satisfied.

The registrar checks that all documents are correct and complete, that sufficient information has been provided, that the wording of the draft order is suitable and that it is an order that can be given or made by the registrar [@18.1]. Provided that everything is in compliance the registrar then grants the request and issues the order by:

Signing 2 copies of the draft order provided by the lodging party. Determining if it is a “FINAL” order (an order that finalises all relief sought by the parties in

a claim or originating application or all grounds of an appeal) and if so, endorsing it as a “Final Order”.

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Stamping the order with: o The court seal over the registrar’s signature and in the bottom left margin of the first

page of the order; ando The date filed stamp on 1 copy – For court file; and o A duplicate/copy stamp on the first page of the 2nd copy – For party

Return the “duplicate/copy” to the lodging party

The request, all supporting documents and the order document itself must then be registered on CLAIMS. If the granting or making of the consent order affects or cancels a future court event date, appropriate action must be taken including any necessary notification to the Magistrate and the parties.

If the registrar refuses the request for consent order, the submitted documents are still retained on the court file and must still be registered on CLAIMS. The registrar must also issue a notice of refusal and register the notice on CLAIMS.

The event result, whether the request was granted or refused, must be registered on CLAIMS.

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19 COSTS (Rules 678 – 743)

Costs in a proceeding are the costs that solicitors and barristers charge to initiate and prosecute the action. They also include related costs e.g. correspondence, photocopying, court filing fees, etc.

Professional Costs are set costs and detailed in Schedule 3 of the Uniform Civil Procedures Rules 1999. Court fees are contained in Schedule 2 Uniform Civil Procedure (Fees) Regulation 1999. The costs and fees are typically amended each year.

Most costs are simply ordered by the Magistrate at Trial or granted at default judgment.

If there is any question relating to legal costs, the court may order the registrar to assess costs (commonly referred to as a Taxation of Costs or simply Taxation) at any time in a proceeding or after the proceedings end. Proceedings in this case are actions commenced by a claim (or originating application) – not Minor Debt Claims.

Only registrars appointed to assess costs by the Chief Magistrate may assess costs. Practice Direction 2/99 appointed all registrars (and deputy registrars) to assess costs in a Magistrates Court. For the policy on appointing costs assessors please see Policy 28/10 Costs Assessments – Appointment of Costs Assessors on the Courts (Queensland) Policies and Procedures page on JAGNET.

Assessing costs simply means that a party is objecting to an amount of costs claimed in the proceedings and requires the court to make a decision if certain costs should be allowed and paid. The registrar assesses the costs by order of a Magistrate.

19.1. COSTS ASSESSMENTS – APPOINTMENT OF COSTS ASSESSOR – LEGALPROFESSION ACT 2007

QCSE Procedure 28/10 Costs Assessments – Appointment of Costs Assessor – Legal Profession Act 2007 on the Courts (Queensland) Policies and Procedures page on JAGNET sets out the procedures to be followed when costs are to be assessed under the Legal Profession Act 2007.What follows below is additional training and Database Application assistance in support of the QCSE procedure(s).

19.2. COSTS ASSESSMENTS – APPOINTMENT OF COSTS ASSESSORS – other than under the Legal Profession Act 2007

QCSE Procedure 28/10 Costs Assessments – Appointment of Costs Assessors – other than under the Legal Profession Act 2007 on the Courts (Queensland) Policies and Procedures page on JAGNET sets out the procedures to be followed when costs are to be assessed other than under the Legal Profession Act 2007. What follows below is additional training and Database Application assistance in support of the QCSE procedure(s).

19.3. COSTS IN A PROCEEDING BEFORE A MAGISTRATES COURT (Rule 683) At the end of a trial or other time as necessary, the Magistrate may make an order setting the amount of the costs of the proceeding (and awarding an amount of the claims – money orders or judgment normally have an amount of claim, interest and costs).

If the Magistrate gives judgment and does not want to make the costs order, the Magistrate may, having regard to the nature and complexity of the proceeding, order that the costs of the proceedings be assessed by a costs assessor.

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19.3.1. Powers of the registrar in assessing costs (Rule 714)

For assessing costs the assessing registrar may do any of the following things:

• Administer an oath or receive an affirmation

• Examine witnesses

• Require a party to be represented by another solicitor (if conflict of interest)

• Extend or shorten the time for taking any step in the assessment (unless court otherwise orders)

• Direct or require a party to produce documents

• Give directions about the conduct of the assessment process

• Anything else a court directs

• The costs assessor may also refer to the court any question of law that may arise in relation to the assessment (Rule 717(2))

19.4. DISCRETION OF A COSTS ASSESSOR IN ASSESSING COSTS (Rule 721) In assessing costs, a costs assessor must consider the following:

• Any other fees and allowances payable to the solicitor or counsel for other items in the same proceeding

• The nature and importance of the proceeding • The amount involved • The principle involved • The interest of the parties • The fund, estate or person who is to pay the costs • The general conduct and cost of the proceeding • Any other relevant circumstances • If there is no applicable M/C scale for an item in the costs statement the registrar may

award up to 80% of the applicable D/C or S/C scale (as a general rule).

19.4.1. Party to party costs (Rule 702) – standard basis of assessment

Party to party costs are calculated on a scale or schedule of fees (Supreme Court – schedule 1; District Court – schedule 2; Magistrates Court – schedule 3) appropriate for the amount the plaintiff recovers applies. These are referred to as assessment of costs on the standard basis (Rule 702). As a general rule, if there is no applicable M/C scale for an item in the costs statement the registrar may award up to 80% of the applicable D/C or S/C scale.

When assessing costs on the standard basis, the costs assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.

19.4.2. Solicitor and client costs (Rule 703) – indemnity basis of assessment

Solicitor and Client costs are calculated on a scale or schedule of fees (Supreme Court – schedule 1; District Court – schedule 2; Magistrates Court – schedule 3) appropriate for the amount the plaintiff claims applies. These are referred to as assessment of costs on the indemnity basis (Rule 703).

When assessing costs on the indemnity basis, the registrar must allow all costs reasonably incurred and of a reasonable amount having regard to –

• The scale of fees • Any costs agreement between the party and solicitor

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• Charges ordinarily payable by a client to a solicitor for the work.

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19.4.2.1. Application for Costs Assessment [Form 60]


REGISTRY:NUMBER:

Plaintiff:

AND

Defendant:

APPLICATION FOR COSTS ASSESSMENT

TO (Party liable for costs):

TAKE NOTICE that the (party applying) is applying to the Court for an order for the assessment of the following legal costs (….describe or identify the legal costs that are the subject of the application).

There will be a directions hearing in relation to the application at:

Place: (address of court) Date: (date appointed) Time: (time appointed). Filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal)

If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you.

On the hearing of the application the applicant intends to rely on the following affidavits: 1. Affidavit of ABC sworn (date); 2. Affidavit of DEF to be sworn (or as the case may be).

THE APPLICANT ESTIMATES THE HEARING SHOULD BE ALLOCATED ……Hours/Minutes

The costs assessor nominated to perform the assessment is:- (name of costs assessor) The applicable hourly rate of the costs assessor is:- (hourly rate)

APPLICATION FOR COSTS ASESSMENTFiled on Behalf of the ApplicantForm 60 Rule 743A

Name: Address:Phone No: Fax No:

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PARTICULARS OF THE APPLICANT:

Name: Applicant’s residential or business address: Applicant’s solicitor’s name: and firm name:

Solicitor’s business address: Address for service:Dx (if any): Telephone:Fax:E-mail address (if any):

[If the applicant has no solicitor: applicant’s address for service: applicant’s telephone number or contact number: applicant’s fax number (if any): applicant’s e-mail address (if any)] Signed: (applicant or solicitor)

Description: (of signatory)

Dated:

This application is to be served on: (name and address of each person to whom notice must be given under the Legal Profession Act, s.339(1))

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19.4.2.2. Cost Statement [Form 60A]


REGISTRY:NUMBER:

Plaintiff:AND

Defendant:

COST STATEMENT

The party entitled to costs is:- (party) The party liable for costs is:- (party) The authority for assessment of this costs statement is:- (details of the order, rule or Act) The amount claimed for costs is:- ($ total) (full particulars follow)

If you wish to object to any items in the costs statement you must serve a Notice of Objection in Form 61, on the party entitled to costs within 21 days of service of this costs statement.

The notice must comply with the requirements of Rule 706.

If your objection relates only to a particular issue or item, the costs assessor must: a) limit the assessment to the particular matters of objection; and b) allow the other costs claimed.

If you do not serve a Notice of Objection in Form 61 within 21 days: a) an application will be filed, returnable before the registrar, and a costs assessor will be appointed to

perform a default assessment; and b) the costs assessor must allow the total amount claimed, subject only to correcting obvious errors.

If the party entitled to costs has a solicitor

Acknowledging my ethical responsibility as an officer of the court, I say as follows:

1. I believe the costs claimed are not excessive or extravagant, but are reasonable; 2. I confirm that the disbursements were incurred, I believe reasonably.

Signed:


Dated:

COST STATEMENTFiled on Behalf of theForm 60A Rule 705


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If the party entitled to costs does not have a solicitor

I say as follows:

1. I believe the costs claimed are not excessive or extravagant, but are reasonable; 2. I confirm that the disbursements were incurred, I believe reasonably.

Signed:


Dated:

PARTICULARS OF THE APPLICANT:

Name: Applicant’s residential or business address: Applicant’s solicitor’s name: and firm name:


[If the applicant has no solicitor: applicant’s address for service: applicant’s telephone number or contact number: applicant’s fax number (if any): applicant’s e-mail address (if any)]

Signed: (applicant or solicitor) Description: (of signatory) Dated:

This application is to be served on: (First respondent’s name) of: (First respondent’s address) [and on: (Second respondent’s name) of: (Second respondent’s address)]

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PARTICULARS OF COSTS STATEMENT

Date Item No

Description of Item Disburse- ments

Fees Leave blank for costs assessor’s use

$ $ADD OUTLAYS: $TOTAL AMOUNT CLAIMED: $LESS REDUCTIONS (if any): $ADD ADDITIONAL ALLOWANCES (if any): $

$$

ADD COSTS ASSESSOR’S FEES: $FINAL AMOUNT ALLOWED: $

Instructions for preparing a Costs Statement: 1. The information should be divided into six (6) separate columns. List each item of work done or

disbursement incurred, for which an amount is claimed as part of the costs payable, in chronological order, with each item numbered in sequence, showing the date of the item and the amount claimed. Leave the sixth column blank for the costs assessor’s notations.

2. The columns detailing monetary amounts should be sub-totalled at the bottom of each page.

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19.4.2.3. Notice of Objection [Form 61]


REGISTRY:NUMBER:

Plaintiff:AND

Defendant:

Notice of Objection

TO: (party entitled to costs)

TAKE NOTICE that (party liable for costs) objects as follows to items in the costs statement (dated):

PARTICULARS OF OBJECTIONS:

ObjectionNo.

Item No.

Proposedreduction

Reasons

Total of costs statement: $

Less total of proposed reductions: $

Balance: $

Notice of ObjectionFiled on Behalf of theForm 61 Rule 706


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PARTICULARS OF THE RESPONDENT Name: Respondent’s residential or business address: Respondent’s solicitor’s name: and firm name:


[If the respondent has no solicitor: Respondent’s address for service: Respondent’s telephone number or contact number: Respondent’s fax number (if any): Respondent’s e-mail address (if any)]

Signed: (party or solicitor)


Dated:

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19.4.2.4. Costs Assessor’s Certificate [Form 62]


REGISTRY:NUMBER:

Plaintiff:AND

Defendant:

COSTS ASSESSOR’S CERTIFICATE

I, (insert name of costs assessor), of (business address), certify that —

1. I am an approved costs assessor appointed under the Uniform Civil Procedure Rules 1999. 2. I was appointed to assess the costs in this matter pursuant to the Order of [Registrar or Judge]

dated (insert date of order). 3. I have assessed the costs payable by (insert name of party) to the (insert name of party) pursuant

to the Order of [Registrar or Judge] dated (insert date of order) in the amount of (insert amount in words and numerals) comprising: a. Professional Fees $(insert amount in numerals) b. Disbursements $(insert amount in numerals)

4. My fees of $(insert amount of fee) are payable by (insert name of party liable to pay fee) and have been included as a disbursement.

5. The party entitled to be paid the costs of the assessment is (insert name of party). Those costs are assessed at $(insert amount) and have been [included as a disbursement or deducted from the disbursements].

Signed:

Dated:

Costs Assessor’s Certificate Filed on Behalf of theForm 62 Rule 737


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19.4.2.5. Application for Approval as a Costs Assessor

MAGISTRATE COURT OF QUEENSLAND

REGISTRY:NUMBER:

APPLICANT (name)

APPLICATION FOR APPROVAL AS A COSTS ASSESSOR

I (full name) apply to be approved as a costs assessor.

I believe I am a fit and proper person to be approved as a costs assessor. I make this application in reliance on the information contained in my affidavit outlining matters relevant to my appointment as a costs assessor.

Full name: Address:Telephone:Fax number: E-mail address (if any):

Signed:

Dated:

Application For Approval as a Costs AssessorFiled on Behalf of the Applicant Form 63 Rule 743K


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19.4.2.6. Registrar’s Order for Costs 19.4.2.6. Registrar’s Order for Costs





ORDER ORDER Before: Registrar X Before: Registrar X Date: (Date order made) Date: (Date order made) Initiating document: Certificate of Costs Assessor filed (date, or as the case may be) Initiating document: Certificate of Costs Assessor filed (date, or as the case may be) THE ORDER OF THE COURT IS THAT: THE ORDER OF THE COURT IS THAT: 1. The (Respondent/Defendant/Applicant/Plaintiff) pay the (Applicant/Plaintiff/Respondent/Defendant)

costs pursuant to: 1. The (Respondent/Defendant/Applicant/Plaintiff) pay the (Applicant/Plaintiff/Respondent/Defendant)

costs pursuant to:

* The order of the court dated (date of court order) and * The order of the court dated (date of court order) and

* The certificate of the costs assessor filed ………… * The certificate of the costs assessor filed …………

assessed at $................ assessed at $................ Signed: (Registrar to sign and seal) Signed: (Registrar to sign and seal) (Description of Registrar) (Description of Registrar)

REGISTRAR’S ORDER FOR COSTSREGISTRAR’S ORDER FOR COSTSFiled on Behalf of the Filed on Behalf of the Form 63A Rule 740 Form 63A Rule 740

Name: Name: Address: Address: Phone No: Phone No: Fax No: Fax No:


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20 FEES AND COSTS 20 FEES AND COSTS

Court fees are payable on filing a claim (and other documents as prescribed) and set by regulation (Uniform Civil Procedure (Fees) Regulation 2009). Solicitors are entitled to claim legal costs for preparation of certain documents – they can only claim costs in relation to one scale, not two sets of costs for the one type of action.

Court fees are payable on filing a claim (and other documents as prescribed) and set by regulation (Uniform Civil Procedure (Fees) Regulation 2009). Solicitors are entitled to claim legal costs for preparation of certain documents – they can only claim costs in relation to one scale, not two sets of costs for the one type of action. Legal costs on an initiating proceeding (i.e. Claim) should only be allowed if the proceedings were commenced with the Solicitor representing the plaintiff. Legal costs on subsequent action (e.g. enforcement) should only be allowed if the plaintiff’s solicitor actually signed and filed the relevant application. Similar provisions should apply for a solicitor representing a defendant and filing defence documents etc.

Legal costs on an initiating proceeding (i.e. Claim) should only be allowed if the proceedings were commenced with the Solicitor representing the plaintiff. Legal costs on subsequent action (e.g. enforcement) should only be allowed if the plaintiff’s solicitor actually signed and filed the relevant application. Similar provisions should apply for a solicitor representing a defendant and filing defence documents etc. Enforcement Officers costs are also prescribed. Service and travelling costs are prescribed, but relate only to processes enforced and/or served by an enforcement officer. Enforcement Officers costs are also prescribed. Service and travelling costs are prescribed, but relate only to processes enforced and/or served by an enforcement officer.

20.1. SERVICE AND EXECUTION FEES CLAIMABLE 20.1. SERVICE AND EXECUTION FEES CLAIMABLE Enforcement Officers fees are automatically allowable at judgment or otherwise if served by the enforcement officer. A warrant can only be enforced by the EO, therefore prescribed enforcement fees are allowable. (When determining bailiff fees under Part 2, Schedule 2, Uniform Civil Procedure (Fees) Regulation 1999, also refer to CM73/03 in relation to poundage.)

Enforcement Officers fees are automatically allowable at judgment or otherwise if served by the enforcement officer. A warrant can only be enforced by the EO, therefore prescribed enforcement fees are allowable. (When determining bailiff fees under Part 2, Schedule 2, Uniform Civil Procedure (Fees) Regulation 1999, also refer to CM73/03 in relation to poundage.) It is suggested, for consistency in all registries, that service fees be allowed in all cases, at the prescribed scale, if processes are properly served by an EO or persons other than an EO who charged a fee for that service (e.g. a licensed process server). If the person serving the document has charged a fee equal to or greater than the prescribed amount then the fee should only be allowed at the prescribed scale.

It is suggested, for consistency in all registries, that service fees be allowed in all cases, at the prescribed scale, if processes are properly served by an EO or persons other than an EO who charged a fee for that service (e.g. a licensed process server). If the person serving the document has charged a fee equal to or greater than the prescribed amount then the fee should only be allowed at the prescribed scale. This means that only the prescribed service fee is allowable at judgment. If the actual service charge was less than the prescribed fee, the amount allowable is the amount charged (e.g. service by post, only the amount of postage is allowable at judgment).

This means that only the prescribed service fee is allowable at judgment. If the actual service charge was less than the prescribed fee, the amount allowable is the amount charged (e.g. service by post, only the amount of postage is allowable at judgment). If the Claim, MDC or EW was served by the plaintiff or EC or another person at no cost to the plaintiff or EC, then no service fee is allowable. If the Claim, MDC or EW was served by the plaintiff or EC or another person at no cost to the plaintiff or EC, then no service fee is allowable. Therefore the affidavit of service must be checked to ensure that the title/occupation of the person who served the document is an enforcement officer or licensed process server or otherwise where the fee may be allowable. If the EO is claiming additional mileage, this must be also detailed and sworn in the affidavit of service.

Therefore the affidavit of service must be checked to ensure that the title/occupation of the person who served the document is an enforcement officer or licensed process server or otherwise where the fee may be allowable. If the EO is claiming additional mileage, this must be also detailed and sworn in the affidavit of service. An order from the court (Magistrate) is required for the Plaintiff or EC to be allowed an amount more than the prescribed amount (i.e. an application to the court not on notice [@ 2.4.21]).An order from the court (Magistrate) is required for the Plaintiff or EC to be allowed an amount more than the prescribed amount (i.e. an application to the court not on notice [@ 2.4.21]).


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21 APPEALS (Rules 782 – 792)

When a party is unsatisfied with an order of the Magistrate following a Trial, they may appeal to a Judge of the District Court – Procedure for appeals to District Court from Magistrates Court (Rule 783).

This part applies for appeals from the Magistrates Court to a Judge of the District Court.

The starting of an appeal does not stay enforcement (Rule 761) unless a Judge of the D/C orders a stay subject to the appeal.

From the Magistrates Court perspective, an appeal to the D/C is relatively simple. The appeal is commenced by the appellant (i.e. one of the parties to the Claim) filing a notice of appeal in the D/C and filing a copy in the M/C. When filed in the M/C, the Registrar simply forwards the entire civil file together with exhibits and transcription of proceedings to the D/C.

The registrar M/C must advise the local Magistrate and the Chief Magistrate that an appeal has been made and note the registry appeal book to keep track. From time to time (about once a month) the registrar of the M/C writes to the Registrar of the D/C to ascertain if the appeal has been heard. When finalised, the registrar of the D/C will return the file and outcome of appeal to the M/C. The registrar M/C then notes the appeal book, advises the local Magistrate and Chief Magistrate and files it away.

21.1. NOTICE OF APPEAL (Rule 786) The notice of appeal must be in the approved form [Form 96] and state:

• Whether the whole or part of the decision is appealed against; and

• Briefly and specifically the grounds of the appeal; and

• The decision the appellant seeks; and

• If leave is given to appeal, the notice of appeal must set out – the order giving leave; concise statement of reasons why leave was given and the specific questions for which leave was given.

• The name and last known address of each respondent;

• If further evidence will be put before the court;

• Briefly, state the nature of any evidence the appellant will seek to put before the court and what is sought to be proved; and

• Have on it information regarding contact details and address for service (Rule 17)

The Notice of Appeal must be filed in the District Court within 28 days (Rule 748) of the Magistrates decision and served on the respondent(s). After the notice is served on the Respondent (the other party(s) named in the appeal) and they want to defend the appeal the respondent must file (in the D/C within 14 days after service) and serve on the appellant(s) a:

• Form 99 – Notice of address for service (which includes information in Rule 17)

To have the appeal listed for Trial at the District Court, the parties must sign and file (at the District Court) a:

• Certificate of Readiness – Form 98.

The Registrar of the District Court may then list the matter for hearing.

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21.1.1. Notice of Appeal Subject to Leave (Rule 786(5))21.1.1. Notice of Appeal Subject to Leave (Rule 786(5))

If the appellant does not file the Notice of Appeal within the time allowed (28 days – Rule 748) – the appellant requires the leave of a Judge of the District Court to pursue an appeal. This simply means that the appellant must convince the Judge to allow the appeal even though the statutory time for appeal has lapsed. The appellant files the Notice of Appeal Subject to Leave – Form 97 in the District Court.

The hearing of the application is set by the Registrar of the D/C. This notice is served on the respondent(s) by the applicant. The respondent(s) may appear at this hearing and may file the Form 99 [@ 21.1] to give submissions to the Judge to not allow leave to appeal.

If leave is granted, the appeal continues as described @ 21.1.

21.2. REGISTRY PROCEDURE - MAGISTRATES COURT APPEAL Following the appellant (i.e. a party to the Claim) completing and filing a Notice of Appeal in the D/C, the D/C then notifies the M/C where the decision was made, the Registrar of the M/C then:

• Extracts the civil file • Checks the appeal document for correctness • Inputs Appeal into CLAIMS

The transcript of the hearing is then ordered from state reporting bureau by completing the request form as per CM2/07, noting the reason for the request as “Appeal”. When the transcript is returned, the Registrar photocopies the civil file and forwards to the D/C originals of:

• The entire civil file • Transcript of proceedings • All exhibits as tendered • Any other document tendered or relevant to the proceeding • Covering letter (original + copy) • The covering letter is forwarded in duplicate for the District Court to acknowledge receipt of

the file (a copy of the letter is filed on the photocopy of the file).

The Registrar, District Court, Place Dear Sir/Madam, Re: Claim No. Plaintiff -v- Defendant An appeal was served on me on / / in relation to the above. I forward my civil file, transcript of proceedings and all exhibits. Please acknowledge receipt of this file on the copy of this letter which is enclosed. Please advise me of the outcome of the appeal in due course.

The photocopy of the file is filed in general filing (there is no requirement to keep a copy of the transcript). The D/C will forward the appeal outcome and return the civil file and attachments. The photocopy of the file is then shredded. CLAIMS is noted and the original file is filed (exhibits should then be returned to the party who tendered them).

The local Magistrate and Chief Magistrate are advised of the outcome of the appeal and the appeal register is noted accordingly.

Note: The Registrar must check the appeal register at least monthly and request updates on appeals from the Registrar of the relevant District Court.


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22 ENFORCEMENT OF MONEY ORDERS (Rules 793 – 920)

Enforcing a money order simply means taking steps within a proceeding with a view to recovering payment of the debt. This means, in the Magistrates Court, that a party to the proceedings has a judgment against the other party for an amount of money which the latter party refuses to pay.

The party that is owed the money files enforcement documents at the court where the money order (judgment) is given or filed.

This party, now referred to as the Enforcement Creditor (EC), files documents to force the other party, now referred to as the Enforcement Debtor (ED), to pay the amount of the judgment. However, having a judgment granted by the court does not guarantee full satisfaction of the debt.

An Enforcement Creditor may not enforce a judgment after 12 years from the date of judgment (Limitations of Actions Act 1974 – Sect 10(4)).

The types of enforcement are:

• Enforcement Hearing Summons [Form 70] (Rule 808) • Enforcement Warrant – seizure and sale of property [Form 75] (Rule 828) • Enforcement Warrant – redirection of debt [Form 76] (Rule 840) • Enforcement Warrant for regular redirection [Form 77] (Rule 848) • Enforcement Warrant – redirection of earnings [Form 78] (Rule 858) • Order Authorising Payment by Instalments [Form 82] (Rule 868)

To obtain an enforcement order, the EC files an application within a proceeding not on notice an affidavit or statement supporting the application, together with the relevant warrant/order.

The enforcement warrant – seizure and sale of property [Form 75] is enforced by the Enforcement Officer (EO). The warrant is given to the EO to seize property of the ED and sell at an auction organised by the EO (or a person authorised by the EO). The ED can pay the amount of the warrant to the EO before the sale.

The order authorising payment by instalments is served on the ED (or requested by the ED) to pay the amount of the judgment over a period of time by regular amounts (or instalments).

The other types of warrants are served on the ED and Third Person (TP) being the Enforcement Debtors Employer (EDE) or Financial Institution (FI). The TP is then responsible for paying the EC.

22.1. DEFINITIONS (Rule 793) The meanings of terms in relation to enforcement of money orders are outlined in Rule 793.

22.1.1. Enforcement period for money orders

An Enforcement Creditor may start enforcement proceedings without leave at any time within 6 years after the day the money order was made (Rule 799).

The courts leave is required if EC wants to enforce a judgment and:

• It is more than 6 years after the money order was made

• There has been a change in the EC or ED by:

o Assignment (debt given or sold to another party) o Death o Otherwise

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An application for leave to start proceedings (after the 6 years) may be made without notice unless the court otherwise orders. The court (Magistrate) considers:

• Amount owing (including interest) • Reasons for delay • Change of enforcement creditor or enforcement debtor (if any) • If applicant entitled to enforce the order • If enforcement debtor is able to satisfy the order

The forms required for leave to start proceedings are:

• Application - Form 9 (original only); and • supporting affidavit – Form 46 (original only)

This is an application within proceedings not on notice [@ 2.4.21]. The application is filed and the registrar sets it down before the Magistrate on the next available civil callover day or other date authorised by the Magistrate. The Magistrate will grant leave or refuse leave, depending on the circumstances, and note their decision on the file cover sheet. If leave is granted, the EC then files the relevant documentation to enforce the judgment – the Registrar can then process the application.

22.1.2. Stay of enforcement of money order (Rule 800)

The ED may apply to the court (constituted by a Magistrate), where a judgment is given or subsequently filed, to stay (i.e. to temporarily stop) enforcement of all or part of a money order (Rule 800). The court may make any order it considers appropriate including an order for payment by instalments.

This is an application within a proceeding on notice [@ 2.4.22].

The documents required are:

• Application Form 9 – original + 1 copy for each other party; and • Supporting affidavit Form 46 – original + 1 copy for each other party; and • Affidavit proving service of the application Form 46; and • Order Form 59 – original + 1 copy for each other party.

The application and affidavit must be served personally on the enforcement creditor at least 3 business days before hearing of the application (Rule 800(3)).

When the Magistrate makes the order, it is served on the other parties – it is not the responsibility of court staff to prepare the order and it should be filed with the original application and affidavit (court staff should, however, assist unrepresented parties as much as possible). If the Magistrate makes a different type of order, the ED should prepare and file a correct one. The EC is then served with a signed and sealed copy of the order.

Note the provisions of Rule 50 when a Magistrate is not available at the court where the application is to be made [and @ 2.4.22].

22.2. WHERE TO ENFORCE MONEY ORDER (Rule 801) If amount payable under an enforceable money order of the Supreme Court is within the (monetary) jurisdiction of (Rule 801(1)):

• The Magistrates Court – the order may be enforced in the Magistrates Court; or • The District Court – the order may be enforced in the District Court.

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22.2.1. Orders of higher courts enforced in Magistrates Court (Rule 801)22.2.1. Orders of higher courts enforced in Magistrates Court (Rule 801)

If the amount payable under an enforceable money order of the District Court is within the (monetary) jurisdiction of the Magistrates Court, the order may be enforced in the Magistrates Court.

That is: if the amount of the money order of the S/C or D/C is $150,000 or less, the order can be enforced in the Magistrates Court by filing a copy of the order in the M/C. Once filed, that order is treated the same as an order of the M/C.

22.2.2. Orders of the Magistrates Court can be enforced in the higher courts

Monetary orders of the D/C and M/C may be enforced in the S/C by order of the S/C (Rule 801(3)).

22.2.3. Costs of enforcing money orders are awarded on amount of order

Costs of enforcing the money order are claimable on the scale of costs relevant to their (monetary) jurisdiction, unless the court that made the order otherwise orders (i.e. costs are claimable in the M/C scale if the amount of the money order is $150,000 or less, even if the order is enforced in the Supreme Court or District Court) (Rule 801(4)).

22.3. ENFORCING A MONEY ORDER IN A DIFFERENT COURT (Rule 802) A money order of the Supreme Court or District Court may be enforced in the Magistrates Court by filing a copy of the judgment in the Magistrates Court:

• Where the enforcement debtor resides or carries on business, or • Closest to the court that made the order.

This means that if an ED lives (or has a business) in Southport, then a money order of the S/C or D/C at Brisbane (for an amount being $150,000 or less) can be enforced in the Southport M/C by filing a copy of the judgment in the M/C.

The judgment should have an original seal and stamped with the word ‘COPY’ (Rule 980). There is no court fee for filing the judgment. The judgment is then treated as a judgment of the Magistrates Court.

22.3.1. Registry procedure – Enforce money order in another court (Rule 802)

To enforce a money order in another court (i.e. a judgment of the S/C or D/C enforced in the M/C), a copy of the money order (i.e. judgment document) must be filed [@ 22.3]. To file another courts order, the receiving court must receive:

• A copy of the order – original seal and stamped ‘COPY’.

The registrar of the receiving court then files the copy of the order as if it was a new claim (@ 2.4–checked, sealed by receiving court, create file, input into CLAIMS).

The order can then be enforced as if the received judgment was an order of their court.

Note: A money order (i.e. judgment) of the Magistrates Court cannot be filed in another Magistrates Court and enforced as a judgment of the receiving court. This means that if a judgment has been filed for an EHS [@ Error! Reference source not found.] only the EHS can issue. If the EC wants to file any EW, the application must be made to the court where the judgment was given not where the judgment was filed.


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22.4. ENFORCING A MONETARY ORDER OF A TRIBUNAL To enforce a monetary order of a Tribunal in the Magistrates Court, the applicant/claimant (or, if successful at the hearing, respondent) files in the Magistrates Court in the District where the respondent (or person against whom the order is made) resides, the following documents:

1. Original signed and sealed (or Certified copy of) Order; and 2. Affidavit of Debt in accordance with the relevant Act; and 3. Judgment Form 58 (UCPR) (only if required – see below).

The Registrar files the Order as an originating process, and (if required) signs the Form 58 Judgment. The Order is then registered as a judgment of the M/C and can be enforced the same as any other judgment of the court.

Orders from some tribunals may require a Judgment Form 58 to be lodged to be properly registered as an M/C Judgment. However the majority (including orders of the Queensland Civil and Administrative Tribunal (QCAT) don’t require the Form 58. If in any doubt check with the Registrar.

For consistent registry practices it is suggested that, if an agent acted for the Enforcement Creditor in the Tribunal proceedings, the same agent be allowed to file enforcement documents in the M/C on behalf of the EC. If that agent wants to examine the ED at an EH, then the agent may appear by leave of the court (i.e. consent of the Magistrate or Registrar at the EH).

The above procedure applies to any monetary Order from Queensland Tribunals. Note that even though Tribunals such as the Small Claims Tribunal ceased to exist on 1 December 2009 when QCAT commenced operations, there will still be existing Orders from these defunct Tribunals that may need to be registered and enforced through the M/C.

Note as well that the entire amount of the Order as made is registered as the Judgment, not whatever amount is still outstanding. If any amount has been paid have been made since the Order was made, this is to be noted in the supporting Affidavit of Debt (as well as the supporting affidavit or statement in any enforcement proceeding).

22.5. Enforcing a Monetary Order of an Interstate Court

To enforce a monetary order of a Court from another State against a debtor who resides, carries on business or owns goods or property within Queensland, the creditor files relevant documents in the Magistrates Court in the District where the respondent (or person against whom the order is made) resides or carries on business, or the goods or property are located.

Refer to Circular Memorandum CM3/06 – Registration of Foreign (Interstate) Judgments for the procedures for registering these judgments.

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23 ENFORCEMENT HEARING (Rules 803 – 816)

The purpose of an enforcement hearing is to obtain information to facilitate the enforcement of a money order (Rule 803). This is done by the court or registrar issuing a summons which requires the enforcement debtor to come to court (and/or complete and submit to the enforcement creditor a statement of their financial position (form 71)) to answer questions and produce documents concerning (Rule 812):

• Their assets (land, house, shares, stocks, bonds, vehicles and other property) • Their income and name and address of employer • Their other debts • Their bank accounts or other financial institution and any balances • Any other relevant information concerning their financial position • Their means of paying the debt

If the ED does not appear when required, a warrant may be issued for their arrest. The warrant may be issued by the Magistrate or Registrar constituting the court. The warrant is prepared by the EC and executed by the Enforcement Officer (warrant fees are payable).

23.1. RELEVANT QCSE POLICIES OR PROCEDURES

The following QCSE policies and procedures apply to Enforcement Hearings:

Enforcement action - Conducting an enforcement hearingEnforcement action - Enforcement hearing application and listingEnforcement action - Enforcement hearing warrantEnforcement action - Relisting an enforcement hearing

The above procedures can be found on the Courts (Queensland) Policies and Procedures page on JAGNET.

23.2. WHEN CAN AN ENFORCEMENT HEARING TAKE PLACE (Rule 804) An enforcement hearing may take place:

• At the end of a trial that resulted in a money order (called an end of trial enforcement hearing; or

• By written application at any time after: o a money order has been made; and o the enforcement debtor has been required by the enforcement creditor to complete

and return a Statement of Financial Position; and o the enforcement debtor has failed to do so in a satisfactory manner.

23.3. END OF TRIAL ENFORCEMENT HEARING (Rule 805 – 806) At any time after filing a request for trial date and before trial (including during the trial) a party may apply to the court for an enforcement hearing to take place immediately after judgment is given at the end of the trial. The application must be served on each other party.

The court may grant the application:

• And must issue an enforcement hearing summons – Form 70; and

• May give directions about the conduct of the hearing and direct that :

o The court constituted by a registrar hear the enforcement hearing; or o The enforcement hearing be adjourned.

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If an enforcement hearing summons is served and the court reserves its decision the court may give directions:

• About the date of the enforcement hearing • That the hearing will be before a registrar or judicial registrar, or adjourn the hearing.

23.4. REQUIREMENT FOR STATEMENT OF FINANCIAL POSITION (Rule 807) At any time after a money order has been made the enforcement creditor may send a written notice to an enforcement debtor requiring them to complete and return to the EC a Statement of Financial Position - Form 71. A blank Form 71 must be included with the written notice.

The ED is required to complete and return the Statement of Financial Position to the EC within 14 days or receiving the written notice.

If the ED is a corporation, an officer of the corporation must complete the Statement of Financial Position.

If the ED is a partnership, a partner or a person who has or had control or management of the partnership business in Queensland must complete the Statement of Financial Position.

If the ED receives regular payments (such as wages or social security benefits) they must include in their Statement of Financial Position the date of receipt of the last 4 payments. If the payments were made into a bank account, the ED must also provide the account number and any other details necessary to identify the account.

23.5. ENFORCEMENT HEARING AFTER ORDER IS MADE (Rule 808) At any time after a money order is made (i.e. after judgment has been given and judgment filed) an EC may, without notice to the other party, apply to the court (including a court constituted by registrar) for an enforcement hearing. However, the application can only be made after the EC has required the ED to complete a Statement of Financial Position Form 71 in accordance with Rule 807, and either:

The ED has not returned a completed Statement of Financial Position to the EC; or The ED has returned the Statement, but the EC is not satisfied with the information

contained in it.

The EC must apply in the approved form (Form 9), supported by affidavit (Form 46). The registrar must then set a date for the enforcement hearing and issue the enforcement hearing summons in the approved form (Form 70).

The forms required for an EHS are:

• Judgment given and filed (or copy of judgment filed); then

• Application Form 9 – original + 1 copy for:

o Original filed o Copy for EC; and

• Supporting affidavit Form 46 – original; and

• Enforcement Hearing Summons Form 70 – original + 2 copies for:

o Original filed o Copy to be served on ED o Copy for EC; and

• Statement of Financial Position Form 71 – original only (if required to be completed by ED); and

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• Stamped self-addressed envelope if filed by post • Stamped self-addressed envelope if filed by post

The information in the supporting affidavit must include the unpaid amount of the money order, whether the EC has received a Statement of Financial Position from the ED, and if so why the EC is not satisfied with the information contained in the statement (Rule 808(3).

The information in the supporting affidavit must include the unpaid amount of the money order, whether the EC has received a Statement of Financial Position from the ED, and if so why the EC is not satisfied with the information contained in the statement (Rule 808(3). The application is determined by the registrar or deputy registrar (i.e. the court constituted by the registrar).When determined, the registrar sets a date for the enforcement hearing to take place, (allowing sufficient time for service in accordance with Rule 810(4)). The EHS may also require the ED to complete a Statement of Financial Position Form 71 and return it to the EC at least 4 business days before the hearing (Rule 808(5)).

The application is determined by the registrar or deputy registrar (i.e. the court constituted by the registrar).When determined, the registrar sets a date for the enforcement hearing to take place, (allowing sufficient time for service in accordance with Rule 810(4)). The EHS may also require the ED to complete a Statement of Financial Position Form 71 and return it to the EC at least 4 business days before the hearing (Rule 808(5)). The service copy(s) of the EHS and the Statement of Financial Position (if the EHS requires one to be completed) are returned to the EC to arrange service. When served, the EC should file the affidavit of service (stating that the summons and the statement (if required) were served).

The service copy(s) of the EHS and the Statement of Financial Position (if the EHS requires one to be completed) are returned to the EC to arrange service. When served, the EC should file the affidavit of service (stating that the summons and the statement (if required) were served). If the ED returns the completed statement (to the EC) and the EC is satisfied with the contents of the statement, the EC gives written notice to the court and the ED that the hearing will not take place.

If the ED returns the completed statement (to the EC) and the EC is satisfied with the contents of the statement, the EC gives written notice to the court and the ED that the hearing will not take place.

CAG Recommendation: The application (Form 9) must specify what is to be produced on the first occasion and this must be mirrored/reflected in the enforcement hearing summons.

23.6. LOCATION FOR ENFORCEMENT HEARING (Rule 809) 23.6. LOCATION FOR ENFORCEMENT HEARING (Rule 809) If practicable, an EH must be held in the district in which the ED resides or carries on business (Rule 809(1)). If practicable, an EH must be held in the district in which the ED resides or carries on business (Rule 809(1)). However, if that isn’t practicable then the hearing must be held at the place where the money order was made, unless the court directs otherwise (Rule 809(2)). However, if that isn’t practicable then the hearing must be held at the place where the money order was made, unless the court directs otherwise (Rule 809(2)). The application for an enforcement hearing must be made to the court in the district in which the EH is sought (Rule 809(3)). If that isn’t the court where the money order was made, then a copy of the money order must be filed with the EH documents.

The application for an enforcement hearing must be made to the court in the district in which the EH is sought (Rule 809(3)). If that isn’t the court where the money order was made, then a copy of the money order must be filed with the EH documents.

CAG Recommendation: a copy of judgment can be any one of the following:

• A “copy” of the original Judgment UCPR 980. (A “copy” must have an original seal and the word “copy” stamped on it)

• Certified Duplicate of the judgement, signed by the Registrar, with an original seal. (UCPR 662)

• A certified copy of Judgment (issued pursuant schedule 2- item 5 Magistrates Court fees- UCPR)

This means that if the ED resides or carries on business outside the court district where the judgment is given (e.g. judgment given at M/C Caboolture and the ED lives in the Southport M/C district) the person requiring the ED to attend an EH obtains a copy of the judgment from the home court (Caboolture) and pays the prescribed fee. The judgment is then filed in a court in the district where the ED resides or carries on business (in this example, Southport or Coolangatta), along with the necessary document to apply for an EH.

This means that if the ED resides or carries on business outside the court district where the judgment is given (e.g. judgment given at M/C Caboolture and the ED lives in the Southport M/C district) the person requiring the ED to attend an EH obtains a copy of the judgment from the home court (Caboolture) and pays the prescribed fee. The judgment is then filed in a court in the district where the ED resides or carries on business (in this example, Southport or Coolangatta), along with the necessary document to apply for an EH. If for any reason it wasn’t practicable to have the EH in the Southport district, it would have to be held at Caboolture M/C. If the EC wanted to have the hearing in any other district they would have to make an application not on notice to the Court [@2.4.21]. In either of these cases, when the summons is served on the ED, conduct money must be offered [@ 23.8Error! Reference source

If for any reason it wasn’t practicable to have the EH in the Southport district, it would have to be held at Caboolture M/C. If the EC wanted to have the hearing in any other district they would have to make an application not on notice to the Court [@2.4.21]. In either of these cases, when the summons is served on the ED, conduct money must be offered [@ 23.8Error! Reference source


RTI 140310 Page 241

not found.]. If the ED does not attend at the EH, the court (Magistrate or Registrar) may issue an Enforcement Hearing Warrant. not found.]. If the ED does not attend at the EH, the court (Magistrate or Registrar) may issue an Enforcement Hearing Warrant. It is suggested that ECs be advised to obtain the copy of the judgment and file it at the court where the ED resides or carries on business. The fee for obtaining a suitable copy of judgment is recoverable from the ED.

It is suggested that ECs be advised to obtain the copy of the judgment and file it at the court where the ED resides or carries on business. The fee for obtaining a suitable copy of judgment is recoverable from the ED. At the conclusion of the EH the receiving registrar must send: At the conclusion of the EH the receiving registrar must send:

• A copy of the EHS; and • A copy of the EHS; and • A copy of any documents filed in relation to the EHS; and • A copy of any documents filed in relation to the EHS; and • A copy of the record of any EH held and any order made. • A copy of the record of any EH held and any order made.

… to the home court registrar (Rule 809(5)(b)). … to the home court registrar (Rule 809(5)(b)). The home court registrar then files these documents or orders on their original file. The home court registrar then files these documents or orders on their original file.

Note: The filed copy of judgment at the receiving court is given the next civil file number, but only an EHS may issue. The EC cannot apply for any other enforcement at the receiving court. Other enforcement action can only be applied for at the home court.

23.7. WHO CAN AN ENFORCEMENT HEARING SUMMONS BE DIRECTED TO (Rule 810)

23.7. WHO CAN AN ENFORCEMENT HEARING SUMMONS BE DIRECTED TO (Rule 810)

An enforcement hearing summons in the approved form (Form 70) may be directed to: An enforcement hearing summons in the approved form (Form 70) may be directed to:

• An ED; or • An ED; or • If the ED is a corporation, to an officer of the corporation (e.g. Director); or • If the ED is a corporation, to an officer of the corporation (e.g. Director); or • If ED is a partnership, to a partner or person who has or has had control or management of

the partnership business in Queensland. • If ED is a partnership, to a partner or person who has or has had control or management of

the partnership business in Queensland. An EHS must be served on the person summonsed personally or by pre-paid post at least 14 days before the day set for the EH. An EHS must be served on the person summonsed personally or by pre-paid post at least 14 days before the day set for the EH. An end of trial EHS must be served at the time the court directs. An end of trial EHS must be served at the time the court directs.

23.8. CONDUCT MONEY (Rule 811) 23.8. CONDUCT MONEY (Rule 811) Conduct money is simply money given to the ED (or other person) to cover travelling costs to the court to attend an enforcement hearing when the ED has been served with an Enforcement Hearing Summons (EHS) (or Subpoena) in the circumstances noted below.

Conduct money is simply money given to the ED (or other person) to cover travelling costs to the court to attend an enforcement hearing when the ED has been served with an Enforcement Hearing Summons (EHS) (or Subpoena) in the circumstances noted below. The conduct money, sufficient to meet reasonable expenses to comply with the EHS or subpoena [@ Error! Reference source not found.] (Rule 419) must be offered when the EHS or subpoena is served, or (for a subpoena only) within a reasonable time before the attendance is required. Similarly, conduct money must be offered to an ED to attend an EH if the hearing is to take place in a court outside the district in which the ED resides or carries on business.

The conduct money, sufficient to meet reasonable expenses to comply with the EHS or subpoena [@ Error! Reference source not found.] (Rule 419) must be offered when the EHS or subpoena is served, or (for a subpoena only) within a reasonable time before the attendance is required. Similarly, conduct money must be offered to an ED to attend an EH if the hearing is to take place in a court outside the district in which the ED resides or carries on business. The conduct money is additional to payments and allowances to normal witnesses. If the conduct money is not paid, the person is excused from complying with the subpoena (Rule 419) and may be excused from attending under an EHS (this depends on the circumstances at the time and how far the ED must travel to get to court – e.g. if the ED works in another district (i.e. not carries on business) and the EHS is to be heard in that district and the ED normally travels every day to work, then conduct money may not have to be paid – but it is better to have the EC always tender the conduct money when served with the EHS to prevent any confusions). The court will decide if the ED or other person is excused from attending or if they are in contempt of court (i.e. court constituted by registrar or Magistrate).

The conduct money is additional to payments and allowances to normal witnesses. If the conduct money is not paid, the person is excused from complying with the subpoena (Rule 419) and may be excused from attending under an EHS (this depends on the circumstances at the time and how far the ED must travel to get to court – e.g. if the ED works in another district (i.e. not carries on business) and the EHS is to be heard in that district and the ED normally travels every day to work, then conduct money may not have to be paid – but it is better to have the EC always tender the conduct money when served with the EHS to prevent any confusions). The court will decide if the ED or other person is excused from attending or if they are in contempt of court (i.e. court constituted by registrar or Magistrate).


RTI 140310 Page 242


The affidavit accompanying the application for an enforcement hearing must include an undertaking to offer to pay conduct money to a person summoned (Rule 811(4)).

Conduct money is not paid to an ED (or, if the ED is a company or business name, to anyone who is a company director, partner etc.) to attend an EH at the court in the same district where the ED resides or carries on business.

Conduct money must be offered to a person required to attend an EH if the hearing is to be held at a court in a district other than the court district in which the person resides or carries on business, or if a person is not the ED or an officer of the ED (if a company or business). There are limitations on where the EH may take place (Rule 809)[@Error! Reference source not found.].

The effect of this is that:

• If an ED is required to be examined in Southport and resides in Brisbane, then money sufficient to meet reasonable expenses in complying with the enforcement hearing summons must be given (or offered to be given – the ED does not have to accept the money) to the ED when the enforcement hearing summons is served; or

• If a subpoena is issued [@ Error! Reference source not found.] then conduct money must be tendered irrespective of where the person named in the subpoena resides.

The conduct money is paid by the plaintiff (or solicitor / agent) by bank cheque, cash or postal money order and handed (or offered) to the person with a copy of the summons.

The conduct money may be claimable from the ED by order of the court (Magistrate) at the hearing and depending on the circumstances at the time – Rule 417 (e.g. conduct money would not be claimable from the ED if the hearing could have been conducted at a closer court).

23.9. SUBPOENA (Rule 812) A subpoena may be issued, on application to the court, by an enforcement creditor or enforcement debtor, in the approved form, to a person having relevant knowledge about the circumstances of an enforcement debtor (this could be an employer or financial adviser etc).

The person must be served with the subpoena at least 14 days before the hearing.

The subpoena is simply a summons (called a subpoena) requiring a person to attend and give evidence or information to the court regarding the financial and other affairs of the ED.


• Application Form 9 – original • Supporting affidavit Form 46 - original (see also Rule 811(4)) • Subpoena to Attend Enforcement Hearing Form 72 – original + 1 service copy • Affidavit of Service – Form 46 – original

The application is not on notice and is made to a Magistrate. The Magistrate may determine the application from information contained in the affidavit and grant the subpoena without a formal hearing (discuss this with your Magistrate) or may determine it on a civil callover day. The Magistrate will endorse the court file with the particulars of their order.

If granted, the subpoena is issued by the registrar and served on the person named in the subpoena. Service is arranged by the applicant for the subpoena. If the person does not appear, the court may issue a warrant for their arrest.

When the subpoena is served, the person serving it must offer to pay conduct money (Rule 811) [@ Error! Reference source not found.].

RTI 140310 Page 243

Rule 812(3) provides that a person who is required to attend court by a subpoena is excused from complying with an EHS unless conduct money is tendered with the subpoena or reasonable time thereafter (Rule 419) (tendered means offering to give the person money, cheque or money order to cover reasonable expenses in getting to court when served with the subpoena).

Rule 812(3) provides that a person who is required to attend court by a subpoena is excused from complying with an EHS unless conduct money is tendered with the subpoena or reasonable time thereafter (Rule 419) (tendered means offering to give the person money, cheque or money order to cover reasonable expenses in getting to court when served with the subpoena).

23.10. ENFORCEMENT HEARING (Rule 813) 23.10. ENFORCEMENT HEARING (Rule 813) The court (including registrar) may also require completion of a statement of the enforcement debtors’ financial position in the approved form (Form 71). The statement must be served on the ED and returned to the EC at least 4 business days before the day of the EH.

The court (including registrar) may also require completion of a statement of the enforcement debtors’ financial position in the approved form (Form 71). The statement must be served on the ED and returned to the EC at least 4 business days before the day of the EH. The ED (or other person named in the EHS) must attend court as ordered and answer questions and produce documents as ordered. If required, they must complete the Form 71 statement at least 4 business days before the hearing day and forward to EC (agent or solicitor) [@23.5].

The ED (or other person named in the EHS) must attend court as ordered and answer questions and produce documents as ordered. If required, they must complete the Form 71 statement at least 4 business days before the hearing day and forward to EC (agent or solicitor) [@23.5]. If satisfied, the enforcement creditor may then give notice to the enforcement debtor (or other person as named) and court that the person is no longer required to attend the hearing If satisfied, the enforcement creditor may then give notice to the enforcement debtor (or other person as named) and court that the person is no longer required to attend the hearing Failure to answer questions or produce documents as ordered is contempt of court (Rule 815) – contempt Rules 921 to 932 and punishment at Rule 930 [and @ 24.14].Failure to answer questions or produce documents as ordered is contempt of court (Rule 815) – contempt Rules 921 to 932 and punishment at Rule 930 [and @ 24.14].

23.11. ORDERS AT ENFORCEMENT HEARING (Rule 814) 23.11. ORDERS AT ENFORCEMENT HEARING (Rule 814) At an enforcement hearing, the court may: At an enforcement hearing, the court may:

• Order warrant to issue • Order warrant to issue • Make another order about the enforcement of the order • Make another order about the enforcement of the order • Stay the enforcement of the order • Stay the enforcement of the order • Award costs (unless otherwise ordered, the costs of the enforcement hearing are costs of

enforcement of the order). Note also that an article clerk may seek leave to appear at an enforcement hearing however they are not entitled to professional costs for their appearance (s18(2) Magistrates Courts Act 1921).

• Award costs (unless otherwise ordered, the costs of the enforcement hearing are costs of enforcement of the order). Note also that an article clerk may seek leave to appear at an enforcement hearing however they are not entitled to professional costs for their appearance (s18(2) Magistrates Courts Act 1921).

CAG Recommendation: Professional costs can be awarded in an ex-parte application. See the following:In Part 2 of “Schedule 3 - Scale of costs—Magistrates Courts”: - Item 13 is to be used for applications for the issue of an Enforcement Warrants only. - Item 14 is to be used for applications for the issue of all other Warrants. - Item 10 is to be used for all other Applications to the Court, including applications for an Enforcement Hearing Summons. This is not applicable to applications for adjournment.

23.12. FAILURE TO CO-OPERATE AT ENFORCEMENT HEARING (Rule 815) 23.12. FAILURE TO CO-OPERATE AT ENFORCEMENT HEARING (Rule 815) It is considered contempt of court for a person who attends at the enforcement hearing and without lawful excuse refuses to be sworn (affirmed), answer questions or fails to give adequate answers. It is considered contempt of court for a person who attends at the enforcement hearing and without lawful excuse refuses to be sworn (affirmed), answer questions or fails to give adequate answers. If the court considers that a person is in contempt of court, the court may direct the registrar to apply to the court for the person to be punished (Rule 928). The application is an Application within a Proceeding Not on Notice [@ 2.4.21] – Form 9 supported by Affidavit – Form 46 and must include the Warrant for Arrest Pending Hearing for Contempt – Form 88.

If the court considers that a person is in contempt of court, the court may direct the registrar to apply to the court for the person to be punished (Rule 928). The application is an Application within a Proceeding Not on Notice [@

2.4.21] – Form 9 supported by Affidavit – Form 46 and must include the Warrant for Arrest Pending Hearing for Contempt – Form 88.

The court may also orally order that the ED be brought before the court (Rule 922) and asked to show cause why they should not be punished (Rule 930 outlines sorts of punishment) The court may also orally order that the ED be brought before the court (Rule 922) and asked to show cause why they should not be punished (Rule 930 outlines sorts of punishment)


RTI 140310 Page 244

Note: The filed copy of judgment at the receiving court is given the next civil file number, but only an EHS may issue. The EC cannot apply for any other enforcement at the receiving court. Other enforcement action can only be applied for at the home court.

23.13. ENFORCEMENT HEARING WARRANT (Rule 816) 23.13. ENFORCEMENT HEARING WARRANT (Rule 816) A court may issue an Enforcement Hearing Warrant (EHW) [Form 73] ordering the arrest of an ED by the EO to bring the ED before a court to be examined if the court: A court may issue an Enforcement Hearing Warrant (EHW) [Form 73] ordering the arrest of an ED by the EO to bring the ED before a court to be examined if the court:

• Is satisfied the person was personally served (or otherwise received) the EHS; and • Is satisfied the person was personally served (or otherwise received) the EHS; and • Considers the person failed to attend without sufficient cause. • Considers the person failed to attend without sufficient cause.

CAG Recommendation: The inclusion of a return date and court with respect to Enforcement Hearing Warrants is at the discretion of the Registrar that issues the said Warrant subject to any order of the Court.

Sufficient cause may include: Sufficient cause may include:

• Being ill and producing a medical certificate; • Being ill and producing a medical certificate; • Having no real means of getting to court; • Having no real means of getting to court; • Other reason accepted by the court; • Other reason accepted by the court; • Not knowing the street address of the court and where the court is located (a Judge of the

D/C refused to issue an EHW because the street address, name of building, floor number and court number of the court was not endorsed on the EHS).

• Not knowing the street address of the court and where the court is located (a Judge of the D/C refused to issue an EHW because the street address, name of building, floor number and court number of the court was not endorsed on the EHS).

The order for the EHW is simple. If the ED (or person required to attend by a subpoena) does not appear, the EC (or representative) may request the Magistrate or Registrar to issue the EHW – the request is made in open court from the bar table. If the Magistrate or Registrar is satisfied that the ED (or other person) has been properly served and the EHS has been properly completed with full details of the address of the court, the EHW may be issued.

The order for the EHW is simple. If the ED (or person required to attend by a subpoena) does not appear, the EC (or representative) may request the Magistrate or Registrar to issue the EHW – the request is made in open court from the bar table. If the Magistrate or Registrar is satisfied that the ED (or other person) has been properly served and the EHS has been properly completed with full details of the address of the court, the EHW may be issued. The Magistrate or Registrar can issue the Warrant back to their own court and/or to any other Magistrates Court. Therefore if the ED moves out of the district where the EHW was issued, the Warrant can be executed in any district and the ED can be examined at a court in that district.

The Magistrate or Registrar can issue the Warrant back to their own court and/or to any other Magistrates Court. Therefore if the ED moves out of the district where the EHW was issued, the Warrant can be executed in any district and the ED can be examined at a court in that district. The EHW is prepared by the EC (not court staff) and filed in duplicate with EO fees. The warrant is noted in the Enforcement Officers Process Book and given to the EO. The EHW is prepared by the EC (not court staff) and filed in duplicate with EO fees. The warrant is noted in the Enforcement Officers Process Book and given to the EO.

23.13.1. Enforcement Hearing Warrant sent to another court23.13.1. Enforcement Hearing Warrant sent to another court

If an EHW is issued and the ED resides in another district (or relocates into another district and the registrar receives advice of a new address from the EO or EC), the registrar forwards the warrant and relevant fees to the court in that new district (fees transferred according to QWIC instructions).

The receiving registrar files the EHW, notes it in their BPB and gives it to the EO and deals with the warrant as if it was their own.

When the warrant is returned (whether executed or unexecuted) to the receiving registrar, the RR keeps copies for their file but returns the original warrant and original EO report to the home court registrar. The RR also sends a copy of the hearing and/or any other order made.

If the ED moves again, the new receiving registrar only reports to the home court registrar and not to the previous receiving registrar.


RTI 140310 Page 245

23.14. ENFORCEMENT HEARING FORMS 23.14. ENFORCEMENT HEARING FORMS The following are examples of the forms required for an enforcement hearing (excluding the Statement of Financial Position – Form 71 – as it is a lengthy document). The following are examples of the forms required for an enforcement hearing (excluding the Statement of Financial Position – Form 71 – as it is a lengthy document). Note that this is the continuation of the MDC @ 3.2.4.5, Service @ 8.3 and Judgment @ 14.6.1;14.6.1.2 and 14.6.1.3 – As the ED resides in Caboolture a copy of the Judgment has been filed at Caboolture.

Note that this is the continuation of the MDC @

3.2.4.5, Service @ 8.3 and Judgment @ 14.6.1;14.6.1.2 and 14.6.1.3 – As the ED resides in Caboolture a copy of the Judgment has been filed at Caboolture.

23.14.1.1. Example - Application for Enforcement Hearing [Form 9] 23.14.1.1. Example - Application for Enforcement Hearing [Form 9]


Caboolture M269/00 Caboolture M269/00 REGISTRY: BrisbaneREGISTRY: BrisbaneNUMBER: M 18001/00 NUMBER: M 18001/00

Plaintiff: Thomas Croose and Nicole CroosePlaintiff: Thomas Croose and Nicole CrooseAND AND



APPLICATION FOR AN ENFORCEMENT HEARING APPLICATION FOR AN ENFORCEMENT HEARING

TAKE NOTICE that the Plaintiff, Thomas Croose and Nicole Croose is applying to the Magistrates Court at Caboolture on the 5th day of September 2000 at 9.00am for an Order that the enforcement debtor Neil Parr (or that (name of person) a partner in the enforcement debtors partnership {or the person who has/had control or management of the partnership business in Queensland}) attend an enforcement hearing before the Court to give information and answer questions about the enforcement debtor’s property and other means of satisfying the money order/judgment issued in the Magistrates Court at Brisbane on 1/9/2000 in the amount of $645-00 and that the enforcement debtor produce at the time and place of the enforcement hearing the following documents and things:-

TAKE NOTICE that the Plaintiff, Thomas Croose and Nicole Croose is applying to the Magistrates Court at Caboolture on the 5th day of September 2000 at 9.00am for an Order that the enforcement debtor Neil Parr (or that (name of person) a partner in the enforcement debtors partnership {or the person who has/had control or management of the partnership business in Queensland}) attend an enforcement hearing before the Court to give information and answer questions about the enforcement debtor’s property and other means of satisfying the money order/judgment issued in the Magistrates Court at Brisbane on 1/9/2000 in the amount of $645-00 and that the enforcement debtor produce at the time and place of the enforcement hearing the following documents and things:- All passbooks, statements, bank books you have in relation to any financial institution of which you are a

ank, building society, credit union etc), all share scripts, debentures, unit trust scripts, title deeds, n papers for any vehicles, any statements as to wage or salary income, Income Tax Returns for at ast 2 years, partnership deeds, documentation in relation to any business in which you may have an

interest in, documentation in relation to any debts owing to you, documents in relation to any hire purchase agreements, personal loans, mortgage documents, documents in relation to expenditures and/or outgoings.

All passbooks, statements, bank books you have in relation to any financial institution of which you are a member (bank, building society, credit union etc), all share scripts, debentures, unit trust scripts, title deeds, registration papers for any vehicles, any statements as to wage or salary income, Income Tax Returns for at least the last 2 years, partnership deeds, documentation in relation to any business in which you may have an interest in, documentation in relation to any debts owing to you, documents in relation to any hire purchase agreements, personal loans, mortgage documents, documents in relation to expenditures and/or outgoings.

member (bregistratioleast the l

This application will be heard by the court at Caboolture on 5/9/2000 at 9.00amThis application will be heard by the court at Caboolture on 5/9/2000 at 9.00am Filed in the Caboolture Registry on: 5/9/2000. Filed in the Caboolture Registry on: 5/9/2000. IM Registrar IM Registrar Registrar Registrar

Filed 5/9/00 Amt nil Rec No n/a Init IMR

SEALCAB

On the hearing of the application the applicant intends to rely on the following affidavit(s): On the hearing of the application the applicant intends to rely on the following affidavit(s): Affidavit of Thomas Croose sworn 31/8/2000Affidavit of Thomas Croose sworn 31/8/2000Signed: TomCrooseSigned: TomCrooseDescription: for Plaintiff Description: for Plaintiff 31/8/2000 31/8/2000

Application for an enforcement hearing Application for an enforcement hearing Filed on behalf of the Plaintiff Filed on behalf of the Plaintiff Form 9 Rule 807 Form 9 Rule 807




RTI 140310 Page 246

Note:1. As this is an application to the court, the Registrar makes a judicial decision. The

applicant must therefore apply for the types of document they want the ED to produce at the EH.

2. The paragraph commencing ’All passports’ may simply be replaced with ‘in the terms of the Enforcement Hearing Summons which is attached’ and the EHS can list the documents etc.

3. An EHS application may be forwarded with judgment by default documents (by post) (as in the case of this example). Therefore the applicant may not know the date of judgment and/or the actual date that the application will be determined by the Registrar. The Registrar can insert these dates from the information supplied by the person who accepted the documents and endorsed receipt particulars in the middle of the left margin.

4. The application may be determined at any date after it is received or filed – it does not have to be noted as determined on the day of receipt.

5. The application is not served on the ED. 6. This an EH application for Neil Parr only at Caboolture. Jennifer Parr could be added to

the application if required by the EC.


RTI 140310 Page 247

23.14.1.2. Example - Affidavit in Support of Application for Enforcement Hearing [Form 46]

23.14.1.2. Example - Affidavit in Support of Application for Enforcement Hearing [Form 46]


Caboolture M269/00 Caboolture M269/00 REGISTRY: BrisbaneREGISTRY: BrisbaneNUMBER: M 18001/00 NUMBER: M 18001/00

Plaintiff: Thomas Croose and Anor Plaintiff: Thomas Croose and Anor AND AND


AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT HEARING AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT HEARING I, Thomas CrooseI, Thomas Crooseof 147 Oxley Road, Brisbane, Manager of 147 Oxley Road, Brisbane, Manager MAKE OATH AND SAY THAT: MAKE OATH AND SAY THAT: I am one of the abovenamed Enforcement Creditors in this action and I am the person who has custody and control of the financial records of the Plaintiff and I verily believe that:I am one of the abovenamed Enforcement Creditors in this action and I am the person who has custody and control of the financial records of the Plaintiff and I verily believe that: 1. Judgment was given against the Defendant on 1/9/2000 at Brisbane Magistrates Court 1. Judgment was given against the Defendant on 1/9/2000 at Brisbane Magistrates Court 2. Amount of money order $645-002. Amount of money order $645-00

LESS amount received by Plaintiff $nilLESS amount received by Plaintiff $nil

Cost of previous enforcement proceedings, {specify}: $nilCost of previous enforcement proceedings, {specify}: $nil

InteTOT

rest {show calculations} $ Interest {show calculations} $ AL AMOUNT REMAINING DUE $645-00TOTAL AMOUNT REMAINING DUE $645-00

Filed 1/9/00 Amt nil Rec n/a Init IMR

3. I have conducted a search of the Plaintiffs business name records and found that Neil Parr and Jennifer Parr are the proprietors of Parr Ender Be Keepers BN 000 000.

3. I have conducted a search of the Plaintiffs business name records and found that Neil Parr and Jennifer Parr are the proprietors of Parr Ender Be Keepers BN 000 000.

4. I believe that an enforcement hearing of Neil Parr would facilitate enforcement of the money order. 4. I believe that an enforcement hearing of Neil Parr would facilitate enforcement of the money order. 5. All the facts and circumstances above deposed to are within my own knowledge, save such as are

deposed to from information only, and my means of knowledge and sources of information appear on the face of this my affidavit.

5. All the facts and circumstances above deposed to are within my own knowledge, save such as are deposed to from information only, and my means of knowledge and sources of information appear on the face of this my affidavit.

SWORN by the abovenamed Deponent at Brisbane this 31st day of August 2000 before me SWORN by the abovenamed Deponent at Brisbane this 31st day of August 2000 before me

TomCroose John Williamson TomCroose John Williamson Deponent Justice of the Peace Deponent Justice of the Peace

Affidavit in support of an application for anAffidavit in support of an application for anenforcement hearing enforcement hearing Filed on behalf of the Plaintiff Filed on behalf of the Plaintiff Form 46 Rule 807(2) Form 46 Rule 807(2)



SealCAB

Note: As the plaintiff is not aware of registry procedures they may still insert Brisbane Magistrates Courts particulars in the title of all documents – this is easily rectified by simply crossing out the Brisbane references and inserting the Caboolture name and file number.


RTI 140310 Page 248

23.14.1.3. Example - Enforcement Hearing Summons [Form 70] 23.14.1.3. Example - Enforcement Hearing Summons [Form 70]


Caboolture M269/00 Caboolture M269/00 REGISTRY: Brisbane REGISTRY: Brisbane NUMBER: M 18001/00 NUMBER: M 18001/00

Plaintiff: Thomas Croose and AnorPlaintiff: Thomas Croose and AnorAND AND

Defendant: Neil Parr and OrsDefendant: Neil Parr and Ors Enforcement Creditor: Thomas Croose and Nicole Croose Enforcement Creditor: Thomas Croose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer Parr Enforcement Debtor: Neil Parr and Jennifer Parr

ORDER ORDER TO: Neil Parr TO: Neil Parr OF: 30 King Street, Caboolture OF: 30 King Street, Caboolture Upon application, without notice to another party, made by the abovenamed Enforcement Creditor on 5/9/2000 THE COURT ORDERED that you attend an enforcement hearing before the Court to give information and answer questions about the enforcement debtor’s property and other means of satisfying the order debt. IT IS FURTHER ORDERED that you produce the following documents and things:-

Upon application, without notice to another party, made by the abovenamed Enforcement Creditor on 5/9/2000 THE COURT ORDERED that you attend an enforcement hearing before the Court to give information and answer questions about the enforcement debtor’s property and other means of satisfying the order debt. IT IS FURTHER ORDERED that you produce the following documents and things:- All passbooks, statements, bank books you have in relation to any financial institution of which you are a member (bank, building society, credit union etc), all share scripts, debentures, unit trust scripts, title deeds, registration papers for any vehicles, any statements as to wage or salary income, Income Tax Returns for at least the last 2 years, partnership deeds, documentation in relation to any business in which you may have an interest in, documentation in relation to any debts owing to you, documents in relation to any hire purchase agreements, personal loans, mortgage documents, documents in relation to expenditures and/or outgoings.

All passbooks, statements, bank books you have in relation to any financial institution of which you are a member (bank, building society, credit union etc), all share scripts, debentures, unit trust scripts, title deeds, registration papers for any vehicles, any statements as to wage or salary income, Income Tax Returns for at least the last 2 years, partnership deeds, documentation in relation to any business in which you may have an interest in, documentation in relation to any debts owing to you, documents in relation to any hire purchase agreements, personal loans, mortgage documents, documents in relation to expenditures and/or outgoings. This summons also requires you to complete a statement of the enforcement debtor’s financial position. This summons also requires you to complete a statement of the enforcement debtor’s financial position. NOTE: The Statement of Financial Position must be in Form 71 to the Uniform Civil Procedure Rules. It must be completed and forwarded to the enforcement creditor Thomas Croose at, The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q 4001 within 14 days after service of this summons upon you or before the day set for the enforcement hearing, whichever happens first.

NOTE: The Statement of Financial Position must be in Form 71 to the Uniform Civil Procedure Rules. It must be completed and forwarded to the enforcement creditor Thomas Croose at, The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Q 4001 within 14 days after service of this summons upon you or before the day set for the enforcement hearing, whichever happens first. NOTICE NOTICE YOU ARE NOTIFIED that the time and place appointed for your attendance and examination is at the Magistrates Court at Brisbane Court No 14, 5th Floor, 179 North Quay Brisbane at 10.00am/pm on19/10/2000.

YOU ARE NOTIFIED that the time and place appointed for your attendance and examination is at the Magistrates Court at Brisbane Court No 14, 5th Floor, 179 North Quay Brisbane at 10.00am/pm on19/10/2000.

Caboolture, Court No 1, 1st Floor, 30 King Street, CabooltuCaboolture, Court No 1, 1st Floor, 30 King Street, Caboolture reDate of money order: 1/9/2000. Amount outstanding as at 1/9/2000 is $645-00Date of money order: 1/9/2000. Amount outstanding as at 1/9/2000 is $645-00

SealCAB

If you fail to attend a warrant may be issued to arrest you and have you brought before the Court. You may also be liable to a penalty for being in contempt of Court. If you fail to attend a warrant may be issued to arrest you and have you brought before the Court. You may also be liable to a penalty for being in contempt of Court. ISSUED WITH THE AUTHORITY OF THE CABOOLTURE MAGISTRATES COURT ISSUED WITH THE AUTHORITY OF THE CABOOLTURE MAGISTRATES COURT IM Registrar IM Registrar Registrar: Registrar: Dated: 5/9/2000 Dated: 5/9/2000

SealCAB

Enforcement hearing summons Enforcement hearing summons Filed on behalf of the plaintiff Filed on behalf of the plaintiff [Form 70] Rule 808 [Form 70] Rule 808




RTI 140310 Page 249

Note: Any amendments to the EHS can be made by crossing out the error and inserting correct particulars (either type them or write in blue ink) and lightly seal near the amendment. It is not necessary to insert the particulars of receipt of the EHS in the middle of the left margin.

23.15. REGISTRY PROCEDURE - ENFORCEMENT HEARING 23.15. REGISTRY PROCEDURE - ENFORCEMENT HEARING All documents must be completed fully and properly and contain all the information that is required for the registrar to issue the enforcement summons. All documents must be completed fully and properly and contain all the information that is required for the registrar to issue the enforcement summons. The following documents are required be filed: The following documents are required be filed:

• Application (Form 9) - original + 1 copy for: • Application (Form 9) - original + 1 copy for:

o Original filed o Original filed o Copy for EC; and o Copy for EC; and

• Supporting Affidavit (Form 46) - original only • Supporting Affidavit (Form 46) - original only

• Enforcement Hearing Summons (Form 70) - original + 2 copies • Enforcement Hearing Summons (Form 70) - original + 2 copies

o Copies returned the EC to arrange service on ED o Copies returned the EC to arrange service on ED

• Statement of financial position (Form 71) - original only (to be served on ED if one required to be completed)

• Statement of financial position (Form 71) - original only (to be served on ED if one required to be completed)

• If the claim is from another court - copy of the judgment • If the claim is from another court - copy of the judgment If the judgment is from another State or Territory an original sealed copy of the judgment and filing fees must be received. The affidavit must also contain the following clause (to accord with the provision of the Service and Execution of Process Act 1992 (Cwth) – Sect. 105):

If the judgment is from another State or Territory an original sealed copy of the judgment and filing fees must be received. The affidavit must also contain the following clause (to accord with the provision of the Service and Execution of Process Act 1992 (Cwth) – Sect. 105):

The judgment is capable of enforcement in the court of rendition or a court in the place of rendition.

The other judgment is then filed and registered as a claim. In all cases, the civil file must be checked to ensure an EHS may issue and the parties are correct.The other judgment is then filed and registered as a claim. In all cases, the civil file must be checked to ensure an EHS may issue and the parties are correct. If the documents were lodged by post and are incorrect, return them in the stamped self addressed envelope provided, with an explanation of all discrepancies (if no envelope provided, still return them in the same manner and include a memo advising the party of the requirements of Rule 969).

If the documents were lodged by post and are incorrect, return them in the stamped self addressed envelope provided, with an explanation of all discrepancies (if no envelope provided, still return them in the same manner and include a memo advising the party of the requirements of Rule 969). If documents are correct: If documents are correct:

• Allocate court day (civil callover, or as advised by Magistrate – allow at least 14 days for service); and

• Allocate court day (civil callover, or as advised by Magistrate – allow at least 14 days for service); and

• Insert court date particulars on original and all copies of summons; and • Insert court date particulars on original and all copies of summons; and • File documents (see 2.4.20);• File documents (see • Note file cover sheet as follows (strike out or don’t write the final part about the Form 71

being issued if it doesn’t apply) • Note file cover sheet as follows (strike out or don’t write the final part about the Form 71

being issued if it doesn’t apply)

2.4.20);


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For Enforcement Creditor: N.A.

I order that the Enforcement Debtor be examined before this Court on a date to be fixed by the Registrar as to whether and what debts are owing by the Enforcement Debtor and whether the Enforcement Debtor has any and what property or means of satisfying the judgment and that the Enforcement Debtor produce to the Court his bank books & statements and all books papers, deeds and writings and other documents relating to this enforcement hearing and that form 71 be issued.

Court: Holland Park

• Note file cover sheet with the future date and appearance as:• Note file cover sheet with the future date and appearance as: / / @ am/pm / / @ am/pm

For Enforcement Creditor: For Enforcement Creditor: For Enforcement Debtor: For Enforcement Debtor:

• Return service copies; or • Return service copies; or • Additional copies of documents can be returned to the person filing them with notations of

date of filing and return day to the summons (do not seal these extra copies); • Additional copies of documents can be returned to the person filing them with notations of

date of filing and return day to the summons (do not seal these extra copies); • Complete file index • Complete file index • If the judgment is from another Qld court, send a copy of all documents filed to the home

court;• If the judgment is from another Qld court, send a copy of all documents filed to the home

court;• Enter documents and court event on CLAIMS • Enter documents and court event on CLAIMS • Put civil file in relevant court date pigeon hole • Put civil file in relevant court date pigeon hole • Send copy of outcome or orders made, if applicable, to home court. • Send copy of outcome or orders made, if applicable, to home court.

If a Statement of Financial Position has been ordered to be completed, only one copy is required (not reproduced here as it is a lengthy document – 6 pages) to be lodged by and returned to the EC with service copies for service. The statement can be sealed. When served, the person serving the summons also serves the statement. The affidavit of service is then noted to the effect that the enforcement hearing summons and the statement of financial position were served.

If a Statement of Financial Position has been ordered to be completed, only one copy is required (not reproduced here as it is a lengthy document – 6 pages) to be lodged by and returned to the EC with service copies for service. The statement can be sealed. When served, the person serving the summons also serves the statement. The affidavit of service is then noted to the effect that the enforcement hearing summons and the statement of financial position were served.


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24 ENFORCEMENT WARRANTS GENERALLY (Rules 817 – 827

24 ENFORCEMENT WARRANTS GENERALLY (Rules 817 – 827

An enforcement warrant is a warrant that enforces a money order (i.e. judgment) [@ 22]: i.e. an enforcement warrant is the method of satisfying judgments. An EW can only be issued after judgment has been given and filed. An EW can only be issued by the home court i.e. the court that gave judgment.

An enforcement warrant is a warrant that enforces a money order (i.e. judgment) [@

22]: i.e. an enforcement warrant is the method of satisfying judgments. An EW can only be issued after judgment has been given and filed. An EW can only be issued by the home court i.e. the court that gave judgment.

Basically, an EC applies to the Registrar of the court where the judgment was made for an EW to issue. The EC must make the application in the approved form and complete the relevant warrant. To prove the debt, the application is supported by a statement in the approved form. Note the EC includes their solicitor, or agent in a MDC.

Basically, an EC applies to the Registrar of the court where the judgment was made for an EW to issue. The EC must make the application in the approved form and complete the relevant warrant. To prove the debt, the application is supported by a statement in the approved form. Note the EC includes their solicitor, or agent in a MDC. After judgment, a person applying for an enforcement warrant must file: After judgment, a person applying for an enforcement warrant must file:

• An application within a proceeding not on notice – Form 9 – original; and • An application within a proceeding not on notice – Form 9 – original; and

• A statement – Form 74 – original; which is • A statement – Form 74 – original; which is

o Sworn by the enforcement creditor (solicitor or agent); and o Sworn by the enforcement creditor (solicitor or agent); and o Dated not earlier than 2 days before the date of the application disclosing : o Dated not earlier than 2 days before the date of the application disclosing :

Date money order made Date money order made Amount Amount Any payments made (date and amounts) Any payments made (date and amounts) Costs incurred in previous enforcement proceedings Costs incurred in previous enforcement proceedings Interest due Interest due Details to calculate amount due or how amount calculated Details to calculate amount due or how amount calculated Daily amount of interest Daily amount of interest Other necessary information in respect of orders sought; and Other necessary information in respect of orders sought; and

• Attaching the relevant enforcement warrant (approved forms) – original + 3 copies: • Attaching the relevant enforcement warrant (approved forms) – original + 3 copies:

o Original filed o Original filed o Copy to EC o Copy to EC o Copy to ED (except seizure and sale warrant) – served by post or personallyo Copy to ED (except seizure and sale warrant) – served by post or personallyo Copy to Third Party (including FI or EDE) (redirection warrants only) o Copy to Third Party (including FI or EDE) (redirection warrants only)

Note: An EW can only be issued by the home court (i.e. the court that has judgment). An EW cannot be issued by a receiving court by filing a copy of the judgment at that other court.

24.1. APPLICATION TO SET ASIDE ENFORCEMENT – RULE 819 24.1. APPLICATION TO SET ASIDE ENFORCEMENT – RULE 819 At any time before a warrant is enforced, an ED or a person served with an EW may apply to the court to have the warrant stayed or set aside. This is an Application within a proceeding on Notice [@ 2.4.22 and @ 24.7].

At any time before a warrant is enforced, an ED or a person served with an EW may apply to the court to have the warrant stayed or set aside. This is an Application within a proceeding on Notice [@

2.4.22 and @ 24.7].

Filing the application does not stay the operation of an EW. Filing the application does not stay the operation of an EW.

24.1.1. Issue and enforcement of enforcement warrant (Rule 820)24.1.1. Issue and enforcement of enforcement warrant (Rule 820)

The EW is in the approved form and must have all details completed, including:

• The name of the Enforcement Debtor; and

• The date, within 1 year after the warrant’s issue, the warrant ends (Sect 92 Supreme Court of Queensland Act 1991 provides that a warrant ends one (1) year after it issues unless it states an end at an earlier time); and


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• The amount recoverable under the warrant, including:

o Unpaid costs of any previous enforcement proceedings of the same judgment; o The costs relating to the EW (i.e. EO fees and legal fees); o Any amount of interest, and other details required by the rules.

The registrar must give the enforcement warrant to the enforcement creditor to be enforced, unless the warrant is an enforcement warrant for the seizure and sale of property, in which case it is given to the enforcement officer (EO) to enforce.

24.1.2. Renewal of enforcement warrant (Rule 821)

An enforcement warrant is in force for 1 year and is renewed on application to the court. The court may renew for a period of not more than 1 year at any one time from the date the warrant ends. The application must be made before the warrant expires. The application is dealt with by the registrar without a formal hearing (Rule 817(5)).

The application to renew is an Application within a Proceeding not on Notice [@ 2.4.21]. The required forms to renew a warrant are:

• Application Form 9 – original; and

• Supporting Affidavit Form 46 – original; and

• Order Form 59 – original and 2 copies for:

o Original filed; o Copy to EC o Copy to EO to go with relevant warrant; or

Served on a Third Party who has a copy of the warrant.

The Registrar determines the application and renews the warrant for 1 year at a time (or other period, less than a year, as ordered) or refuses to renew (if the warrant is not renewed, the Registrar endorses the file cover sheet with the date and decision, including the reasons for not renewing). If refused the EC may apply to the Magistrate for the warrant to be renewed (again an application not on notice as above).

On renewal, the registrar must:

• Give a signed and sealed copy of the order to the EC or for a seizure and sale warrant to the EO; and

• Stamp the EW with the seal of court to show period for which the warrant has been renewed as:

Renewed for a period of : (X months or 1 year) This warrant ends on / / unless further renewed signed by Registrar and seal / / (date Registrar signs)

If the EW is a Form 76, 77, 78 or 82, the original EW is endorsed as above, together with any copies of the warrant not served. If the EW has been served, the party requesting the renewal should re-serve copies of the renewed EW with a copy of the order (the party should supply the copy to be endorsed and re-served – if not supplied and requested, a copy fee is applicable).

The renewal is noted on CLAIMS.

RTI 140310 Page 253

24.2. REGISTRY PROCEDURE - ENFORCEMENT WARRANTS GENERALLY 24.2. REGISTRY PROCEDURE - ENFORCEMENT WARRANTS GENERALLY The application for an enforcement warrant is made to the registrar of the court where the money order (judgment) was given. It is made without notice to the other party. The following forms are filed by the person applying for a warrant:

The application for an enforcement warrant is made to the registrar of the court where the money order (judgment) was given. It is made without notice to the other party. The following forms are filed by the person applying for a warrant:

• Application – Form 9 (original only); and • Application – Form 9 (original only); and • Statement – Form 74 (original only); and • Statement – Form 74 (original only); and • Warrant (original and 3 copies or 1 copy for seizure and sale warrant)); and • Warrant (original and 3 copies or 1 copy for seizure and sale warrant)); and • Fees (correct enforcement fee for the relevant address) • Fees (correct enforcement fee for the relevant address)

The registrar then files the documents. The registrar: The registrar then files the documents. The registrar:

• Extracts the civil file; • Extracts the civil file;

• Checks the documents (the statement must contain sufficient information concerning the financial position of the ED to issue the warrant – similar information contained on the Statement of Financial Position – Form 71) – if insufficient information, the Registrar can order an Enforcement Hearing to be conducted (not applicable to seizure and sale warrant).

• Checks the documents (the statement must contain sufficient information concerning the financial position of the ED to issue the warrant – similar information contained on the Statement of Financial Position – Form 71) – if insufficient information, the Registrar can order an Enforcement Hearing to be conducted (not applicable to seizure and sale warrant).

• Collects and receipts fees (notes particulars of the receipt on the application and warrant) • Collects and receipts fees (notes particulars of the receipt on the application and warrant)

• Files the documents and notes the time of receipt on the application (if received in the mail, the time on the application is 9.00am – stamped self addressed envelope) – seals/signs etc

• Files the documents and notes the time of receipt on the application (if received in the mail, the time on the application is 9.00am – stamped self addressed envelope) – seals/signs etc

• Issues the warrant and endorses the time, day and date of receipt and the expiry date on the warrant (note: the warrant expires in 12 months: i.e. a year later, but the day before the date of issue – if the warrant issues on 23/12/99, it expires 22/12/2000)

• Issues the warrant and endorses the time, day and date of receipt and the expiry date on the warrant (note: the warrant expires in 12 months: i.e. a year later, but the day before the date of issue – if the warrant issues on 23/12/99, it expires 22/12/2000)

• If EO fees collected, write the amount and receipt number on warrant; • If EO fees collected, write the amount and receipt number on warrant;

• Stamps the copies for the ED and EC on the warrant near the top right corner with the COPY stamp – the copy to be served on a third person (TP) should not be stamped as a copy (TP may not regard a copy of a warrant as something to act on)

• Stamps the copies for the ED and EC on the warrant near the top right corner with the COPY stamp – the copy to be served on a third person (TP) should not be stamped as a copy (TP may not regard a copy of a warrant as something to act on)

• Attaches the documents to the civil file with the original of the warrant directly under the file cover sheet (order from top down: file index sheet. cover sheet, warrant, statement, application, judgment and so on)

• Attaches the documents to the civil file with the original of the warrant directly under the file cover sheet (order from top down: file index sheet. cover sheet, warrant, statement, application, judgment and so on)

• Enters documents onto CLAIMS • Enters documents onto CLAIMS

• Returns a copy of the warrant to the applicant for the applicant to arrange service (not required for a seizure and sale warrant)

• Returns a copy of the warrant to the applicant for the applicant to arrange service (not required for a seizure and sale warrant)

• Gives the original warrant (seizure and sale) to the enforcement officer; and • Gives the original warrant (seizure and sale) to the enforcement officer; and

• Notes the EOPB with the warrant and receipt details (seizure and sale warrant only); or • Notes the EOPB with the warrant and receipt details (seizure and sale warrant only); or

• Gives the copy of the warrant (not stamped as a copy) to the EC for the EC to enforce; and • Gives the copy of the warrant (not stamped as a copy) to the EC for the EC to enforce; and

• Files the civil file in general filing • Files the civil file in general filing

Note: If an interstate judgment requires to be filed first, the statement supporting the application must include the words “the judgment is capable of being enforced in (or by) the court of rendition or a court in the place of rendition” and the relevant fee for registering the judgment must be collected.

The Registrar must give the EW to the EC to be enforced, unless the warrant is an EW for the seizure and sale of property (Rule 820(3)). The Registrar must give the EW to the EC to be enforced, unless the warrant is an EW for the seizure and sale of property (Rule 820(3)). If the applicant requires the EO to serve a copy of the warrant, the copy is not returned to the applicant but given to the bailiff. The relevant service fee must be collected. The EC can serve the copy of the warrant themselves but cannot claim service fees unless the EC actually paid a

If the applicant requires the EO to serve a copy of the warrant, the copy is not returned to the applicant but given to the bailiff. The relevant service fee must be collected. The EC can serve the copy of the warrant themselves but cannot claim service fees unless the EC actually paid a


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process server to serve it. Only the standard service fee plus travel is allowable irrespective of the amount charged by the process server.

24.3. REGISTRY PROCEDURE - RENEWAL OF ENFORCMENT WARRANT Renewal of a warrant is required if the warrant has not been enforced or otherwise completed within 1 year from issue. Only seizure and sale warrants are enforced. Re-direction warrants and instalment warrants are served.

The application, an Application within a Proceedings not on Notice [@ 2.4.21], is made by filing the following documents in the approved form, before the warrant ends (Rule 821(1) :

• Application (Form 9) - original; and

• Supporting Affidavit (Form 46) - original; and

• Order (Form 59), original and 2 copies (1 copy if a seizure and sale warrant):

o Original filed o Copy to EC o Copy to ED; or

To EO with renewed warrant; or EC to serve on Third Party when renewed warrant re-served

On filing the application the registrar:

• Determines the application and makes the order; • Signs the order seals and files the original order • Endorses the warrant with renewal particulars • Enters application on CLAIMS • Files documents and notes file index (next file folio number) • Gives a copy of order to parties.

The warrant is renewed for 1 year (or lesser time as requested in the application or as ordered by the Registrar) from the original date the warrant was issued. For priority of enforcement, the time the renewed warrant is issued is the same time as the original.

The original warrant is endorsed to the effect of the renewal as:

Renewed for a period of : (X months or 1 year) This warrant ends on / / unless further renewed signed by Registrar and seal / / (date Registrar signs)

The endorsement is placed in a position that is easily read and does not obliterate words in the warrant itself. A copy of the order is attached to the warrant (Rule 821(2)) and both are given to the enforcement officer or served on the third party.

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24.3.1.1. Order for Renewal of Warrant [Form 59]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

ORDER

Before: (name) Registrar, Magistrates Court (place)

Date: / / .

Initiating document: Enforcement Warrant (description of warrant) Application filed / / . THE ORDER OF THE COURT IS THAT:

1. The within enforcement warrant (description of warrant) is renewed for 1 year from / / .This warrant will expire on / / unless further renewed.

Signed: (Registrar to sign and seal) RegistrarMagistrates Court (place)

Order for renewal of warrant Filed on behalf of the plaintiff Form 59 Rule 821


24.4. RETURN OF ENFORCEMENT WARRANT (Rule 822 AND 889) The EO should keep the Registrar informed regarding enforcement of an Enforcement Warrant – seizure and sale of property and the Enforcement Hearing Warrant – there is no requirement of an EO to report for the other types of warrants.

The person applying for the warrant may require information regarding enforcement. That person asks the enforcement officer for a report.

The enforcement officer then endorses the warrant with a statement of steps taken and sends the person a copy of the statement and files a copy in the Registry.

In practice, persons requesting a warrant report will make their request and receive the report through the registrar. The EO’s report can be written on a specific sheet of paper rather than on the warrant.

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24.5. PRIORITY OF ENFORCEMENT WARRANTS (Rule 823) Warrants are enforced in strict order of receipt. If a warrant is issued against the same ED on the same day, the warrant that was issued first must be enforced first. This applies even if the warrants were issued in different courts. Therefore the date and time of receiving the application must be endorsed on both the application and warrant.

When the application is made, it must be endorsed by the registrar with:

• Time application is made; and • Day, month and year application is made

The warrant is then issued in accordance with those times and dates (in strict order of receipt).

The time and date of the application is written on the warrant in the middle of the left margin.

The enforcement officer must enforce an Enforcement Warrant – seizure and sale in order of time and date of the warrant (if more than one issued against the same enforcement debtor).

24.5.1. Only one enforcement warrant allowed for each Money Order

In addition to the priority of enforcement [@ 24.5], the rules relating to enforcement warrant for re-direction or instalment generally only allow one enforcement warrant to issue for each Money Order in relation to the one proceeding (i.e. each claim or MDC etc) – see Rules 853, 861 and 870.

This means that if a money order (i.e. Judgment) was issued in two or more names, the EC cannot obtain an enforcement warrant (Regular re-direction; Re-direction of earnings or instalment) separately against more than one ED at any on time.

The EC can make an application within a proceeding on notice [@ 2.4.22] to the court (Magistrate) for more than one warrant to issue.

24.6. KEEPING TRACK OF WARRANTS AND RULE 889 The warrant is numbered with the claim number and not numbered separately. It is the responsibility of the person applying for the warrant to request reports directly from the enforcement officer.

In practice, though, registrars will keep some account of warrants issued and any reports requested should be made to the EO through the Registrar [@ 24.4].

The EOPB will still be used to record Enforcement Warrants – seizure and sale and EHWs for EO fees received and warrants collected and returned by the EO.

The EOPB must be referred to at least monthly to ensure timely enforcement or execution of warrants and regular discussions held between the Registrar and EO in relation to warrants that have not been attended to within a reasonable time (say 2 months).

24.7. REGISTRY PROCEDURE - APPLICATION TO SET ASIDE ENFORCEMENT (Rule 819)

If the ED or TP desires the enforcement of an EW to be delayed or stop (e.g. the ED and the ED employer have been served with an Enforcement Warrant – redirection of earnings and the ED cannot afford to have moneys deducted from his wages) the ED must make an application within a proceedings on notice to the court (i.e. the Magistrate) that issued the warrant. The application is supported by an affidavit and the application and affidavit must be served personally on the EC at least 3 business days before the hearing of the application.

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This means that the ED or a person served with an EW may apply to the court to set it aside or to stay enforcement at any time before the warrant is enforced (Rule 819). The court (i.e. Magistrate) may stay the operation of a money order under Rule 800.

This means that the ED or a person served with an EW may apply to the court to set it aside or to stay enforcement at any time before the warrant is enforced (Rule 819). The court (i.e. Magistrate) may stay the operation of a money order under Rule 800. The application is made by filing the following documents in the approved form: The application is made by filing the following documents in the approved form:

• Application on notice (Form 9) - original + 1 copy per plaintiffs address for service; • Application on notice (Form 9) - original + 1 copy per plaintiffs address for service; • Supporting Affidavit (Form 46) - original + 1 copy per application; and • Supporting Affidavit (Form 46) - original + 1 copy per application; and • Order (Form 59), original and 3 copies; and • Order (Form 59), original and 3 copies; and • Affidavit of Service (Form 46) – original (filed after service). • Affidavit of Service (Form 46) – original (filed after service).

On filing the application (within a proceeding on notice) [@ 2.4.22]:On filing the application (within a proceeding on notice) [@ 2.4.22]:

• Registrar sets a date and time for the court to hear the application (callover) • Registrar sets a date and time for the court to hear the application (callover) • Signed and sealed service copies are returned to the applicant • Signed and sealed service copies are returned to the applicant • Hearing date noted on file cover • Hearing date noted on file cover • Complete file index sheet • Complete file index sheet • Documents and court event entered into CLAIMS • Documents and court event entered into CLAIMS • File placed in court day pigeon hole • File placed in court day pigeon hole

The court makes its order (Form 59) (affidavit of service of application required) The court makes its order (Form 59) (affidavit of service of application required)

• Registrar checks, signs, and seals the order and files the original; then • Registrar checks, signs, and seals the order and files the original; then

• Endorses the warrant with particulars of the order • Endorses the warrant with particulars of the order

• Enters outcome into CLAIMS • Enters outcome into CLAIMS

• Gives a copies of the order to: • Gives a copies of the order to:

o 2 copies to ED for ED to serve one on EC; and o 2 copies to ED for ED to serve one on EC; and o Extra copy to ED to serve on a third party; and o Extra copy to ED to serve on a third party; and o Copy to the EO (for seizure and sale). o Copy to the EO (for seizure and sale).

If the warrant is ordered to be stayed or set aside, the EO then returns the warrant to the registrar. If stayed, the warrant is noted to the effect of the order - ordered by...Magistrates name... that operation of the within warrant is stayed until / / “. The notation is signed and sealed by the registrar and returned to the EO after the time of the order is over. If set aside, the warrant is noted as set aside and filed. The warrant cannot then be enforced.

If the warrant is ordered to be stayed or set aside, the EO then returns the warrant to the registrar. If stayed, the warrant is noted to the effect of the order - ordered by...Magistrates name... that operation of the within warrant is stayed until / / “. The notation is signed and sealed by the registrar and returned to the EO after the time of the order is over. If set aside, the warrant is noted as set aside and filed. The warrant cannot then be enforced. It is very important to notify the EO that an EW seizure and sale of property has been stayed or set aside and to absolutely ensure the warrant is returned to the registrar and is not enforced.Likewise EWs served on a TP must also not be enforced and the TP must be advised accordingly.

It is very important to notify the EO that an EW seizure and sale of property has been stayed or set aside and to absolutely ensure the warrant is returned to the registrar and is not enforced.Likewise EWs served on a TP must also not be enforced and the TP must be advised accordingly. If the court did not make an order, the warrant is not affected, as filing the application does not stay the operation of an enforcement warrant. If the court did not make an order, the warrant is not affected, as filing the application does not stay the operation of an enforcement warrant.

Note: Rule 50 [and @ 1.3.24] for procedure to follow if a Magistrate is not available at the court to determine an application, particularly an application under Rule 819.

24.8. ENFORCEMENT THROUGHOUT QUEENSLAND (Rule 824) 24.8. ENFORCEMENT THROUGHOUT QUEENSLAND (Rule 824) Enforcement warrants issued out of a Magistrates Courts Registry are enforceable in any other Queensland Magistrates Courts Registry ,subject to Rule 825 [concurrent warrants @ 24.9] and 826 [enforcement beyond district @ 24.10]. Enforcement Warrants are not enforceable in another State, Territory or country.

Enforcement warrants issued out of a Magistrates Courts Registry are enforceable in any other Queensland Magistrates Courts Registry ,subject to Rule 825 [concurrent warrants @

24.9] and 826 [enforcement beyond district @ 24.10]. Enforcement Warrants are not enforceable in another State, Territory or country.


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24.8.1. Enforcement of Money Order in another State or Territory

The Uniform Civil Procedure Rules 1999 and Magistrates Courts Act apply only in Queensland.

If an enforceable money order (i.e. Judgment) is to be enforced outside Queensland, the EC must obtain a Certified Copy of Judgment or a Copy Judgment acceptable to the other State or Territory and file that judgment in a court of like jurisdiction in the State or Territory where the ED lives (or as required by the other legislation). It is the decision of the EC to obtain what sort of copy they require (court staff cannot give legal advice [@ 2.2.10]).

There is a fee to obtain the Certified Copy of Judgment and a fee to file that judgment in the other State or Territory. The fee may be added to the judgment debt.

24.8.2. Certified Copy of Judgment

To obtain a certified copy of judgment, the party requiring it simply requests the Registrar of the court where the judgment was given (not at a later time filed) to supply it. The party requesting it pays the relevant fee. The request is made in writing.

The Registrar then photocopies the relevant judgment and certifies the judgment like:

I (name of Registrar) Registrar of the Magistrates Court at (place) and being the person ordinarily in charge of the records of the court hereby certify that the within Judgment is a true and correct copy of the Judgment of which it purports to be a copy.

signed by Registrar (+ seal)..... /..../...(date)

If the party supplies a copy to be certified, check this copy against the judgment actually filed and ensure it is exactly the same (it will not have the Registrar’s signature or seal, but you can print or type the Registrar’s name in the space provided and place a light seal near it).

The certification must contain an original signature and seal.

24.9. CONCURRENT ENFORCEMENT WARRANTS – MAGISTRATES COURT (Rule 825)

A concurrent warrant means that there are two or more ‘original’ warrants in existence at the same time for the same Enforcement Debtor.

If the ED is not always in one place and travels between districts, a concurrent warrant may be issued when the EC applies for one or more to issue. The application (Application within a Proceeding not on Notice) [@ 2.4.21] is in the approved (Form 9) and supported by an affidavit (Form 46) – The Registrar considers the application and the reasons outlined in the affidavit and issues one or more concurrent warrants.

The application for a concurrent warrant can be a separate application after a warrant issues, or included with the application for the issue of the original warrant. The EC may apply for a concurrent warrant by simply requesting it in writing, but concurrent warrants should be issued with caution and only when good reasons are given.

Concurrent enforcement warrants may be issued in 1 or more Magistrates Courts districts. All concurrent warrants (but not the original) must be endorsed:

CONCURRENT WARRANT ISSUED ON : / /Registrar signs and seals

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When enforced, the costs of more than 1 warrant are allowed only by order of the court (i.e. an application on notice to the Magistrate). When enforced, the costs of more than 1 warrant are allowed only by order of the court (i.e. an application on notice to the Magistrate). Therefore the original warrant and all concurrent warrants are forwarded to the various Registries in the same manner as the original warrant (including fees for each EO), however the enforcement fee will only be allowed on one warrant when it is enforced.

Therefore the original warrant and all concurrent warrants are forwarded to the various Registries in the same manner as the original warrant (including fees for each EO), however the enforcement fee will only be allowed on one warrant when it is enforced. After enforcement, the Registrar of the original court should (at the request of the EC) advise the other Registrars that the warrant has been enforced at another court. The Registrar of the other court(s) will then return the concurrent warrant and any fees, if their EO has not claimed them.

After enforcement, the Registrar of the original court should (at the request of the EC) advise the other Registrars that the warrant has been enforced at another court. The Registrar of the other court(s) will then return the concurrent warrant and any fees, if their EO has not claimed them.

24.10. ENFORCEMENT BEYOND THE DISTRICT (Rule 826) – EWSSP ONLY 24.10. ENFORCEMENT BEYOND THE DISTRICT (Rule 826) – EWSSP ONLY This rule only applies to a seizure and sale of property warrant, when the Warrant has been issued out of a Magistrates Court District (original district), for enforcement against an ED’s property and the ED and/or their property is in another district (receiving district).

This rule only applies to a seizure and sale of property warrant, when the Warrant has been issued out of a Magistrates Court District (original district), for enforcement against an ED’s property and the ED and/or their property is in another district (receiving district). The Registrar of the court in the original district (original Registrar) may issue the EW and send it to the Registrar of the receiving district (receiving Registrar) along with a covering letter or memo. Relevant fees are transferred via QWIC [@ 24.11].

The Registrar of the court in the original district (original Registrar) may issue the EW and send it to the Registrar of the receiving district (receiving Registrar) along with a covering letter or memo. Relevant fees are transferred via QWIC [@ 24.11].

Note: This applies only to an Enforcement Warrant – seizure and sale or property (Form 75).

24.11. REGISTRY PROCEDURE - ENFORCEMENT OF WARRANT BEYOND THE DISTRICT

24.11. REGISTRY PROCEDURE - ENFORCEMENT OF WARRANT BEYOND THE DISTRICT

If the ED resides or carries on business or has property located in another district, the Enforcement Warrant – seizure and sale is issued by the registrar in the normal course and forwarded to the registrar of the other court for attention by the other court’s EO.

If the ED resides or carries on business or has property located in another district, the Enforcement Warrant – seizure and sale is issued by the registrar in the normal course and forwarded to the registrar of the other court for attention by the other court’s EO. The Original Registrar (OR) forwards the warrant to the Receiving Registrar (RR) by: The Original Registrar (OR) forwards the warrant to the Receiving Registrar (RR) by:

• Preparing a covering letter to the RR [@ 25.1.5]- (original and 2 copies); then • Preparing a covering letter to the RR [@ 25.1.5]- (original and 2 copies); then

• Files a copy of the letter on the civil file directly above the file copy of the warrant • Files a copy of the letter on the civil file directly above the file copy of the warrant

• Note CLAIMS • Note CLAIMS

• Attaches original warrant and 2 copies of the letter to front of the warrant • Attaches original warrant and 2 copies of the letter to front of the warrant

• Transfers the enforcement fees through QWIC to the RR, printing 2 copies of the transfer advice (one copy to be placed on the file with the covering letter)

• Transfers the enforcement fees through QWIC to the RR, printing 2 copies of the transfer advice (one copy to be placed on the file with the covering letter)

• Complete file index sheet • Complete file index sheet

• And forwards the letter (X 2), Warrant and a copy of the QWIC transfer advice to the RR • And forwards the letter (X 2), Warrant and a copy of the QWIC transfer advice to the RR

o If the EO of the RR is to serve a copy of the warrant, a copy of the warrant and service fees is also forwarded with the original warrant with a request for the EO to serve the copy and a separate cheque for the relevant service fee made payable to the RR’s EO – the service fee is not noted in EOPB.

o If the EO of the RR is to serve a copy of the warrant, a copy of the warrant and service fees is also forwarded with the original warrant with a request for the EO to serve the copy and a separate cheque for the relevant service fee made payable to the RR’s EO – the service fee is not noted in EOPB.

The receiving registrar then: The receiving registrar then:

• Checks the warrant for geographical jurisdiction and correct fees • Checks the warrant for geographical jurisdiction and correct fees • Files the warrant and seals with receiving courts seal (bottom left margin) • Files the warrant and seals with receiving courts seal (bottom left margin) • Creates a new civil file and new page for the Claims Register • Creates a new civil file and new page for the Claims Register • Endorses the RR’s claim number on the warrant and the copy of the letter • Endorses the RR’s claim number on the warrant and the copy of the letter • Returns the copy of the letter to the original registrar (for filing and to cross reference it with

the RR’s claim number) • Returns the copy of the letter to the original registrar (for filing and to cross reference it with

the RR’s claim number) • Notes the Enforcement Officers Process Book; and • Notes the Enforcement Officers Process Book; and • Gives the warrant to enforcement officer • Gives the warrant to enforcement officer


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If the EO is to serve a copy of the warrant, the cheque and copy warrant is given to the EO for service. The EO should contact the EC direct in relation to service or otherwise. The EO should only report to the RR in relation to enforcement.

If the EO is to serve a copy of the warrant, the cheque and copy warrant is given to the EO for service. The EO should contact the EC direct in relation to service or otherwise. The EO should only report to the RR in relation to enforcement. The enforcement officer (Rule 826(4)): The enforcement officer (Rule 826(4)):

• Must do all things necessary to enforce the warrant • Must do all things necessary to enforce the warrant • Must make a report to the RR as to its execution • Must make a report to the RR as to its execution • Pay any money received to the RR • Pay any money received to the RR

The RR must then pay any money received by the EO to the OR via QWIC and returns the warrant with reports endorsed (the RR also notes their file and CLAIMS as to actions taken). All reports from the EO received by the RR must be forwarded to the OR – the OR then forwards a copy of those reports to the EC.

The RR must then pay any money received by the EO to the OR via QWIC and returns the warrant with reports endorsed (the RR also notes their file and CLAIMS as to actions taken). All reports from the EO received by the RR must be forwarded to the OR – the OR then forwards a copy of those reports to the EC. The OR then notes their file on CLAIMS and files the warrant and EO reports. Any money received with the warrant is forwarded to the EC or representative in accordance with Rule 17 – contact details and address for service of the plaintiff or Enforcement Creditor.

The OR then notes their file on CLAIMS and files the warrant and EO reports. Any money received with the warrant is forwarded to the EC or representative in accordance with Rule 17 – contact details and address for service of the plaintiff or Enforcement Creditor.

Note: An EW for a Queensland Judgment can only be issued by the home court (i.e. the court that has judgment). An EW cannot be issued by a receiving court by filing a copy of the judgment at that other court.

24.12. DECEASED ENFORCEMENT DEBTOR (Rule 818) 24.12. DECEASED ENFORCEMENT DEBTOR (Rule 818) Only assets of a deceased’s estate are subject to enforcement. This relates to an ED who has died after the claim or MDC was filed and a warrant has issued or if the ED died after the issue of the warrant.

Only assets of a deceased’s estate are subject to enforcement. This relates to an ED who has died after the claim or MDC was filed and a warrant has issued or if the ED died after the issue of the warrant.

24.13. CROSS ORDERS (Rule 827) 24.13. CROSS ORDERS (Rule 827) This applies if there is an enforceable money order (EMO) (i.e. a Judgment) given or filed in the same court for the same parties where say ‘A’ is the EC and ‘B’ is the ED for one EMO and ‘B’ is the EC and ‘A’ is the ED in another EMO.

This applies if there is an enforceable money order (EMO) (i.e. a Judgment) given or filed in the same court for the same parties where say ‘A’ is the EC and ‘B’ is the ED for one EMO and ‘B’ is the EC and ‘A’ is the ED in another EMO. If there are cross orders in the same court between the same parties, an enforcement warrant (EW) may be issued only on the application of the party in whose favour a money order for the larger debt was made and for the amount of the larger debt less the amount of the smaller debt.

If there are cross orders in the same court between the same parties, an enforcement warrant (EW) may be issued only on the application of the party in whose favour a money order for the larger debt was made and for the amount of the larger debt less the amount of the smaller debt. The application for a warrant (Form 9 – not on notice) and supporting affidavit (Form 46) in relation to the cross order is made at the same time and in the same manner as applying for a warrant (the application and affidavit simply outlines the cross orders and requests a warrant to issue for the balance).

The application for a warrant (Form 9 – not on notice) and supporting affidavit (Form 46) in relation to the cross order is made at the same time and in the same manner as applying for a warrant (the application and affidavit simply outlines the cross orders and requests a warrant to issue for the balance). If the EW is issued, the MO for the smaller debt is satisfied. There is no requirement for the warrant to be specifically endorsed in relation to a cross order. If the EW is issued, the MO for the smaller debt is satisfied. There is no requirement for the warrant to be specifically endorsed in relation to a cross order. If the amount of both order debts is equal, both MOs are satisfied (and a warrant cannot issue). If the amount of both order debts is equal, both MOs are satisfied (and a warrant cannot issue). To stop any further enforcement action, the file and Claims Register in relation to the smaller debt must be noted in relation to the application (and also if the amounts were equal). A copy of the larger MO application should be filed on the smaller MO file.

To stop any further enforcement action, the file and Claims Register in relation to the smaller debt must be noted in relation to the application (and also if the amounts were equal). A copy of the larger MO application should be filed on the smaller MO file.


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24.14. WHAT HAPPENS IF A THIRD PARTY IGNORES A WARRANT If the TP, FI or EDE ignores a warrant and does not make payments in accordance with the order, the EC may apply to the court constituted by a Magistrate for a judgment against the TP.

Failure to comply with the conditions of an EW may be deemed contempt of court (Rules 925 – 926). At any stage of a proceeding, a party may apply to the court for an order under Rule 658, including an order for judgment (note that this rule is at any stage of a proceeding and therefore may not be successful).

Parties applying for a judgment against a TP, FI or EDE should be referred to a solicitor [@ 2.2.10].

The application is an application within a proceeding on notice [@ 2.4.22]. The Forms required are:

• Application Form 9 – original + 1 copy for each other party; and • Supporting Affidavit Form 46 – original; and • Order Form 58 – original + 1 copy for each other party • Affidavit of Service of the application Form 46 – original

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25 ENFORCEMENT WARRANTS

An enforcement warrant is a method of enforcing a money order or judgment – refer enforcement warrant generally [@ 24].

There are 4 EWs that are issued by the Registrar following judgment, as:

Enforcement warrant – seizure and sale of property Form 75 [@ 25.1.1]Enforcement warrant – redirection of debt Form 76 [@ 25.2.2]Enforcement warrant for regular redirection Form 77 [@ 25.3.2]Enforcement warrant – redirection of earnings Form 78 [@ 25.4.2]

25.1. ENFORCEMENT WARRANT – SEIZURE AND SALE OF PROPERTY (Rules 828 – 838)

A court (i.e. the court constituted by the Registrar) may issue an enforcement warrant authorising an enforcement officer to seize and sell, in satisfaction of a money order (i.e. judgment), all real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest.

The warrant can only issue after judgment has been given. The warrant can only be issued by the court or registrar where a judgment has been given (i.e. the home court) or interstate judgment filed. If there is no judgment document or other order on file, no warrant can issue.

A warrant for seizure and sale of property is an approved document ordering the enforcement officer to seize certain goods and property of the nominated enforcement debtor to satisfy a judgment. The EO cannot seize exempt property [@ 25.1.6].

The EO can then sell the goods at auction and pays any money collected to the collection account of the Registrar. The Registrar pays this amount to the EC (or solicitor, agent). Any balance (i.e. amount more than the amount of the warrant) is paid to the ED.

25.1.1. Registry procedures - Warrant for seizure and sale of property

The following forms are filed by the person applying for a seizure and sale warrant:

• Application – Form 9 (original only); and

• Statement – Form 74 (original only); and

• Warrant – Form 75 (original and 1 copy or 2 copies if EC requests and supplies one); for

o Original to EO; o Copy filed (and copy to EC if supplied and requested); and

• Fees (correct enforcement fee for the relevant address)

The registrar then ensures judgment was given and/or filed, then:

• Checks the documents against the Civil File;

• Ensures the statement is in time (i.e. dated within 2 business days of filing (Rule 817(b));

• Collects and receipts fees;

• Files the documents and notes the date and time of receipt on the application (if received in the mail, the time on the application is 9.00am) – seals/signs etc;

• Issues the warrant (signs warrant and seals the warrant and all other documents) and endorses the time, day and date of receipt and the expiry date on the warrant

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o The warrant issues for 12 months and expires the day before the date of issue and a year later (i.e. if the date of issue is 23/12/99, the expiry date is 22/12/2000)

• Stamps the copy of the warrant to the EC near the top right corner with the ‘COPY’ stamp and seals near the stamp (this is important as only 1 original can be in existence)

• Attaches the documents to the civil file with a copy of the warrant directly under the file cover sheet and index sheet (order from top down: cover sheet, index sheet, copy of warrant, statement, application, judgment and so on) and note the Index Sheet;

• Enters documents in CLAIMS ;

• Gives the original warrant to the enforcement officer;

• Notes the EOPB

• Files the civil file in claim number order in general filing.

The registrar checks the EOPB at least monthly to ensure timely finalisation of warrants. When warrants have been executed CLAIMS is noted and reports and/or moneys paid to the enforcement creditor, the warrant is filed and the file returned to general filing.

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25.1.2. Enforcement Officers Reports

The EO must report in relation to enforcement as requested by the EC (and as requested by the Registrar). The report may be written on the back of the warrant or contained on a separate piece of A4 paper (there is no approved form for the EO Report – the report can simply be in letter form addressed to the Registrar). The following is the sort of report expected from the EO (the report must state what the EO has done or attempted to do and the words after I have to certify ....... outline this):


Registry: Number: Plaintiff (short title only required)

AND

Defendant (short title only required)

Enforcement Debtor: (full name(s))

ENFORCEMENT OFFICERS REPORT ON ENFORCEMENT WARRANT – SEIZURE AND SALE

I have to certify that by virtue of this warrant, I have made a diligent search for the property of the Judgment Debtor, and that I find no property sufficient to satisfy the warrant. The warrant is returned not able to be enforced as the Judgment Debtor had no property able to be seized (or: the Judgment Debtor has left the address and may be found at (if known). I claim the enforcement fee). Gross amount received $ Payments in deduction: X days in possession: $ Expenses of sale $ Board and Lodging $ Travelling $ Advertising $ Other expenses $ and $ Total deductions $ Net amount recovered $ Date: / /

Bailiff (signature)I hereby certify that the above charges are correct, that all disbursements are supported by vouchers and receipts, and the sum of $ was paid into Court this day of 19 Enforcement Officers Receipt No. and Magistrates Court official receipt No. for the amount of $ agree.

Registrar (signature and seal)

Each time the EO reports on the status of the warrant, the registrar writes to the applicant and forwards a copy of the report (the original report is filed). For example:

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Re: Claim No. Plaintiff -v- Defendant I attach a copy of the Enforcement Officers report regarding the Enforcement Warrant for Seizure and Sale of Property in relation to the above for your information. ORThe Enforcement Warrant for Seizure and Sale of Property has been satisfied. I forward my check in satisfaction (or as case may be) of the warrant in the amount of $ ORI attach a copy of the Enforcement Officers report regarding the Enforcement Warrant for Seizure and Sale of Property in relation to the above for your information. You will note that the enforcement debtor has changed address. Please forward the amount $ if you require the warrant to be enforced at this new address.

25.1.3. Warrant enforced over real property (land) (Bailiffs auction)

If the warrant is required to auction the ED’s land, the EC will require a copy of the warrant to be noted on the Title Deed (Sect 116 Land Title Act 1994). This is not the responsibility of court staff – the EC simply requests the copy of the warrant in writing and pays the relevant fee. The EC is responsible for registering the warrant on the title. If the EC requests a certified copy, the warrant is certified in the same manner as a judgment [@ 24.8.2] with the word ‘judgment’ replaced with ‘warrant’. Note that the Registrar of Titles only requires a copy of the warrant (original filed warrant photocopied and endorsed "COPY") [@ 4.3] not a certified copy.

The registrar gives the warrant to the EO to arrange a Bailiffs Auction. The registrar must ensure that the warrant is correct (i.e. original signature and seal of the court that issued it). The EO will require an amount of money (Currently $1800.00 for the Brisbane area, you will need to check with the EO what is required) from the EC before arranging the auction to cover their expenses as well as a current title search, property valuation (curb side valuation from real estate agent is sufficient), local authority rate details and mortgage payout details (if any). The money is paid to the EO who accounts for any expenditure and refunds to the plaintiff to the registrar (this means that the EO has no out-of-pocket expenses) [and refer to 'Poundage' @ 25.1.4],

When the date of the auction has been set by the EO the bailiff should immediately give you a copy of the notice of sale advertisement to advise you that the auction is taking place (date, place time etc) to be displayed in a prominent position at the Court building.

The EO must inform all people at the auction if the land is subject to a mortgage and tell them the amount of the payout and daily interest rates. The successful bidder purchases the property with the mortgage therefore the buyer pays the mortgagee (e.g. bank) the outstanding amount prior to transferring title to their name. The EO must also inform all bidders of any outstanding matters in relation to the property (e.g. unpaid rates, easements, rights of way and if the property is subject to any leasing/rental agreements which may be passed onto the purchaser). It is not necessary for the EO to supply information in relation to flood levels, drainage problems etc. (Note that any bidder can search details of the land or title themselves and they should satisfy themselves if they want to purchase it – but the EO must explain that the land is purchased with the mortgage, if any)

There is no absolute rule in what bid to accept at auction, but the bailiff can seek instructions from the registrar. Before the auction, the bailiff should have a valuation of the property and the auction must yield the best price available. Bids around 80% of the acquired valuation may be acceptable. The EO or EC may apply to the court (Rule 833 – Registrar or Magistrate) to sell property at the best price obtainable (application on notice unless the court says otherwise [@ 2.4.22]).

If the warrant is enforced against real property (land) and the EO successfully auctions the property, land transfer documents are prepared by the EC or EC’s solicitor.

The transfer documents must be signed by the registrar of the court who issued the warrant and sealed with the seal of that court (Registrar of Titles instructions). If the warrant was transferred from another court, the transfer documents are signed by the registrar of that court – i.e. the

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transfer documents are signed by the registrar of the court where the warrant was issued or subsequently transferred and filed.

The registrar of the court must ensure that details are correct on the transfer documents by checking the documents with searches supplied by the EC (in fact it is the responsibility of the EC to ensure the transfer documents are correct before the registrar of the court signs them). It is the responsibility of the EC to arrange lodging the transfer with the Titles Office.

25.1.4. What fees and expenses can the bailiff claim - poundage

The EO is entitled to the relevant enforcement fee and any other outlays as determined in 'Bailiffs Fees' in the schedule of fees. These fees and expenses are either deducted from the sum received by the EO before the auction or from the proceeds of the auction.

The EO is also entitles to poundage outlined in the 'Magistrates Courts Fees' schedule of costs at number 8. Basically this means that may receive 5% of the first $200 collected or received and 2.5% of the balance; but the minimum amount the EO receives is $42.00 (fees as at 20/09/2004) with a maximum amount being $200 (as at 20/09/2004). Any amount of poundage over this amount is paid to the court (Justice Revenue code – contact TSU for QWIC receipting).

If the proceeds of the sale are $500 - to calculate poundage proceed as follows:

5% of $200 = $10 and2.5% of $300 (being $500 - $200) = $7.50Total poundage is $10 + $7.50 = $17.50 Therefore the EO would receive $42.00 as $17.50 is less than the minimum fee and no amount would be to the court.

If the proceeds were $100,000-00 the calculation is:

5% of $200 = $10 and2.5% of $99,800 (being $100,000 - $200) = $2,495.00 Total poundage is $10 + $2,495 = $2,505 Therefore the EO would receive $200, being the maximum amount and an amount of $2,305.00 ($2,505 - $200) would be paid to the court

The poundage is deducted from the proceeds of the sale.

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25.1.5. Registry procedure - EWSSP to and from another court

An EWSSP may be enforced through any M/C registry in Queensland without filing a copy of the judgment in the other court. The OR issues the warrant (notes CLAIMS), receipts the EO fees, transfer these fees to the RR via QWIC, producing 2 copies of the transfer advice, and prepares a letter (original + 2 copies) forwarding the original warrant as:

I forward the above enforcement warrant for your attention and to issue to your Enforcement Officer in accordance with Rule 826. Please forward any reports from the Enforcement Officer to me. If any moneys are received from the Enforcement Officer, please remit such moneys to me together with relevant reports and return the warrant when completed. I forward enforcement fees of $ via QWIC Please complete the bottom section of the duplicate of this letter and return as acknowledgment of receipt of the warrant and notification of your claim number. Yours faithfully RegistrarI hereby acknowledge receipt of the within warrant on / / . Registrar signature (receiving court) This warrant has been numbered Claim No. MThe warrant was issued to name of EO on / / .

The OR then:

• Sends the EWSSP and one copy of the transfer advice (printed from QWIC) with original and 1 copy of the letter to the RR;

• Files the other copy of the letter and transfer advice (printed from QWIC) (notes CLAIMS) • Completes file index sheet • Puts the civil file in general filing.

The RR then:

• Files the warrant (claim no., creates a file and seals warrant) • Notes the EOPB • Issues the warrant to the EO (EO initials process book) • Places the file in general filing • Reports back to the OR as required • Remits any moneys collected to the original registrar via QWIC • Notes the CLAIMS and files any correspondence and copies of EO reports; • Returns the original warrant with the original EO report and if money receipted a copy of the

transfer advice to the RR.

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25.1.5.1. Example - Application for EWSSP [Form 9] 25.1.5.1. Example - Application for EWSSP [Form 9]




AND AND

Defendant: Neil Parr and OrsDefendant: Neil Parr and Ors

APPLICATION FOR ENFORCEMENT WARRANT APPLICATION FOR ENFORCEMENT WARRANT (SEIZURE AND SALE OF PROPERTY) (SEIZURE AND SALE OF PROPERTY)

TAKE NOTICE that the plaintiff is applying to the court for the following order: TAKE NOTICE that the plaintiff is applying to the court for the following order: an enforcement warrant authorising an enforcement officer to seize and sell all real and personal property (other than exempt property) in which the defendants have a legal or beneficial interest in satisfaction of a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous

(Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) and fees to is warrant of $41-00 making a total amount to be enforced of $713-50

an enforcement warrant authorising an enforcement officer to seize and sell all real and personal property (other than exempt property) in which the defendants have a legal or beneficial interest in satisfaction of a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) and fees to enforce this warrant of $41-00 making a total amount to be enforced of $713-50 enforcement enforce th

The property may be located at: 30 King Street, Caboolture The property may be located at: 30 King Street, Caboolture and cons

uatiois s of: Bee Hives, Hive frames, smokers, Toyota Hi-Ace small truck (Transport and REVS search and

val n and attached – Reg No. BEE-007). and consists of: Bee Hives, Hive frames, smokers, Toyota Hi-Ace small truck (Transport and REVS search and valuation and attached – Reg No. BEE-007).

t

This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm. Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm.


On the hearing of the application the applicant intends to rely on the following affidavit: On the hearing of the application the applicant intends to rely on the following affidavit:

SealBris

Filed 20/10/00 Time Post Rec n/a Amount $nilInit IMR

The statement of Thomas Croose is attached. The statement of Thomas Croose is attached. AND the Enforcement Warrant – Seizure and Sale of Property is attached hereto. AND the Enforcement Warrant – Seizure and Sale of Property is attached hereto. Tom Croose Tom Croose Signed: Signed: Description: Tom Croose for the plaintiffs Description: Tom Croose for the plaintiffs Dated: 20/10/2000 Dated: 20/10/2000

Application for an enforcement warrant - Application for an enforcement warrant - Seizure and sale of property Seizure and sale of property Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 817(1)(a); 828 Form 9 Rule 817(1)(a); 828



The wording of the application, directly above the information pertaining to where the property is located, may be replaced with words similar to: ‘an order in the terms of the attached warrant’.

Note: The above example means that the judgment was granted at Brisbane on 1/9/2000, and EH at Caboolture on 19/10/200 (additional costs incurred) and from information obtained at the EH the EWSSP has been applied for at Brisbane. Brisbane received the application by post (i.e. 9.00am) on 20/10/2000 and the Registrar determined the application on 27/10/2000 (the registrar could also have stated that it was determined on 20/10, however this would effectively reduce the amount of time to enforce the warrant as the warrant is issued for 12 months).


RTI 140310 Page 269

25.1.5.2. Example – Statement Supporting Application for EWSSP [Form 74] 25.1.5.2. Example – Statement Supporting Application for EWSSP [Form 74]



Plaintiff: Thomas Croose and AnorPlaintiff: Thomas Croose and Anor

AND AND


STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT (SEIZURE AND SALE OF PROPERTY) (SEIZURE AND SALE OF PROPERTY)

Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer Parr Enforcement Debtor: Neil Parr and Jennifer Parr Thomas Croose of 147 Oxley Road, Brisbane, Manager States on oath Thomas Croose of 147 Oxley Road, Brisbane, Manager States on oath 1. I am one of the enforcement creditors1. I am one of the enforcement creditors 2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on

1/9/2000 for $645-00.2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on

1/9/2000 for $645-00. 3. The date and amount of each payment made under the order are nil 3. The date and amount of each payment made under the order are nil 4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:

Enforcement Hearing at Caboolture $27-50 service fee 4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:

Enforcement Hearing at Caboolture $27-50 service fee 5. The interest (if any) due at the date of swearing this statement is $nil.5. The interest (if any) due at the date of swearing this statement is $nil.

6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after the date of swearing this statement is $nil.

6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after the date of swearing this statement is $nil.

7. The additional costs in enforcing this warrant are $41-00 enforcement fee. This makes a total amount to

be enforced of $713-50 as at 20/10/2000.7. The additional costs in enforcing this warrant are $41-00 enforcement fee. This makes a total amount to

be enforced of $713-50 as at 20/10/2000. Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: TomCroose John Williamson TomCroose John Williamson Deponent Justice of the Peace Deponent Justice of the Peace NOTE NOTE This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817) This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817)

SealBris

Filed Rec etc

Statement supporting application for enforcement Statement supporting application for enforcement warrant – seizure and sale of property warrant – seizure and sale of property Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 74 Rule 817(1)(b) Form 74 Rule 817(1)(b)




RTI 140310 Page 270


The application and statement were received by Brisbane M/C on 20/10/2000. The statement is signed on 20/10 and the application was determined by the court constituted by the Registrar on 27/10 – Therefore the statement is out of time (more than 2 days old); however, it is not the EC’s fault that the registry is behind and therefore the statement must be accepted (this 2 day rule must normally be applied, however it must be applied in relation to the circumstances – e.g. it may take more than 2 days for mail to be received at your registry, in which case the statement should be dated within 2 days of posting).

The ED is described as Neil Parr and Jennifer Par – this is because judgment has been obtained against both of them (jointly and severally) – a business name cannot ‘own’ anything but the proprietors can, therefore the EWSSP can issue against either one or both EDs (note that the goods of the business may be seized as they are owned by the EDs).

RTI 140310 Page 271

25.1.5.3. Example - Enforcement Warrant – Seizure and Sale of Property [Form 75] 25.1.5.3. Example - Enforcement Warrant – Seizure and Sale of Property [Form 75]




AND AND


ENFORCEMENT WARRANT – SEIZURE AND SALE OF PROPERTY ENFORCEMENT WARRANT – SEIZURE AND SALE OF PROPERTY Enforcement Creditor: ThomasCroose and Nicole Croose Enforcement Creditor: ThomasCroose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer ParrEnforcement Debtor: Neil Parr and Jennifer Parr AMOUNT OWING AMOUNT OWING The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding by the enforcement debtor is as follows:- The amount outstanding by the enforcement debtor is as follows:- Judgment amount $ 645-00 Judgment amount $ 645-00

Plus previous enforcement costs $ 27-50 Plus previous enforcement costs $ 27-50

Less payments $_______ Less payments $_______

$ 672.50 $ 672.50 Plus interest accrued to (date) $Plus interest accrued to (date) $ Costs of preparing warrant $_______Costs of preparing warrant $_______

$ 672-50 $ 672-50

Plus interest thereafter at $(amount) per day Plus interest thereafter at $(amount) per day [calculated at (percentage) % pursuant to (authority)] $[calculated at (percentage) % pursuant to (authority)] $ Plus enforcement officer’s fees $ 41-00 Plus enforcement officer’s fees $ 41-00

Plus other incidental expenses Plus other incidental expenses (poundage, storage, advertising expenses, etc) $ (poundage, storage, advertising expenses, etc) $

Total owing $ Total owing $ Enforcement warrant – seizure and sale of property Enforcement warrant – seizure and sale of property Filed on behalf of the plaintiff Filed on behalf of the plaintiff [Form 75] Rule 828 [Form 75] Rule 828



Filed: 20/10/00 Rec:56734251Amt: $41-00


RTI 140310 Page 272

25.1.5.4. Example - Enforcement Warrant – Seizure and Sale of Property [back] 25.1.5.4. Example - Enforcement Warrant – Seizure and Sale of Property [back] TO ENFORCEMENT OFFICER: TO ENFORCEMENT OFFICER: - You are to seize and sell such of the real and personal property (other than exempt property) in which the

enforcement debtor has a legal or beneficial interest as will satisfy the total amount owing on the judgment. (“exempt property” means - property that is not divisible among the creditors of a bankrupt under the relevant bankruptcy law as in force from time to time.)

- You are to seize and sell such of the real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest as will satisfy the total amount owing on the judgment. (“exempt property” means - property that is not divisible among the creditors of a bankrupt under the relevant bankruptcy law as in force from time to time.)

- You are to report in writing to this registry concerning your execution of this warrant and the results. - You are to report in writing to this registry concerning your execution of this warrant and the results. - Your attention is drawn to the provisions of Part 4 of Chapter 19 of the Uniform Civil Procedure Rules

concerning - - Your attention is drawn to the provisions of Part 4 of Chapter 19 of the Uniform Civil Procedure Rules

concerning - - Order of selling property; - Order of selling property; - Payment by enforcement debtor before sale - Payment by enforcement debtor before sale - Storage before sale; - Storage before sale; - Nature of sale; - Nature of sale; - Sale at best price obtainable; - Sale at best price obtainable; - Advertising; - Advertising; - Postponement of sale; - Postponement of sale; - Accountability for, and distribution of, money received; - Accountability for, and distribution of, money received;

- Reserve price provisions. - Reserve price provisions.

The known property of the enforcement debtor is as follows- The known property of the enforcement debtor is as follows- Bee Hives, Hive Frames, smokers, Toyota Hi-Ace small truck Reg No. BEE -007 Bee Hives, Hive Frames, smokers, Toyota Hi-Ace small truck Reg No. BEE -007

and is located at: 30 King Street, Caboolture and is located at: 30 King Street, Caboolture

SEAL

BRIS

This warrant expires on 26/10/2001This warrant expires on 26/10/2001This enforcement warrant issued at 9.00 a.m./p.m. on 27/10/2000. This enforcement warrant issued at 9.00 a.m./p.m. on 27/10/2000. NOTICE TO ENFORCEMENT DEBTOR NOTICE TO ENFORCEMENT DEBTOR You may apply to the court to set this warrant aside or to stay this enforcement at any time. You may apply to the court to set this warrant aside or to stay this enforcement at any time.


IMRegistrar Registrar Magistrates Court Brisbane IMRegistrar Registrar Magistrates Court Brisbane

SEAL

BRISDated: 27/10/2000 Dated: 27/10/2000

Note: A copy of the EWSSP is not served on the ED.

It is suggested the name and place of the court be added after Registrar to identify the source of the warrant as court seals are not always legible.

After issuing the EWSSP, it is noted in the EOPB and given the EO. The EOPB must be checked at least monthly by the Registrar and any EWSSP that are outstanding should be brought to the attention of the EO. If an EWSSP remains outstanding for an unreasonable period of time (say 3 months), the Registrar should request a report from the EO (this is seen as a pro-active step in managing the EOPB and anticipating a return of the warrant as required by Rules 822 and 947).

25.1.6. Exempt property under the EWSSP warrant (Rule 828)25.1.6. Exempt property under the EWSSP warrant (Rule 828)

The enforcement officer cannot seize or sell property of the enforcement debtor that is exempt property in accordance with the Bankruptcy Regulations 1996 (Cwth) – Regulation 6.03 and the Bankruptcy Act 1966 (Cwth) – Section 116.

When deciding what is exempt property, the EO must be satisfied that the household property, including sports and recreation equipment, is reasonably necessary for the domestic or personal use of the ED having regard to the current social standard of the ED and property that is necessary for the ED’s family depending on:

• The number and ages of children;

RTI 140310 Page 273


• Any special needs of the family (e.g. health or medical); • Any special needs because of the climate or other location; • If the property is reasonably necessary to properly run the household; • If costs of seizure, storage and sale would exceed sale price of property or otherwise

uneconomical• And if seizing the goods would realise sufficient funds to satisfy the debt.

The exempt household property includes:-

• One motor vehicle under $5,000 (plus CPI increase, rounded down to the nearest $50, per year from 1/7/1996) – vehicle must be used by ED primarily for transport (i.e. does not include a show vehicle) (see the Bankruptcy Regulations 1996 (Cwth), Regulation 6.03B for precise method of calculation).

• All personal property being (but not exclusive):

o Kitchen equipment o Cutlery, crockery and foodstuffs) o Heating or cooling equipment; o Telephone equipment, fire detectors and extinguishers and anti-burglar devices; o Beds and bedding, linen, towels and other furniture and/or household effects; o Educational material, sporting equipment and recreational material and equipment; o Books etc for children; o 1 TV, 1 VCR, 1 stereo and 1 radio (or combinations); o 1 washing machine &/or drier and 1 fridge and/or freezer; o 1 generator if relied on for power and 1 telephone appliance.

The exempt tools of trade include:

• Property to a value of $2,600 (plus CPI increase, rounded down to the nearest $50, per year from 1/7/1996) used as tools of trade for means of earning a livelihood (see the Bankruptcy Regulations 1996 (Cwth), Regulation 6.03B for precise method of calculation).

The sort of property that is not exempt includes real estate (land or house and land) and shares in the name of the enforcement debtor and antiques (unless its market value is attributable to its age or historical significance).

The ED may make an application to the court (Application within a proceeding on Notice to the EC and EO [@ 2.4.22]) to have the EO not seize certain items or to have certain household or other goods declared exempt.

25.2. ENFORCEMENT WARRANT FOR REDIRECTION OR DEBTS (Rules 839 – 854)

An EWRD applies where a third person owes money to the ED. The EC applies to the court in the approved forms for a warrant to issue for that money is paid directly to the EC from the TP and not to the ED.

These types of payments are one off payments only (e.g.. commission payable or proceeds of a sale or moneys payable under a contract), not salary or wages or money held in a FI that is paid in regularly (e.g. wages paid into the FI). It may also relate to money held in a FI that are not paid in regularly – i.e. money that is already there from previous savings etc.

This one off payment to the ED by a TP can only be redirected to the EC if the debt is payable on the date the EWRD is served on the TP (Rule 840(3)) – i.e. the TP must have sufficient funds or moneys available to be paid to the ED before being served with the EWRD to pay to the EC the amount of the warrant.

RTI 140310 Page 274

25.2.1. Enforcement warrant for redirection of debts – enforce beyond district25.2.1. Enforcement warrant for redirection of debts – enforce beyond district

An EWRD is enforced throughout Queensland by the EC. It is not enforced by an EO. There is no requirement or authority for the registrar of the home court to issue the EWRD and forward it to another court.

When the TP resides or carries on business in another district, the registrar (i.e. the home court registrar or registrar where an interstate judgment is filed) issues the EWRD and returns it to the EC to arrange service on the TP.

If the EC requires the EO at the other court to serve the warrant on the TP, the EC sends the warrant direct to the EO with service fees payable in the name of the relevant EO.

The EWRD is not recorded at the registry where the TP is located or written into the EOPB. This is because there is no property of the ED in the district where the TP is located. Money owing or deposited elsewhere is not considered property.

Note: The EWRD can only be issued by the home court registrar (court giving judgment) or registrar where an interstate judgment is filed.


RTI 140310 Page 275


25.2.2. Registry procedure - Enforcement warrant for redirection of debts

The forms that are required are:

• Application Form 9 – original; and

• Statement Supporting application for an enforcement warrant Form 74 – original; and

• Enforcement warrant – redirection of debt - Form 76 – original + 2 copies.

o Original filed o Copy served on TP (original seal and signed – this is basically another original) o Copy stamped ‘copy’ with original seal – not signed, for EC o Affidavit of Service of warrant – Form 46 - original

Note: The ED is not served with a copy of the warrant.

The forms are completed as:

• Application - Form 9

o The application must contain all particulars required to issue the warrant i.e. full name and address that warrant is to be issued against (i.e. the third party); The application is filed.

• Statement supporting application for enforcement warrant - Form 74

o The statement must be dated not more than 2 business days before being filed (or not more than 5 business days if filed by post). It must contain all correct information regarding the judgment, costs and interest.; and sufficient details to prove that moneys are being paid to the ED by a third party and financial details of the ED to convince the Registrar that the ED can afford the deduction under the warrant. The statement is filed.

• Enforcement warrant Form 76 – original + 2 copies

o The original warrant is filed and the 2 copies are returned to the EC. One copy, to be served on the TP, should be an original copy as the TP may not act on an unsigned warrant stamped with the copy stamp.

The other copy is stamped with the copy stamp (top right corner) and not signed by the Registrar. This is the EC’s file copy.

The warrant is issued for 1 year or lesser time as requested or ordered.

On receipt of the documents, the Registrar extracts the Civil File, ensures that judgment has been given and checks the parties to the warrant against the parties on the civil file. The warrant must contain the full title (the same as the Claim or MDC) as it is to be served on a party not mentioned in the initiating proceedings (Rule 6(1) (b)).

RTI 140310 Page 276

25.2.3. Registry procedure - Enforcement warrant for redirection of debts25.2.3. Registry procedure - Enforcement warrant for redirection of debts

After checking for correctness and ensuring judgment has been given and filed the application, statement and warrant is filed (sealed, signed, noted in Claims and all original documents are placed on file and complete file index sheet). The copies of the warrant are returned to the EC with an explanatory letter as to what party receives particular copies.

The application is determined and the warrant issued by the registrar, without notification to the ED or third party. The statement must contain sufficient details of the ED’s:

• Living expenses including living expenses of dependants; • Known liabilities (Hire Purchase, Rentals, payments of other judgments, etc)

… and if the EWRD would cause unreasonable hardship to the ED (Rule 840).

The EC may attach a copy of the results of an EH to assist in their application.

The Registrar may order an Enforcement Hearing if the application and statement do not contain sufficient information to issue the warrant (Rule 841).

The civil file is then filed in general filing (the file will only be required if money not paid)

No enforcement fee is applicable as an EWRD is served on the TP – it is not enforced by the EO. The EC arranges service. If the EC requires the EO to serve the warrant copies, the EC is to arrange service with the EO themselves.

If the TP disputes liability (Rule 844) the TP makes an application to the court. This is an application within a proceeding on notice [@ 2.4.22] (application Form 9 supported by an affidavit Form 46 and Order Form 58). The application is given a date for hearing before a Magistrate. The originals are filed and service copies are returned to the TP to arrange service on the EC. The TP may also require an additional copy to serve on the ED, but this is not required.

Note the provisions of Rule 50 - if no Magistrate is available to determine an application to set aside enforcement, the application can be made to another court.

Note: The EWRD can only be issued by the court that gave judgment (i.e. the home court registrar or registrar where an interstate judgment is filed)


RTI 140310 Page 277

25.2.3.1. Example - Application for EWRD [Form 9] 25.2.3.1. Example - Application for EWRD [Form 9]




AND AND


APPLICATION FOR ENFORCEMENT WARRANT APPLICATION FOR ENFORCEMENT WARRANT (REDIRECTION OF DEBT) (REDIRECTION OF DEBT)

TAKE NOTICE that the plaintiff is applying to the court for the following order: TAKE NOTICE that the plaintiff is applying to the court for the following order: an enforcement warrant for redirection of debts to be issued against a Third Party BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 at 133 Grange Road, The Grange in the State of Queensland who are the purchases of bees and honey from the defendants and I am informed after conducting an enforcement hearing at Caboolture Magistrates Court

ber 2000 that the said third party makes payments to the plaintiffs every second month and a payment -37 for goods purchased is due on 31/10/2000. The enforcement warrant redirection of debts is required to

fy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 s of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 ee) making a total amount to be enforced of $672-50.

an enforcement warrant for redirection of debts to be issued against a Third Party BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 at 133 Grange Road, The Grange in the State of Queensland who are the purchases of bees and honey from the defendants and I am informed after conducting an enforcement hearing at Caboolture Magistrates Court on 19 October 2000 that the said third party makes payments to the plaintiffs every second month and a payment $32,514-37 for goods purchased is due on 31/10/2000. The enforcement warrant redirection of debts is required to satisfy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a total amount to be enforced of $672-50.

on 19 Octo$32,514satisplus cost(service f

Filed 20/10/00 Time Post Rec n/a Amount $nil Init IMR

This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm.Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm. IM Registrar IM Registrar

Registrar Registrar SealBris

On the hearing of the application the applicant intends to rely on the following affidavit: On the hearing of the application the applicant intends to rely on the following affidavit: The statement of Thomas Croose is attached. The statement of Thomas Croose is attached. AND the Enforcement Warrant – redirection of debt is attached hereto. AND the Enforcement Warrant – redirection of debt is attached hereto. Tom Croose Tom Croose Signed: Signed: Description: Tom Croose for the plaintiffsDescription: Tom Croose for the plaintiffsDated: 20/10/2000Dated: 20/10/2000

Application for an enforcement warrant - Application for an enforcement warrant - redirection of debt redirection of debt Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 840 Form 9 Rule 840



Note: The above example means that the judgment was granted at Brisbane on 1/9/2000, and EH at Caboolture on 19/10/200 (additional costs incurred) and from information obtained at the EH the EWRD has been applied for at Brisbane. Brisbane received the application by post (i.e. 9.00am) on 20/10/2000 and the Registrar determined the application on 27/10/2000 (the registrar could also have stated that it was determined on 20/10, however this would effectively reduce the amount of time to enforce the warrant as the warrant is issued for 12 months).

The wording of the application, directly above the information pertaining to where the property is located, may be replaced with words similar to: ‘an order in the terms of the attached warrant’.


RTI 140310 Page 278

25.2.3.2. Example - Statement Supporting Application for EWRD [Form 74] 25.2.3.2. Example - Statement Supporting Application for EWRD [Form 74]



Plaintiff: Thomas Croose and AnorPlaintiff: Thomas Croose and AnorAND AND


STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT (REDIRECTION OF DEBT) (REDIRECTION OF DEBT)

Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: 1. I am one of the enforcement creditors1. I am one of the enforcement creditors2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on 1/9/2000 for $645-00.2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on 1/9/2000 for $645-00.3. The date and amount of each payment made under the order are nil3. The date and amount of each payment made under the order are nil4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows: Enforcement Hearing at

Caboolture $27-50 service fee4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows: Enforcement Hearing at

Caboolture $27-50 service fee5. The interest (if any) due at the date of swearing this statement is $nil.5. The interest (if any) due at the date of swearing this statement is $nil.6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after the date of swearing

this statement is $nil.6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after the date of swearing

this statement is $nil.7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on 19/10/2000 that the defendants

sell products to a third party BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 whose registered address is 133 Grange Road, The Grange in the State of Queensland. The third party pays their account each two months and the next payment to the defendants is to be made on 31/10/2000. I am informed that this payment will be in the amount of $32,514-37. I believe that the deduction of the amount of the judgment and costs totalling $672-50 from this payment will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000.

7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on 19/10/2000 that the defendants sell products to a third party BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 whose registered address is 133 Grange Road, The Grange in the State of Queensland. The third party pays their account each two months and the next payment to the defendants is to be made on 31/10/2000. I am informed that this payment will be in the amount of $32,514-37. I believe that the deduction of the amount of the judgment and costs totalling $672-50 from this payment will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000.

Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: TomCroose John WilliamsonTomCroose John WilliamsonDeponent Justice of the PeaceDeponent Justice of the PeaceNOTE NOTE This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817)This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817)

Statement supporting application for enforcement Statement supporting application for enforcement warrant – redirection of debt warrant – redirection of debt Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 74 Rule 840 Form 74 Rule 840



SealBris

Filed Rec etc

Note: The application and statement were received by Brisbane M/C on 20/10/2000. The statement is signed on 20/10 and the application was determined by the court constituted by the Registrar on 27/10 – Therefore the statement is out of time (more than 2 days old); however, it is not the ECs fault that the registry is behind and therefore the statement must be accepted (this 2 day rule must normally be applied, however it must be applied in relation to the circumstances – eg it may take more than 2 days for mail to be received at your registry, in which case the statement should be dated within 2 days of posting).

The ED is described as Neil Parr and Jennifer Par – this is because judgment has been obtained against both of them (jointly and severally) – a business name cannot ‘own’ anything but the proprietors can, therefore the EWSSP can issue against either one or both EDs (note that moneys paid to the business may be redirected – the EWRD must have the full name of the defendants).


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25.2.3.3. Example - Enforcement Warrant – Redirection of Debt [Form 76] 25.2.3.3. Example - Enforcement Warrant – Redirection of Debt [Form 76]




AND AND

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business name – ABN 000 000

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business name – ABN 000 000

Enforcement Creditor: Thomas Croose and Nicole CrooseEnforcement Creditor: Thomas Croose and Nicole Croose Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, BrisbaneAddress: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 trading atEnforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 trading at Address: 30 King Street, Caboolture Address: 30 King Street, Caboolture Third Person: Benjamin Enterprises Pty Ltd ACN 000 999 000 a registered company and having its

registered address atThird Person: Benjamin Enterprises Pty Ltd ACN 000 999 000 a registered company and having its

registered address at Address: 133 Grange Road, The Grange in the State of QueenslandAddress: 133 Grange Road, The Grange in the State of Queensland

ENFORCEMENT WARRANT - REDIRECTION OF DEBT ENFORCEMENT WARRANT - REDIRECTION OF DEBT AMOUNT OWING $672-50AMOUNT OWING $672-50 The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding by the enforcement debtor is as follows: The amount outstanding by the enforcement debtor is as follows: Judgment amount $645-00 Judgment amount $645-00

Less payments $ Less payments $ Plus interest $ Plus interest $ Plus costs $ 27-50 costs of previous proceedings Plus costs $ 27-50 costs of previous proceedings Total owing $672-50 Total owing $672-50

Filed 20/10/00 Rec n/a Amt n/a Init IMR

ENFORCEMENT WARRANT ENFORCEMENT WARRANT An enforcement warrant is hereby issued authorising the redirection to the enforcement creditor of a debt belonging to the enforcement debtor from the above third person. An enforcement warrant is hereby issued authorising the redirection to the enforcement creditor of a debt belonging to the enforcement debtor from the above third person. The warrant contains the following conditions:- The warrant contains the following conditions:- (a) That the third person pay to the enforcement creditor the debt due from the third person to the enforcement debtor or so much as will satisfy the total owing under the judgment. (a) That the third person pay to the enforcement creditor the debt due from the third person to the enforcement debtor or so much as will satisfy the total owing under the judgment. (b) Payment should be made to the enforcement creditor at the address stated above. (b) Payment should be made to the enforcement creditor at the address stated above. (c) This warrant expires on 26/10/2001(c) This warrant expires on 26/10/2001

This enforcement warrant issued at 9.00a.m./p.m. on 27/10/2000. This enforcement warrant issued at 9.00a.m./p.m. on 27/10/2000. Enforcement Warrant – redirection of debt Enforcement Warrant – redirection of debt Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 76 Rule 840 Form 76 Rule 840



Seal

Bris


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25.2.3.4. Example - Enforcement Warrant - Redirection of Debt [back] 25.2.3.4. Example - Enforcement Warrant - Redirection of Debt [back] NOTICES TO THIRD PERSON NOTICES TO THIRD PERSON - Failure to comply with this warrant may be contempt of court and may entitle the enforcement

creditor to obtain an order against you. - Failure to comply with this warrant may be contempt of court and may entitle the enforcement

creditor to obtain an order against you. - After service on you of this warrant you may apply to the court to set it aside or stay execution. - After service on you of this warrant you may apply to the court to set it aside or stay execution. - The filing of that application does not stay operation of the warrant. - The filing of that application does not stay operation of the warrant. - If, on the hearing of that application, you dispute liability to pay, the court may decide summarily the

question of liability or give directions for the question to be decided. - If, on the hearing of that application, you dispute liability to pay, the court may decide summarily the

question of liability or give directions for the question to be decided. - Details of debt claimed to exist between the Enforcement Debtor and the Third person (set out

details)- Details of debt claimed to exist between the Enforcement Debtor and the Third person (set out

details) - Relationships claim to exists between the Enforcement Debtor and the Third person. (set out details,

e.g. contractor, XYZ project, identify government department, company, branch or financial institution involved etc.)

- Relationships claim to exists between the Enforcement Debtor and the Third person. (set out details, e.g. contractor, XYZ project, identify government department, company, branch or financial institution involved etc.)

NOTICES TO ENFORCEMENT CREDITOR NOTICES TO ENFORCEMENT CREDITOR - This enforcement warrant must be served on the third person to have effect. - This enforcement warrant must be served on the third person to have effect. NOTICES TO ENFORCEMENT DEBTOR NOTICES TO ENFORCEMENT DEBTOR - You may apply to the court to set this warrant aside or stay it’s enforcement at any time. - You may apply to the court to set this warrant aside or stay it’s enforcement at any time.


IMRegistrar IMRegistrar Registrar Magistrates Court Brisbane Registrar Magistrates Court Brisbane

SealBris

Dated: 27/10/2000 Dated: 27/10/2000

Note: This EWRD is not served on the ED. When issued an original is handed back to the EC to serve on the TP. The EWRD may be served on any TP in Queensland (i.e. within or outside the district in which it was issued.

The registry has nothing more to do with EWRD once issued, unless the TP disputes liability. The TP can also be a bank, building society or other financial institution, as the case requires.

RTI 140310 Page 281

25.3. ENFORCEMENT WARRANT FOR REGULAR REDIRECTION (Rules 847 – 854)

25.3. ENFORCEMENT WARRANT FOR REGULAR REDIRECTION (Rules 847 – 854)

Redirection from a financial institution means having the warrant served on a bank, building society, Credit Union and the like, where a fourth party regularly deposits earnings into the account and the FI deducts money from the account and pays it to the Enforcement Creditor. The money deposited must be deposited regularly and must be wages or salary.

Redirection from a financial institution means having the warrant served on a bank, building society, Credit Union and the like, where a fourth party regularly deposits earnings into the account and the FI deducts money from the account and pays it to the Enforcement Creditor. The money deposited must be deposited regularly and must be wages or salary. This does not apply to money paid into the account that is social security or pension benefits. If it appears that the ED receives a benefit, the warrant must be endorsed: This does not apply to money paid into the account that is social security or pension benefits. If it appears that the ED receives a benefit, the warrant must be endorsed:

To the Manager: If Social Security benefits are paid into this account, please ensure that the saved amount, as stated in the Social Security Act, is protected from this Enforcement Warrant for Regular Redirection.

CAG Recommendation: We recommend that prior to issuing any warrant for regular redirection that the enforcement creditor perform an enforcement hearing. There is nothing in the UCPR that prevents a Registrar from issuing the warrant however we also recommend that if the enforcement hearing reveals that a person is a Centrelink recipient that any garnishee order issued to the enforcement debtors financial institution is subject to any protection afforded by the Social Security Act.

No other enforcement action in relation to the money order (judgment) can be taken against the ED (unless court otherwise orders) while this warrant is in force (Rule 853).

25.3.1. Enforcement warrant for regular redirection – enforce beyond district

When the FI is located in another district, the registrar (i.e. the home court registrar or registrar where an interstate judgment is filed) issues the warrant in the normal course, and gives the FI’s copy to the EC to arrange service on the FI.

If the EC requires the EO at the other court to serve the warrant on the FI, the EC sends the warrant direct to the EO with service fees payable in the name of the relevant EO.

The warrant is not recorded at the registry where the FI is located or written into the EOPB. This is because there is no property of the ED in the district where the FI is located. Money owing or deposited elsewhere is not considered property.

25.3.2. Registry procedure - Enforcement warrant for regular redirection

The forms that are required are:

• Application Form 9 – original

• Statement Supporting application for an enforcement warrant Form 74 – original

• Enforcement warrant for regular redirection Form 77 – original + 3 copies

o Original filed o Copy served on FI (original seal and signed) (i.e. another original) o 2 copies stamped ‘copy’ with original seal – not signed for

ED – for EC to arrange service EC (file copy)

o Affidavit of Service of warrant – Form 46 - original


Note: An additional copy (stamped copy) of the warrant is required for each additional ED named in the warrant. Each ED is served with a copy of the warrant.

RTI 140310 Page 282

The forms are completed as: The forms are completed as:

• Application - Form 9 • Application - Form 9

o The application must contain all particulars required to issue the warrant i.e. full name and address that warrant is to be issued against (i.e. the Financial Institution and account number and type); The application is filed.

o The application must contain all particulars required to issue the warrant i.e. full name and address that warrant is to be issued against (i.e. the Financial Institution and account number and type); The application is filed.

• Statement supporting application for enforcement warrant - Form 74 • Statement supporting application for enforcement warrant - Form 74

o The statement must be dated not more than 2 business days before being filed (or not more than 5 business days if filed by post). It must contain all correct information regarding the judgment, costs and interest.; and sufficient details to prove that moneys are being paid into the FI by a fourth party and financial details of the ED to convince the Registrar that the ED can afford the deduction under the warrant. The statement is filed.

o The statement must be dated not more than 2 business days before being filed (or not more than 5 business days if filed by post). It must contain all correct information regarding the judgment, costs and interest.; and sufficient details to prove that moneys are being paid into the FI by a fourth party and financial details of the ED to convince the Registrar that the ED can afford the deduction under the warrant. The statement is filed.

• Enforcement warrant for regular redirection Form 77 – original + 3 copies • Enforcement warrant for regular redirection Form 77 – original + 3 copies

o The original warrant is filed and the 3 copies are returned to the EC to arrange service.

o The original warrant is filed and the 3 copies are returned to the EC to arrange service.

One copy, to be served on the FI, should be an original copy as the FI may not act on an unsigned warrant stamped with the copy stamp.

One copy, to be served on the FI, should be an original copy as the FI may not act on an unsigned warrant stamped with the copy stamp.

The other copies are stamped with the copy stamp (top right corner) and not signed by the Registrar. The EC arranges for a copy to be served on the ED and the EC retains the other copy. An additional copy is also required to be served on any additional ED.

The other copies are stamped with the copy stamp (top right corner) and not signed by the Registrar. The EC arranges for a copy to be served on the ED and the EC retains the other copy. An additional copy is also required to be served on any additional ED.

The warrant is issued for 1 year or lesser time as requested or ordered. The warrant is issued for 1 year or lesser time as requested or ordered.

On receipt of the documents, the Registrar extracts the Civil File and ensures judgment has been given and filed, and checks the parties to the warrant against the parties on the civil file. The warrant must contain the full title (the same as the Claim or MDC) as it is to be served on a party not mentioned in the initiating proceedings (Rule 6(1) (b)).

On receipt of the documents, the Registrar extracts the Civil File and ensures judgment has been given and filed, and checks the parties to the warrant against the parties on the civil file. The warrant must contain the full title (the same as the Claim or MDC) as it is to be served on a party not mentioned in the initiating proceedings (Rule 6(1) (b)). After checking for correctness, the application, statement and warrant is filed (sealed, signed, noted in CLAIMS and file index and all original documents are placed on file). The copies of the warrant are returned to the EC with an explanatory letter as to what party receives particular copies.

After checking for correctness, the application, statement and warrant is filed (sealed, signed, noted in CLAIMS and file index and all original documents are placed on file). The copies of the warrant are returned to the EC with an explanatory letter as to what party receives particular copies. The application is determined and the warrant issued by the registrar, without notification to the ED or third party. The Registrar may order an Enforcement Hearing if the application and statement do not contain sufficient information to issue the warrant.

The application is determined and the warrant issued by the registrar, without notification to the ED or third party. The Registrar may order an Enforcement Hearing if the application and statement do not contain sufficient information to issue the warrant. The civil file is then filed in general filing (the file will only be required if money not paid) The civil file is then filed in general filing (the file will only be required if money not paid) No enforcement fee is applicable as the warrant is served on the FI and ED. The EC arranges service. If the EC requires the Enforcement Officer to serve the warrant copies, the EC is to arrange service with the EC themselves.

No enforcement fee is applicable as the warrant is served on the FI and ED. The EC arranges service. If the EC requires the Enforcement Officer to serve the warrant copies, the EC is to arrange service with the EC themselves. If the EC or ED objects to the payment being made, they can apply to the court for the warrant to be set aside, suspended or varied. This is an application within a proceeding on notice [@ 2.4.22](application Form 9 supported by an affidavit Form 46 and Order Form 58). The application is given a date for hearing before a Magistrate. The originals are filed and service copies, plus one for the other party, are returned to the applicant to arrange service on the other party and FI.

If the EC or ED objects to the payment being made, they can apply to the court for the warrant to be set aside, suspended or varied. This is an application within a proceeding on notice [@

The order, in accordance with the warrant, does not come into force until the end of 7 days after the day on which it is served on the financial institution. Note the provisions of Rule 50 if no Magistrate is available to determine an application to set aside enforcement where the application can be made to another court.

The order, in accordance with the warrant, does not come into force until the end of 7 days after the day on which it is served on the financial institution. Note the provisions of Rule 50 if no Magistrate is available to determine an application to set aside enforcement where the application can be made to another court.

2.4.22](application Form 9 supported by an affidavit Form 46 and Order Form 58). The application is given a date for hearing before a Magistrate. The originals are filed and service copies, plus one for the other party, are returned to the applicant to arrange service on the other party and FI.

Note: The EWRR can only be issued by the court that gave judgment (i.e. the home court registrar or registrar where an interstate judgment is filed).


RTI 140310 Page 283


RTI 140310 Page 284

25.3.2.1. Example - Application for EWRR [Form 9] 25.3.2.1. Example - Application for EWRR [Form 9]




AND AND


APPLICATION FOR ENFORCEMENT WARRANT APPLICATION FOR ENFORCEMENT WARRANT (REGULAR REDIRECTION) (REGULAR REDIRECTION)

TAKE NOTICE that the plaintiff is applying to the court for the following order: TAKE NOTICE that the plaintiff is applying to the court for the following order: an enforcement warrant for regular redirection of $30-00 per week against the National Bank of Australia, Queens Street, Brisbane, Branch account no 7324 9828 41 779 in the name of Neil Parr in the State of Queensland who is the financial institution for the defendant Neil Parr and I am informed after conducting an enforcement hearing at

Magistrates Court on 19 October 2000 that BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 wages in the amount of $780-30 on Wednesday of each week into the said NBA account for and on behalf of

aid defendant Neil Parr. The enforcement warrant redirection of debts is required to satisfy a money order and given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous

ment (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a t mount to be enforced of $672-50.

an enforcement warrant for regular redirection of $30-00 per week against the National Bank of Australia, Queens Street, Brisbane, Branch account no 7324 9828 41 779 in the name of Neil Parr in the State of Queensland who is the financial institution for the defendant Neil Parr and I am informed after conducting an enforcement hearing at Caboolture Magistrates Court on 19 October 2000 that BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 deposits wages in the amount of $780-30 on Wednesday of each week into the said NBA account for and on behalf of the said defendant Neil Parr. The enforcement warrant redirection of debts is required to satisfy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a total amount to be enforced of $672-50.

Caboolturedepositsthe sjudgmentenforceotal a


This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm. Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm.


SealBris

On the hearing of the application the applicant intends to rely on the following affidavit: On the hearing of the application the applicant intends to rely on the following affidavit: The statement of Thomas Croose is attached. The statement of Thomas Croose is attached. AND the Enforcement Warrant for regular redirection is attached hereto. AND the Enforcement Warrant for regular redirection is attached hereto. TomCroose TomCroose Signed: Signed: Description: Tom Croose for the plaintiffs Description: Tom Croose for the plaintiffs Dated: 20/10/2000 Dated: 20/10/2000

Application for an enforcement warrant for Application for an enforcement warrant for regular redirection regular redirection Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 848 Form 9 Rule 848



Note: The above example means that the judgment was granted at Brisbane on 1/9/2000, and EH at Caboolture on 19/10/200 (additional costs incurred) and from information obtained at the EH the EWRR of $30 per week has been applied for at Brisbane. Brisbane received the application by post (i.e. 9.00am) on 20/10/2000 and the Registrar determined the application on 27/10/2000 (the registrar could also have stated that it was determined on 20/10, however this would effectively reduce the amount of time to enforce the warrant as the warrant is issued for 12 months).

The wording of the application may be replaced with words similar to: ‘an order in the terms of the attached warrant’.


RTI 140310 Page 285

25.3.2.2. Example - Statement Supporting Application for EWRR [Form 74] 25.3.2.2. Example - Statement Supporting Application for EWRR [Form 74]




AND AND


STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT (REGULAR REDIRECTION) (REGULAR REDIRECTION)

Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: 1. I am one of the enforcement creditors1. I am one of the enforcement creditors2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on


1/9/2000 for $645-00.3. The date and amount of each payment made under the order are nil3. The date and amount of each payment made under the order are nil4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:

Enforcement Hearing at Caboolture $27-50 service fee4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:

Enforcement Hearing at Caboolture $27-50 service fee5. The interest (if any) due at the date of swearing this statement is $nil.5. The interest (if any) due at the date of swearing this statement is $nil.6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after

the date of swearing this statement is $nil.6. The daily amount of interest (if any) that, subject to any future payment under the order, will accrue after

the date of swearing this statement is $nil.7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on

19/10/2000 that the defendant Neil Parr receives wages from BENJAMIN ENTERPRISES PTY LTD N 000 999 000 in the amount of $780-30 on Wednesday of each week, paid into National Australia

Bank, Queen Street Brisbane in the State of Queensland branch account no 7324 9828 41 779. I believe that deduction of $30 per week in reduction of the amount of the judgment and costs totalling $672-50 from these wages will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendants living expenses per week are $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on 19/10/2000 that the defendant Neil Parr receives wages from BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 in the amount of $780-30 on Wednesday of each week, paid into National Australia Bank, Queen Street Brisbane in the State of Queensland branch account no 7324 9828 41 779. I believe that deduction of $30 per week in reduction of the amount of the judgment and costs totalling $672-50 from these wages will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendants living expenses per week are $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

AC

Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: TomCroose John WilliamsonTomCroose John WilliamsonDeponent Justice of the Peace Deponent Justice of the Peace NOTE NOTE Ten

his statement must be sworn not earlier than 2 business days before the date of the application for the forcement warrant (R.817)

This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817)

SealBris

Filed Rec etc Time: Post

Statement supporting application for enforcement Statement supporting application for enforcement warrant – regular redirection warrant – regular redirection Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 74 Rule 848 Form 74 Rule 848




RTI 140310 Page 286

The ED is described as Neil Parr and Jennifer Par – this is because judgment has been obtained against both of them (jointly and severally) – the EWRR has been requested against the bank account of Neil Parr – the Statement must have sufficient financial information about the defendants for the registrar to make a decision about granting the EWRR.



RTI 140310 Page 287

25.3.2.3. Example - Enforcement Warrant - Regular Redirection [Form 77] 25.3.2.3. Example - Enforcement Warrant - Regular Redirection [Form 77]




AND AND

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name – BN 000 000

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name – BN 000 000

Enforcement Creditor: Thomas Croose and Nicole Croose Enforcement Creditor: Thomas Croose and Nicole Croose Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 trading at Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 trading at Address: 30 King Street, Caboolture Address: 30 King Street, Caboolture Third Person: Third Person: Name of Financial Institution: National Australia Bank (Queen Street Branch) Name of Financial Institution: National Australia Bank (Queen Street Branch) Address: 473 Queen Street, Brisbane Address: 473 Queen Street, Brisbane

ENFORCEMENT WARRANT - FOR REGULAR REDIRECTION ENFORCEMENT WARRANT - FOR REGULAR REDIRECTION AMOUNT OWING $672-50AMOUNT OWING $672-50 The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding by the enforcement debtor is as follows: - The amount outstanding by the enforcement debtor is as follows: -

Judgment amount $645-00 Judgment amount $645-00 Less payments $ Less payments $

Plus interest $ Plus interest $ Plus costs $ 27-50 of previous proceedings Plus costs $ 27-50 of previous proceedings Total owing $672-50 Total owing $672-50


ENFORCEMENT WARRANT ENFORCEMENT WARRANT An enforcement warrant is hereby issued authorising the regular redirection to the enforcement creditor of all or part of a regular debt. An enforcement warrant is hereby issued authorising the regular redirection to the enforcement creditor of all or part of a regular debt. The warrant contains the following conditions: - The warrant contains the following conditions: - a) The above third person must deduct the amount of $30-00 from the specified account each time a regular deposit is

made by Benjamin Enterprises Pty Ltd ACN 000 999 000 (the “fourth person”) into the specified account [or in the case of the last deduction, such lesser amount that will result in the total amount owing specified above having been deducted];

a) The above third person must deduct the amount of $30-00 from the specified account each time a regular deposit is made by Benjamin Enterprises Pty Ltd ACN 000 999 000 (the “fourth person”) into the specified account [or in the case of the last deduction, such lesser amount that will result in the total amount owing specified above having been deducted];

(b) The specified account of the enforcement debtor from which the deduction is to be made is:- (b) The specified account of the enforcement debtor from which the deduction is to be made is:- Financial Institution - National Australia Bank Financial Institution - National Australia Bank Branch - Queen Street Branch Branch - Queen Street Branch

Account Name - Neil Parr Account Name - Neil Parr Style of Account - Savings Account Style of Account - Savings Account

Account Number - 7324 9828 41 779 Account Number - 7324 9828 41 779 Application for an enforcement warrant for Application for an enforcement warrant for regular redirection regular redirection Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 848 Form 9 Rule 848



SEAL

BRIS


RTI 140310 Page 288

25.3.2.4. Example - Enforcement Warrant - Regular Redirection [back] 25.3.2.4. Example - Enforcement Warrant - Regular Redirection [back]

c) The amount deducted must be paid to the enforcement creditor at the address stated above. c) The amount deducted must be paid to the enforcement creditor at the address stated above. d) The deduction from the specified account and the payment to the enforcement creditor must be done within 2

business days after the deposit is made. d) The deduction from the specified account and the payment to the enforcement creditor must be done within 2

business days after the deposit is made. e) The third person may deduct from the specified account an administration charge of $3-00 and retain it as a

contribution towards the administrative cost of making a payment under this warrant. e) The third person may deduct from the specified account an administration charge of $3-00 and retain it as a

contribution towards the administrative cost of making a payment under this warrant. f) The third person must give the enforcement debtor a notice detailing each deduction. f) The third person must give the enforcement debtor a notice detailing each deduction. g) This warrant expires on 26/10/2001 g) This warrant expires on 26/10/2001 This enforcement warrant issued at 9.00am/p.m. on 27/10/2000 This enforcement warrant issued at 9.00am/p.m. on 27/10/2000 NOTICES TO THIRD PERSON NOTICES TO THIRD PERSON - This enforcement warrant does not come into force until the end of 7 days after the day on which it is served

on you. - This enforcement warrant does not come into force until the end of 7 days after the day on which it is served

on you. - After service on you of this enforcement warrant you may apply to the court to set it aside or stay execution

(See Rule 819) - After service on you of this enforcement warrant you may apply to the court to set it aside or stay execution

(See Rule 819) - The filing of that application does not stay the operation of the warrant. - The filing of that application does not stay the operation of the warrant. - Failure to comply with this warrant may be contempt of court and may entitle the enforcement creditor to

obtain an order against you. - Failure to comply with this warrant may be contempt of court and may entitle the enforcement creditor to

obtain an order against you. - Details of Debt claimed to exist between the Enforcement Debtor and the Third Person (set out details) - Details of Debt claimed to exist between the Enforcement Debtor and the Third Person (set out details) - Relationships claim to exists between the Enforcement Debtor and the Fourth person. (set out details, e.g.

contractor, XYZ project, identify government department, company, branch or financial institution involved etc.)

- Relationships claim to exists between the Enforcement Debtor and the Fourth person. (set out details, e.g. contractor, XYZ project, identify government department, company, branch or financial institution involved etc.)

NOTICES TO ENFORCEMENT CREDITOR NOTICES TO ENFORCEMENT CREDITOR - This enforcement warrant must be served personally or by post on the enforcement debtor and the third

person.- This enforcement warrant must be served personally or by post on the enforcement debtor and the third

person. - While this warrant is in force no other enforcement warrant may be issued in relation to the money order,

unless a court orders otherwise. - While this warrant is in force no other enforcement warrant may be issued in relation to the money order,

unless a court orders otherwise. - You may apply to the court to set aside, suspend or vary this warrant. - You may apply to the court to set aside, suspend or vary this warrant. NOTICES TO ENFORCEMENT DEBTOR NOTICES TO ENFORCEMENT DEBTOR - You must ensure that adequate funds remain in the specified account after each regular deposit for the

deduction from the account of the amount specified in this warrant. - You must ensure that adequate funds remain in the specified account after each regular deposit for the

deduction from the account of the amount specified in this warrant. - You must notify the enforcement creditor if:- - You must notify the enforcement creditor if:- (a) Benjamin Enterprises Pty Ltd discontinues regular payments in the nature of earnings to you; or (a) Benjamin Enterprises Pty Ltd discontinues regular payments in the nature of earnings to you; or (b) you close the account or arrange for the fourth person to pay you in another way. (b) you close the account or arrange for the fourth person to pay you in another way. - You may apply to the court to set aside, suspend or vary this warrant. - You may apply to the court to set aside, suspend or vary this warrant.


IMRegistrar IMRegistrar Registrar Magistrates Court Brisbane Registrar Magistrates Court Brisbane

SealBris

Dated: 27/10/2000 Dated: 27/10/2000

RTI 140310 Page 289

25.4. ENFORCEMENT WARRANT FOR REDIRECTION OF EARNINGS (Rules 855 – 867)

25.4. ENFORCEMENT WARRANT FOR REDIRECTION OF EARNINGS (Rules 855 – 867)

A court (i.e. the home court registrar or registrar where an interstate judgment is filed) may issue an enforcement warrant authorising redirection to an enforcement creditor of particular earnings of an enforcement debtor from a third person. This is similar to the redirection from a financial institution, but the warrant is directed to a Third Person (i.e. the Enforcement Debtors Employer) not the bank.

A court (i.e. the home court registrar or registrar where an interstate judgment is filed) may issue an enforcement warrant authorising redirection to an enforcement creditor of particular earnings of an enforcement debtor from a third person. This is similar to the redirection from a financial institution, but the warrant is directed to a Third Person (i.e. the Enforcement Debtors Employer) not the bank. The EDE is required to deduct the amounts of the warrant from each wages or salary of the ED and pay it directly to the EC. The ED and EDE are served with a copy of the enforcement warrant. The EDE is required to deduct the amounts of the warrant from each wages or salary of the ED and pay it directly to the EC. The ED and EDE are served with a copy of the enforcement warrant. The enforcement warrant does not come into force until the end of 7 days after EDE is served. No other enforcement warrant may be issued in relation to the money order (judgment) whilst this warrant is in force (Rule 861).

The enforcement warrant does not come into force until the end of 7 days after EDE is served. No other enforcement warrant may be issued in relation to the money order (judgment) whilst this warrant is in force (Rule 861). The court constituted by a Magistrate, on application of the enforcement creditor or enforcement debtor, may set aside, suspend or vary an enforcement warrant authorising redirection of earnings (Rule 862).

The court constituted by a Magistrate, on application of the enforcement creditor or enforcement debtor, may set aside, suspend or vary an enforcement warrant authorising redirection of earnings (Rule 862). The EC should supply a transcript of the Enforcement Hearing of the ED for the Registrar to be satisfied that this warrant may issue. If the EH has not been done, the EC should supply similar information that is contained in the Form 71 (Statement of Financial Position) to enable the Registrar to know the financial circumstances of the ED. The Registrar may also order that an EH be conducted before the application for the warrant will be considered

The EC should supply a transcript of the Enforcement Hearing of the ED for the Registrar to be satisfied that this warrant may issue. If the EH has not been done, the EC should supply similar information that is contained in the Form 71 (Statement of Financial Position) to enable the Registrar to know the financial circumstances of the ED. The Registrar may also order that an EH be conducted before the application for the warrant will be considered

25.4.1. Enforcement warrant for redirection of earnings – enforce beyond district25.4.1. Enforcement warrant for redirection of earnings – enforce beyond district

When a judgment is given in a different Magistrates Courts District to the district where the enforcement debtor’s employer or paymaster is located, the warrant simply issues in the normal course and the EC arranges service of the warrant on the EDE (and the ED).

The court in the district where the EDE is located does not file the warrant.

If the EC requires the EO to serve the warrant, the EC can arrange this themselves (the court that issues the warrant should advise the EC to forward the warrant with relevant fees directly to the EO and not through the Registry of the EO – the warrant and fees may be forwarded to the EO c/- the Magistrates Court where the EO is located).

This means that if a judgment was given in say, Cairns, and the ED resides in Townsville with the EDE at Brisbane – the warrant can only issue out of Cairns for service in Brisbane – the Townsville or Brisbane Magistrates Courts have nothing to do with the warrant.

Note: The EWRE can only be issued at the court where the judgment was given (i.e. the home court registrar or registrar where an interstate judgment is filed)

Note: This EWRR is served on the FI and ED. The EC arranges service. The Registrar simply checks the statement and other documents to ensure that judgment has been entered and the ED will not suffer hardship as a consequence of the EWRR – this must be stated in the statement or the EWRR cannot issue. After the EWRR is issued, the registrar does nothing else (unless other applications are made to the court).


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25.4.2. Registry procedure - Enforcement warrant for redirection of earnings

The following documents are required to be filed:

• Application Form 9 - original

• Statement supporting application Form 74 – original

• Enforcement Warrant – Redirection of earnings Form 78 – original + 3 copies

o Original filed o The copies are returned to the EC to arrange service as:

Copy that is signed and sealed for service on EDE (i.e. another original) Copy for service on ED (stamped ‘copy’) and not signed Copy to EC (stamped ‘copy’) and not signed

• Notice to Employer Form 79 – original + 2 copies

o Original filed o Copy to EDE (basically a second original) o Copy to EC

• Affidavit of service of warrant Form 46 – 1 original for each of ED and EDE (if required later)

The following additional documents are required to be served on the EDE:

• Notice that debtor not employed Form 80

If the ED ceases employment after service of the warrant, the EDE files and serves:

• Notice of cessation of employment Form 81

The EDE should be served with a sealed and signed ‘original’ copy of the EWRE and Notice to Employer as they may not act on a copy.

If the EC requires the EO to serve the warrants the relevant serve fee and the warrant is forwarded to the EO by the EC. The service fee is not noted in the EOPB.

The basic procedures outlined for a regular redirection [@ 25.3.2] are followed with suitable amendments. The application and supporting documents must outline:

• If the ED is employed and employers name and address • If the ED earns a sufficient amount to satisfy the warrant and pay other expenses • If the warrant would impose unreasonable hardship

In deciding to issue the warrant, the registrar may order an enforcement hearing (of the ED) or order that the EDE supply a signed statement detailing the earnings of the ED (earnings statement – no set form, a letter from the employer on employers letterhead is sufficient) (Rule 857).

25.4.3. How to calculate the amount to be deducted from wages

The statement supporting the application must outline all details for the registrar to be satisfied that the ED can afford to have the amount of the warrant deducted and still meet their normal living expenses.

The administration charge mentioned on the warrant is currently $3-00 (Schedule 4 – Dictionary). This amount will vary by practice direction issued by the Chief Magistrate. This amount may be written into the warrant.

The amount to be paid to the enforcement creditor (end amount) must also be calculated by the registrar – the amount cannot be left blank. This amount is the same amount that must be deducted by the employer and paid to the EC each payday.

RTI 140310 Page 291


The total amount that the EDE must deduct under the warrant must also be endorsed – this is the amount of the judgment plus costs (the warrant cannot issue with a blank amount). The method of calculating deductions is to look at the total amount owing under the judgment including all costs in issuing the warrant. The warrant is issued for 1 year or lesser time as applied for. The statement will inform you how the ED is paid – weekly, fortnightly, monthly etc. Simply divide the total amount of the warrant by the number of paydays in the warrant to calculate the amount to be deducted each payday {OR to ascertain the date on which the warrant will end, if less than 1 year, calculate how much the ED can afford to have deducted from each pay and divide the amount owing by this amount – this will give the number of paydays the warrant should be issued for}.

25.4.4. What happens if the EDE does not pay

If the EDE does not deduct the amounts ordered from the wages of the ED (and does not file and serve the notice of Forms 80 or 81), the EC then files the affidavits of service of the ED and the EDE. This proves that the warrant was served on the correct parties.

The EC then makes an application within a proceedings on notice [@ 2.4.22] (Form 9 application supported by Form 46 affidavit and Form 59 order), files the documents and serves the ED and EDE. This is an application for contempt and is made to the Magistrate under Rule 926. The court may grant judgment against the EDE in favour of the EC. This judgment is enforceable the same as any other judgment with the EDE named as the enforcement debtor. An EC should always be referred to seek legal advice before commencing this sort of application.

25.4.5. What forms are served with the EWRE

The EDE must also be served with Forms 79 and 80 when a copy of the warrant is served. Form 81 is used when employment ceased after being served and before the expiration of the warrant.

The ED is served with a copy of the warrant only. The EC is to receive a copy of the warrant. It is not served as the EC (or representative) is the applicant.

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25.4.5.1. Example - Enforcement Warrant - Redirection of Earnings [Form 78] 25.4.5.1. Example - Enforcement Warrant - Redirection of Earnings [Form 78]



Plaintiff: Thomas Croose and Nicole Croose Plaintiff: Thomas Croose and Nicole Croose

AND AND

Defendant: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business name – BN 000 000


Enforcement Creditor: Thomas Croose and Nicole Croose Enforcement Creditor: Thomas Croose and Nicole Croose Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 trading at Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 trading at Address: 30 King Street, Caboolture Address: 30 King Street, Caboolture Employer of Enforcement Debtor: Benjamin Enterprises Pty Ltd ACN 000 999 000 a registered company and

having its registered address at Employer of Enforcement Debtor: Benjamin Enterprises Pty Ltd ACN 000 999 000 a registered company and

having its registered address at Address: 133 Grange Road, The Grange in the State of Queensland Address: 133 Grange Road, The Grange in the State of Queensland

ENFORCEMENT WARRANT - REDIRECTION OF EARNINGS ENFORCEMENT WARRANT - REDIRECTION OF EARNINGS

AMOUNT OWING: $672-50AMOUNT OWING: $672-50The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding by the enforcement debtor is as follows:- The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding by the enforcement debtor is as follows:-

Judgment amount $645-00 Judgment amount $645-00 Less payments $ Less payments $ Plus interest $ Plus interest $ Plus costs $ 27-50 of previous proceedings Plus costs $ 27-50 of previous proceedings

Total owing $672-50 Total owing $672-50 ENFORCEMENT WARRANT ENFORCEMENT WARRANT An enforcement warrant is hereby issued authorising redirection to the enforcement creditor of particular earnings of the enforcement debtor Neil Parr from the above employer. An enforcement warrant is hereby issued authorising redirection to the enforcement creditor of particular earnings of the enforcement debtor Neil Parr from the above employer. The warrant contains the following conditions:- The warrant contains the following conditions:- a) That the employer deduct each pay period from the enforcement debtor’s earnings the amount specified below and

pay it to the enforcement creditor - a) That the employer deduct each pay period from the enforcement debtor’s earnings the amount specified below and

pay it to the enforcement creditor - Amount of earnings each pay period after tax $780-30 Amount of earnings each pay period after tax $780-30 Less amount determined by the Court for Less amount determined by the Court for necessary expenses and liabilities $750-30 necessary expenses and liabilities $750-30 Amount to be deducted each pay day $ 30-00 Amount to be deducted each pay day $ 30-00 Less administration charge $ 3-00 Less administration charge $ 3-00 Amount to be paid to enforcement creditor $ 27-00 Amount to be paid to enforcement creditor $ 27-00 b) payment of that amount must be made to the enforcement creditor at the address stated above. b) payment of that amount must be made to the enforcement creditor at the address stated above. c) This warrant expires on 26/10/2001c) This warrant expires on 26/10/2001d) The total amount that the employer must deduct under this warrant is $747-50 (24 deductions of $27-00 and one

deduction of $24-50 paid to the enforcement creditor and 25 deductions of $3-00 being a total administration charge of $75-00)

d) The total amount that the employer must deduct under this warrant is $747-50 (24 deductions of $27-00 and one deduction of $24-50 paid to the enforcement creditor and 25 deductions of $3-00 being a total administration charge of $75-00)

This enforcement warrant issued at 9.00am/pm on 27/10/2000.This enforcement warrant issued at 9.00am/pm on 27/10/2000. Enforcement warrant – redirection of earnings Enforcement warrant – redirection of earnings Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 78 Rule 858 Form 78 Rule 858




SealBris


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25.4.5.2. Example - Enforcement Warrant - Redirection of Earnings [back] 25.4.5.2. Example - Enforcement Warrant - Redirection of Earnings [back]

NOTICES TO EMPLOYER NOTICES TO EMPLOYER - A notice informing you of the effect of this order and your obligations should have been served on

you with this copy of the warrant. - A notice informing you of the effect of this order and your obligations should have been served on

you with this copy of the warrant. - A copy of the notice that you may use if the enforcement debtor is not employed by you should also

have been given to you. - A copy of the notice that you may use if the enforcement debtor is not employed by you should also

have been given to you. - An employer must not dismiss an employee, or otherwise prejudice an employee in his or her

employment, because an enforcement warrant authorising redirection of the employee’s earnings has been made. [Maximum penalty - 100 penalty units].

- An employer must not dismiss an employee, or otherwise prejudice an employee in his or her employment, because an enforcement warrant authorising redirection of the employee’s earnings has been made. [Maximum penalty - 100 penalty units].

NOTICES TO PARTIES NOTICES TO PARTIES - This form must be served on the enforcement debtor and the employer. - This form must be served on the enforcement debtor and the employer. - A notice in Form 79 and a copy of Form 80 must also be served on the enforcement debtor’s

employer. - A notice in Form 79 and a copy of Form 80 must also be served on the enforcement debtor’s

employer. - Either party may apply to the court to set aside, suspend or vary this enforcement warrant. - Either party may apply to the court to set aside, suspend or vary this enforcement warrant.


IM Registrar IM Registrar Registrar Magistrates Court Brisbane Registrar Magistrates Court Brisbane

Seal

Bris Dated: 27/10/2000 Dated: 27/10/2000

Note: This EWRE has issued against Neil Parr only as he is person employed by Benjamin Enterprises. The warrants has issued for $30-00 per week because the financial circumstances of Neil Parr as outlined in the Statement [@22.4.5.4] indicate that this is the amount in excess of living expenses (a larger amount may have been ordered to include the amount of his entertainment).

The amount of the warrant was calculated by deducting the administration fee ($3-00) from the amount ordered (i.e. $30 less $3-00) making an amount of $27-00. Therefore the EC will receive $27-00 each week – then dividing the amount of the judgment and costs etc ($672-50) by 27 – this made 24 deductions from earnings of $27 with the last deduction being $24-50 (i.e. ($27 x 24) + $24-50 = $672-50) – This means that the EC will receive 24 payments of $27-00 and 1 payment of $24-50 from the EDE (making a total of 25 payments). The EDE may charge an administration fee of $3-00 for each deduction (i.e. $3-00 x 25) – this is an amount of $75-00. Therefore the total amount of the warrant is the amount of the judgment and other costs plus the total amount of the deductions making a grand total of $747-50.

This amount is endorsed at (d) on the warrant and should always be clarified so the EDE, EC and ED know what deductions are to be made.

After the warrant issues, the registrar does nothing else except file other applications in relation to it as necessary.

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25.4.5.3. Example - Notice to Employer [Form 79]


REGISTRY: BrisbaneNUMBER: M 18001/00


AND


Enforcement Creditor: Thomas Croose and Nicole Croose Address: The Warehouse, Shed 15, Industrial Avenue, 147 Oxley Road, Brisbane

Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name BN 000 000 trading at

Address: 30 King Street, Caboolture

Employer of Enforcement Debtor: Benjamin Enterprises Pty Ltd ACN 000 999 000 a registered company and having its registered address at

Address: 133 Grange Road, The Grange in the State of Queensland

NOTICE TO EMPLOYER - You will have been served with an enforcement warrant redirecting earnings of the above

enforcement debtor and naming you as the employer of the enforcement debtor. - If you are not the enforcement debtor’s employer you must immediately give notice, in Form 80, to

the registrar and the enforcement creditor. - If you cease to be the enforcement debtor’s employer you must immediately give notice, in Form 81,

to the registrar and the enforcement creditor. - As the enforcement debtor’s employer you should note the following matters as to the effect of the

enforcement warrant and your obligations: - 1. This enforcement warrant does not come into force until the end of 7 days after the day on which the

order was served on you. 2. For each pay day while this warrant is in force, you-

(a) must deduct from the enforcement debtor’s earnings the amount specified in the warrant and pay it to the person specified in the warrant; and (b) may deduct from the enforcement debtor’s earnings the administration charge specified in the warrant and retain it as a contribution towards the administrative cost of making payments under the warrant; and

(c) must give the enforcement debtor a notice detailing the deductions. However in applying Note 2 (a) to the last deduction you must deduct the amount, being no more than the amount specified in the warrant for deduction each pay day, that results in the total amount deducted by you being the total amount for deduction specified in the warrant (See - “amount owing”) A deduction paid or retained by you under the warrant is a valid discharge as between you and the enforcement debtor, to the extent of the deduction of your liability to pay earnings. 3. This warrant ceases to have effect -

(a) on being set aside; or (b) unless the court orders otherwise, on the making of another order for the enforcement of the money order; or (c) on expiry according to its conditions.

4. If a warrant ceases to have effect, the enforcement debtor’s employer does not incur any liability by treating the warrant as still in force at any time before the end of 7 days after the day on which a copy of a following order was served on the employer -

(a) an order discharging the enforcement warrant; or (b) another order for the enforcement of the judgment. 5. If there are 2 or more enforcement warrants in force authorising redirection by you of the enforcement

debtor’s earnings, you must comply with the warrants according to the respective dates on which they

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were served on you and disregard a warrant served later in time until a warrant served earlier in time ceases to have effect.

6. If an enforcement warrant is varied, it continues to have priority according to the date the original enforcement warrant was served.

6. If an enforcement warrant is varied, it continues to have priority according to the date the original enforcement warrant was served.

were served on you and disregard a warrant served later in time until a warrant served earlier in time ceases to have effect.

7. (a)You may apply to the court for directions and the court may make an order or give the directions it considers appropriate.

7. (a)You may apply to the court for directions and the court may make an order or give the directions it considers appropriate. (b) The court may, for example, decide whether payments to the enforcement debtor of a particular class or description specified in the application are earnings. (b) The court may, for example, decide whether payments to the enforcement debtor of a particular class or description specified in the application are earnings. (c)While that application or any appeal from a decision on it is pending, you will not incur any liability for failing to comply with the warrant with respect to that class or description of payments. (c)While that application or any appeal from a decision on it is pending, you will not incur any liability for failing to comply with the warrant with respect to that class or description of payments.

8. An employer must not dismiss an employee, or otherwise prejudice an employee in his or her employment, because an enforcement warrant authorising redirection of the employee’s earnings has been made. Maximum penalty - 100 penalty units.

8. An employer must not dismiss an employee, or otherwise prejudice an employee in his or her employment, because an enforcement warrant authorising redirection of the employee’s earnings has been made. Maximum penalty - 100 penalty units.

9. Failure to comply with this warrant may be contempt of court and may entitle the enforcement creditor to obtain an order against you.

9. Failure to comply with this warrant may be contempt of court and may entitle the enforcement creditor to obtain an order against you.

SealBris


Dated: 27/10/2000 Dated: 27/10/2000 Notice employer – redirection of earnings Notice employer – redirection of earnings Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 79 Rule 859 Form 79 Rule 859



Note: The Notice to employer is a 2 page document and is prepared by the EC as 2 originals and 1 copy. An original is filed. The copy and second original is returned to the EC (the second original is served on the EDE by the EC).


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25.4.5.4. Example - Application for EWRE [Form 9] 25.4.5.4. Example - Application for EWRE [Form 9]




AND AND


APPLICATION FOR ENFORCEMENT WARRANT APPLICATION FOR ENFORCEMENT WARRANT (REDIRECTION OF EARNINGS) (REDIRECTION OF EARNINGS)

TAKE NOTICE that the plaintiff is applying to the court for the following order: TAKE NOTICE that the plaintiff is applying to the court for the following order: an enforcement warrant for redirection of earnings of $30-00 per week against the plaintiff Neil Parr’s employer, Benjamin Enterprises Pty Ltd at 133 Grange Road, The Grange in the State of Queensland and I am informed after conducting an enforcementhearing at Caboolture Magistrates Court on 19 October 2000 that BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 is the

eil Parr and that the said Neil Parr earns an amount of $780-30 net each week. The enforcement warrant redirection of d to satisfy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of

us costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 fee) making a total amount to be enforced of $672-50.

an enforcement warrant for redirection of earnings of $30-00 per week against the plaintiff Neil Parr’s employer, Benjamin Enterprises Pty Ltd at 133 Grange Road, The Grange in the State of Queensland and I am informed after conducting an enforcementhearing at Caboolture Magistrates Court on 19 October 2000 that BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 is the employer of Neil Parr and that the said Neil Parr earns an amount of $780-30 net each week. The enforcement warrant redirection of debts is required to satisfy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a total amount to be enforced of $672-50.

employer of Nuiredebts is req

$645-00 pl(service

This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pmThis application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm. Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm.


On the hearing of the application the applicant intends to rely on the following affidavit: On the hearing of the application the applicant intends to rely on the following affidavit: The statement of Thomas Croose is attached. The statement of Thomas Croose is attached.

SealBris


AND the Enforcement Warrant for redirection of earnings is attached hereto.AND the Enforcement Warrant for redirection of earnings is attached hereto. TomCroose TomCroose Signed: Signed: Description: Tom Croose for the plaintiffs Description: Tom Croose for the plaintiffs Dated: 20/10/2000Dated: 20/10/2000

Application for an enforcement warrant forApplication for an enforcement warrant forredirection of earnings redirection of earnings Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 858 Form 9 Rule 858



Note: The above example means that the judgment was granted at Brisbane on 1/9/2000, and EH at Caboolture on 19/10/200 (additional costs incurred) and from information obtained at the EH the EWRE of $30 per week has been applied for at Brisbane. Brisbane received the application by post (i.e. 9.00am) on 20/10/2000 and the Registrar determined the application on 27/10/2000 (the registrar could also have stated that it was determined on 20/10, however this would effectively reduce the amount of time to enforce the warrant as the warrant is issued for 12 months).

The wording of the application may be replaced with words similar to: ‘an order in the terms of the attached warrant’.


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25.4.5.5. Example - Statement Supporting Application for EWRE [Form 74] 25.4.5.5. Example - Statement Supporting Application for EWRE [Form 74]




AND AND


STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT STATEMENT SUPPORTING APPLICATION FOR ENFORCEMENT WARRANT (REDIRECTION OF EARNINGS) (REDIRECTION OF EARNINGS)

Enforcement Creditor: Tomas Croose and Nicole CrooseEnforcement Creditor: Tomas Croose and Nicole CrooseEnforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: 1. I am one of the enforcement creditors1. I am one of the enforcement creditors2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on

1/9/2000 for $645-00. 2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on

1/9/2000 for $645-00. 3. The date and amount of each payment made under the order are nil3. The date and amount of each payment made under the order are nil4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:





19/10/2000 that the defendant Neil Parr is employed by BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 of 133 Grange Road, The Grange in the State of Queensland and he receives wages in the amount of $780-30 net per week. I believe that a deduction of $30 per week in reduction of the amount

he judgment and costs totalling $672-50 from these wages will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendant is a single person and has living expenses per week of $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on 19/10/2000 that the defendant Neil Parr is employed by BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 of 133 Grange Road, The Grange in the State of Queensland and he receives wages in the amount of $780-30 net per week. I believe that a deduction of $30 per week in reduction of the amount of the judgment and costs totalling $672-50 from these wages will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendant is a single person and has living expenses per week of $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

of t


Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: TomCroose John Williamson TomCroose John Williamson Deponent Justice of the Peace Deponent Justice of the Peace NOTE NOTE This statement must be sworn not earlier than 2 business days before the date of the application for the

forcement warrant (R.817) This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817) en

Statement supporting application for enforcement Statement supporting application for enforcement warrant – redirection of earnings warrant – redirection of earnings Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 74 Rule 858 Form 74 Rule 858



SealBris


RTI 140310 Page 298

The ED is described as Neil Parr and Jennifer Par – this is because judgment has been obtained against both of them (jointly and severally) – the EWRE has been requested against Neil Parr only as he is person employed by the EDE – the Statement must have sufficient financial information about the defendants for the registrar to make a decision about granting the EWRE.


25.4.5.6. Notice that Debtor not Employee [Form 80] 25.4.5.6. Notice that Debtor not Employee [Form 80]


REGISTRY: REGISTRY: NUMBER: M NUMBER: M Plaintiff: Plaintiff:

AND AND


NOTICE THAT DEBTOR NOT EMPLOYEE NOTICE THAT DEBTOR NOT EMPLOYEE Enforcement Creditor: (name) Enforcement Creditor: (name) Enforcement Debtor: (name) Enforcement Debtor: (name) TO: The Registrar TO: The Registrar Magistrates Court (place and address) Magistrates Court (place and address) AND TO: Enforcement Creditor AND TO: Enforcement Creditor name and address name and address An enforcement warrant for redirection of earnings has been served on name An enforcement warrant for redirection of earnings has been served on name who is specified as the enforcement debtor’s employer. who is specified as the enforcement debtor’s employer. I give you notice that (name) is not the employer of the enforcement debtor because:- I give you notice that (name) is not the employer of the enforcement debtor because:-

(name) has never been the enforcement debtor’s employer; or (name) has never been the enforcement debtor’s employer; or (name) was the enforcement debtor’s employer and such employment ceased on / / . (name) was the enforcement debtor’s employer and such employment ceased on / / .

Signed: Signed: Position: Position: Company/Firm Name: Company/Firm Name: Dated: Dated:

Notice that debtor not employee Notice that debtor not employee Filed on behalf of the employer Filed on behalf of the employer [Form 80] Rule 865(2) [Form 80] Rule 865(2)

(Name & address for service, telephone number & fax number of solicitor or person filing document) (Name & address for service, telephone number & fax number of solicitor or person filing document)


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25.4.5.7. Notice of Cessation of Employment [Form 81]


REGISTRY: NUMBER: M Plaintiff:

AND

Defendant:

NOTICE OF CESSATION OF EMPLOYMENT

Enforcement Creditor: (name) Enforcement Debtor: (name)

TO: The Registrar Magistrates Court AND TO: Enforcement Creditor name and address

An enforcement warrant for redirection of earnings has been served on name the enforcement debtor’s employer, on / / .

I give you notice that (name) ceased to be the enforcement debtor’s employer on / / ,by reason of: (e.g.. voluntary resignation, retrenchment etc)

Signed:Position:Company/Firm Name: Dated:

Notice of cessation of employment Filed on behalf of the employer [Form 81] Rule 866

Name, address for service, telephone number and fax number of solicitor or party filing document

25.4.6. Ordering an Enforcement hearing and/or earnings statement (Rule 857)

If the Registrar is not satisfied from the information contained in the application and the EC has not conducted an Enforcement Hearing [@ 23], the Registrar may order:

• An enforcement hearing; and/or • A person who owes the ED earnings to give to the court a signed statement of earnings.

The required forms for the Order for the enforcement hearing are:

• Enforcement Hearing Summons – Form 70 – original + 2 copies

o Original filed o Copy served on ED o Copy to EC

• Affidavit of Service – Form 46 – original only

• Statement of Financial Position – Form 71 – original only

The EC prepares the EHS documents and files them. The Registrar inserts a suitable date on the summons (if not part of the Order). The EC arranges service of the Order, Summons and Form 71 on the ED. After service the affidavit of service is filed. When the EH is conducted or the Form 71

RTI 140310 Page 300


is satisfactorily completed and returned, the Registrar can then further consider the application for the redirection of earnings.

The required forms for the Order for the Earnings Statement are:

• Order – Form 59 – original + 2 copies

o Original filed o Copy to ED o Copy to EC – free certified duplicate copy

• Earnings Statement – original + 2 copy

o Original filed o Original copy to EDE o Copy to EC

• Affidavit of service – Form 46 - original

The Registrar prepares the Order and forwards two copies to the EC. The EC prepares the Earnings Statement and serves it and a copy of the order on the EDE. After service, the affidavit of service is filed.

The Registrar may prepare and serve all documentation on the parties by post or fax at their relevant address (it is more appropriate if the EC prepares the documents and arranges service).

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25.4.6.1. Order for Earnings Statement [Form 59]


REGISTRY:NUMBER: M

Plaintiff:

AND

Defendant:

Enforcement Creditor: Address:

Enforcement Debtor: Address

Employer of enforcement debtor: Address

ORDER FOR EARNINGS STATEMENT

Before: Registrar, Magistrates Court,...........................

Date: / /

Initiating Document: Claim filed on / / and an application within a proceedings for an Enforcement Warrant – Redirection of Earnings filed on / / .

THE ORDER OF THE COURT IS THAT:-

It has been arrived by Affidavit that you are the employer of.........................

In accordance with Rule 857(b) of the Uniform Civil Procedure Rules 1999, the Court has ordered that you complete and sign the attached Earnings Statement showing the statement of details of the earnings owing to ............................................, the Enforcement Debtor.

This Statement must be returned within 24 hours (or as otherwise required) of the service of this Order upon you.

It will be sufficient for such statement to be returned by facsimile to this Registry on facsimile no.: ...............................

Registrar (signature and seal) Place: (include, street address and telephone no.)

TO:

Order for Earnings Statement Filed on behalf of the Plaintiff [Form 59) ] Rule 857(b)


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25.4.6.2. Earnings Statement form


REGISTRY: NUMBER: M Enforcement Creditor:

Enforcement Debtor:

Employer of Enforcement Debtor:

EARNINGS STATEMENT

I of (name of firm etc and address)

position held (payroll officer, etc)

certify that ................................ is an employee of ...................................... and that I have

this day examined their personnel records and ascertained the following payroll information:

Full name of employee:

Gross Pay: $ paid weekly / fortnightly / monthly

Less Tax $

Less Superannuation $

Less Other Deductions $ being for

$ being for

$ being for

$ being for

TOTAL average NETT $ paid weekly / fortnightly / monthly

I further ascertained the following relevant information in relation to the abovenamed employee:

Signed:(Date) / /

Earnings Statement Filed on behalf of the Plaintiff Rule 857(b)


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25.5. ORDER FOR PAYMENT OF ORDER DEBT BY INSTALMENTS (Rule 868 – 873)

The EC or ED may apply to the court (i.e. the home court registrar or registrar where an interstate judgment is filed) to have the amount of the judgment paid directly to the EC by the ED. Each payment is an instalment. The application is normally made by the ED although it may be made by the EC. Payment by instalments means that the ED pays a set amount directly to the EC each week, fortnight or month or as requested in the application and/or ordered by the court/registrar.

The application is most likely to be made following an EH [@ 23] although if the EC knows the financial situation of the ED, an EH may not be necessary, but the registrar granting the application must be convinced that the Instalment Order can issue – therefore the registrar may adjourn the application pending the outcome of an EH.

The application for the Instalment Order is made to the Registrar. An application may be made without notice to any party. If the application has been made without notice and the instalment order is made, the applicant (either the EC or ED) must serve the instalment order on the other party.

This application can be heard by the registrar, however your Magistrate may wish to hear them – discuss this application with your Magistrate to determine how they will be heard and determined.

If a party is served with an instalment order which was made not on notice, the party may apply to the court, on notice, to set aside or vary the instalment order. This application is to be set before the Magistrate as a Chamber Application. If this subsequent application is granted ex parte, it is the responsibility of the applicant of the latter application to serve the order on the original applicant

When deciding if the instalment order should issue, the registrar considers the following:

• Whether the ED is employed • The ED means of satisfying the order • Whether the debt and interest will be paid in a reasonable time • Necessary living expenses • Liabilities of ED • Issuing the warrant will not impose unreasonable hardship on ED • If the applicant is the ED, whether making the order would be consistent with the public

interest in enforcing money orders efficiently and expeditiously.

These issues are decided by the registrar/Magistrate from information contained in the Form 74 –Statement supporting application for enforcement warrant, and/or by information given at the hearing. If the application is made by the EC, a Form 71 Statement of financial position (i.e. instead of an EH or following an EH) should also be filed, however an enforcement hearing is not necessary before the court makes an instalment order.

No other enforcement warrant may issue while the instalment order is in force (Rule 870).

25.5.1. Instalment orders – Enforce beyond district

When a judgment is given in a different Magistrates Courts District to the district where the enforcement debtor resides or carries on business, the application for the Instalment Order is made to the court where the judgment has been given (i.e. the home court registrar or registrar where an interstate judgment is filed). The Instalment Order then issues and is served by the applicant on the other party.

If the applicant requires the EO to serve the order, they can arrange this themselves (the court that issues the warrant should advise them to forward the order with relevant fees directly to the EO and not through the Registry of the EO – the order and fees may be forwarded to the EO c/- the Magistrates Court where the EO is located).

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This means that if a judgment was given in say, Cairns, and the ED resides in Townsville, the order must issue out of Cairns for service in Townsville – the Townsville Magistrates Courts has nothing to do with the order.

This means that if a judgment was given in say, Cairns, and the ED resides in Townsville, the order must issue out of Cairns for service in Townsville – the Townsville Magistrates Courts has nothing to do with the order.

25.5.2. Registry procedure - Instalment orders – applications not on notice25.5.2. Registry procedure - Instalment orders – applications not on notice

The forms that are required are (application not on notice):

• Application - Form 9 - original

• Statement supporting application for a warrant - Form 74 – original

• Order authorising payment by instalments - Form 82 – original + 2 copies

o Original filed o Copies returned to the applicant to arrange service on the other party (should be

served with or receive a second original copy).

• Affidavit of service of order - Form 46 - original

The application and supporting documents must outline:

• If the ED is employed

• The ED means of satisfying the order

• If it can be satisfied within reasonable time

• If the ED earns a sufficient amount to satisfy the warrant and pay

o Living expenses of ED and ED’s dependants o Other liabilities

• If the warrant would impose unreasonable hardship

• If the applicant is the ED, the registrar must be satisfied the making of the order would be consistent with the public interest in enforcing orders efficiently and expeditiously.

The registrar must be satisfied that the ED can pay the instalments.

A copy of the Instalment Order is served on the other party. A copy is retained by the applicant. The other party should receive a second original copy as they may not treat a COPY as a court ordered document.

If the applicant requires the EO to serve the order, the applicant must forward the order to the EO with relevant service fees. The EOPB is not noted.

If the ED misses 2 consecutive payments, the instalment warrant ends and the EC may request further enforcement warrant action.

Note: The instalment order can only be issued by the court that gave judgment (i.e. the home court registrar or registrar where an interstate judgment is filed).


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25.5.3. Registry procedure - Instalment orders – applications on notice25.5.3. Registry procedure - Instalment orders – applications on notice

The forms that are required are (application on notice):

• Application - Form 9 – original + 2 copies

• Statement supporting application for an instalment order - Form 74 – original + 2 copies

• Order Authorising Payment by Instalments - Form 82 – original + 2 copies for:

o Original filed o Copy to ED and EC when issued.

• Affidavit of service of application and supporting documents - Form 46 - original

The application and supporting documents must outline:

• If the ED is employed

• The ED means of satisfying the order

• If it can be satisfied within reasonable time

• If the ED earns a sufficient amount to satisfy the warrant and pay

o Living expenses of ED and ED’s dependants o Other liabilities

• If the warrant would impose unreasonable hardship

• If the applicant is the ED, the registrar must be satisfied the making of the order would be consistent with the public interest in enforcing orders efficiently and expeditiously.

The registrar sets the application down for a hearing, normally on a call-over days allowing sufficient time for the other party to be served with the application and supporting documents.

The application is endorsed with the date and time for the hearing and both parties are served with a copy of the application and supporting documents.

At the hearing the registrar/magistrate must be satisfied that the ED can afford pay the instalments as requested. Both the ED and EC may give statements at the hearing either orally or in writing. The proceedings are not recorded although notes should be taken. The application may be granted even if the respondent to the application does not appear.

At the end of the hearing and if the application is granted, a copy of the instalment order is served on the EC and on the ED (the copies should be a second original copy as they may not treat a COPY as a court ordered document).

If the ED misses 2 consecutive payments, the instalment order ends and the EC may request further enforcement warrant action. They must state in their supporting affidavit when the last instalment was paid and that the debtor has failed to make two consecutive payments.

Served means posting to the address for service of the relevant party.

Note: The instalment order can only be issued by the court that gave judgment (i.e. the home court registrar or registrar where an interstate judgment is filed).

Note: In larger registries the application is determined by either the Registrar or Deputy Registrar without setting the hearing before a Magistrate. Check with your Registrar as to what procedures are to be followed in your particular registry.


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25.5.3.1. Example - Application for OAPI [Form 9] 25.5.3.1. Example - Application for OAPI [Form 9]


REGISTRY: Brisbane REGISTRY: Brisbane NUMBER: M 18001/00NUMBER: M 18001/00


AND AND


APPLICATION FOR ORDER AUTHORISING PAYMENT BY INSTALMENTS APPLICATION FOR ORDER AUTHORISING PAYMENT BY INSTALMENTS TAKE NOTICE that the plaintiff is applying to the court for the following order: TAKE NOTICE that the plaintiff is applying to the court for the following order: an order authorising payment by instalments of $30-00 per week for the defendant Neil Parr as I am informed after

ng an enforcement hearing at Caboolture Magistrates Court on 19 October 2000 that BENJAMIN RPRISES PTY LTD ACN 000 999 000 is the employer of Neil Parr and that the said Neil Parr earns an amount

$780-30 net each week. The order authorising payment by instalments is required to satisfy a money order and given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous

cement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a total amount to be enforced of $672-50.

an order authorising payment by instalments of $30-00 per week for the defendant Neil Parr as I am informed after conducting an enforcement hearing at Caboolture Magistrates Court on 19 October 2000 that BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 is the employer of Neil Parr and that the said Neil Parr earns an amount of $780-30 net each week. The order authorising payment by instalments is required to satisfy a money order and judgment given in the Magistrates Court at Brisbane on 1/9/2000in the amount of $645-00 plus costs of previous enforcement (Enforcement Hearing at Caboolture Magistrates Court on 19/10/2000) of $27-50 (service fee) making a total amount to be enforced of $672-50.

conductiENTEofjudgmenfor

ent

This application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pmThis application will be heard in the Magistrates Court at Brisbane on: 27/10/2000 at 9.00 am/pm Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm. Filed in the Brisbane Registry on 20/10/2000 at 9.00 am/pm.


On the hearing of the application the applicant intends to rely on the following affidavit: On the hearing of the application the applicant intends to rely on the following affidavit:

SealBris


The statement of Thomas Croose is attached. The statement of Thomas Croose is attached. AND the Order Authorising Payment by Instalments is attached hereto. AND the Order Authorising Payment by Instalments is attached hereto. TomCroose TomCroose Signed: Signed: Description: Tom Croose for the plaintiffs Description: Tom Croose for the plaintiffs Dated: 20/10/2000 Dated: 20/10/2000

Application for an order authorising payment by instalments Application for an order authorising payment by instalments Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 9 Rule 868 Form 9 Rule 868



Note: The above example means that the judgment was granted at Brisbane on 1/9/2000, and EH at Caboolture on 19/10/200 (additional costs incurred) and from information obtained at the EH the Order Authorising Payment by Instalments of $30 per week has been applied for at Brisbane. Brisbane received the application by post (i.e. 9.00am) on 20/10/2000 and the Registrar determined the application on 27/10/2000 (the registrar could also have stated that it was determined on 20/10, however this would effectively reduce the amount of time to enforce the warrant as the warrant is issued for 12 months).

The wording of the application may be replaced with words similar to: ‘an order in the terms of the attached Order.

The application (and statement below) is suitably amended depending on who makes the application.


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25.5.3.2. Example - Statement Supporting Application for OAPI [Form 74] 25.5.3.2. Example - Statement Supporting Application for OAPI [Form 74]




AND AND


STATEMENT SUPPORTING APPLICATION FOR ORDER AUTHORISING PAYMENT BY INSTALMENTS

STATEMENT SUPPORTING APPLICATION FOR ORDER AUTHORISING PAYMENT BY INSTALMENTS

Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Creditor: Tomas Croose and Nicole Croose Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: Thomas Croose of 147 Oxley Road, Brisbane, Manager states on oath: 1. I am one of the enforcement creditors1. I am one of the enforcement creditors2. The enforcement creditor obtained a money order against the enforcement debtor in the Court on


1/9/2000 for $645-00.3. The date and amount of each payment made under the order are nil3. The date and amount of each payment made under the order are nil4. The costs incurred in previous enforcement proceedings in relation to the order debt are as follows:





19/10/2000 that the defendant Neil Parr is employed by BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 of 133 Grange Road, The Grange in the State of Queensland and he receives wages in the amount of $780-30 net per week. I believe that instalments of $30 per week in reduction of the amount

he judgment and costs totalling $672-50 will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendant is a single person and has living expenses per week of $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

7. I have been informed by an enforcement hearing conducted at Caboolture Magistrates Court on 19/10/2000 that the defendant Neil Parr is employed by BENJAMIN ENTERPRISES PTY LTD ACN 000 999 000 of 133 Grange Road, The Grange in the State of Queensland and he receives wages in the amount of $780-30 net per week. I believe that instalments of $30 per week in reduction of the amount of the judgment and costs totalling $672-50 will not cause the defendants any hardship taking into account the defendants living expenses and known liabilities. I have attached a copy of the Statement of Financial Position sworn on the day of the enforcement hearing on 19/10/2000 wherein it states that the defendant is a single person and has living expenses per week of $350-00 with liabilities of $200-00 per week and entertainment of $50-00 per week and medical expenses of $100-00 per week and school fees of $50-00 per week, leaving a balance of $30-30 per week.

of t


Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: Sworn by Thomas Croose at Brisbane on 20/10/2000 in the presence of: TomCroose John WilliamsonTomCroose John WilliamsonDeponent Justice of the Peace Deponent Justice of the Peace NOTE NOTE This statement must be sworn not earlier than 2 business days before the date of the application for the

forcement warrant (R.817) This statement must be sworn not earlier than 2 business days before the date of the application for the enforcement warrant (R.817) en

Statement supporting application for order authorising payment by instalments Statement supporting application for order authorising payment by instalments Filed on behalf of the plaintiff Filed on behalf of the plaintiff Form 74 Rule 868 Form 74 Rule 868



SealBris


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25.5.3.3. Example - Statement of Financial Position [Form 71] 25.5.3.3. Example - Statement of Financial Position [Form 71]




AND AND

Defendant: Neil Parr and OrsDefendant: Neil Parr and Ors Enforcement Creditor: Tomas Croose and Nicole CrooseEnforcement Creditor: Tomas Croose and Nicole CrooseEnforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business Name

BN 000 000 Neil Parr of 30 King Street, Caboolture one of the proprietors of Parr Ender Bee Keepers states on oath: Neil Parr of 30 King Street, Caboolture one of the proprietors of Parr Ender Bee Keepers states on oath: 1. The information in this Statement of the above named enforcement debtor’s financial position and in any attachments within my personal knowledge is true. Where I have given an estimate in this statement, it is based on my

onal knowledge and is given in good faith. All other information given in this statement and any attachments is true est of my knowledge, information and belief.

1. The information in this Statement of the above named enforcement debtor’s financial position and in any attachments within my personal knowledge is true. Where I have given an estimate in this statement, it is based on my personal knowledge and is given in good faith. All other information given in this statement and any attachments is true to the best of my knowledge, information and belief. persto the b

2. The enforcement debtor has no income, property or financial resources other than as set out in this statement. 2. The enforcement debtor has no income, property or financial resources other than as set out in this statement. 3. Income $780-30 net per week 3. Income $780-30 net per week 3.1 Employment Income: 3.1 Employment Income:

- Occupation: Bee Keeper - Occupation: Bee Keeper - Name of employer/s: Benjamin Enterprises Pty Ltd - Name of employer/s: Benjamin Enterprises Pty Ltd - Address of employer/s: 133 Grange Road, The Grange, Queensland - Address of employer/s: 133 Grange Road, The Grange, Queensland

3.2 to 4.1 not completed 3.2 to 4.1 not completed 5. Liabilities (fully listed) Living expenses $350-00 5. Liabilities (fully listed) Living expenses $350-00 Vehicle etc $200-00 Vehicle etc $200-00 Entertainment $ 50-00 Entertainment $ 50-00

Medical $100-00 Medical $100-00 School fees $ 50-00 School fees $ 50-00

TOTAL WEEKLY EXPENSES $750-00 TOTAL WEEKLY EXPENSES $750-00 Sworn by Neil Parr at Caboolture on 19/10/2000 in the presence of: Sworn by Neil Parr at Caboolture on 19/10/2000 in the presence of: Neil Parr John WilliamsonNeil Parr John WilliamsonDeponent Justice of the Peace Deponent Justice of the Peace Statement of financial position Statement of financial position Filed on behalf of the defendant Filed on behalf of the defendant Form 71 Rule 809 Form 71 Rule 809




SEAL

CAB

Note: The application and statement were received by Brisbane M/C on 20/10/2000. The statement is signed on 20/10 and the application was determined by the court constituted by the Registrar on 27/10 – Therefore the statement is out of time (more than 2 days old); however, it is not the EC’s fault that the registry is behind and therefore the statement must be accepted (this 2 day rule must normally be applied, however it must be applied in relation to the circumstances – e.g. it may take more than 2 days for mail to be received at your registry, in which case the statement should be dated within 2 days of posting).

The ED is described as Neil Parr and Jennifer Parr – this is because judgment has been obtained against both of them (jointly and severally) – the EWI has been requested against Neil Parr only as he is person employed – the Statement must have sufficient financial information about the defendants for the registrar to make a decision about granting the EWI.


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25.5.3.4. Example - Order Authorising Payment by Instalments [Form 82] 25.5.3.4. Example - Order Authorising Payment by Instalments [Form 82]




AND AND


ORDER AUTHORISING PAYMENT BY INSTALMENTS ORDER AUTHORISING PAYMENT BY INSTALMENTS To Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 of 30 King Street, Caboolture Qld 4510 To Enforcement Debtor: Neil Parr and Jennifer Parr trading as Parr Ender Bee Keepers a registered Business

Name BN 000 000 of 30 King Street, Caboolture Qld 4510 To Enforcement Creditor: Tomas Croose and Nicole Croose To Enforcement Creditor: Tomas Croose and Nicole Croose AMOUNT OWING AMOUNT OWING The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding is as follows:- The enforcement creditor obtained a judgment on 1/9/2000 against the enforcement debtor. The amount outstanding is as follows:- Judgment amount $645-00 Judgment amount $645-00 Less payments $ Less payments $ Plus interest $ Plus interest $ Plus costs $ 27-00 of previous proceedings Plus costs $ 27-00 of previous proceedings

Total owing $672-50 Total owing $672-50 An order is hereby made authorising satisfaction of the order debt by instalment payments as follows:- An order is hereby made authorising satisfaction of the order debt by instalment payments as follows:- Amount: $ 30-00 (22 instalments of $30-00 and one instalment of $12-50) Amount: $ 30-00 (22 instalments of $30-00 and one instalment of $12-50) Payable:� weekly � fortnightly � monthly � other (specify) Payable:� weekly � fortnightly � monthly � other (specify) Commencing on: 1/11/2000 Commencing on: 1/11/2000 This order made at 9.00am/pm on 27/10/2000.This order made at 9.00am/pm on 27/10/2000.This warrant expires on: 26/10/2001.This warrant expires on: 26/10/2001. NOTICES TO PARTIES NOTICES TO PARTIES - Either party may apply to the court to set aside, suspend or vary this order - Either party may apply to the court to set aside, suspend or vary this order - Instalments are to be paid to the enforcement creditor at the address shown - Instalments are to be paid to the enforcement creditor at the address shown - If the enforcement debtor fails to make 2 consecutive payments the authorisation of instalment payments under

this order ends and steps may be taken for the enforcement of the total amount owing and unsatisfied costs - If the enforcement debtor fails to make 2 consecutive payments the authorisation of instalment payments under

this order ends and steps may be taken for the enforcement of the total amount owing and unsatisfied costs This order ceases to have effect – This order ceases to have effect – when set aside; or when set aside; or when the order debt has been satisfied; or when the order debt has been satisfied; or unless the court orders otherwise, when any other order for enforcement of the order debt is made. unless the court orders otherwise, when any other order for enforcement of the order debt is made.


Dated: 27/10/2000 Dated: 27/10/2000 Order authorising payment by instalments Order authorising payment by instalments Filed on behalf of the enforcement debtor Filed on behalf of the enforcement debtor [Form 82] Rule 868 [Form 82] Rule 868



SEALBRIS

Note: This is a multiple page document – to calculate income, assets, liabilities etc, the whole document must be read and studied.


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25.6. ISSUING MORE THAN ONE TYPE OF WARRANT 25.6. ISSUING MORE THAN ONE TYPE OF WARRANT Normally only one type of warrant may issue. Therefore if the ED or EC wants to make an application for an instalment order, any other warrant in force must be suspended by the court (i.e. the Magistrate).

Normally only one type of warrant may issue. Therefore if the ED or EC wants to make an application for an instalment order, any other warrant in force must be suspended by the court (i.e. the Magistrate). This only applies in relation to the same money order or judgment; i.e. the same file. Other warrants may issue against the same ED for different files and by different courts. This only applies in relation to the same money order or judgment; i.e. the same file. Other warrants may issue against the same ED for different files and by different courts. This is why the date and time the warrant was applied for is endorsed on the warrant. The earliest warrant must be completed before the next one can commence. This is why the date and time the warrant was applied for is endorsed on the warrant. The earliest warrant must be completed before the next one can commence. It is up to the ED (or in some cases, the EC) to make the application to have a previous enforcement warrant suspended or set aside. The application is an application within a proceeding on notice to the Magistrate [@ 2.4.22].

It is up to the ED (or in some cases, the EC) to make the application to have a previous enforcement warrant suspended or set aside. The application is an application within a proceeding on notice to the Magistrate [@ 2.4.22].

Note: An EW can only be issued by the court that gave judgment (i.e. the home court registrar or registrar where an interstate judgment is filed).


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26 MONEYS IN COURT (Rules 881 – 882)

Any money paid into court is paid in accordance with the Court Suitors Fund Act [@ 26.1]. The Cash Book Clerk normally has control of the fund and notes all payments, allocates interest and balances them monthly.

Any money paid into court must be by cash, bank cheque, postal money order or personal cheque. Credit Cards and EFTPOS cannot be used to pay money into court.

The money stays in the Suitors Fund until the court constituted by a Magistrate makes an order for its payment. An application within a proceeding on notice [@ 2.4.22] is made to the court (i.e. Magistrate).

Similarly the court, i.e. Magistrate, may also order a stop order preventing payment on application of a person who claims an interest (Rule 882).

The Forms are:

• Application – Form 9 – original + 1 copy for each other party • Supporting affidavit – Form 46 – original • Order – Form 59 – original + 1 copy for each other party

The application is filed in the court and a court date allocated. The application is returned to the applicant to arrange service on the other parties. The Magistrates makes an Order. The Order is filed. The Registrar checks the order filed and then returns service copies to the applicant for service on the other parties.

26.1. SUITORS FUND The courts suitors fund is used when moneys are paid into court (i.e. receipted at the registry and accompanied by a letter from the Defendant stating that this is money paid into court – there is no actual approved form for money paid into court but the party paying the money may make up a form which is acceptable).

Money may be paid into court for any reason but normally may occur when a defendant thinks that some or all money as claimed in the plaintiff's claim is owed, but the defendant wants a court to decide some issues.

Money paid into court can only be paid out by an order of the court (i.e. the Magistrate).

Any money paid into court is coded A4 (Justice Suitors Fund collections) and receipted into the QWIC financial account. Central Financing Facility (CFF) draws a cheque payable to Justice and remits the moneys into the Suitors Fund Account at Justice where it is administered by the Department of Justice and Attorney-General, Financial and Property Services (referred to as Justice Finance or Finance) (contact TSU for information on QWIC procedures). The money paid in attracts interest at various rates as advised by Finance.

26.1.1. Registrars Ledger

THIS PART OF THE SUITOR’S FUND IS CURRENTLY UNDER REVIEW

IF YOU REQUIRE INFORMATION ON THIS SUBJECT IN THE INTERIM PLEASE SEARCH MAGISTRATES COURTS MANUAL OF ACCOUNTING

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26.1.1.1. Example - Registrars Ledger*

REGISTRARS LEDGERSCHEDULE

Form 1 Court Funds Act 1973

Regulation 9(11)

In the Magistrates Court at: Caboolture Claim No. M 123/02

Plaintiff: Jacky Daniells

Defendant: Joe Bloggs

Receipt No. Date

Particulars or Cheque No. Amount Interest

rate % Interestamount Total

14/9/02 123456 $500.00 $500.0030/11/02 4% $5.0031/12/02 $505.0031/3/03 4.12% $5.2018/4/03 order by Magistrate to pay out amount paid into court18/4/03 Letter to Finance nil

*Note that the ledger will vary in some courts.

26.1.2. Paying money out of the Suitors Fund Account



26.1.3. Six monthly return – court suitors fund



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26.1.3.1. Example - Six Monthly Return – Court Suitors Fund* 26.1.3.1. Example - Six Monthly Return – Court Suitors Fund*

MAGISTRATES COURTS SUITORS FUND MAGISTRATES COURTS SUITORS FUND SIX MONTHLY RETURN AS AT: 31 December 2002MAGISTRATES COURT AT: Caboolture

Date paid into court

ReceiptNumber

ClaimNumber Plaintiff Defendan

t

Amountpaid into court

Interestrate

TotalInterest

14/9/02 123456 M123/02 Daniells Bloggs $500.00 4% $5.00

*Note that some returns may vary and Finance may require a new return.

26.1.4. How to calculate interest – court suitors fund – general rules



• Should you have any queries concerning the suitor fund, including current interest rates, contact Finance on 3239 6597.


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27 SERVICE AND ENFORCEMENT FEES

Service fees are the fees that may be claimed and paid to the bailiff or person serving documents in initiating proceedings (i.e. Claim, MDC, originating application) and other documents as required (e.g. serving a copy of an Enforcement Hearing Summons or an enforcement warrant).

Enforcement fees are fees that are paid only to bailiffs to enforce an enforcement warrant for seizure and sale of property or execute an enforcement hearing warrant. Note that only the bailiff can enforce or execute warrants and only the bailiff may be paid. Other types of enforcement warrants are not enforced, as such, but merely served on a relevant other party for that other party to act on.

To serve a document means to give a copy of the document to a person or other legal entity [@ 8].

To enforce an enforcement warrant means that the bailiff seizes or attempts to seize goods of the enforcement debtor to sell by auction [@ 25.1]. To execute an enforcement hearing warrant means that the bailiff arrests the enforcement debtor and brings them to court for an enforcement hearing, or otherwise arranges their appearance [@ Error! Reference source not found.].

27.1. CALCULATING SERVICE AND ENFORCEMENT FEES Bailiff fees are regulated and the fees are always under review. You can find the current fees in the “Uniform Civil Procedure (Fees) Regulation 2009”

(S) Standard Service Fee - per defendant or person served within 12km from registry (T) Travel Fee* – per kilometre per address over 12km from the registry (E) Enforcement - per address within 12km from registry (P) People served

*additional travel for service and enforcement is only calculated one way and does not include the return journey. Always ensure you have updated fees and costs.

27.1.1. Examples to calculate service fees

The following [@ 27.1.1 - 27.1.3] are examples of how to calculate various fees:

Example # FeeEx.1: serve one person at an address within 12km from your registry

standard service fee (S)

Ex 2: serve two or persons at an address within 12km from your registry

standard fee multiplied by number of people served i.e. (S x P)

Ex 3: serve one person at an address 30km from your registry (i.e. 18km additional travel)

standard fee plus the additional travel amount multiplied by 18 i.e. [S + (T x 18)]

Ex 4: serve two or more persons at the same address 30km from your registry (i.e. 18km additional travel)

standard fee multiplied by the number of people served plus one additional travel amount multiplied by 18 i.e. [(S x P) + (T x 18)]

Ex 5: serve two or more people at different addresses 30km from your registry (i.e. 18km additional travel for each person served)

standard fee plus the additional travel amount multiplied by 18 and this amount multiplied again by the number of people served [{S + (T x 18)} x P]

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#The fee can only be properly claimed if the fee was actually paid to the person serving the document and only the standard amount for the person and/or address served may be allowed at judgment or otherwise. This means that if a party paid a process server $80 to serve one defendant with a claim at an address within 12klm from the registry, only the standard fee, without additional travel, can be allowed at judgment.

27.1.2. Additional examples to calculate service fees

Example(claim filed in Brisbane)

Service fee allowed(only if actually paid to person serving the document)

Serve Joe Bloggs of Queen Street, Brisbane (2km from registry)

Standard fee of $33.00 is only allowed (if served by a private process server who charged the plaintiff $75.00 to serve the claim, only $33.00 is allowed)

Serve Joe Bloggs and Jane Bloggs of Queens Street Brisbane (2km from registry)

Standard fee of $33.00 multiplied by two i.e. $66.00 is only allowed (if served by a private process server who charged the plaintiff $150.00 to serve the claim, only $66.00 is allowed)

Serve James Bloggs of Brigalow (20km from the Chinchilla registry+)

Standard fee of $33.00 plus $18.40 (8km travel @ $2.30 per km) i.e. $51.40 (if served by a private process server who charged the plaintiff $125.00 to serve the claim, only the $51.40 is allowed)

Serve James Bloggs and Janet Bloggs of Brigalow (20km from the Chinchilla registry+)

Standard fee of $33.00 multiplied by two ($66.00) plus $18.40 (8km travel @ $2.30 per km) i.e. $84.40 (if served by a private process server who charged the plaintiff $210.00 to serve the claim, only the $84.40 is allowed)

Serve Jack Bloggs of Boyne Island (28km from the Gladstone registry+) and serve James Bloggs and Janet Bloggs of Brigalow (20km from the Chinchilla registry+) on the same claim

Fee for Jack: standard fee of $33.00 plus $36.80 (16km travel @ $2.30 per km) i.e. $69.80 PLUS the fee for James and Janet: standard fee of $33.00 multiplied by two ($66.00) plus $18.40 (8km travel @ $2.00 per km) i.e. $84.40 – total fee allowed $154.20 (if served by a private process server who charged the plaintiff $450.00 to serve the claim, only the $154.20 is allowed)

+ The distance from registries was obtained from the State wide Service and Execution Fees List available on JAGNET.

27.1.3. Examples to calculate enforcement and execution fees

Example FeeEnforcement against one person within 12km from your registry

Standard enforcement fee (E)

Enforcement against two or more persons within 12km from your registry

Standard enforcement fee (E)

Enforcement against one person at an address 30km from your registry

Standard enforcement fee plus travel amount multiplied by 18 i.e. [E + (T X 18)]

Enforcement against two or more people at the same address 30km from your registry

Standard enforce fee plus travel amount multiplied by 18 is [E + (T X 18)]

Enforcement against one or more people at different addresses

Plaintiff must choose one address and/or person – the fee is calculated for that address

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27.2. RECORDING OF ENFORCEMENT FEES AND NOTING BAILIFF CORRESPONDENCE

As at 1 January 2002, only enforcement and execution fees are receipted on QWIC and recorded in the Bailiffs Process Book (BPB) by the civil clerk. Any additional travel for enforcement or execution is also recorded in the BPB, as required [@ 28].

All service fees and any additional travel, if required, are not recorded in the BPB. Service documents and fees are forwarded directly to the bailiff by the party requiring the document served.

The registry does not collect or receipt service fees or deal with service copies of documents. This means that the party deals directly with the bailiff or police in relation to paying service fees or inquiring as to service and receiving affidavits of service.

27.3. DOCUMENTS AND CORRESPONDENCE RECEIVED ON BEHALF OF THE BAILIFF

Parties requiring documents served must deal directly with the bailiff or police, however for local convenience and maintenance of client service the registry may act as a collection point for the bailiff.

The registry must therefore have a relatively secure pigeon hole, tray or the like to keep correspondence for the bailiff. All correspondence must be stamped with the date of receipt, recorded by the registrar and acknowledged by the bailiff as received [@ 27.3.1]. The following guidelines must be maintained*:

1. Only sealed envelopes addressed to your bailiff and endorsed care of the registry address are to be accepted either over the counter or by post; and

2. Parties must be instructed to make cheques and postal money orders payable to the bailiff’s name or as advised by your bailiff; and

3. Service fees must not and can not be paid by cash via the registry; and 4. All sealed envelopes, addressed to the bailiff, must be accounted for; and 5. All sealed enveloped, addressed to the bailiff, must be delivered to the bailiff in an non-

tampered with condition; and 6. Envelopes for other bailiffs cannot be accepted – the persons must be instructed to post the

envelope direct to the relevant bailiff at their preferred address [@ 27.5].

*note that any breach of these guidelines must be reported to Internal Audit through your Area Manager and disciplinary action may follow.

27.3.1. Bailiffs Correspondence Register (BCR)

A book, referred to as the Bailiffs Correspondence Register, must be maintained to record envelopes received on behalf of your bailiff. This is simply a ruled A4 or similar exercise book (or a ring binder containing numbered pages of computer generated pages) with columns as:

BAILIFFS CORRESPONDENCE REGISTER Page No. Date received and initials of clerk

Received from Date collected by bailiff

Bailiff signature

All pages of the book must be sequentially numbered and kept for audit purposes.

As sealed envelopes are received they are date stamped and their known particulars are immediately written in the BCR. The envelope is then placed in the bailiff’s drawer. The bailiff

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collects the envelope on their next visit to the registry and acknowledges receipt by dating and signing the BCR against each relevant entry. collects the envelope on their next visit to the registry and acknowledges receipt by dating and signing the BCR against each relevant entry.

27.4. INQUIRIES REGARDING SERVICE AND ENFORCEMENT AND EXECUTION 27.4. INQUIRIES REGARDING SERVICE AND ENFORCEMENT AND EXECUTION Registrars and staff are to assist their bailiff as much as possible, however you should remember that the bailiff is the agent of the party requiring the document to be served. Therefore any person inquiring about service must be instructed to contact the bailiff direct.

Registrars and staff are to assist their bailiff as much as possible, however you should remember that the bailiff is the agent of the party requiring the document to be served. Therefore any person inquiring about service must be instructed to contact the bailiff direct. Inquiries regarding execution, enforcement and payment of an enforcement warrant may be made to the registry. The registry then contacts the bailiff and advises the EC as necessary. Inquiries regarding execution, enforcement and payment of an enforcement warrant may be made to the registry. The registry then contacts the bailiff and advises the EC as necessary. The addresses of both bailiff websites [@ 27.5] are to be supplied to a party requiring a document to be served. The client must then deal directly with the bailiff. The addresses of both bailiff websites [@

27.5] are to be supplied to a party requiring a document to be served. The client must then deal directly with the bailiff.

Private process servers may also be available to serve documents. Parties requiring a private process server are to be advised to search the Yellow Pages of the local telephone book. Registrars must not recommend any private process server. The party requiring the document served must decide if they want the bailiff or a private process server to serve their document.

Private process servers may also be available to serve documents. Parties requiring a private process server are to be advised to search the Yellow Pages of the local telephone book. Registrars must not recommend any private process server. The party requiring the document served must decide if they want the bailiff or a private process server to serve their document.

27.5. LIST OF BAILIFFS NAMES, ADDRESS AND CONTACT DETAILS FOR SERVICE

27.5. LIST OF BAILIFFS NAMES, ADDRESS AND CONTACT DETAILS FOR SERVICE

Check either of the following two websites, both of which are operated by Queensland Bailiffs: Check either of the following two websites, both of which are operated by Queensland Bailiffs: http://www.bailiff-sheriffaustralia.com.au/main.phphttp://www.bailiff-sheriffaustralia.com.au/main.php

Or

http://www.bailiff.com.au


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28 BAILIFFS PROCESS BOOK (BPB) 28 BAILIFFS PROCESS BOOK (BPB)

The Uniform Civil Procedures Rules 1999 refer to an Enforcement Officer enforcing enforcement orders. The Magistrates Courts Act 1921 at Section 17 allows for the Magistrates Court to appoint bailiffs and for bailiffs to appoint persons to assist them. The Enforcement Officer (EO) is the appointed Bailiff of a Magistrates Court.

The Uniform Civil Procedures Rules 1999 refer to an Enforcement Officer enforcing enforcement orders. The Magistrates Courts Act 1921 at Section 17 allows for the Magistrates Court to appoint bailiffs and for bailiffs to appoint persons to assist them. The Enforcement Officer (EO) is the appointed Bailiff of a Magistrates Court. The Bailiffs Process Book (BPB) and is the 'register' of all Bailiffs collections for Enforcement Warrants for Seizure and Sale of Property (EWSSP) and Enforcement Hearing Warrants (EHW). The BPB is used to record:

The Bailiffs Process Book (BPB) and is the 'register' of all Bailiffs collections for Enforcement Warrants for Seizure and Sale of Property (EWSSP) and Enforcement Hearing Warrants (EHW). The BPB is used to record:

• EWSSP and EHW received at your registry for enforcement by your EO; • EWSSP and EHW received at your registry for enforcement by your EO; • Warrants that have been enforced; • Warrants that have been enforced; • Warrants that have not been enforced; • Warrants that have not been enforced; • Payments made to the bailiff; • Payments made to the bailiff; • Requests for additional enforcement and/or travel fees. • Requests for additional enforcement and/or travel fees.

The BPB is a screw binder containing loose sheets each headed 'Bailiff's Process Sheet'. The BPB is a screw binder containing loose sheets each headed 'Bailiff's Process Sheet'. The BPB forms part of the overall office accounting procedures and is subject to audit. The BPB forms part of the overall office accounting procedures and is subject to audit.

28.1. NOTING THE BAILIFFS PROCESS BOOK 28.1. NOTING THE BAILIFFS PROCESS BOOK The BPB is noted daily for each amount received for execution of a warrant. All entries must legible, neat and tidy and written in (preferably) blue ink.The BPB is noted daily for each amount received for execution of a warrant. All entries must legible, neat and tidy and written in (preferably) blue ink. Any amendments to entries must have a single line drawn through it and the correct entry written above. There must be no white-outs or obliterated entries. All amendments must be able to be explained or accounted for to the Registrar and Internal Audit.

Any amendments to entries must have a single line drawn through it and the correct entry written above. There must be no white-outs or obliterated entries. All amendments must be able to be explained or accounted for to the Registrar and Internal Audit. Each sheet is divided in numerous columns and rows. Each row is used to note one exclusive warrant.Each sheet is divided in numerous columns and rows. Each row is used to note one exclusive warrant. Every amount in the BPB must be in receipt number order for easy location. Every amount in the BPB must be in receipt number order for easy location. Separate rows must be used for each entry. If one fee is relevant to multiple entries, the individual amounts are written on separate rows and bracketed to indicate they refer to the same warrant. Separate rows must be used for each entry. If one fee is relevant to multiple entries, the individual amounts are written on separate rows and bracketed to indicate they refer to the same warrant.

Bailiff’s Process Book No. 1 (BRISBANE USE ONLY) Bailiff’s Process Book No. 1 (BRISBANE USE ONLY)

Date of Receiptof Issue


No. of ClaimNo. of Claim

Court of IssueCourt of Issue

EnforcementCreditorEnforcementCreditor

EnforcementDebtorEnforcementDebtor

ReceiptNumberReceiptNumber

BailiffFees Paid

BailiffFees Paid

Initialsacknow. Receipt-bailiff


Initialsacknow. Receipt-clerk


Result Result

14/09/05 145/05 Petrie Smith D Jones R 0001 47 00 Bailiff Clerk N/B20/10/05

QWIC Authorisation Amount Paid Date

Paid Done OfficerInitials

AmountCarriedForward

47 00 30/10/05 Registrar


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Bailiff’s Process Book No. 2 Bailiff’s Process Book No. 2



No. of ClaimNo. of Claim

Court of IssueCourt of Issue

EnforcementCreditorEnforcementCreditor

EnforcementDebtorEnforcementDebtor

ReceiptNumberReceiptNumber

BailiffFees Paid

BailiffFees Paid





Result Result


Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec C/F C/F C/F C/F C/F C/F C/F C/F C/F 47.00

The columns above represent a warrant that has been received in, has been executed by the Bailiff and subsequently paid via QWIC in October.

28.2. NOTING THE BPB WHEN WARRANT RETURNED BY EO As warrants are enforced or executed (or attempted), the results are noted in the results column. Then write the amount as written in the Bailiff’s Fees Paid column in the column of the month corresponding to the month of completion.

The 'Result' column is noted as follows, as the case may be:

• E / / the warrant was enforced by the Bailiff on a certain date (Enforced). • L/U / / the warrant was not enforced on a certain date and the Bailiff could not

obtain a new address (Left address Unknown) (the Bailiff’s report to the registrar will state that the ED has left the address and no new address could be obtained).

• L/K / / the warrant was not enforced on a certain date and the Bailiff ascertained a new address (Left address Known) (the Bailiff’s report to the registrar will state the new address).

• N/B / / the warrant was not enforced as the Bailiff returned it 'Nulla Bona' with a report dated on a certain date - i.e. the bailiff could find no goods to levy (Nulla Bona).

Note: If a warrant is not finalised by the end of the current month, it must be carried forward to the next month.

28.3. ADDITIONAL TRAVEL FEES Additional travel fees refer to extra fees required by the Bailiff when serving documents. These fees are no longer collected by the registries. Bailiffs are required to contact the plaintiff themselves and advise them of any additional fees required.

28.4. USING THE BPB Just by glancing at all entries along a row you can ascertain if a particular warrant has been enforced or otherwise and what fees have been paid.

Place a ruler under the relevant line to ensure you are reading the correct entry.

28.5. CHECKING COLLECTIONS IN THE QWIC BAILIFFS POOL AGAINST ENTRIES

As bailiff collections are receipted, QWIC inputs the amount in the Bailiffs Pool. Receipting and accessing the Bailiffs Pool is in accordance with QWIC instructions. Any problems must be referred to the Training Support Unit (TSU phone 3239 6537) or email TSU.


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The cashier must endorse every warrant received with the date, receipt number and amount of the receipt in the bottom left hand corner in a position above the court seal. The civil clerk can then sort each warrant into receipt number order and note the BPB. Daily bailiff fees are then checked against total daily amounts noted in the BPB and the QWIC daily dissection reports (excluding amounts transferred from other courts [@ 28.5.1]). The total daily amount collected plus amount transferred in must equal the total daily amount written into the BPB.

These collections will be all warrants requiring the attention of your Bailiff.

Checking the daily total is simply a matter of totalling the amounts for enforcement received for that day, as written in the BPB, and making sure the total agrees with the QWIC bailiff pool collections and transfers-in for the same day [@ 28.5.1].

The civil clerk should work closely with the financial management clerk (i.e. the Cash Book Clerk) in this daily check. The Cash Book Clerk must also advise the Civil Clerk of any transfer that may affect the QWIC Bailiff Pool and warrants written into the BPB.

28.5.1. Transferring a warrant to another court

If the warrant is to be enforced in another district, proceed as follows:

• Process warrant; • Receipt fees ensuring full particulars of the parties and warrant are included; • Obtain a copy of the receipt (QWIC instructions, refer any problems to TSU); • Endorse date, receipt and amount on bottom left of the warrant; • Transfer fee to other courts Bailiff Pool [@ 28.5.2];• Attach a copy of the receipt on the warrant; • Forward the warrant to the receiving registrar.

The receiving registrar can then easily identify the warrant as being received and note it in their BPB.

28.5.2. QWIC bailiff pool transfers from one court to another court

Transfers from one Bailiff Pool to another court Bailiff Pool will be necessary when a EWSSP is filed at one Queensland registry for enforcement in another. The fee is transferred through QWIC in accordance with QWIC instructions (any problems contact the TSU):From the QWIC Main Menu click on Financials/Transfer Funds/select Bailiff Pool and click search – click on the line of the receipt to be transferred (the line should be highlighted blue) – click OK – this takes you back into a window that details the particulars of the selected receipt – click on transfer button which brings up transfer funds window – choose the court and the amount to be transferred- click OK which brings it back to the identify account window – click OK and it displays the transfer details window and describes the transfer details – click OK and QWIC transfers the amount out of your Bailiff Pool to the other court’s Bailiff Pool (a report is printed).

28.5.3. Receiving a warrant transferred from another registrar

The amount is immediately transferred into the other court’s Bailiff Pool, however the actual warrant must be mailed – therefore there will be a delay of a number of days from recording the amount in your Bailiffs Pool to receiving the warrant. This will mean that the actual warrants received may not reflect the actual number of warrants that should be entered into the BPB for the particular day.

When the daily check of the Bailiffs Pool identifies a warrant is coming from another registrar, the civil clerk competes the BPB (in receipt number order) with the known particulars of the relevant warrant.

This means the Civil Clerk must check the Bailiff Pool daily to ensure all daily amounts are written into the BPB. Amounts that have been transferred into your Bailiff Pool can be written into the BPB

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with the full details of the warrant entered when the warrant is received. This will ensure the BPB fully balances against the Bailiff Pool.

The Civil Clerk can then identify missing warrants from a particular court by checking the BPB for incomplete entries. Amounts transferred into your Bailiff Pool will have all particulars necessary to identify the matter (e.g. receipt number and original court) by using the scroll bar and scrolling across the relevant receipt particulars.

If the warrant is not received within a reasonable time, the issuing registrar must be contacted and the warrant located and received by the receiving registrar.

28.6. BALANCING THE BPB AGAINST THE BAILIFFS POOL The bailiff is normally paid monthly (or other times as required) by cheque authorised by the financial management clerk from the Bailiffs Pool through the Central Finance Facility (CFF). The amount paid to the bailiff is the total of all warrants that have been finalised by the Bailiff in the time period and authorised in QWIC.

The civil clerk completes the relevant columns when warrants are returned by the Bailiff.Therefore, the warrants that are still outstanding at the end of the month should balance with the monies held in the Bailiff Pool.

For example, to pay the Bailiff for enforcement for the month of May: on 1st June add up all amounts written in the 'May' column for 'Result'. The total of these amounts is the payment to the bailiff for the month of May, as these are the warrants that have been finalised for May.

To balance this payment against collections, add all amounts entered into the BPB in the month of May. This amount must balance with the Bailiffs Pool monthly collections. Add the balance brought forward from April and add the May total amount, then deduct the amount of the bailiffs payment. This amount is the amount carried forward into June. The total of the amounts remaining in the QWIC Bailiffs Pool must equal the amount carried forward.

28.6.1. Paying the bailiff

The bailiff is paid from QWIC by commencing in the QWIC Main Menu and clicking on Financials/Transfer Funds/select Bailiff Pool and click search – click on the line of the receipt to be transferred (the line should be highlighted blue) – click OK – this takes you back into a window that details the particulars of the selected receipt – click on the transfer button which brings up the transfer funds window – click the bailiff button which brings up the transfer to participant window – select the bailiff you intend to pay from the list of bailiffs which brings up their details – click OK and the amount is transferred to the respective bailiff – continue to do this for each amount you intend to pay to the bailiff.

The next day these amounts are authorised by either the accounts clerk of the Registrar depending on your registry. CFF will produce the cheque for all the amounts authorised. Note that any problems with QWIC must be referred to the TSU.

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28.6.2. Carrying the balances of the BPB into the next month28.6.2. Carrying the balances of the BPB into the next month

In all entries in the BPB that are 'not finalised' write C/F (carried forward) in the row/column – the total of the amounts that have C/F against their entry must equal the amount carried forward into the next month.

This is repeated for each month or other relevant period as part of monthly financial balancing. To easily identify the amount as carried forward, write all the ‘C/F’ entries in red ink as below:

Bailiff’s Process No. 1 (BRISBANE USE ONLY)


No. of Claim

Court of Issue

EnforcementCreditor

EnforcementDebtor

ReceiptNumber

BailiffFees Paid



Result

14/09/05 145/05 Petrie Smith D Jones R 0001 47 00 Bailiff

QWIC Authorisation

AmountPaid

DatePaid Done Officer’s

Initials

AmountCarriedForward

47.00

Bailiff’s Process Book No. 2


No. of Claim

Court of Issue

EnforcementCreditor

EnforcementDebtor

ReceiptNumber

BailiffFees Paid



Result


Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec C/F C/F C/F C/F C/F C/F C/F C/F C/F

The columns above represent a warrant that was not finalised in the month of September and therefore was carried forward to the new month (note: the strike through line and $47.00 is written in red. The same details are then re-written in the new worksheet. BPB No 1 or the red C/F in the corresponding months the matter is being carried forward in BPB No 2 but the information is not re-written).

28.7. SUMMARY - BALANCING THE BPB AGAINST COLLECTIONS IN THE BAILIFFS POOL

At 1st business day of each month, check the Bailiff Pool to ensure that all amounts in the Pool have been entered into the BPB (note: a bailiff fee transferred from another registry will be in your Bailiffs Pool immediately, however the paper warrant may take a few days to be received – complete the known particulars in the BPB and carry the amount forward).

To balance the warrants against collections, proceed as follows from the BPB:

A. Obtain the previous month’s (or other time period) carried forward amount; B. Total all amounts received for the current month; C. Total 'A' and 'B'; D. Total all amounts that have been finalised (enforced or executed or so attempted); E. Deduct the amount obtained in 'D' from 'C' (i.e. C - D).


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The amount of 'E' is the current month's outstanding balance which is carried forward to the next month. It must be the same amount as the 'not authorised amounts' in the Bailiffs Pool.

The total obtained at 'B' must match the Bailiffs Pool total for the month.

At the end of the month the calculations are endorsed in the BPB immediately under the last entry for the month. For audit purposes, the name and signature of the person preparing the calculation and the signature of the Registrar is endorsed as checking the calculation.

28.8. CERTIFICATION OF MONTHLY BALANCE The balance certification is written on the Bailiff Process Sheet immediately after the last entry, at the end of each month as:

C/F balance last month $ Bailiff fees collected this month $ Bailiff Pool agrees TOTAL $ Less payment to bailiff $ Transferred on / / Balance B/F this month $

Prepared by: ......signed....... Checked and correct: .....signed....Registrar / / / /

The person who balanced the book signs it, and then the Registrar checks the balance and signs it.

The month is ruled off under the last entry. The balance is endorsed on the EOPB directly under the last entry. The new months entries are commenced immediately after the balance or a new page may be commenced depending on which Bailiff’s Process Book your office current uses.

28.8.1. Certification of monthly balance for multiple bailiffs

If your court has more than one bailiff, it is better to have a separate page for each bailiff. This will prevent one bailiff being paid for another’s work. For balancing purposes, each bailiff’s page will have to be totalled and ruled off at the end of each month. The calculation can be made on the back of the top sheets as follows:

C/F balance last month $ Add Bailiff fees this month Bailiff 1 (name) $ Bailiff 2 (name) $ Bailiff 3 (name) $ $ Bailiff Pool agrees TOTAL $ Less payment to bailiff Bailiff 1 (name) $ Transferred on / / Bailiff 2 (name) $ Transferred on / / Bailiff 3 (name) $ $ Transferred on / / Balance B/F this month $

Prepared by: ........signed......... Checked and correct: ................signed......... / / Registrar / /

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28.9. TRANSFERRING ENTRIES AT THE END OF THE CALENDAR YEAR 28.9. TRANSFERRING ENTRIES AT THE END OF THE CALENDAR YEAR At the commencement of each calendar year (i.e. on the first working day of the year), all unenforced warrants (i.e. all warrants that have not been attended to by the Bailiff) must be transferred from the previous years sheets to new sheets and into the current years BPB

At the commencement of each calendar year (i.e. on the first working day of the year), all unenforced warrants (i.e. all warrants that have not been attended to by the Bailiff) must be transferred from the previous years sheets to new sheets and into the current years BPB After the December balance, start at the beginning of the previous year and transfer each unfinalised entry onto new pages of the BPB, in strict receipt number order. That is, all entries that have not been attended to by the Bailiff at the end of December are transferred to the new book. Beside each of these entries, in the December's worksheet, write in red 'C/F' to indicate that the particular entry has been transferred to a new book.

After the December balance, start at the beginning of the previous year and transfer each unfinalised entry onto new pages of the BPB, in strict receipt number order. That is, all entries that have not been attended to by the Bailiff at the end of December are transferred to the new book. Beside each of these entries, in the December's worksheet, write in red 'C/F' to indicate that the particular entry has been transferred to a new book. Ensure that for each amount transferred there is a corresponding amount in the Bailiffs Pool.Ensure that for each amount transferred there is a corresponding amount in the Bailiffs Pool. The old book (i.e. the sheets of the book) is filed away awaiting audit, and all new entries are made in the new book. The old book (i.e. the sheets of the book) is filed away awaiting audit, and all new entries are made in the new book. To check that all relevant entries have been transferred, proceed as follows:- To check that all relevant entries have been transferred, proceed as follows:-

1. Total all red entry 'C/F' amounts from the old BPB Sheets; 1. Total all red entry 'C/F' amounts from the old BPB Sheets; 2. Total all amounts written in the new sheet(s); 2. Total all amounts written in the new sheet(s); 3. Total the amounts in the Bailiffs Pool; 3. Total the amounts in the Bailiffs Pool; 4. The individual total amounts of 1, 2 and 3 must be the same. 4. The individual total amounts of 1, 2 and 3 must be the same.

When transferred and balanced, forward a list of all unattended to matters to your Regional Services Manager by either preparing a separate list of all the matters transferred (containing the same information as the Bailiffs Process Book), or photocopying the pages of the BPB which contains the information.

When transferred and balanced, forward a list of all unattended to matters to your Regional Services Manager by either preparing a separate list of all the matters transferred (containing the same information as the Bailiffs Process Book), or photocopying the pages of the BPB which contains the information.

28.10. BALANCING HINTS 28.10. BALANCING HINTS At the end of each month, excluding December, for all matters that have not been attended to, you must write in red ink the amount carried forward in the relevant column, to indicate that the entry has been carried into the next month.

At the end of each month, excluding December, for all matters that have not been attended to, you must write in red ink the amount carried forward in the relevant column, to indicate that the entry has been carried into the next month. As the Bailiff returns warrant to the registry, immediately: As the Bailiff returns warrant to the registry, immediately:

• Note the BPB that the warrant was enforced (or attempted) by writing results in the results column;

• Note the BPB that the warrant was enforced (or attempted) by writing results in the results column;

• Ensure payment is made to the bailiff in accordance with registry procedures, i.e. transfer payment from bailiff’s pool to individual bailiff, ready for authorisation by registrar (e.g., weekly/monthly)

• Ensure payment is made to the bailiff in accordance with registry procedures, i.e. transfer payment from bailiff’s pool to individual bailiff, ready for authorisation by registrar (e.g., weekly/monthly)


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29 EMPLOYMENT CLAIMS

• A Form 2A - Employment Claim, is used for lodging employment claims. • There is a specific filing fee which applies to all employment claims, and it is not related to

how much is being claimed. Please note that employment claims can be appealed and so the fee for the appeals costs fund is added to the filing fee.

• CLAIMS has a new originating document type for employment claims.

Appointment of conciliator for compulsory conciliation:

• The employment claim is to either be faxed, or scanned and emailed, to the Industrial Registry. The Industrial Registry’s contact details are:

Queensland Industrial Registry GPO Box 373 BRISBANE QLD 4001 Phone: 3227 8060 Fax: 3221 6074

Generic Email address: [email protected]

• If faxing, no cover sheet is required. The Industrial Registry will save the incoming fax electronically, and use it to start the file in their database.

• The Industrial Registry will put the material before the QIRC Vice-President to assign an appropriate member to perform the conciliation.

• The Magistrates Court Act requires that the registrar be the person that appoints a conciliator.

• The name of the member that the QIRC wishes to be appointed as the conciliator will be emailed to the generic email address of the courthouse in which the employment claim had been lodged.

• It is requested that the registrar appoint the member that the QIRC wishes to be assigned. There will be a document in CLAIMS that allows this. In this, the names of all people that can be assigned as a conciliator will be available in a drop-down list. Once the document has been added to CLAIMS, a copy will print. The registrar should sign this and then either fax, or scan and email, a copy to the Industrial Registry. This document should be added to the physical file.

• If a QIRC conciliator is being used, no copies need to be sent to the parties. Until non-QIRC conciliators are appointed, CLAIMS will be set up to only print one copy of the notice. If external conciliators are appointed in the future, then a copy of the document would need to be sent to the parties and the conciliator.

• The Industrial Registry will notify the parties as to who the conciliator will be. A copy of the listing of the conciliation conference will be sent to the Magistrates Court by the Industrial Registry. This is to save the parties being notified by the Magistrates Court and the Industrial Registry.

• The Magistrates Court Act and the UCPR have no provisions for replacing a conciliator. There is the possibility that a conciliator may have to be replaced if there is found to be a conflict of interest or in the case of illness. Advice has been received that in this instance, section 25(1)(b) of the Acts Interpretation Act 1954 would allow the registrar to appoint a different conciliator.

Conciliation certificates:

• At the end of the conciliation process, the conciliator will email and post to the court a Form 36A - Conciliation Certificate. If any agreement was reached, a copy inside a sealed envelope will be posted to the Magistrates Court. If the copy of the agreement is given, it can only be opened by the order of the court.

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• It is expected that the conciliation process will be completed within one month of the appointment of the conciliator being made. If a conciliation certificate has not been given by the conciliator within 2 months of the conciliator being appointed, please contact the Industrial Registry to check on the status.

• Starting in March 2008, the Magistrates Court Branch will run a monthly query of the CLAIMS database to check for this. Court registries will be informed if they have a file that falls into this category.

Formalising agreements:

• At the end of the conciliation process, there is an option for a party or the parties to convert an agreement reached at the conciliation into an order of the court. To do this, an application needs to be filed. If it is by consent, then under rule 666, the registrar can make the order. Rule 522H(1)(c) allows the defendant to make this application even if a defence has not been filed.

Application to the court for a decision as to whether the proceeding is or is not an employment claim:

• Section 42C of the Magistrates Court Act allows a party to apply to the court for a decision as to whether the proceeding is an employment claim or not. Rule 522H(1)(a) allows the defendant to do this even if a defence has not been filed. Rule 522D requires that the conciliation process be suspended pending the outcome of the application.

• If this application type is lodged then either fax or scan and email a copy of it to the Industrial Registry. This will let them know that the conciliation process should be suspended.

Filing of Form 6A - Notice of intention to defend an employment claim and defence:

• The defendant may file a Form 6A - Notice of intention to defend an employment claim and defence, at any time before a judgment has been given or a court order has been made that prevents it.

• If a conciliation certificate has not been filed, then no steps are taken. • If a conciliation certificate has been filed, or is filed after the defence has been lodged, then

under rule 522J: The registrar must, as soon as practicable after a notice of intention to defend an employment claim is filed— (a) set a date for the hearing of the proceeding; and (b) notify the parties of the time, date and place of the hearing.

• Once a date has been set, a notice of hearing will print from CLAIMS.

Ending a claim early:

• If 28 days has passed since the filing of a conciliation certificate, and a defence has not been lodged, then a request for default judgment can be granted. This would be under rule 283 for debts or liquidated demands, or under rule 284 for unliquidated damages.

• Section 42ZC of the Magistrates Court Act indicates that costs can only be awarded if: (a) if the paying party is the plaintiff—the employment claim is frivolous or vexatious or is an abuse of the process of the court; or (b) an unreasonable act or omission of the paying party connected with the conduct of the proceeding caused the other party to incur costs.

• Rule 522N prevents a summary judgment being made. • Note however that rule 522N does not prevent a conditional defence being lodged. Follow

the usual procedures if a conditional defence is lodged.

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29.1.1.1. Employment Claim [Form 2A]


REGISTRY:NUMBER:

Plaintiff:

AND

Defendant:

EMPLOYMENT CLAIM

STATEMENT OF PARTICULARS OF CLAIM (Set out as briefly as the nature of the case permits all material facts relied on to bring this claim. Attach additional sheets of A4 size paper if insufficient space) ..........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

The Plaintiff claims the amount set out below and elects to have this claim heard and decided in the Magistrates Court under the simplified procedures as an Employment Claim:-

Claim $ Filing fee $ Bailiff’s service fee $ Total $

To the defendant[s]: TAKE NOTICE that you are being sued by the plaintiff in the Court.

If you assert that this claim is not an employment claim for the purposes of the Magistrates Courts Act 1921 you may apply under section 42C of that Act to the court to decide the issue.

If you do not dispute that the claim is an employment claim, the Registrar will appoint a conciliator who will contact you to arrange a conciliation process and may require you to participate in a particular way.

If the employment claim is not resolved in the conciliation process and you intend to dispute the claim you must file a Notice of Intention to Defend and Defence to an Employment Claim in the registry within 28 days after the conciliator files a certificate in the registry and serve a sealed copy of it at the plaintiff’s address for service shown in the claim as soon as possible. The Notice should be in the approved form under the Uniform Civil Procedure Rules 1999. You do not need to do this until after the conciliation process has ended. If you do not comply with this requirement, judgment may be given against you for the amount claimed without further notice to you.

The Notice should be in the approved form under the Uniform Civil Procedure Rules 1999. You do not need to do this until after the conciliation process has ended. If you do not comply

If you object that these proceedings have not been commenced in the correct district or that this Court does not have jurisdiction in this matter, that objection should be included in your Notice of Intention to Defend and Defence to an Employment Claim. Address of registry: (insert relevant street address)

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Employment claim filed on behalf of the plaintiff Form 2A RR. 22, 522C Version 1

(Name, address for service, telephone number and fax number of solicitor or party filing document.)

PARTICULARS OF THE PLAINTIFF:PARTICULARS OF THE PLAINTIFF: Name: Name: Plaintiff’s residential or business address: Plaintiff’s residential or business address: Name of solicitor or agent (if any): Name of solicitor or agent (if any): Business address of solicitor or agent:Business address of solicitor or agent:Address for service:Address for service:Dx (if any): Dx (if any): Telephone: Telephone: Fax: Fax: E-mail address (if any): E-mail address (if any): [If the plaintiff has no solicitor or agent: [If the plaintiff has no solicitor or agent:

plaintiff’s address for service: plaintiff’s address for service: plaintiff’s telephone number or contact number: plaintiff’s telephone number or contact number: plaintiff’s fax number (if any): plaintiff’s fax number (if any): plaintiff’s e-mail address (if any)] plaintiff’s e-mail address (if any)]

Signed: (plaintiff, solicitor or agent)Signed: (plaintiff, solicitor or agent) Description: (of signatory)Description: (of signatory) Dated: Dated: This claim is to be served on: (First defendant’s name)This claim is to be served on: (First defendant’s name)of: (First defendant’s address)of: (First defendant’s address)[and on: (Second defendant’s name)[and on: (Second defendant’s name)of: (Second defendant’s address)of: (Second defendant’s address) ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURTS OF QUEENSLAND ISSUED WITH THE AUTHORITY OF THE MAGISTRATES COURTS OF QUEENSLAND And filed in the (place) Registry on (date): And filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal) Registrar: (registrar to sign and seal) Note: All relevant documents must be brought with you and made available to the Court at any hearing of this proceeding.Note: All relevant documents must be brought with you and made available to the Court at any hearing of this proceeding.


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29.1.1.2. Notice of Intention to Defend an Employment Claim [Form 6A] 29.1.1.2. Notice of Intention to Defend an Employment Claim [Form 6A]



Plaintiff: Plaintiff:

AND AND

Defendant:Defendant:

NOTICE OF INTENTION TO DEFEND AN EMPLOYMENT CLAIM

TAKE NOTICE that the Defendant intends to defend this proceeding

The facts relied on by the Defendant are set out in the Defence included in this document.

[The Defendant says that this proceeding has not been started in the correct district] [The Defendant says that this Court does not have jurisdiction in this matter]

Filed in the (place) Registry on (date):

Registrar: (registrar to sign and seal)

DEFENCE

The defendant relies on the following facts in defence of the claim:

1. The defendant admits the allegations in paragraph....of the statement of claim. (If unable to identify by number - set out any allegations admitted)

2. The defendant does not admit the allegation in paragraph.....of the statement of claim. (If unable to identify by number - set out any allegations not admitted)

Notice of intention to defend an employment claim and defence filed on behalf of the defendant Form 6A RR. 139, 146, 522H Version 1

(Name, address for service, telephone number and fax number of solicitor or party filing document)


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3. The defendant denies the allegation in paragraph .....of the statement of claim and after making reasonable inquiries believes that the allegation is untrue or cannot be admitted because (give explanation. If unable to identify by number - set out any allegations denied)

4. (Set out as briefly as the nature of the case permits the material facts on which the defendant relies to defend these proceedings. The defendant must answer the plaintiff’s assertions set out in the claim; state any amount the defendant admits owing the plaintiff, how that amount owing is worked out and why the defendant owes that amount. Attach additional sheets of A4 size paper if insufficient space)

..............................................................................................................................................................................

..............................................................................................................................................................................

..............................................................................................................................................................................

..............................................................................................................................................................................

..............................................................................................................................

PARTICULARS OF THE DEFENDANT

Name: Residential or business address: Name of Solicitor or Agent (if any): and firm name: Business address of Solicitor or Agent: Address for Service: Telephone:Fax:Dx:E-mail address (if any):

[If the defendant has no solicitor or agent:- Defendant’s residential or business address: Defendant’s address for service: Defendant’s telephone number or contact number: Defendant’s fax number (if any) Defendant’s E-mail address (if any):]

Signed: (defendant, solicitor or agent)


Dated:

Note: All relevant documents must be brought with you and made available to the Court at any hearing of this proceeding.

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29.1.1.3. Conciliation Certificate [Form 36A] 29.1.1.3. Conciliation Certificate [Form 36A]



Plaintiff: Plaintiff:

AND AND Defendant:Defendant:

CONCILIATION CERTIFICATE

I, (insert name of conciliator), certify that —

1. (Insert name of parties) have participated in a conciliation before me and the procedure has finished. The parties [have/have not] resolved (their dispute/part of their dispute).

—OR—

(Insert name of parties) have participated in a conciliation before me and I cannot usefully take the resolution of their dispute any further. —OR—

1. (Insert name of party or parties) did not attend the conciliation as ordered [or as the case may be.]

2. (Insert if appropriate) the terms of their agreement are enclosed in the attached sealed (insert type of container) marked “Conciliation agreement. Not to be opened without an order of the (insert name of court) Court or a Magistrate. Court File No…”.

—OR—

2. (include any other relevant matter for report).1

Signed:

Dated:

1. No comment should be made about the extent to which a party participated or refused to participate in the conciliation.

2. The Conciliation Certificate may indicate that a party did not attend conciliation.

Conciliation certificate filed on behalf of the conciliator Form 36A R.552E Version 1


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AMENDMENTS TO MANUAL (If the manual is modified you must forward a copy of the modification to the Court Capability Development Unit - see paragraph 8 at Introduction) Amendment No. Date amended Initials

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