Page 3127 - Week 11 - Tuesday, 20 September 1994
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MAGISTRATES COURT (ENFORCEMENT OF JUDGMENTS) BILL 1994
Debate resumed from 25 August 1994, on motion by Mr Connolly:
That this Bill be agreed to in principle.
MR HUMPHRIES (3.43): Madam Speaker, this particular Bill entails extensive changes to the law concerning the enforcement of judgments in our courts. Madam Speaker, as a solicitor I did work in this area and I am certainly aware of the many shortcomings in the present state of the law. It would not infrequently be the case that I would attempt to take a creditor's judgment to a court to attempt to obtain a remedy on his or her behalf and find that most or all of the available options simply produced no satisfaction at all. I think it is reasonable to say that the law is extremely urgently in need of some greater satisfaction for those who do obtain judgments in our courts.
Many of the changes will be welcomed, I am sure, for that reason by the ACT profession. Some of the changes appear to be quite obvious and would, I think, not surprise a reasonable thinking person. At present, for example, if one has a judgment and wishes to obtain a garnishee order over the wages of a person from whom one is owed money, one may obtain that order. But it operates as a single, one-off kind of order of the court which, therefore, affects only one obligation, one pay, by the employer of that particular judgment debtor. By using the order, one obtains one lot of money from that particular employer. If one wishes to proceed to obtain a further payment in the next week or from the next fortnight's salary, one has to obtain another garnishee order - a continuous process of doing this week by week or fortnight by fortnight. Clearly, that is not an acceptable arrangement. I understand that generally government departments, when such orders are served on them, will talk to the employee concerned and seek to make arrangements for a continuous payment to be made, rather than to have individual orders made week by week. But that is not always the case with other debtors, as it were, and therefore some better procedure needs to be put in place.
A second difficulty which people have encountered in enforcing judgments is that the bailiff of the Magistrates Court has no power to enter premises to seize goods which might be available at the home or place of business, or whatever, of a judgment debtor. A writ of execution, I understand, is still very often being returned to the court, with the debtor indicating that entry has been refused. In those circumstances, at the present time, there is not much that the judgment creditor can do, even if he knows that there are goods available to satisfy the judgment at that particular place.
Both of those problems are to be addressed by this legislation and I think it is appropriate that that be the case. In the case of the bailiff's access to premises, it would be possible for an order to be made to allow the bailiff to enter by force if necessary and for appropriate assistance to be rendered to achieve that. Although there are some protections built into the legislation for judgment debtors, for the most part I think it is true to say that this Bill strengthens the position of judgment creditors by clarifying the procedures available for enforcing judgments and expanding the options available to such people. This gives a person who has a judgment in their favour a better chance of recovering that debt.
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