The Magistrates’ Manual puts the creditor’s problem simply: without knowing what assets or entitlements a judgment debtor has, it is difficult to know whether or how the order can be enforced. The oral examination is the Act’s answer, and it is often the first enforcement step.
The power
(1) Where an order of a Court has been made for the recovery or payment of money with or without costs, or for costs alone including costs ordered to be paid by an informant, the party entitled to enforce it may, on summons, apply to a Court or Magistrate for an order that (a) the debtor; or (b) in the case of a corporation, an officer of the corporation, be orally examined as to (c) whether any and what debts are owing to the debtor; and (d) whether the debtor has any and what other property or means of satisfying the order.
(2) The summons may be issued by a Magistrate or Clerk. (3) The debtor or officer shall be examined on oath, and any person may be summoned to give evidence or produce documents and examined on oath as in any case of summary jurisdiction.
The forms are 57 (summons for order for oral examination) and 58 (order). Regulation 42 requires an affidavit in Form 13 in support where the examination is sought in aid of attachment of debts.
Immediately after the order
Where an order is made for the payment or recovery of money, or by conviction a person is ordered to pay money, the Court at the time of making the order or conviction, on the application of the party entitled to enforce it, may immediately examine the person against whom the order is made on oath as to whether any and what debts are owing to him and whether he has any and what other property or means of satisfying the order.
This is the quickest route. The debtor is already in court; the creditor asks for an examination on the spot; the Court can then fix instalments under section 165 with a realistic knowledge of the debtor’s means, or the creditor can go straight to a warrant or a garnishee. The Manual describes regulation 43 as the immediate version and section 181 as the later one on summons.
What can be asked
| Subject | Why |
|---|---|
| Employment, employer’s name and address, pay and pay day | Garnishee of wages under s 182 |
| Bank accounts and balances | Garnishee of the bank |
| Money owed to the debtor by customers, relatives, employers | Garnishee of those debtors |
| Vehicles, stock, equipment, livestock, and where they are | Warrant of execution under s 173 |
| Property disposed of since the order, and to whom | Ground for commitment under s 192(1)(f)(iii) |
| Whether the debtor has had the means to pay since the order and has refused | Ground for commitment under s 192(1)(e)(i) |
| Whether the debtor is about to leave the country or the district | Grounds under s 192(1)(e)(ii)–(iii) |
The Manual says questioning may take the form of cross-examination; where the creditor is represented, the lawyer conducts it, and where the creditor is unrepresented and unable to examine effectively, the magistrate should conduct the examination. The debtor is on oath and prevarication is an offence under section 277(2).
Witnesses and documents
Section 181(3) allows any person to be summoned to give evidence or produce documents at the examination, as in a summary case. A creditor who suspects that the debtor’s spouse holds the money, or that an employer is under-reporting wages, can summon them under section 66 and require documents under section 71. Section 68 applies to a witness who does not come.
If the debtor does not attend
The section 181 summons is served like any other, and a debtor who ignores it may be brought by warrant under section 68(2). Non-attendance is also evidence: a debtor who will not come to explain his means is a debtor from whom the Court may more readily infer, on a section 192 application, that he has the means and refuses to pay. The section 192 summons itself, under section 192(2)(a), is a form of compulsory examination on the specific grounds for commitment, and regulation 37 requires an application in Form 9 with an affidavit.
Using the answers
Section 197 requires the examination of a person in default under Division 5 to be taken down in writing, and the same practice applies to a section 181 examination; the record can be used on any later application. Armed with it, the creditor chooses: a warrant of execution for identified goods, a garnishee order for identified debts, an instalment order the debtor can actually meet, or, where the debtor has means and refuses, an application for commitment. The National Court’s equivalent is described in how do I find out what a debtor owns.
Companies
Where the debtor is a company, section 181(1)(b) allows an officer of the corporation to be examined. The Manual’s point about parties applies: the company, not its directors, is the debtor, and the examination is about the company’s assets. A director who has stripped the company is a matter for the Companies Act, not for section 192, which is directed at the person liable under the order.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.