imprisonment of fraudulent debtors act 1958file/58-6276a055.docx · web viewpart ii—on judgment...

Version No. 055

Imprisonment of Fraudulent Debtors Act 1958

No. 6276 of 1958

Version incorporating amendments as at10 November 2014

TABLE OF PROVISIONSSection Page

1 Short title and commencement2 Repeal2A Definitions

PART I—ON JUDGMENT OF SUPREME COURT

3 Imprisonment upon writ of capias ad satisfaciendum abolished4 Debtor may be summoned5 Debtor may be examined and imprisoned6 Examination may be had on the original hearing7 Form of warrant of commitment8 Order may be ex parte9 Judgment debtor may appeal to Court of Appeal10 Prisoner to be discharged on payment of debt and costs11 Examination to be taken down in writing12 Examination to be a judicial proceeding13 Effect of this Part of this Act

PART II—ON JUDGMENT OF COUNTY COURT

14 Imprisonment for debt abolished in county court15 Judgment debtor may be summoned16 Judgment debtor may be examined and imprisoned17 Examination may be had on the original hearing18 Form of warrant of commitment19 Order may be ex parte20 Prisoner to be discharged on payment of debt and costs21 Examination to be a judicial proceeding

1

PART III—ON ORDER OF MAGISTRATES' COURT

22 Defendants in civil cases not to be imprisoned except under certain circumstances

23 Warrant in default of compliance24 Ex parte order of commitment25 Debtor, how discharged26 Non-application of Magistrates' Court Act27 Examination to be a judicial proceeding28 Imprisonment for fraud no satisfaction of debt28A Appeal to County Court

PART IV—GENERAL

29 Judgment need not necessarily be served before fraud summons under Parts 1, 2 and 3

__________________

SCHEDULES

SCHEDULE 1—Repeals

SCHEDULE 2—Supreme Court

Form 1—Summons to debtor

Form 2—Order for commitment in default of payment

Form 3—Warrant of commitment

Form 4—Warrant of commitment on ex parte application

SCHEDULE 3—County Court


Form 2—Order for commitment in default of payment



SCHEDULE 4—Magistrates' Court


Form—Order for commitment in default of payment



2

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

3

Version No. 055

Imprisonment of Fraudulent Debtors Act 1958

No. 6276 of 1958

Version incorporating amendments as at10 November 2014

An Act to consolidate the Law relating to the Imprisonment of Fraudulent Debtors.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title and commencement

This Act may be cited as the Imprisonment of Fraudulent Debtors Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2 Repeal

(1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same

1

S. 1amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.1).

status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any order warrant arrest certificate direction appeal proceeding power notice obligation saving liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act.

2A Definitions

In this Act—

police officer has the same meaning as it has in the Victoria Police Act 2013.

_______________

2

S. 2A inserted by No. 37/2014 s. 10(Sch. item 84.1).

s. 2

PART I—ON JUDGMENT OF SUPREME COURT

3 Imprisonment upon writ of capias ad satisfaciendum abolished

No person shall be arrested or imprisoned or detained in prison upon any writ of capias ad satisfaciendum issued out of the Supreme Court after or before the passing of this Act, any law or practice of such court to the contrary notwithstanding.

4 Debtor may be summoned

Whenever any sum of money recoverable under any judgment of the Supreme Court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money (whether or not any execution has issued upon or under such judgment) to obtain from time to time from the prothonotary a summons in the form contained in the Second Schedule to this Act or to the like effect directed to the person liable to pay such money; and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath by the Supreme Court touching his estate and effects and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied and as to the disposal he may have made of any property and as to his intention to leave Victoria without paying such money as is still unsatisfied or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which the liability the subject of such judgment was incurred; and the person obtaining such summons as aforesaid and all other witnesses whom the court thinks requisite may be

No. 3700 s. 3.

s. 3

No. 3700 s. 4.S. 4amended by No. 110/1986 s. 140(2).

Part II—On Judgment of County Court

Imprisonment of Fraudulent Debtors Act 1958No. 6276 of 1958

3

examined upon oath touching the inquiries authorized to be made as aforesaid.

5 Debtor may be examined and imprisoned

(1) If a person summoned as aforesaid—

(a) does not attend as required by such summons or allege a sufficient excuse for not attending; or

(b) if attending, refuses to be sworn or to disclose any of the things aforesaid; or

(c) does not make answer touching the same to the satisfaction of the Court; or

(2) If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person—

* * * * *

(b) is about to leave Victoria without paying the debt damages costs or money so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments has been made; or

(c) is about to depart elsewhere within Victoria with intent to evade payment thereof; or

Nos 3700 s. 5, 4876 s. 2(1).

s. 5

S. 5(1)(c) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(a)).

S. 5(2) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(b)).

S. 5(2)(a) repealed by No. 10063 s. 23(a).

S. 5(2)(b) substituted by No. 10063 s. 23(b).



4

(3) If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person if a defendant incurring the liability which is the subject of the action or proceeding in which judgment has been obtained—

(a) obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or

(b) has made or caused to be made any gift delivery or transfer of any property, or has charged removed or concealed the same with intent to defraud his creditors or any of them—

it shall be lawful for the Court, if it thinks fit, to make an order in the form contained in the Second Schedule to this Act or to the like effect that unless such person pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied with interest thereon at such rate as the court directs not exceeding Eight per centum per annum and the costs to be fixed in such order of any fruitless writs or warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than six months.

If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of the Court, the Court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to the Court seem just and reasonable.

6 Examination may be had on the original hearing

S. 5(3) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(b)(c)).

s. 5

No. 3700 s. 6.S. 6amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item .3).



5

In any case in which any defendant in any action in the Supreme Court in respect of any cause or causes of action aforesaid personally appears at the trial or hearing of the same, the court at the trial or hearing of the cause or at any adjournment thereof, if a verdict is found against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore in the last preceding section mentioned and of making an order as the Court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment as hereinbefore mentioned.

7 Form of warrant of commitment

Whenever any order for commitment has been made under the provisions hereinbefore contained and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the prothonotary shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Second Schedule to this Act or to the like effect; and the sheriff and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant; and all police officers shall aid and assist in the execution of such warrant.

8 Order may be ex parte

Any order for commitment under the provisions hereinbefore contained may (if the special circumstances of the case appear to the court to warrant it) be made by the Court ex parte and without notice on proof by affidavit only of any of the matters aforesaid; and in that case such order for commitment may be filed in the Supreme

s. 6

No. 3700 s. 7.

S. 7 amended by No. 37/2014 s. 10(Sch. item 84.2).

No. 3700 s. 8.S. 8amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item 98.4).



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Court; and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued by the prothonotary in such case shall be in the form or to the effect in the Second Schedule to this Act.

9 Judgment debtor may appeal to Court of Appeal

Any judgment debtor or defendant aggrieved by any order for commitment made under the preceding sections may, upon entering into such recognisance and subject to such terms and conditions as the court thinks fit, appeal against such order to the Court of Appeal with leave of the Court of Appeal; and the Court of Appeal shall have power to review the same and to confirm vary annul or discharge the same and to make such order as to the costs of such appeal as appears fit to the Court of Appeal.

10 Prisoner to be discharged on payment of debt and costs

Any person imprisoned by virtue of any warrant under this Part, who pays or satisfied the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the prothonotary. Notwithstanding the provisions hereinbefore contained, it shall be lawful for the Supreme Court at any time by order (if in the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order shall be forthwith discharged and such person shall be forthwith discharged accordingly.

11 Examination to be taken down in writing

No. 3700 s. 9.S. 9 (Heading) inserted by No. 62/2014 s. 15(1).S. 9amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item 98.5), 62/2014 s. 15(2).

s. 9

No. 3700 s. 10.S. 10 amended by No. 110/1986 s. 140(2).

No. 3700 s. 11.



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The examination of such person liable to pay money as aforesaid shall be taken down in writing; and a copy thereof may be used on the hearing of any appeal from any order for commitment.

12 Examination to be a judicial proceeding

The examination of any person examined under any of the provisions of this Part shall be deemed to be a judicial proceeding; and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false answer statement or declaration shall be liable to the penalties of perjury.

13 Effect of this Part of this Act

Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any judgment, but notwithstanding such imprisonment a fresh writ or warrant against the property or other proceedings to recover the amount may be issued on such judgment and executed in due course of law.

_______________

s. 11

No. 3700 s. 12.

No. 3700 s. 13.



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PART II—ON JUDGMENT OF COUNTY COURT

14 Imprisonment for debt abolished in county court

It shall not be lawful for the registrar or a deputy registrar of the county court to issue a warrant of commitment upon a return made to any warrant of execution that the bailiff or officer could find no sufficient property of the person against whom such warrant has issued liable to satisfy such execution; and no person shall be arrested or imprisoned in execution upon or in satisfaction of any judgment or order recovered or obtained in the county court, save in the special cases where such court is empowered by law to make an order for commitment, and in no such case shall any person be committed for a longer period than four months.

15 Judgment debtor may be summoned

Whenever any sum of money recoverable under any judgment or order in the county court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money, whether any warrant of execution has or has not been issued for the same, to obtain from time to time from the registrar or deputy registrar of the court at the place at which such judgment or order was made a summons in the form contained in the Third Schedule to this Act or to the like effect, directed to the person liable to pay such money, and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath touching his estate and effects, and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied, and as to the disposal he may have made of any property,

No. 3700 s. 14.S. 14 amended by No. 19/1989 s. 16(Sch. item 27.1).

s. 14




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and as to his intention to leave Victoria without paying such money as is still unsatisfied, or to depart elsewhere within Victoria with intent to evade payment thereof, and as to the mode in which the liability the subject of such judgment or order was incurred; and the person obtaining such summons as aforesaid, and all other witnesses whom the court thinks requisite, may be examined upon oath touching the inquiries authorized to be made as aforesaid.

16 Judgment debtor may be examined and imprisoned

(1) If a person so summoned as aforesaid—

(a) does not attend as required by such summons, or allege a sufficient cause for not attending; or

(b) if attending, refuses to be sworn or to disclose any of the things aforesaid; or

(c) does not make answer touching the same to the satisfaction of such court; or

(2) If it appears to the satisfaction of such court by oral testimony or affidavit or both that such person—

* * * * *

(b) is about to leave Victoria without paying the sum so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments had been made; or


(3) If it appears to the satisfaction of such court by oral testimony or affidavit, or both, that such

Nos 3700 s. 16, 4876 s. 2(2).

s. 16

S. 16(2)(a) repealed by No. 10063 s. 23(c).

S. 16(2)(b) substituted by No. 10063 s. 23(d).

S. 16(3) amended by No. 19/1989 s. 16(Sch. item 27.3(a)–(d)).



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person if a defendant incurring the liability which is the subject of the proceeding in which judgment has been obtained or an order has been made—


(b) has made or caused to be made any gift delivery or transfer of any property or has charged removed or concealed the same with intent to defraud his creditors or any of them—

it shall be lawful for such court, if it thinks fit, to make an order in the form contained in the Third Schedule hereto or to the like effect that unless such party pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied, with interest thereon at such rate as the court directs, not exceeding five per cent per annum, and the costs of any fruitless warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than four months.

If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of such court, such court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to such court seem just and reasonable.

17 Examination may be had on the original hearing

In any case in which any defendant in any proceeding in the county court personally appears

s. 16


s. 17Part II—On Judgment of County Court


11

at the trial or hearing of the same, the court, at such trial or hearing of the same or at any adjournment thereof if judgment is given or an order is made against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore mentioned, and of making an order as the court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment.

18 Form of warrant of commitment

Whenever any order for commitment has been made under the provisions hereinbefore contained, and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the registrar of the court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Third Schedule to this Act or to the like effect; and the bailiff of the said court and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant and all police officers shall aid and assist in the execution of such warrant.

19 Order may be ex parte

Any order for commitment under the provisions hereinbefore contained may (if the special circumstances of the case appear to the county court to warrant it) be made by the court ex parte and at any place in Victoria and without notice on proof by affidavit only of any of the matters aforesaid, and in that case such order for commitment may be filed in the county court at any place at which the court is held; and such person may be dealt with as if an order for

No. 3700 s. 18.

S. 18 amended by No. 37/2014 s. 10(Sch. item 84.2).

No. 3700 s. 19.S. 19 amended by No. 19/1989 s. 16(Sch. item 27.5(a)–(d)).



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commitment had been made as hereinbefore directed, and the warrant to be issued by the registrar or deputy registrar in such case shall be in the form or to the effect in the Third Schedule to this Act.

20 Prisoner to be discharged on payment of debt and costs

Any person imprisoned by virtue of any warrant under this Part who pays or satisfies the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the registrar or deputy registrar of the court at the place where such judgment was recovered. Notwithstanding the provisions hereinbefore contained it shall be lawful for the county court at any time by order (if in the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order as aforesaid shall be forthwith discharged, and he shall be forthwith discharged accordingly.


(1) The examination of any person examined under any of the provisions of this Part shall be deemed to be a judicial proceeding; and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false answer statement or declaration shall be liable to the penalties of perjury.

(2) Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on

No. 3700 s. 20.S. 20 amended by No. 19/1989 s. 16(Sch. item 27.6(a)–(d)).

s. 20

No. 3700 s. 21.



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any judgment or order, but notwithstanding such imprisonment a fresh writ or warrant against the property or other proceedings to recover the amount may be issued on such judgment or order and executed in due course of law.

_______________



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PART III—ON ORDER OF MAGISTRATES' COURT

22 Defendants in civil cases not to be imprisoned except under certain circumstances

An order made by the Magistrates' Court for the payment of any civil debt recoverable before it or of any instalment thereof and whether with or without costs, or for the payment of damages for an assault or for trespass by cattle or of any instalment thereof or for the payment of damages summarily recoverable and not enforceable as a fine or any instalment thereof and in every such case whether with or without costs, or for costs ordered to be paid on a conviction or for costs alone (including costs ordered to be paid by an informant) or any instalment of any such costs, or for the delivery of goods detained without just cause after due notice, and in the event of neglect or refusal to deliver up such goods according to such order for the payment of the value of such goods to the party aggrieved, shall not in default of payment or delivery be enforced by imprisonment—

(1) Unless it is proved to the satisfaction of the Magistrates' Court that the person making default in payment of such civil debt damages instalment or costs—

* * * * *

(b) is about to leave Victoria without paying such debt damages costs or money or

Pt 3 (Heading) amended by No. 7876 s. 2(3).

Nos 3700 s. 22, 4876 s. 2(3).

S. 22 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.6(a)–(d)).

s. 22

S. 22(1)(a) repealed by No. 10063 s. 23(e).



15

instalment or so much thereof as is still unsatisfied; or


(d) has neglected or refused to comply with any order for the delivery of goods detained without just cause after due notice, and has not paid the value thereof to the party aggrieved; or

(2) Unless it is proved to the satisfaction of such magistrates' court that such person if a defendant incurring the liability which is the subject of the proceeding in which such order was made—


(b) has made or caused to be made any gift delivery or transfer of any property or has charged removed or concealed the same with intent to defraud his creditors or any of them.

Proof of any of the above-mentioned matters may be given in such manner as the court to which application is made for the commitment to prison thinks just, and for the purposes of such proof the person making default may be personally served with a summons in the form in the Fourth Schedule or to the like effect, and may be examined on oath on the return thereof as to any of the matters hereinbefore mentioned and set out in such summons, and any witnesses (including the person making default) may be summoned and examined on oath according to the provisions relating to the summoning and examination of witnesses in cases of summary jurisdiction.

S. 22(1)(d) amended by Nos 8427 s. 12, 8731 s. 173 (as amended by No. 9059 s. 2(1)(Sch. item 52)).

S. 22(2) amended by No. 8181 s. 2(1)(Sch. item 69).



16

If any of the aforesaid matters are proved to the satisfaction of the court, the court may if it thinks fit make an order in the form in the Fourth Schedule to this Act or to the like effect that unless the person making such default pays to the court either forthwith or within the time or times limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied, together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than two months: Provided that no such order for commitment shall be made against any person whose estate has since the order under which the money was recoverable was made been sequestrated either compulsorily or voluntarily under the provisions of any law of the Commonwealth relating to bankruptcy.

If none of the aforesaid matters is proved to the satisfaction of the court, the court may order the applicant to pay to the person making default such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to the court seem just and reasonable.

23 Warrant in default of compliance

Whenever any order for commitment has been made under the provisions of the last preceding section and the money and costs or any instalment of such money or costs named therein has or have not been paid in pursuance thereof, a registrar of the magistrates' court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Fourth Schedule or to the like effect, and the keeper of the gaol to whom such warrant is directed shall execute and obey the said warrant, and all police

No. 3700 s. 23.S. 23 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.7), 37/2014 s. 10(Sch. item 84.2).



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officers shall aid and assist in the execution of such warrant.

24 Ex parte order of commitment

Any order for commitment under the provisions hereinbefore contained may if the special circumstances of the case appear to the Magistrates' Court to warrant it be made by the Court ex parte and without notice upon proof by affidavit only of any of the matters aforesaid, and in that case such order for commitment may be filed in the Court, and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued in such case shall be in the form or to the effect in the Fourth Schedule to this Act.

25 Debtor, how discharged

Any person imprisoned by virtue of any warrant under this Part who pays or satisfies the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by a registrar of the magistrates' court. Notwithstanding the provisions hereinbefore contained, it shall be lawful for the magistrates' court at any time by order (if under the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order as aforesaid shall be forthwith discharged, and such person shall be forthwith discharged accordingly.

26 Non-application of Magistrates' Court Act

Where any proceedings are brought under this Part section 71 or 82E of the Magistrates' Court Act 1989 shall not apply in respect of the issue of any warrant of commitment thereon or in respect

Nos 3700 s. 24, 4876 s. 3(1)(b).S. 24 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.8(a)–(d)).

s. 24

Nos 3700 s. 25, 4876 s. 3(1)(a).S. 25 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.9).

S. 26repealed by No. 6571 s. 2, new s. 26 inserted by No. 7043 s. 2, amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 98.10), 33/1994 s. 11(2).



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of any person imprisoned by virtue of any such warrant.


(1) The examination of any person examined under the provisions of this Part shall be deemed to be a judicial proceeding, and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false statement or declaration shall be liable to the penalties of perjury.

* * * * *

28 Imprisonment for fraud no satisfaction of debt

Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any order, but notwithstanding such imprisonment a fresh warrant against the property or other proceedings to recover the amount may be issued on such order and executed in due course of law.

28A Appeal to County Court

(1) A person may appeal to the County Court against an order for commitment made against that person under this Part.

(2) The Criminal Procedure Act 2009 applies to an appeal under subsection (1) as if it were an appeal under section 254 of that Act.

_______________

Nos 3700 s. 27, 4876 s. 3(1)(c).

s. 27

S. 27(2) amended by Nos 7876 s. 2(3), 16/1986 s. 30, repealed by No. 57/1989 s. 3(Sch. item 98.11).

No. 3700 s. 28.

S. 28A inserted by No. 51/1989 s. 145.

S. 28A(2) amended by No. 68/2009 s. 97(Sch. item 69).



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PART IV—GENERAL

29 Judgment need not necessarily be served before fraud summons under Parts 1, 2 and 3

Notwithstanding any rule of law to the contrary, in any proceeding under Part I or Part II or Part III of this Act it shall not be necessary for the judgment debtor to be served with the judgment or copy thereof in respect of which the proceedings are brought before the issue of the fraud summons (that is to say the summons requiring him to attend the court to be examined touching his estate effects property and means of paying and discharging the debt) but if he has not previously been served personally with the judgment or copy thereof the judgment or copy therefore shall be served on the judgment debtor together with the fraud summons.

__________________

No. 5757 s. 6.



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SCHEDULES

FIRST SCHEDULE

Numberof Act Title of Act Extent of Repeal

3770 Imprisonment of Fraudulent Debtors Act 1928

The whole

4876 Imprisonment of Fraudulent Debtors (Amendment) Act 1941

The whole

5757 Statutes Amendment Act 1953 Section 6

__________________

Section 2.

Sch. 1Part II—On Judgment of County Court


21

SECOND SCHEDULESupreme Court

FORM I

SUMMONS TO DEBTOR

In the Supreme Court.

To A.B. of

Whereas judgment in favour of C.D. was entered against you in the said court the day of for the sum of $ and costs which have been taxed [or fixed;] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid:

These are therefore to require you to appear personally before the said court on the day of at o'clock in the noon to be examined by the said court touching your estate and effects and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability and if you disobey this summons you will be committed to prison.

Given under my hand this day of

O.P., Prothonotary.

__________________

Sch. 2

Section 4.Sch. 2 Form 1 amended by No. 110/1986 s. 140(2).



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FORM II

ORDER FOR COMMITMENT IN DEFAULT OF PAYMENT


To A.B. of

Whereas judgment in favour of C.D. was entered against you in the said court on the day of for the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex. gr., ''that you did not attend as required by the said summons or allege a sufficient excuse for not attending'' or ''it has appeared to the satisfaction of the court that you contracted the liability which was the subject of the judgment by means of fraud'']:

It is ordered that unless you pay into the said court the said sums [or the said sum of $ ] immediately [or within days or by the following instalments upon the following days (that is to say):—here set out days and sums] together with the sum of $ for interest at the rate of per centum per annum on the said sums [or sum] and the sum of $ for the costs of fruitless writs of execution and levies thereunder, and the sum of $ for the costs of the summons [or summons and examination] you be committed to prison for the term of or until you shall have paid or satisfied the said judgment or order and the sums hereinbefore ordered to be paid for interest and costs or until you shall be otherwise discharged by due course of law.

Dated this day of .

__________________

Section 5.Sch. 2 Form 2 amended by Nos 10063 s. 23(f), 110/1986 s. 140(2).



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FORM III

WARRANT OF COMMITMENT


To the Sheriff and to the keeper of the gaol at

Whereas the Supreme Court did on the day of order that A.B. against whom C.D. had in the Supreme Court recovered the sum of $ and costs which had been taxed [or fixed] at the sum of $ should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said sheriff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate signed by the prothonotary of the said court that the said A.B. has paid or satisfied the said sums [or sum] or until the said A.B. shall be otherwise discharged by due course of law.


O.P., Prothonotary.

__________________




24

FORM IV

WARRANT OF COMMITMENT ON EX PARTE APPLICATION


To the Sheriff and to the keeper of the gaol at

Whereas the Supreme Court did under the special circumstances of the case on the day of order that A.B., against whom C.D. had in the Supreme Court recovered the sum of should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said sheriff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate signed by the prothonotary of the said court that the said A.B. has paid or satisfied the said sums [or sum] or until the said A.B. shall be otherwise discharged by due course of law.


O.P., Prothonotary.

__________________




25

THIRD SCHEDULECounty Court

FORM I

SUMMONS TO DEBTOR

19 No.

In the County Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of &c., as the case may be] are still wholly due and unpaid:

These are therefore to require you to appear personally before the said court on the day of at o'clock in the noon, to be examined by the said court touching your estate and effects, and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability; and if you disobey this summons you will be committed to prison.

Given under my hand and the seal of the said court this day of

Registrar [or Deputy Registrar] of the said court.

__________________

Sch. 3

Section 15.Sch. 3 Form 1 amended by No. 19/1989 s. 16(Sch. item 27.7(a)).



26

FORM II


19 No.

In the County Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex. gr., ''that you did not attend as required by the said summons or allege a sufficient excuse for not attending'' or ''it has appeared to the satisfaction of the court that you contracted the liability which was the subject of the judgment by means of fraud'']:

It is ordered that unless you pay into court the said sums [or the said sum of $ ] immediately [or within days or by the following instalments upon the following days (that is to say):—here set out days and sums] with the sum of $ for interest at the rate of per centum per annum on the said sums [or sum] and the sum of for the costs of fruitless warrants of execution and levies thereunder and the sum of $ for the costs of the said summons [or summons and examination] you be committed to prison for the term of or until you shall have paid or satisfied the said sums [or sum] and the sums hereinbefore ordered to be paid for interest and costs or until you shall be otherwise discharged by due course of law.



__________________

Section 16.Sch. 3 Form 2 amended by Nos 10063 s. 23(g), 19/1989 s. 16(Sch. item 27.7(b)).



27

FORM III


19 No.

To the bailiff of the County Court at and to the keeper of the gaol at

Whereas the said court did on the day of order that A.B. against whom C.D. had in the said court recovered the sum of $ and costs which have been taxed [or fixed] at the sum of $ should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said bailiff to take the said A.B. and convey him to the said gaol, and deliver him to the said keeper thereof, and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by the registrar or deputy registrar of the said court) that the said A.B. has paid or satisfied the said sums, or until the said A.B. shall be otherwise discharged by due course of law.



__________________

Section 18.Sch. 3 Form 3 amended by No. 19/1989 s. 16(Sch. item 27.7(c)).



28

FORM IV


19 No.

To the bailiff of the County Court at and to the keeper of the gaol at

Whereas the county court did under the special circumstances of the case on the day of order that A.B. against whom C.D. had in the county court recovered the sum of should be committed to prison for [state time] unless he did [as in Order for Commitment]. And the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said bailiff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof, and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by the registrar or deputy registrar of the said court) that the said A.B. has paid or satisfied the said sums, or until the said A.B. shall be otherwise discharged by due course of law.



__________________

Section 19.Sch. 3 Form 4 amended by No. 19/1989 s. 16(Sch. item 27.7(d)).



29

FOURTH SCHEDULEMagistrates' Court

FORM I

SUMMONS TO DEBTOR

In the Magistrates' Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which by the said order were fixed at the sum of $ and costs which by the said order were fixed at the sum of $ [or the sum of $ for costs] and the said sums [or sum] [or $ part of, &c., as the case may be] are still wholly due and unpaid:

These are therefore to command you to appear personally before the magistrates' court at [place] on the day of at o'clock in the noon to be examined by the said court touching your estate and effects and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability [and as to your neglect or refusal to comply with an order for the delivery of goods detained without just cause after due notice and to pay the value thereof to the complainant].

Dated at the day of

Registrar of Magistrates' Court.

__________________

Sch. 4 amended by No. 8181 s. 2(1)(Sch. item 70).

Sch. 4

Section 22.Sch. 4 Form 1 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.12(a)(i)(ii)).



30

FORM II



To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which by the said order were fixed at the sum of $ [or the sum of $ for costs] and the said sums [or sum] [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex.gr., "it has been proved to the satisfaction of the magistrates' court that you contracted the liability under false pretences or by means of fraud or breach of trust'' or ''it has been proved to the satisfaction of the magistrates' court that you have neglected or refused to comply with an order under the Magistrates' Court Act 1989 for the delivery of goods detained without just cause after due notice and have not paid the value thereof to the complainant]:

It is adjudged that unless you pay into the said court immediately [or within days or by the following instalments upon the following days (that is to say):—here set out dates and sums] the said sum together with the sum of $ for the costs of the summons [or summons and examination] you be committed to prison for the term of [or until you shall have paid or satisfied the said order and the sums hereinbefore ordered to be paid for costs, or until you shall be otherwise discharged by due course of law].

Dated at this day of

Magistrate.

__________________

Section 22.No. 4876 s. 3(1)(d).Sch. 4 Form 2 amended by Nos 7703 s. 5, 9427 s. 6(1)(Sch. 5 item 71), 10063 s. 23(h), 16/1986 s. 30, 57/1989 s. 3 (Sch. item 98.12(b)).



31

FORM III



To a police officer and to the keeper of the gaol at

The magistrates' court having ordered that A.B. against whom C.D. had in the said court obtained an order for should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

You the said police officer are commanded to take the said A.B. and convey him to the said gaol and deliver him to the keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by a registrar of the court) that the said A.B. has paid or satisfied the said sums or until the said A.B. shall be otherwise discharged by due course of law.


Registrar of Magistrates' Court.

__________________

Section 23.

Sch. 4 Form 3 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3 (Sch. item 98.12(c)(i)(ii)), 37/2014 s. 10(Sch. item 84.3).



32

FORM IV



To a police officer and to the keeper of the gaol at

The magistrates' court having in the special circumstances of the case on the day of ordered that A.B. against whom C.D. had in the said court obtained an order for should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

You the said police officer are commanded to take the said A.B. and convey him to the said gaol and deliver him to the keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by a registrar of the court) that the said A.B. has paid or satisfied the said sums or until the said A.B. shall be otherwise discharged by due course of law.


Registrar of the Magistrates' Court.

═══════════════

Section 24.Sch. 4 Form 4 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3 (Sch. item 98.12(d)(i)(ii)), 37/2014 s. 10(Sch. item 84.3).



33

ENDNOTES

1. General InformationThe Imprisonment of Fraudulent Debtors Act 1958 was assented to on 30 September 1958 and came into operation 1 April 1959: Government Gazette 18 March 1959 page 892.

EndnotesPart II—On Judgment of County Court


34

2. Table of AmendmentsThis Version incorporates amendments made to the Imprisonment of Fraudulent Debtors Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Imprisonment of Fraudulent Debtors (Depositions) Act 1959, No. 6571/1959Assent Date: 1.12.59Commencement Date: 1.12.59Current State: All of Act in operation

Fraudulent Debtors Commitment Act 1963, No. 7043/1963Assent Date: 12.11.63Commencement Date: 12.11.63Current State: All of Act in operation

Abolition of Bailiwicks Act 1968, No. 7703/1968Assent Date: 15.10.68Commencement Date: 1.1.69: Government Gazette 4.12.68 p. 3920Current State: All of Act in operation

Justices (Amendment) Act 1969, No. 7876/1969Assent Date: 25.11.69Commencement Date: All of Act (except ss 3, 5, 6, 7(k)(m)–(o)) on 1.4.70;

ss 3, 5, 6, 7(k)(m)–(o) on 1.7.70: Government Gazette 25.2.70 p. 463

Current State: All of Act in operation

Statute Law Revision Act 1971, No. 8181/1971Assent Date: 23.11.71Commencement Date: 23.11.71: subject to s. 2(2)Current State: All of Act in operation

Magistrates' Courts Act 1973, No. 8427/1973Assent Date: 17.4.73Commencement Date: S. 12 on 1.9.75: Government Gazette 30.7.75 p. 2705Current State: This information relates only to the provision/s

amending the Imprisonment of Fraudulent Debtors Act 1958

Magistrates (Summary Proceedings) Act 1975, No. 8731/1975 (as amended by No. 9059/1977)

Assent Date: 16.5.75Commencement Date: S. 173 on 1.7.76: Government Gazette 24.3.76 p. 848Current State: This information relates only to the provision/s


Statute Law Revision Act 1980, No. 9427/1980Assent Date: 27.5.80Commencement Date: 27.5.80: subject to s. 6(2)Current State: All of Act in operation



35

Judgment Debt Recovery Act 1984, No. 10063/1984Assent Date: 15.5.84Commencement Date: 1.5.85: Government Gazette 17.4.85 p. 1102Current State: All of Act in operation

Courts Amendment Act 1986, No. 16/1986Assent Date: 22.4.86Commencement Date: S. 30 on 1.7.86: Government Gazette 25.6.86 p. 2180Current State: This information relates only to the provision/s


Supreme Court Act 1986, No. 110/1986Assent Date: 16.12.86Commencement Date: 1.1.87: s. 2Current State: All of Act in operation

County Court (Amendment) Act 1989, No. 19/1989Assent Date: 16.5.89Commencement Date: 1.8.89: Government Gazette 26.7.89 p. 1858Current State: All of Act in operation

Magistrates' Court Act 1989, No. 51/1989Assent Date: 14.6.89Commencement Date: S. 145 on 1.9.90: Government Gazette 25.7.90 p. 2216Current State: This information relates only to the provision/s


Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989Assent Date: 14.6.89Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette

30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217

Current State: All of Act in operation

Magistrates' Court (Amendment) Act 1994, No. 33/1994Assent Date: 31.5.94Commencement Date: S. 11(2) on 24.10.94: Government Gazette 20.10.94

p. 2789Current State: This information relates only to the provision/s


Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09Commencement Date: S. 97(Sch. item 69) on 1.1.10: Government Gazette

10.12.09 p. 3215Current State: This information relates only to the provision/s




36

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date: 3.6.14Commencement Date: S. 10(Sch. item 84) on 1.7.14: Special Gazette

(No. 200) 24.6.14 p. 2Current State: This information relates only to the provision/s


Courts Legislation Miscellaneous Amendments Act 2014, No. 62/2014Assent Date: 9.9.14Commencement Date: S. 15 on 10.11.14: Special Gazette (No. 364)

14.10.14 p. 1Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



37

3. Explanatory Details



38

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