Enforcement of non-money orders and contempt

In addition to money orders (orders for the payment of a sum) the District and the Supreme Courts have the power to make a range of other orders. Chapter 20 of the Uniform Civil Procedure Rules 1999 (UCPR) deals with these kinds of orders.

Enforcement

If they do not comply with the order, the rules make provision for enforcement in the following cases:

• Under rule 896 an order for the possession of land can be enforced by applying for an Enforcement Warrant for Possession (rule 915), or by bringing contempt of court proceedings (rules 898 and 917);
• Under rule 897 an order for the delivery of goods can also be enforced by applying for an Enforcement Warrant or bringing contempt proceedings, although in many cases an order for the delivery of goods can be enforced in the same way as a money order.
• Under rule 898 an order requiring someone to perform or abstain from performing an act can be enforced by bringing contempt proceedings;
• Under rule 899, an order requiring someone to do something can be enforced by allowing someone else to do that (substituted performance);
• Under rule 900, an undertaking to the court can be enforced by either bringing contempt proceedings or by seeking an order to seize the respondent’s property.

Under rules 898 and 900, orders against a corporation can be enforced by bringing contempt proceedings against an officer of the corporation.

Enforcement warrants

Rule 906 of the UCPR sets out the general rules about obtaining an enforcement warrant. To obtain an enforcement warrant you need to complete:

• an application (Form 9);
• a draft of the warrant you want the court to issue (Form 85, 86 or 87), and
• an affidavit that verifies that the respondent has been served with a copy of the order and has not complied with the order (Form 46).

Forms can be accessed here.

Rule 908 contains the requirements of an enforcement warrant:

• the name of the person required to comply (rule 908(1));
• the date that the warrant expires (no more than a year) (rule 908(2));
• what the warrant authorises (rule 908(3));
• the amount recoverable under the warrant (rule 908(4)), including the amounts from any earlier unsatisfied warrants (rule 908(2)(a)); and
• the costs of enforcement (and any interest on these costs) (rule 908(2)(b) and (2)(c)).

You can apply to renew an enforcement warrant under rule 909.

There are special rules that apply for enforcement of a warrant for possession of land under rules 913, 914 and 915:

• The order to be enforced must have been served on the respondent at least seven days previously (rule 913(1)); and
• If the land is subject to a tenancy, the leave of the court is required prior to enforcement (rule 913(2)); and
• A supporting affidavit must state whether or not to the applicants’ knowledge there are other people in occupation of the property and also verify that the applicant has served the respondent and whether or not the court’s leave for any enforcement has been obtained (rule 914).

Substituted performance

Under rule 899, the court can authorise someone else to perform an order.

This type of order can be used where a person is required to sign a document (e.g. a land transfer, mortgage, contract, appointment of an agent).

To seek this type of enforcement you need to file:

• A Form 9 Application. In most cases you will ask that the court authorise a Registrar or Deputy Registrar of the court to sign the relevant document; and
• An Affidavit (Form 46), setting out the steps that you have taken to have the order enforced and explaining that the order has not been complied with.

You will then need to serve a copy of the application on the respondent. You should prepare an affidavit of service for the court hearing.

Finally, you will need to attend a hearing before a judge. The other party may also turn up to oppose the making of the order.

Contempt of court

Punishing for contempt (which can include a fine or imprisonment) is arguably the most serious step that a civil court can take. The court has the power to punish certain contempt on its own motion. Under rule 925, a party can also bring an application alleging contempt of court.

Punishment for contempt is reserved for only the most deliberate breaches of a court order.

First, before applying for a contempt order, you should carefully read through the court order that has not been performed. Is the order clear? Can you identify a deliberate breach of the court order?

Before proceeding it is advisable to write to the other party, identifying the breaches of the order, requesting they comply with the order and giving them time to take steps to comply with the order.

Contempt of court requires a deliberate continuing refusal to disobey a court order. Non compliance with an order that was not deliberate, was the result of a misunderstanding, and that can be (and preferably has been) rectified by a respondent, is less likely to be punished as contempt of court: GND Developments Pty Ltd (in liq), Moloney & Geroff v DA Luttrell Nominees Pty Ltd & Ors [1998] QSC 159 and Booth v Yardley [2008] QPEC 5.

Requirements

Rule 904 sets out the prerequisites for an application for contempt of court:

• The respondent must have been personally served with the order (rule 904(1)(a)); and
• If the order requires the respondent to do something within a particular time, the respondent must be served with the order in a reasonable time to allow the respondent to comply with the order (rule 904(1)(b)).

However, personal service is not necessary if the respondent was actually present in court when the order was made (rule 904(2)(a)), or the respondent received some other reasonable notice of the order before the time to comply with the order expired (rule 904(2)(b)).

Under rule 926 of the UCPR, to bring an application for contempt of court:

• The application must clearly identify the alleged contempt; and
• The respondent must be personally served with a copy of the application and the supporting affidavits.

You can use a Form 9 Application to apply for a contempt order, or you can pay the court’s filing fee and file an Originating Application (UCPR rule 926(2)).

Once you have served the respondent, you should prepare an Affidavit of Service (Form 46) and attend the hearing.

At the hearing, you will need to argue that the respondent’s breach of the order is so serious to justify punishment for contempt.