What is a litigation guardian?

A litigation guardian is appointed to protect the processes of the Court and to ensure that the interests of a litigant who has impaired capacity are protected against the disadvantage that the litigant would otherwise be under. At common law a litigation guardian owes a duty to see that every proper and legitimate step is taken for the adult’s representation. A litigation guardian is a substitute decision-maker, which means that they are required to act on what they perceive are the best interests of the party.

A litigation guardian is subject to the same obligations about the conduct of a matter as a lawyer, including the undertakings implied in rule 5 of the UCPR. The Court may remove a litigation guardian if the interests of justice require it.^[1]

There are risks to accepting the role of litigation guardian. At common law, a litigation guardian:

1. 1. 1. is personally liable for the costs of a solicitor retained by the litigation guardian on behalf of a relevant adult;^[2]
      2. for a plaintiff will generally be personally liable for any of the defendant’s costs that the plaintiff is ordered to pay;^[3]
      3. for a defendant will generally not be personally liable for any of the plaintiff’s costs that the defendant is ordered to pay, unless there was misconduct on the part of the litigation guardian;^[4]
      4. is entitled to an indemnity from the adult’s estate for costs and expenses properly incurred.^[5]

How is a litigation guardian appointed?

A person becomes a litigation guardian by filing in the registry the person’s written consent or by appointment by the court.^[6]

While a court can appoint someone to act as litigation guardian without their consent, it is unlikely to do so in practice. In Queensland, there is no support regime which requires, for example, appointment of the Public Trustee as litigation guardian in the absence of a person willing to help. When a person does not have someone willing to be their litigation guardian, the Public Trustee cannot be appointed without its consent and it is generally reluctant to be appointed as litigation guardian.^[7]

Accordingly, when no-one is willing to act as a litigation guardian and the Public Trustee refuses to act, the only outcome is an indefinite stay of proceedings.

Sanctioning an agreement or order

Once a matter is finalised, an order or agreement for compensation should be sanctioned by the court.

Sanctioning a settlement between another person and an adult with impaired capacity or where the court orders an amount to be paid by an adult with impaired capacity^[8] protects all parties, including the litigation guardian.

1. Rule 94(2) UCPR
2. Stephenson v Geiss [1998] 1 Qd R 542 at 558 per Lee J
3. NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247 at 253-4 per Sackville J
4. Murray v Kirkpatrick (1940) 57 WN (NSW) 162
5. Stephenson v Geiss [1998] 1 Qd R 542 at 558
6. Rule 95, Uniform Civil Procedure Rules 1999
7. Fowkes v Lyons [2005] QSC 007; 27(3) Public Trustee Act 1978
8. s 245 GAA

Defamation law in Australia

In Australia, all the States and Territories have defamation legislation that is substantially the same, which means that defamation law is mostly consistent across the country.

The courts in each State and Territory as well as the Federal Court of Australia have jurisdiction to hear defamation matters.  This means that, depending on the circumstances of a particular matter, a person might be able to choose which court to start defamation proceedings in. There might be specific practical or strategic reasons why a plaintiff would choose to start proceedings in a particular court, especially because different procedural rules apply in different courts. If you are considering starting court proceedings and are not sure which court you should start your proceedings in, you should seek legal advice.

This factsheet focuses on Queensland law and court proceedings brought in the Queensland courts.

What is the relevant legislation?

The Defamation Act 2005 (Qld) (Defamation Act) governs the law of defamation in Queensland.

The Defamation Act was amended on 1 July 2021, and the current version of the Defamation Act applies to all actions in defamation where the defamatory matter was published on or after 1 July 2021.

You can find a copy of the Defamation Act here: Defamation Act 2005(Qld).

If the defamatory matter was published before 1 July 2021, the previous version of the Defamation Act will apply. See this factsheet for information about the law that applies to defamatory matters published before 1 July 2021.

Who can sue for defamation?

Under the Defamation Act, the following can bring an action for defamation:

• • A person; or
  • A corporation (that is not a public entity), if it is either:
    • a not for profit organisation; or
    • it employs fewer than 10 people and is not related to another corporation.

A corporation that does not fit the criteria above cannot sue for defamation under the Defamation Act. This limitation was introduced in response to community concern that large corporations were able to use a threat of defamation to suppress legitimate public criticism and debate.

In addition, a person cannot claim defamation or continue an existing action for defamation in relation to the publication of defamatory matter about a deceased person.

Who can be sued for defamation?

Any natural person or legal entity including local governments, companies and incorporated associations may be liable for defamation.

Any person who contributed to the publication may also be held liable, including but not limited to the original author, the publisher, journalists, television and/or radio stations, and the administrator or host of the website where the publication was made.

A person cannot claim defamation or continue an existing action for defamation in relation to a publication that was made by a person who has died since publishing the matter.

Time frame to bring an action

The Limitation of Actions Act 1974 sets out the time limits for bringing an action in defamation.

Generally, court proceedings for an action in defamation must be brought within 1 year from the date of the publication. Where there have been multiple publications made by the same defendant (or their employees, contractors or associated entities) that are substantially the same, this 1-year limit runs from the date of the first publication.

However, before a person can start court proceedings, they must give the proposed defendant a concerns notice under the Defamation Act and allow 28 days for the proposed defendant to make an offer to make amends.

If the person gives their concerns notice to the potential defendant within the 56 days before the 1-year limit expires, then the time limit for bringing court proceedings will be extended so that it expires 56 days after the day the concerns notice is given. Concerns notices and offers to make amends are further discussed below.

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Example: Billy publishes a defamatory post about Dominic on 15 June 2022. Dominic’s limitation period to start defamation proceedings will normally expire on 15 June 2023. Dominic gives Billy a concerns notice about the post on 1 June 2023. Dominic’s limitation period will now expire on 27 July 2023, 56 days after he gave Billy the concerns notice.

The court can extend the 1-year time limit to a period of up to 3 years if the plaintiff satisfies the court that it is just and reasonable to allow the court action to proceed. When deciding this, the court will take into account all of the circumstances of the case, including the length of the delay, the plaintiff’s reasons for the delay, and what actions the plaintiff took when they first found out about the potential defamatory matter.

Elements of civil defamation – Defamation Act 2005

In order to succeed in a defamation action, the plaintiff needs to satisfy four elements:

1. 1. 1. Publication;
      2. Identification;
      3. Defamatory matter; and
      4. Serious harm.

The first three elements are defined by the common law, or the body of “judge-made” law that has been developed through cases decided by the courts. The last element, serious harm, is defined in the Defamation Act.

1. Publication

Publication means that the material is made known to a third person other than the person being defamed. Publication can be oral, in writing or in pictures.

Publishing occurs in each place the material is seen or heard, so every time defamatory matter is repeated to a third person, a separate publication occurs.

2. Identification

The plaintiff must be able to show that the defamatory matter could reasonably be taken to be about them. It is a question of whether an ordinary reasonable person having knowledge of the relevant circumstances would read the material as referring to the plaintiff. This is most easily satisfied when the publication actually names the plaintiff. However, there is no need for the plaintiff to be specifically named. It is enough that the publication is made to persons with knowledge of other facts which would reasonably enable them to identify the plaintiff.

3. Defamatory matter

Whether a matter is defamatory will depend on the circumstances of each individual case.

First, the question is whether the material was capable of conveying the defamatory meaning alleged by the plaintiff to an ordinary person.

If so, then the question is whether an ordinary person would have taken the publication as conveying the meaning alleged by the plaintiff.

In answering these questions, the standard to be applied is what the ordinary reader, listener or viewer would understand or infer from the statement. The audience is taken not to have any special prejudices. The actual intention of the person making the statement is irrelevant.

There are three ways that a statement can convey a defamatory meaning (otherwise known as an imputation):

1. 1. 1. On the natural and ordinary meaning of the words: the meaning coming from a literal reading of the words.
      2. The court may find that the statement is a false innuendo. In other words, there is a secondary meaning which comes from reading between the lines.
      3. The statement may be a true innuendo. This is where the alleged meaning arises from the natural and ordinary meaning of the words being read in light of other facts not mentioned in the publication. The statement must be published to at least one person who knows of other facts.

The defamatory meaning can be directly stated or it can be implied. An implication that arises from another implication is not actionable. This is important in the context of criminal allegations. A statement that somebody is charged with a crime carries the implication that the person is suspected of committing that crime; to conclude that this means the person did in fact commit the crime requires a second implication, and would not be actionable.

It is possible that a single statement may convey several defamatory meanings. However, multiple imputations in the same publication will only give rise to one cause of action. This means that a plaintiff cannot take several actions against a defendant in relation to a single publication.

4. Serious harm

The plaintiff must be able to show that the publication of the defamatory matter has caused, or is likely to cause, serious harm to their reputation.

The serious harm element was introduced on 1 July 2021, so it is not yet clear how the courts will interpret the meaning of ‘serious harm’. However, the Defamation Act makes it clear that if the plaintiff is a corporation, ‘serious harm’ means serious financial loss.

The court can make a decision about whether or not the serious harm element is established at any time during the court proceedings, and can make any orders the court considers appropriate. This includes dismissing the proceedings if the court is satisfied that the serious harm element is not established.

A party to the court proceedings can apply to the court to ask that this question be determined before the trial of the matter. If they apply for the question to be determined before the trial for the proceedings, the court must decide the issue as soon as possible before the trial starts, unless the court is satisfied that there are special circumstances that justify postponing the decision to a later stage of the proceedings.

Resolution of defamation disputes without litigation

Part 3 of the Defamation Act contains provisions regarding the resolution of civil disputes without litigation. The aim of these provisions is to help people resolve their disputes without having to resort to a court case, which can be time-consuming and expensive.

Concerns notices

Before a person can commence proceedings for defamation, they must first give the proposed defendant (the publisher) a concerns notice and wait for a specific period of time to allow time for the proposed defendant to make an offer to make amends.

A concerns notice is not a court document. A person giving a concerns notice cannot simply give the proposed defendant a copy of the claim and statement of claim they want to file and say that it is a concerns notice.

A concerns notice must:

• • be in writing;
  • specify the location where the publication can be accessed (e.g. a website address);
  • inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about them by the publication;
  • inform the publisher of the harm that the person considers to be serious harm to the person’s reputation that was caused or is likely to be caused by the publication;
  • where the aggrieved person is a corporation – also inform the publisher of the financial loss the corporation considers to be serious financial loss that was caused or is likely to be caused by the publication; and
  • if possible, include a copy of the relevant publication.

If the concerns notice does not adequately set out the information required above, the recipient can give the aggrieved person a written notice (a further particulars notice) asking that they provide reasonable further particulars (i.e. additional factual details) about the information concerned. The further particulars notice needs to specify the information being sought.

The aggrieved person must then provide the further particulars within 14 days of being given the notice, unless the parties agree to a longer period. If they don’t provide the information within this period, they are taken not to have given the publisher a concerns notice under the Defamation Act.

A person cannot commence proceedings for defamation unless:

• • the person has given the proposed defendant a concerns notice about the relevant matter;
  • the imputations to be relied on by the person in the proposed court proceedings were particularised in the concerns notice; and
  • the applicable period for an offer to make amends has elapsed.

The applicable period for an offer to make amends is normally 28 days since the publisher was given a concerns notice. The exception is where the aggrieved person gave further particulars to the publisher in response to a further particulars notice more than 14 days after the concerns notice was given to the publisher: in that case, the applicable period will be 14 days since the publisher was given the further particulars.

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Example: Julie sent a defamatory email about Sandy on 1 June 2022.  Sandy gave Julie a concerns notice on 3 June 2022.  Julie would normally have 28 days to make an offer to make amends (i.e. until 1 July 2022).  Julie sends Sandy a further particulars notice on 6 June 2022, and Sandy gives her the further particulars on 20 June 2022.  Since this is more than 14 days after Sandy gave Julie the concerns notice, Julie now has until 4 July 2022 to make an offer to make amends, and Sandy can’t start defamation proceedings against Julie until after 4 July 2022.

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The court can grant leave for the plaintiff to start proceedings before the applicable period has elapsed, but only if the plaintiff satisfies the court that:

• • if they started the proceedings after the end of the applicable period, they would be out of time under the Limitation of Actions Act 1974 because the court would not have the power to extend the limitation period to that date; and
  • it is just and reasonable for the court to grant leave.

Offers to make amends

The publisher may make an offer to make amends to the aggrieved person under Division 1, Part 3 of the Defamation Act, to try to resolve the matter without the need for further legal proceedings. One of the benefits of making an offer to make amends under the Defamation Act is that it can in some circumstances provide a publisher with a defence to a defamation action.

An offer to make amends under the Defamation Act must be made:

• • within 28 days of the publisher being given a concerns notice; or
  • if the aggrieved person gave further particulars to the publisher in response to a further particulars notice more than 14 days after the concerns notice was given – then within 14 days of the date the further particulars were given; or
  • before a defence has been served in the court proceedings.

The offer to make amends must:

• • be in writing;
  • be identifiable as an offer to make amends under Division 1, Part 3 of the Defamation Act;
  • be open for acceptance for at least 28 days from the date the offer is made;
  • if the offer is limited to any particular defamatory imputations – state that the offer is limited and specify the relevant imputations;
  • include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question;
  • if material containing the potentially defamatory matter has been given to someone else by the publisher or with the publisher’s knowledge – include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and
  • include an offer to pay the expenses reasonably incurred by the aggrieved person both before the offer was made and for considering the offer.

The offer to make amends can include any other kind of offer the publisher wants to make, such as an offer to publish an apology, an offer to remove the matter from a website, or an offer to pay compensation.

An offer to make amends is taken to have been made without prejudice unless stated otherwise, which means that the contents of the offer to make amends cannot be put before the court hearing the case.

The effect of accepting an offer to make amends is that the aggrieved person is prohibited from asserting, continuing or enforcing any action for defamation against the publisher in relation to the matter in question, even if the offer was limited to particular defamatory imputations.

If an offer to make amends is not accepted by the aggrieved person, then the publisher has a defence to an action for defamation if they can establish that:

• • they made the offer as soon as possible after being given a concerns notice and within the applicable period for offers to make amends;
  • they were ready and willing, on acceptance of the offer, to carry out the terms of the offer; and
  • in all the circumstances the offer was reasonable.

When deciding whether an offer to make amends was reasonable, the court has to consider any correction or apology published before the trial, including the extent to which that correction or apology is brought to the attention of the audience of the matter in question. The court can also consider any other matter it considers relevant.

Apologies

An apology made in connection with any defamatory matter published does not constitute an admission of fault or liability on the publisher’s behalf. Evidence of an apology is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. However, apologies are relevant to the mitigation (or lessening) of damages.

Defences to civil defamation

There are several defences available under the Defamation Act. It is important for the aggrieved party to consider what, if any, defences may apply as this may help to determine the likelihood of success in a defamation action and whether it is worthwhile to commence an action.

The defences available under the Defamation Act are:

1. 1. 1. Justification;
      2. Contextual truth;
      3. Absolute privilege;
      4. Publication of public documents;
      5. Fair report of proceedings of public concern
      6. Public interest;
      7. Qualified privilege;
      8. Scientific or academic peer review;
      9. Honest opinion; and
      10. Innocent dissemination.

In addition to these defences, the courts have recognised several defences that arise independently of the Defamation Act. These ‘general law’ defences can be raised as well as the defences under the Defamation Act.

Justification: section 25 of the Defamation Act

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations are substantially true. Substantially true is defined as being “true in substance or not materially different from the truth”.

A defendant is not required to prove the truth of every detail contained in the defamatory matter. Rather, a defendant must prove the truth of every material part of the imputation relied upon by the plaintiff.

Contextual truth: section 26 of the Defamation Act

The defendant will not be liable for the publication of defamatory matter if the defendant can prove that:

• • the matter carried 1 or more imputations that are substantially true (the contextual imputations); and
  • any defamatory imputations of which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

The contextual imputations on which the defendant may rely on to establish this defence includes imputations complained of by the plaintiff.

Absolute privilege: section 27 of the Defamation Act

If the defamatory material was published on an occasion of absolute privilege, the defendant will not be liable. Occasions of absolute privilege are statements made:

• • during the course of proceedings of a parliamentary body;
  • during the course of an Australian court/tribunal hearing; and/or
  • on an occasion that, if published in another Australian jurisdiction, would constitute absolute privilege in that jurisdiction.

The rationale for this section is that there are certain occasions where freedom of expression is so important to society (such as the enactment of laws by parliament and the determination of legal issues by courts) that absolute protection should be afforded.

Publication of public documents: section 28 of the Defamation Act

It is a defence if it can be proved that the material in dispute was contained in a public document, or a fair copy, summary or extract from a public document.

A public document includes, but is not limited to, reports by a parliamentary body, a judgment by a court, government documents and records open to the public.

Fair report of proceedings of public concern: section 29 of the Defamation Act

A person will have a defence to the publication of defamatory matter if they prove the matter was, or was contained in, a fair report of any proceedings of public concern. Proceedings of public concern include those of a parliamentary body, international organisations and conferences, international and domestic courts and tribunals, sport/recreation/trade associations, Ombudsman’s reports and other proceedings that are treated as proceedings of public concern.

This defence will be defeated if the plaintiff can prove that the defamatory material was not published honestly to either inform the public nor to advance education.

Public interest: section 29A of the Defamation Act

The defendant will not be liable for the publication of a defamatory matter if they can prove that:

• • the matter concerns an issue of public interest; and
  • they reasonably believed that the publication of the matter was in the public interest.

All of the circumstances of the case must be taken into account in determining whether this defence has been made out. Where applicable, a jury (and not the judge) will determine whether the defence has been established.

The Act provides some factors which may be taken into consideration when determining whether the defence has been established. The main question is whether the defendant’s belief that the publication of the matter was in the public interest was ‘reasonable’, and the factors are not exhaustive or a ‘checklist’. The factors include:

• • the seriousness of any defamatory imputation carried by the matter published;
  • the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
  • the extent to which the matter published relates to the performance of the public functions or activities of the person;
  • whether it was in the public interest in the circumstances for the matter to be published expeditiously;
  • the sources of the information in the matter published, including the integrity of the sources;
  • if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);
  • whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
  • any other steps taken to verify the information in the matter published;
  • the importance of freedom of expression in the discussion of issues of public interest.

This defence was introduced on 1 July 2021, so it is not yet clear how the courts will decide whether a defendant ‘reasonably believed’ that the publication of a matter was in the public interest. However, the defence does not appear to be restricted to journalists.

Qualified privilege: section 30 of the Defamation Act

The defendant will not be liable for the publication of a defamatory matter if they can prove that:

• • the recipient of the publication has an interest or apparent interest in having information on some subject;
  • the matter is published to the recipient in the course of giving to the recipient information on that subject; and
  • the conduct of the defendant in publishing that matter is reasonable in the circumstances.

When working out whether the defendant’s conduct is reasonable, the court can take into account a number of factors, including:

• • the seriousness of any defamatory imputation in the publication;
  • the extent to which the matter distinguishes between suspicions, allegations and proven facts;
  • the nature of the defendant’s business environment;
  • whether it was appropriate in the circumstances for the matter to be published expeditiously;
  • any other steps taken to verify the information in the publication.

This protection is qualified because the privilege can be lost if abused or misused. If it is proven that the publication was motivated by malice, the defence will be unsuccessful.

Scientific of academic peer review: section 30A of the Defamation Act

A defendant will not be liable for the publication of defamatory material if the defendant can prove that:

• • the matter was published in a scientific or academic journal; and
  • the matter relates to a scientific or academic issue; and
  • an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by:
    • the editor of the journal (if the editor has expertise in the scientific or academic issue concerned); or
    • 1 or more persons with expertise in the scientific or academic issue concerned.

This defence was introduced on 1 July 2021, so it is not clear yet how the courts will approach its interpretation. For example, it is uncertain what threshold the courts will adopt when determining whether a matter has been published in a ‘scientific or academic journal’. However, the Defamation Act requires that there be an independent review of the matter’s scientific or academic merit by a person with expertise in the issue concerned before its publication. The journal must therefore be at least recognised or regarded by persons with expertise in the scientific or academic community.

Honest opinion: section 31 of the Defamation Act

The defendant will not be liable for the publication of a defamatory matter if they can prove that:

• • the matter was an expression of opinion (as opposed to a statement of fact);
  • the opinion related to a matter of public interest; and
  • the opinion is based on proper material.

This defence was amended on 1 July 2021 to provide more details and clarity about when an opinion is considered to be “based on proper material”.

An opinion is based on proper material if the material the opinion is based on is:

• • set out in specific or general terms in the publication; or
  • notorious; or
  • accessible from a reference, link or other access point included in the publication (e.g. a hyperlink); or
  • otherwise apparent from the context of the publication.

The material the opinion is based on must also be:

• • substantially true; or
  • published on an occasion of qualified privilege; or
  • published on an occasion where the defences of publication of public documents or fair report of proceedings of public concern would apply.

If the plaintiff can prove that the opinion was not honestly held at the time of the publication, the defence will be unsuccessful.

Innocent dissemination: section 32 of the Defamation Act

This defence applies where the defamatory publication was disseminated by an employee or agent of a subordinate distributor (i.e. not the author of the matter or first distributor of the matter). The defendant must have been unaware that the publication was defamatory and this lack of knowledge must not have been due to the defendant’s negligence.

This defence is of particular significance to booksellers, newsagents and broadcasters of live programs as they are not the original source of the defamatory publication.

General law defences

In addition to the defences described above, the courts have recognised several defences that arise independently of the Defamation Act. The Defamation Act provides that a party may raise any of these defences to resist an action for defamation. Many of these defences are similar to the defences contained in the Defamation Act, and so do not add much to the available range of defences.

One example of a general law defence is the common law defence of qualified privilege. The defendant will have a defence if they can establish that they had a duty in making the publication, and that those to whom the publication was made had a duty or interest in receiving it. This defence extends to protect publications concerning government or political matters that affect the Australian people, because of the implied freedom of political communication in the Constitution. This means that certain material that is otherwise defamatory may be protected if it is a fair and accurate report of parliamentary or judicial proceedings, or public meetings concerning matters of public interest. The defendant must not believe that the imputation was untrue nor can the publication be actuated by malice.

Litigation

A claim for defamation may be lodged in either the Supreme Court or District Court (depending on the amount of damages being claimed).

A claim for defamation may also be lodged in a Magistrates Court. However, proceedings commenced in a Magistrates Court cannot be tried by jury, and a Magistrates Court cannot grant an injunction.

Trial by jury

A plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury, unless the court orders otherwise. The court may order that the proceedings not be tried by jury if the trial requires a prolonged examination of records, or involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

Once a party has elected for the proceedings to be tried by jury, it can only be revoked with the consent of all the parties or with the leave of the court.

The jury will determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence has been established. The judge will determine whether the publication has caused the plaintiff serious harm, and whether the offer to make amends defence has been established.

If the jury determines that there has been a defamatory publication about the plaintiff and that no defence applies, then it is for the judge to determine the amount of damages to be awarded to the plaintiff.

Damages

The normal remedy for a successful defamation claim is damages. The amount of damages to be awarded is determined by the judge, and must have an appropriate and rational relationship to the harm the plaintiff sustained. There are generally two types of damages awarded in defamation proceedings: compensatory damages, and aggravated damages.

The purpose of compensatory damages is to vindicate the plaintiff’s reputation and compensate the plaintiff for the harm done to their reputation and the hurt and distress caused by the publication. Compensatory damages can include non-economic loss (e.g. compensation for injury to reputation or social damage) or special damages for economic loss (e.g. actual loss of a particular customer, contract or employment, or actual loss of earning capacity). Damages to compensate for non-economic loss are capped. The maximum damages amount is reviewed every year, but as at 1 July 2022 the cap is $443,000. [1]

The court can only award the maximum damages amount in a most serious case.

The court also has the ability to award aggravated damages, which is a special category of compensatory damages that is calculated separately from damages for non-economic loss. The court will only award aggravated damages in circumstances where the defendant’s conduct was improper, unjustifiable, or lacking in bona fides (i.e. not genuine or in good faith) such that it increased the harm suffered by the plaintiff.

Exemplary and punitive damages (compensation in excess of the plaintiff’s actual damage to punish the wrongdoer for their reprehensible conduct and deter them from engaging in such conduct in the future) cannot be awarded for defamation.

The amount of damages can be mitigated (reduced) if the defendant can bring evidence that they made an apology to the plaintiff or published a correction, or the plaintiff has already brought proceedings or received damages or compensation for defamation in relation to another publication that had the same meaning or effect as the defamatory matter.

Other relief – common law injunction

The court does have the power to grant an injunction to prevent or restrain the publication of defamatory matter. Injunctions are discretionary remedies and therefore depend on the circumstances of each case. Courts are very reluctant to exercise this discretion, and an injunction will generally only be granted where damages are considered insufficient.

Relevant factors the court will take into account include:

• • the strength of the plaintiff’s case;
  • the balance of convenience must favour the granting of an injunction (this involves an evaluation of likely prejudice to each side if the injunction was granted); and
  • other factors such as the availability of alternative remedies to the plaintiff, the adequacy of damages as a remedy and any delay on the part of the plaintiff in bringing the application.

Criminal defamation

In certain circumstances, defamation may also be a criminal offence under the Criminal Code Act 1899 (Qld). Criminal defamation occurs when a person publishes defamatory material knowing it to be false, or without having any regard as to whether it is true or false, and in publishing the material intends to cause serious harm to another. The maximum penalty for this offence is three years imprisonment.

However, criminal defamation will not be established if the defendant can show that he or she had a lawful excuse for publishing the defamatory matter. If the defendant can call evidence that one of the civil defences would have been available, had the matter been a civil defamation case, this will be accepted as a lawful excuse.

External Resources

Defamation Act 2005 (Qld)

The Uniform Civil Procedure Rules 1999 (UCPR) provide for a number of ways that a civil matter might come to an end without going to trial where the defendant has not filed a defence or a viable defence.

This factsheet is designed to set out a number of these, in particular default and summary judgments.

1. Default judgment

Obtaining a default judgment

If a plaintiff files and serves a claim and a defendant does not file a notice of intention to defend within 28 days of being served, the plaintiff can obtain a default judgment from the court under rule 281 of the UCPR.

If the plaintiff’s claim is for a debt or liquidated demand then the default judgment will set out the amount that the defendant has to pay. To obtain a default judgment for a debt or liquidated demand, the plaintiff must demonstrate that the claim was properly served upon the defendant (rule 282).

If the claim is for unliquidated damages the court must still assess the damages that the plaintiff is entitled to (rule 284).

In the District and Supreme Courts, a Registrar goes through the documents quite thoroughly before granting a default judgment to check that the UCPR has been complied with. The Registrar does not consider the merits of the plaintiff’s claim against the defendant in deciding whether or not to grant default judgment (rule 283(10)).

The UCPR allow a plaintiff’s lawyer to give “hearsay evidence” to a Registrar in order to obtain a default judgment (rule 430(2)). This means that usually a plaintiff’s lawyer will file an “affidavit of debt” in which they swear or affirm that their client has told them that the debt is owed and outstanding.

To obtain a default judgment for a liquidated demand or debt you need to complete a Form 25 request for default judgment and you will need to swear an affidavit of debt, using a form 46 affidavit. You will also need an affidavit of service from the person who served the defendant with the claim and statement of claim. Forms can be accessed here.

I have been served with a default judgment – What can I do?

You should contact the Registry of the court and obtain a copy of the request for default judgment and the affidavit of service that were relied on by the plaintiff to get the default judgment. All court forms give the registry and file number for the case.

Under rule 290 you may apply to the court to set aside a default judgment.

This can be attempted by filing a Form 9 Application together with a Form 46 Affidavit.

There are two grounds on which a default judgment may be set aside.

First, you might be able to satisfy the court that the judgment was obtained irregularly. Irregularity means that the plaintiff hasn’t complied with the UCPR or that there is a defect in the judgment.

Examples of an irregularity are:

1. 1. 1. That the defendant was not served with the proceedings in accordance with the UCPR; or
      2. That the amount claimed does not take into account payments made by the defendant to reduce the debt.

If you want to argue that you were never served with the claim and statement of claim, it is not enough for you to swear an affidavit that you were never served.

You need to be able to present independent evidence that rules out the possibility that you were served. Usually, this will involve evidence that shows your whereabouts at the time that the affidavit of service says you were served.

For example, Jenny is applying for a default judgment to be set aside. The plaintiff has filed an affidavit of service swearing that Jenny was served with the Claim on 10 March at 3 pm in her house at Fortitude Valley.

Jenny files an affidavit that says that she was not at her home at that time. She was out shopping with her children at the time. Jenny presents no evidence to support this.

Without further evidence, Jenny’s application is unlikely to succeed.

Alternatively, Jenny files an affidavit in support of her application that includes a speed camera photograph taken at 2:50 pm on 10 March on the Gold Coast Highway at Currumbin.

This would be very strong evidence in support of Jenny’s application, because it would not physically be possible for her to have been at her house at Fortitude Valley at 3 pm, if she was at Currumbin at 2:50 pm.

Alternatively, Jenny might be able to produce her work diary that shows that she was working at Surfers Paradise on 10 March, together with electronic records that show she swiped into her workplace at 9 am and left at 6:10 pm. Her appointment diary also indicates that she had a client appointment from 2:00 pm – 4:00 pm.

Second, even if the default judgment was properly obtained the court can still set aside a default judgment. There are three things that you must satisfy the court of:

1. 1. 1. A reasonable explanation for the failure to file a defence;
      2. That there has been no delay in your bringing your application; and
      3. A prima facie defence on the merits: National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 QdR 441.

It is important in explaining a failure to file a defence that you be honest with the court.

To establish a prima facie defence on the merits, you will need affidavit material to substantiate the grounds on which you are seeking to defend the claim. This is a very important difference with the normal drafting of a defence, as you need to present the actual evidence that you will seek to rely on in your defence.

Before applying to have a default judgment set aside you should think seriously about whether or not you do have a defence to the substantive claim against you. If the other party is legally represented they are likely to incur considerable costs in resisting the application.

You should prepare a defence that you are seeking to file so that the proceedings are able to continue, and exhibit this to your affidavit.

The court’s power to set aside a default judgment is discretionary. If a judgment has been regularly entered, the court will often make an order that the defendant pay the plaintiff’s costs “thrown away” by obtaining the default judgment: Challis v O’Brien [1956] QWN 39. This puts both the plaintiff and the defendant back in the position they were in before the default judgment was obtained.

If you are the defendant in proceedings, you cannot obtain a default judgment on a counterclaim Aust Investment Corp (Holdings) Ltd v Markway Holdings Pty Ltd [2002] QSC 305.

2. Summary judgment

Rule 292 of the UCPR allows a plaintiff to apply to the court for judgment if the defendant has “no real prospect” of defending the claim and that a trial is not necessary to resolve the dispute between the parties.

Rule 293 of the UCPR similarly allows a defendant to apply to the court for judgment if the plaintiff has “no real prospect” of establishing the claim.

You can file an application for summary judgment at any time after a notice of intention to defend has been filed (rules 292 and 293).

A high threshold is needed to satisfy the court that summary judgment should be granted. Essentially, you need affidavit evidence supporting the allegations of fact that you make against the other party.

An application for summary judgment must be served at least 8 business days before it is set down for hearing. The material in response to a summary judgment application must be filed at least 4 business days before the hearing.

If you are responding to an application for summary judgment you should:

1. 1. 1. File affidavit material that substantiates your case;
      2. Use the best evidence that you can to support your case; and
      3. Identify and highlight disputes of fact between the parties.

If there are disputes of fact between the parties, the courts are often reluctant to grant summary judgment.

3. Other forms of early resolution of cases by the courts

In addition to summary and default judgments, the UCPR provides a number of other ways that a case can be resolved by a court without going to full trial.

1. 1. 1. The matter may be deemed resolved under the Caseflow Management Scheme.
      2. If a defendant does not turn up to the trial on the due date, the court can hear the plaintiff’s case and grant judgment against the defendant (rule 476).
      3. The court can sometimes make an order for “security for costs” and security for damages, that is, it can order a company bringing proceedings (or in some cases an individual), to provide evidence that it could meet a potential costs order before it can continue an action (Chapter 17).

Judgment debt by instalment

You can apply to the court under rule 868 for an order allowing you to pay the judgment debt by instalment. To do this you need a Form 9 Application and a Form 46 Affidavit. Forms can be accessed here.

Rule 869 sets out the factors that the court must consider in deciding whether or not to grant an instalment payment order.

These are:

a) Whether you are employed;

b) Your means of satisfying the debt and interest within a reasonable time;

c) Your necessary living expenses, and the expenses of the debtor’s dependents;

d) Your other liabilities; and

e) Whether or not the order you have asked for would be consistent with the general policy of enforcing judgments quickly and with a minimum of expense.

Stay of enforcement warrant

Once you receive notice that the other party has an enforcement warrant, you could apply:

• under rule 800 for a stay of the enforcement warrant if there are facts discovered since the time of the judgment that would justify a stay of the enforcement, or
• under rule 290 if you are seeking to stay the enforcement of a default judgment.

The courts have consistently said that a party that has a judgment is entitled to the enforcement of that judgment: Virgtel Ltd v Zabusky (No. 2) Pty Ltd [2009] QCA 349. Stays are therefore only rarely granted.

If you can point to serious hardship and temporary inability to pay, but satisfy the court that with some time you will be able to meet the judgment, then this may convince the court to allow you a short extension of time.

If the judgment against you is a default judgment and you have some grounds to attack the decision, you might strengthen your decision by also bringing that application. In most cases, an appeal is the proper way to attack a decision on the merits.

Time limits

An enforcement creditor can start enforcement proceedings at any time within 6 years after the date of the judgment that is being enforced. If the enforcement creditor wants to start enforcement proceedings outside of this time limit, they need the court’s permission (rule 799).

What if you disagree with the original judgment?

A judgment of a Queensland court or QCAT is final and binding. If you do not agree with the judgment, then you may be able to:

1. 1. appeal the judgment, if it is a judgment that was made on the merits of the case and you are within appeal time limits;
   2. apply to the court to have the judgment set aside, if it was a default judgment (because you failed to file a notice of intention to defend) or a summary judgment (because you filed a defence but the court was persuaded that you had no real defence to the claim); or
   3. apply for the enforcement proceedings to be put on hold (‘stayed’) while you take other steps, for example to appeal the judgment, or apply to have it set aside.

For more information about appealing a judgment, see our factsheets, Appealing a QCAT decision, Appeals in the District Court of Queensland, and Appeals in the Queensland Court of Appeal – how to bring an appeal. For more information about applying to set aside a default judgment or a summary judgment, see our factsheet, Default and summary judgments.

It is important that you obtain some legal advice if you think you are not liable for a debt. See a community legal centre near you for advice as soon as possible, because you need a good case to appeal or set aside a judgment.

Unless you are successful with one or more of the above steps to challenge a judgment, you must comply with all of your obligations in proceedings to enforce that judgment.

What are the steps in enforcement proceedings?

There are usually four steps that the enforcement creditor can take to require you to pay the amount owing. These are:

• • • Step 1: Send you a letter of demand for payment of the amount owing;
    • Step 2: Send you a notice to complete a Form 71 statement of financial position (a Form 71);
    • Step 3: Apply for an enforcement hearing to get information about your financial position; and
    • Step 4: Apply for an enforcement warrant that requires you to pay the amount owing.

What can you do in response to enforcement proceedings?

There are some things that you can do in response to enforcement proceedings. These include:

1. 1. Apply to put enforcement of the judgment or the enforcement warrant on hold (for a ‘stay’), including because of facts arising or discovered after the judgment was made (see rules 800 and 819, and rule 290 if the judgment is a default judgment). Whether a stay is granted is up to the court’s discretion.
   2. Apply to set aside an enforcement warrant, for example because of an irregularity in the warrant (rule 819). Whether an enforcement warrant is set aside is up to the court’s discretion.
   3. Apply to the court for an order allowing you to pay your debt to the enforcement creditor by instalments (rule 868). There are a number of things the court will consider in deciding whether to order that you make payment by instalments (rule 869). These include:

• • whether you are employed;
  • your means of paying the debt;
  • whether the debt will be paid within a reasonable time;
  • your necessary living expenses and those of your dependents;
  • your other liabilities; and
  • the public interest in enforcing money orders efficiently and quickly.

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.

A reference to “the Rules” is a reference to the Uniform Civil Procedure Rules 1999 (Qld).

The steps to enforce a court’s monetary order are:

• • Step 1 – write a letter to the enforcement debtor
  • Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing
  • Step 3 – apply for an enforcement warrant

Time limits

You may enforce a judgment for a monetary sum at any time within six years from the date of the decision. If you do not enforce the decision within this six year time frame you may lose the right to do so. You can apply to the court for an extension of this first six year period for a further six years, however, the court may not necessarily grant the extension of time.

Step 1 – write a letter to the enforcement debtor

The first step in an enforcement process is usually to write a ‘letter of demand’ to the enforcement debtor; advising of the date of the decision and the amount owing, and requesting that the amount be paid by a reasonable date (e.g. 7 days or 14 days etc). You do not necessarily have to take this step but it can save you the time and cost of taking other enforcement steps, and sometimes the enforcement debtor will make a payment.

You should attach a copy of the court decision to the letter and provide your bank account details, or the name you wish a cheque to be made out to, so that the enforcement debtor may pay you the amount owing.

If the enforcement debtor does not pay you within the time specified, you should consider commencing enforcement proceedings.

Enforcement proceedings can either be conducted in the same court that made the order, or if the size of the costs order that you have falls within the monetary jurisdiction of a lower court, then you can register the judgment in that lower court (rule 802). The Magistrates Court deals with matters of less than $150,000, and the District Court deals with matters between $150,000 – $750,000. The Supreme Court deals with matters greater than $750,000.

Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing

It will only be worthwhile pursuing enforcement proceedings if the enforcement debtor has access to money or assets (which may be sold) to be able to pay you the amount owed.

You will need to consider what you know about the enforcement debtor’s financial situation. For example, you may know that the enforcement debtor owns a property, works for a particular employer or has money owing to them from a third party. If you do not know anything about the enforcement debtor’s financial situation you will need to apply for an enforcement hearing to obtain this information.

Either way, you should send the enforcement debtor a letter enclosing a statement of financial position (form 71). Ask the enforcement debtor to complete this form and return it to you within 14 days. You must send a statement of financial position before you apply for an enforcement hearing.

If the enforcement debtor pays you the amount you are owed in response to this letter, you will not need to commence enforcement proceedings and the matter will be over.

If the enforcement debtor returns the statement of financial position to you with sufficient information, you can then proceed to apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not respond to you within 14 days or does not provide sufficient information, then you will need to apply for an order that the enforcement debtor attend an enforcement hearing. An enforcement hearing is an oral examination by the court of the enforcement debtor about their financial position.

Applying for an enforcement hearing

To apply for an enforcement hearing, you will need to file the following three documents at the court where you registered the decision.

1. Court Form 9 – Application. This document is for you to ask the court for an order that:
   • the enforcement debtor to be summoned to an enforcement hearing; and
   • the enforcement debtor provide you with documents relating to their finances, e.g. documents about assets, income, bank accounts, or other documents which may demonstrate their ability to pay you the amount you are owed.
2. Court Form 46 – Affidavit. This document is for you to swear or affirm:
   • the amount you are owed and the steps you have taken to recover this amount;
   • whether you have received a completed statement of financial position;
   • if you have received a complete statement of financial position, why you are not satisfied with the information in the statement; and
   • an offer to pay conduct money for the enforcement debtor’s attendance at the hearing (if relevant).
3. Court Form 70 – enforcement hearing summons. This document is for you to list what documents you want the enforcement debtor to provide at the hearing (which you should have already referred to in Form 9).

The court will set a date for the enforcement hearing and issue the summons, which must be served by you on the enforcement debtor at least 14 days before the date of the hearing. The summons may instruct the enforcement debtor to provide you with a completed Statement of Financial Position (Form 71) before the hearing (Rule 808(7)). If this is the case, you will need to serve a blank Form 71 with the summons.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you should notify the court and the enforcement debtor that you no longer require the enforcement hearing and apply for an enforcement warrant (see step 3 below).

If the enforcement debtor does not return the Statement of Financial Position to you before the hearing, the enforcement hearing will proceed. The enforcement debtor will be required to attend court to answer questions about their finances and bring along any documents listed in the enforcement hearing summons. You will also need to attend the hearing.

The enforcement hearing may prompt the enforcement debtor to negotiate payment arrangements with the enforcement creditor (you) to resolve the dispute. If the enforcement debtor does not offer to negotiate, the court may order an enforcement warrant.

If the enforcement debtor fails to attend the hearing, the court may issue a warrant for their arrest.

Step 3 – apply for an enforcement warrant

Once you have obtained information about the enforcement debtor’s financial position (either through your own informal searches or through the enforcement hearing process) you can apply to the court for an enforcement warrant.

Types of enforcement warrants

The types of enforcement warrants that you can apply for are listed below:

• Enforcement warrant for redirection of earnings under rule 855. This type of warrant directs the enforcement debtor’s employer to pay part of his/her wages to you whenever they get paid. To apply for this type of warrant, details of the source of the enforcement debtor’s earnings, for example their employer, are required.
• Enforcement warrant for redirection of a debt under rule 840. This type of warrant directs a third party who currently owes a debt to the enforcement debtor to pay that money to you instead. To apply for this type of warrant you will need to know the details of the third party and the amount they owe the enforcement debtor.
• Enforcement warrant for regular redirections from a financial institution under rule 848. This type of warrant directs a financial institution, e.g. a bank, to redirect regular payments received by the enforcement debtor to you. To apply for this type of warrant you will need to know details of any payments regularly made and the enforcement debtor’s account details.
• Enforcement warrant for seizure and sale of property under rule 828. This type of warrant directs the enforcement officer, who is the sheriff or bailiff of the court, to seize and sell property belonging to the enforcement debtor. There are limits on the type of property which may be seized and sold. To apply for this type of warrant, you will need to know details of the enforcement debtor’s property which may be seized and sold.

You will need to consider which enforcement warrant is most appropriate in your case and apply for that specific warrant.

Applying for an enforcement warrant

To apply for an enforcement warrant, you will need to file the following three documents at the court where you registered the decision.

1. Form 9 – Application. This document is for you to ask the court to issue an enforcement warrant.
2. Form 74 – Statement supporting application for enforcement warrant. This document is for you to set out details about the decision you are seeking to enforce, costs incurred by you in pursuing enforcement proceedings and interest claimable. You must complete this statement no more than 2 days before you file the application; and
3. Form 75 – Enforcement warrant (seizure and sale), Form 76 – Enforcement warrant (redirection of debt), Form 77 – Enforcement warrant (regular redirection) or Form 78 – Enforcement warrant (redirection of earnings). You will need to choose the correct warrant form and attach this to your application and supporting statement.

Once you have filed the documents, the registrar of the court will decide whether to issue an enforcement warrant

Serving an enforcement warrant

If the registrar issues an enforcement warrant, the warrant will need to be served on the enforcement debtor and any person required to take action under the warrant, such as the enforcement debtor’s employer (if the enforcement debtor is an individual) or financial institution. There are different rules about how the different types of warrants must be served.

You may choose to engage a “bailiff” to serve the warrant. A warrant for the seizure and sale property must be executed by a bailiff. If you engage a bailiff, you will need to pay a deposit of money as security for any costs the bailiff may incur in executing the warrant. Bailiffs can be employed by contacting the bailiff’s office at the courthouse.

This factsheet outlines the steps required to enforce a decision of the Federal Circuit Court (FCC) that requires a person or company to pay a fixed amount of money. It does not apply to the enforcement of orders made in family law proceedings.

In this factsheet, “enforcement creditor” means the person or company who is owed money and is taking enforcement action and “enforcement debtor” means the person or company who owes the money and is the subject of enforcement action.

A reference to “the Rules” is a reference to the Uniform Civil Procedure Rules 1999 (Qld). A reference to a “Form” is a reference to the UCPR Forms (found here).

For matters decided in Queensland, the FCC has adopted the Rules for the purposes of enforcing monetary decisions – see section 78 of the Federal Circuit Court Act 1999 (Cth) and rule 29.07 of the Federal Circuit Court Rules 2001. Therefore, when you lodge enforcement proceedings in the FCC against an enforcement debtor, you will need to use the forms as required by the Rules. As these forms are normally for use in the Queensland Courts, you will need to change any reference to the Queensland Courts in the forms (e.g. the title) to say ‘Federal Circuit Court of Australia’.

The steps to enforce a FCC decision are:

1. 1. 1. write a letter to the enforcement debtor
      2. consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing
      3. apply for an enforcement warrant

Time limits

You may enforce a judgment for a monetary sum at any time within six years from the date of the decision. If you do not enforce the decision within this six year time frame you may lose the right to do so. You can apply to the court for an extension of this first six year period for a further six years, however, the court may not necessarily grant the extension of time.

Step 1 – write a letter to the enforcement debtor

The first step in an enforcement process is usually to write a “letter of demand” to the enforcement debtor; advising of the date of the decision and the amount owing, and requesting that the amount be paid by a reasonable date (e.g. 14 days or 21 days etc).

You should attach a copy of the decision to the letter and provide your bank account details, or the name you wish a cheque to be made out to, so that the enforcement debtor may pay you the amount owing.

If the enforcement debtor does not pay you within the time specified, you should consider commencing enforcement proceedings.

Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing

It will only be worthwhile pursuing enforcement proceedings if the enforcement debtor has access to money or assets (which may be sold) to be able to pay you the amount owed.

You will need to consider what you know about the enforcement debtor’s financial situation. For example, you may know that the enforcement debtor owns a property, works for a particular employer or has money owing to them from a third party. If you do not know anything about the enforcement debtor’s financial situation you will need to apply for an enforcement hearing to obtain this information.

Either way, you should send the enforcement debtor a letter enclosing a Statement of Financial Position (Form 71 if the enforcement debtor is an individual or Form 71A if the enforcement debtor is a company). Ask the enforcement debtor to complete this form and return it to you within 14 days.

If the enforcement debtor pays you the amount you are owed in response to this letter, you will not need to commence enforcement proceedings and the matter will be over.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you can then proceed to apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not respond to you within 14 days or does not provide sufficient information, then you will need to apply for an order that the enforcement debtor attend an enforcement hearing. An enforcement hearing is an oral examination by the court of the enforcement debtor about their financial position.

Applying for an enforcement hearing

To apply for an enforcement hearing, you will need to file the following three documents:

Court Form 9 – Application. This document is for you to ask the court for an order that:

• • • the enforcement debtor to be summoned to an enforcement hearing; and
    • the enforcement debtor provide you with documents relating to their finances, e.g. documents about assets, income, bank accounts, or other documents which may demonstrate their ability to pay you the amount you are owed.

Court Form 46 – Affidavit. This document is for you to swear or affirm:

• • • the amount you are owed and the steps you have taken to recover this amount;
    • whether you have received a completed statement of financial position;
    • if you have received a complete statement of financial position, why you are not satisfied with the information in the statement; and
    • an offer to pay conduct money for the enforcement debtor’s attendance at the hearing (if relevant).

Court Form 70 – enforcement hearing summons. This document is for you to list what documents you want the enforcement debtor to provide at the hearing (which you should have already referred to in Form 9).

The court will set a date for the enforcement hearing and issue the summons, which you must personally serve on the enforcement debtor at least 14 days before the date of the hearing. The summons may instruct the enforcement debtor to provide you with a completed Statement of Financial Position (Form 71 if the enforcement debtor is an individual or Form 71A if the enforcement debtor is a company) before the hearing. If this is the case, you will need to serve a blank Statement of Financial Position with the summons.

Personal service means that if the enforcement debtor is an individual, you will need to arrange for a copy of the summons to be handed to that person or, if they refuse to accept them, put down in the person’s presence with an explanation of what they are. If the enforcement debtor is a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company’s registered address. If you are not comfortable serving the summons yourself, you can ask a friend to do it or pay a fee for a bailiff or process server to serve the summons.

After the enforcement hearing summons has been served, the person who performed service should swear an affidavit of service. Once the affidavit of service is complete you will need to lodge it with the FCC.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you should notify the court and the enforcement debtor that you no longer require the enforcement hearing and apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not return the Statement of Financial Position to you before the hearing, the enforcement hearing will proceed. The enforcement debtor will be required to attend court to answer questions about their finances and bring along any documents listed in the enforcement hearing summons. You will also need to attend the hearing.

The enforcement hearing may prompt the enforcement debtor to negotiate payment arrangements with the enforcement creditor (you) to resolve the dispute. If the enforcement debtor does not offer to negotiate, the court may order an enforcement warrant.

If the enforcement debtor fails to attend the hearing, the court may issue a warrant for their arrest.

Step 3 – apply for an enforcement warrant

Once you have obtained information about the enforcement debtor’s financial position (either through your own informal searches or through the enforcement hearing process) you can apply to the court for an enforcement warrant.

Types of enforcement warrants

The types of enforcement warrants that you can apply for are listed below:

• • • Enforcement warrant for redirection of earnings under rule 855. This type of warrant directs the enforcement debtor’s employer to pay part of his/her wages to you whenever they get paid. To apply for this type of warrant, details of the source of the enforcement debtor’s earnings, for example their employer, are required.
    • Enforcement warrant for redirection of a debt under rule 840. This type of warrant directs a third party who currently owes a debt to the enforcement debtor to pay that money to you instead. To apply for this type of warrant you will need to know the details of the third party and the amount they owe the enforcement debtor.
    • Enforcement warrant for regular redirections from a financial institution under rule 848. This type of warrant directs a financial institution, e.g. a bank, to redirect regular payments received by the enforcement debtor to you. To apply for this type of warrant you will need to know details of any payments regularly made and the enforcement debtor’s account details.
    • Enforcement warrant for seizure and sale of property under rule 828. This type of warrant directs the enforcement officer, who is the sheriff or bailiff of the court, to seize and sell property belonging to the enforcement debtor. There are limits on the type of property which may be seized and sold. To apply for this type of warrant, you will need to know details of the enforcement debtor’s property which may be seized and sold.

You will need to consider which enforcement warrant is most appropriate in your case and apply for that specific warrant.

Applying for an enforcement warrant

To apply for an enforcement warrant, you will need to complete and lodge the following documents:

1. 1. Form 9 – Application. This document is for you to ask the court to issue an enforcement warrant.
   2. Form 74 – Statement supporting application for enforcement warrant. This document is for you to set out details about the decision you are seeking to enforce, costs incurred by you in pursuing enforcement proceedings and interest claimable. You must complete this statement no more than 2 days before you file the application; and
   3. Form 75 – Enforcement warrant (seizure and sale), Form 76 – Enforcement warrant (redirection of debt), Form 77 – Enforcement warrant (regular redirection) or Form 78 – Enforcement warrant (redirection of earnings). You will need to choose the correct warrant form and attach this to your application and supporting statement.

Once you have filed the documents, the registrar of the court will decide whether to issue the enforcement warrant.

Serving an enforcement warrant

If the registrar issues the enforcement warrant, the warrant will need to be served on the enforcement debtor and any person required to take action under the warrant, such as the enforcement debtor’s employer (if the enforcement debtor is an individual) or financial institution.

There are different rules about how the different types of warrants must be served.

You may choose to engage an officer of court to serve the warrant. A warrant for the seizure and sale property must be executed by an officer of the court. If you engage an officer of the court, you will need to pay a deposit of money as security for any costs the officer may incur in executing the warrant. This service can be engaged by contacting the Registry.