A judgment is worth nothing if you cannot find anything to enforce against. Order 13 Division 2 of the National Court Rules 1983 — headed Discovery in Aid of Enforcement — is how you find out.
Rule 13
The Court may, on motion by a person entitled to enforce a judgement or order, order a person bound by it, in Form 57, to —
(a) attend before the Registrar and be orally examined on the material questions; and
(b) produce any document or thing in the possession, custody or power of the person bound relating to the material questions.
(a) As to so much of the judgment as requires the person bound to pay money —
(i) whether any and, if so, what debts are owing to the person bound; and
(ii) whether the person bound has any and, if so, what other property or means of satisfying the judgement or order.
(b) As to so much of the judgment as does not require payment of money — such questions concerning or in aid of the enforcement or satisfaction of the judgement as may be specified in the order.
What debts are owing to them — which identifies targets for a garnishee order: bank accounts, wages, trade debts.
What other property or means they have — which identifies targets for a writ for levy of property, a charging order, or the appointment of a receiver.
Note that examination is available whether or not the judgment is for money. Paragraph (b) allows the Court to specify questions in aid of the enforcement or satisfaction of any judgment — useful where the order is for delivery of goods and you need to know where they are.
Rule 14
Where the person bound is a corporation, the Court may make orders as mentioned in Rule 13 for the examination of, or production by, an officer or former officer of the corporation.
Those three words matter. A director who has resigned since the judgment cannot avoid examination on that account. Where the person who actually knows the company’s affairs has left, they may still be examined.
Under Order 1 Rule 6, “officer”, in relation to a corporation, includes a director.
Rules 15 and 16
15(1) A person may move for an order under Rule 13 or 14 without filing or serving notice of the motion.
15(2) The order must be served personally on the person ordered to attend or to produce any document or thing.
16 The order shall not require a person to attend or produce on any day unless a sum sufficient to meet his reasonable expenses of complying in relation to that day is paid or tendered at the time of service or a reasonable time before.
Personal service. The order must be served personally under Order 6 Rule 3 — because non-attendance carries serious consequences.
Conduct money. As with a summons to give evidence under Order 11 Rule 3, and with discovery before suit under Order 3 Rule 3, the order does not require attendance unless expenses are paid or tendered. A judgment debtor served without conduct money need not attend.
The application itself may be made without notice, which is sensible: a debtor forewarned of an examination has time to move assets.
The sanction
Where the Court, by summons or otherwise, orders a person to attend for the purpose of giving evidence, for the production of any document or thing, to answer a charge of contempt, or for any other purpose, and the person defaults in attendance, the Court may, on application by a party or of its own motion —
(e) issue, or make an order for the issue of, a warrant to the Sheriff or such other person as the Court may appoint for the arrest of the person in default and for the production of the person in default before the Court or before an examiner, and for his detention in custody in the meantime; and
(f) order the person in default to pay any costs occasioned by the default.
(2) This does not affect the Court’s powers to punish for contempt or the provisions of Order 14 Division 6.
A warrant under Rule 6(1)(e) is available only where the order actually required attendance — which, under Rule 16, it does not unless conduct money was paid or tendered.
Where a person is arrested, Order 13 Rule 44 requires them to be lodged in the corrective institution nearest to the place of arrest and detained until the Court orders discharge. And under Rule 12, a person shall not be committed except by or under an order of the Court.
After the examination
| What the examination reveals | Enforcement route |
|---|---|
| A bank account | Garnishee — and note the branch, which r 56(7) requires |
| Employment | Garnishee of wages — capped at two-thirds of each pay |
| Debts owed by customers | Garnishee — but service on the garnishee may not be effected outside Papua New Guinea |
| Goods, vehicles, land | Writ for levy of property |
| An interest in a partnership | Charge under Partnership Act s 24 |
| An interest in funds in Court | Stop order |
| A business with income | Receiver |
| Nothing at all | Consider insolvency or winding-up proceedings |
Rule 11 works the other way: a person bound by a judgement may move the Court for a stay of execution or for some other order, on the ground of matters occurring after the date on which the judgement takes effect, and the Court may, on terms, make such order as the nature of the case requires. That is without prejudice to the general stay power in Rule 21.
So a debtor whose circumstances have changed since judgment has a route, and a creditor who suspects assets are being concealed has Rule 13. Both are available at the enforcement stage.
Sources
- National Court Rules 1983 — O 1 r 6; O 3 r 3; O 6 r 3; O 11 r 3; O 13 rr 6, 11–16, 21, 44, 56, 57, Div 2; O 14 Div 6; Form 57
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.