Order 1 Rule 6 of the National Court Rules 1983 defines “the Sheriff” as the Sheriff of Papua New Guinea. Order 13 Division 6 — the Sheriff’s Rules — governs the office.
Rule 41
“bill” means bill of fees of the Sheriff.
“fees” includes charges and poundage.
“process” includes a writ.
“person interested”, in relation to the Sheriff’s fees for service or execution of process, means — (a) a party who lodges the process with the Sheriff; (b) a solicitor who gives an undertaking to pay the fees or is otherwise liable to pay them; or (c) in the case of a writ of execution authorising the Sheriff to levy the fees on property, the person on whose property the levy is authorized.
Paragraph (b) is worth noting. A solicitor who gives an undertaking to pay the Sheriff’s fees is a person interested and is liable for them. That is a personal exposure, not the client’s.
Note also that under Order 13 Rule 27, in the levy Division “sheriff” includes any person to whom a writ is directed, and under Order 14 Rule 51 and Order 13 Rule 35 it includes any officer charged with the execution of process.
The functions
| Function | Provision |
|---|---|
| Seize and sell property under a writ for levy of property | O 13 Div 4 |
| Take only so much as appears sufficient, in an order minimising hardship | O 13 r 30 |
| Sell by public auction, after giving due publicity | O 13 rr 31–33 |
| Give an account of proceeds, charges and disposal to any party interested | O 13 r 34 |
| Execute a writ of possession of land, or of delivery of goods | O 13 rr 3, 4 |
| Execute a warrant for arrest of a person in default of attendance | O 13 r 6(1)(e) |
| Serve external process at the Registrar’s request | O 6 r 34 |
| Claim interpleader relief where a stranger claims seized goods | O 13 Div 5 |
Rule 43
(1) The Sheriff shall not suspend the execution of any process, except on an absolute instruction in writing to that effect lodged with him by the party by whom the process is lodged.
(2) A party who has lodged such an instruction may withdraw it by lodging with the Sheriff an instruction to execute the process.
The Sheriff has no discretion to hold off. A judgment debtor who telephones the Sheriff asking for time achieves nothing; nor does an oral request from the creditor.
Two routes exist for a debtor who wants execution halted: persuade the creditor to lodge an absolute written instruction under Rule 43(1); or apply to the Court for a stay under Order 13 Rule 21, which allows the Court, on terms, to stay execution of a judgement or order.
Sub-rule (2) makes the suspension reversible — the creditor may restart execution by lodging a fresh written instruction.
Rule 42
Where the Sheriff receives money under a writ and has been served with notice by any person claiming to be interested in that money not to pay it over, the Sheriff may retain the money to abide the order of the Court.
But if no application is made by the party giving the notice within four days after the date of that notice, the Sheriff may pay over the money in pursuance of the writ, without regard to the notice.
A person who claims an interest in money the Sheriff has realised must serve notice and then apply to the Court within four days. A notice without a prompt application is worthless: the Sheriff may simply pay the creditor.
This is one of the shortest periods anywhere in the Rules, and it is easily missed. Compare the four days a judgment creditor has under Rule 39(1) to admit a claim before the Sheriff may seek interpleader relief.
Rule 45
In the execution of process, poundage is chargeable under a writ for levy of property or a writ of venditioni exponas on the money obtained by the seizure — at the rate of 5% up to K200.00, and at the rate of 2½% for the excess.
It is charged on the money obtained by the seizure, not on the judgment sum. The Sheriff’s remuneration therefore depends on a successful execution.
Poundage falls within “fees” as defined by Rule 41, and is recoverable from a person interested — the party who lodged the process, a solicitor who undertook to pay, or the person whose property is levied on.
Remember that under Order 13 Rule 26, the amount for which a writ may issue includes the costs of any prior writ of execution on the same judgement, whether productive or not — so the expense of an unsuccessful attempt is carried forward.
Rule 44
When any person is arrested by the Sheriff on any civil process of the Court, the person shall be lodged in the corrective institution nearest to the place of his arrest, and be there detained until the Court orders his discharge.
Two situations produce it. Under Order 13 Rule 6, where a person defaults in attending as ordered — to give evidence, to produce a document, to answer a charge of contempt, or for any other purpose — the Court may issue a warrant to the Sheriff for the arrest of the person in default and for their production before the Court, and for his detention in custody in the meantime. And committal for contempt under Order 14 Division 6 is executed by the Sheriff.
Rule 44 requires detention at the nearest corrective institution, and until the Court orders discharge. The person’s liberty is in the hands of the Court, not the Sheriff.
That reflects Constitution section 42, which protects liberty of the person, and it is why an order enforceable by committal must be personally served and must carry the warning notice Order 13 Rule 7(3) requires.
Sources
- National Court Rules 1983 — O 1 r 6; O 6 r 34; O 13 rr 3, 4, 6, 7, 21, 26, 27, 30–34, 41–45, Divs 4–6; O 14 rr 51, Div 6
- Constitution — s 42
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.