Need to obtain legal advice
The Court cannot and does not advise whether any of these types of action might be available or might be successful, in the circumstances of any particular case. Parties should seek their own legal advice on their rights, obligations and duties arising out of any judgment or order of the Court and the remedies that might be available to enforce or to resist enforcement of any judgment or order of the Court in any particular case. This information is for the purpose of providing general guidance to people about enforcement of judgments and orders and are not a substitute for proper and specific legal advice.
If the Land and Environment Court gives a judgment or makes an order, parties are obliged to comply with the judgment or order. Where the order is to take some specified action, and to do so within a specified period of time, parties are obliged to take the action within the time.
Failure to comply with a judgment or order of the Court may have criminal and civil consequences for the person in default. It is up to the parties to take enforcement action. It is not the Court’s role to take action on behalf of the parties. The types of action you might be able to take to enforce a judgment are:
- enforcement under Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005
- debt recovery through other courts
- contempt proceedings
Enforcement of court orders under Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005
A judgment or order of the Court may be enforced under Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005 which apply to civil proceedings in classes 1, 2 , 3, 4 and 8 of the Land and Environment Court’s jurisdiction. These provisions do not apply to orders for the payment of money.
If a judgment or order of the Court requires a person to do an act within a specified time, and the person fails to do the act as so required within the time, the judgment or order may be enforced by committal (imprisonment) of the person bound by the judgment or sequestration of that person’s property or both. If the judgment or order requires a company to do an act within a specified time and the company fails to do the act within the required time, the judgment or order may be enforced by committal (imprisonment) of any officer of the corporation or sequestration of the property of any officer of the corporation or both: Part 40 r 40.6(1) and (2) of the Uniform Civil Procedure Rules 2005.
A judgment is not enforceable by these means of committal or sequestration unless a sealed copy of the judgment is served personally on the person bound and, if the judgment requires the person to do an act within a specified time, the copy is so served within that time: Part 40 r 40.7(1) and (2) of the Uniform Civil Procedure Rules 2005.
The sealed copy of the judgment must bear a notice that the person is liable to imprisonment and sequestration of property if the person fails to comply with the judgment in any time specified. The person must be named in the notice: Part 40 r 40.7(3) of the Uniform Civil Procedure Rules 2005.
Service can be dispensed with in certain circumstances and by the Court: Part 40 r 40.7(4) and (5) of the Uniform Civil Procedure Rules 2005.
The procedure for enforcing a judgment or order by the means of committal or sequestration of property under Part 40 Div 2 is by motion on notice in the proceedings in which the judgment or order was made. The notice of motion is to be in the approved Form 20. The evidence in support of the motion is to be by way of affidavit.
Enforcement of orders for the payment of money
If the Court orders payment of compensation or payment of costs associated with carrying out an order, the order can be enforced by action for recovery of the debt in the Local Court (civil claims jurisdiction) or District Court, depending on the amount of the debt.
Enforcement of court orders in criminal proceedings
Criminal penalties and orders
If you are convicted of a criminal offence the Court can make a number of different orders. The orders the Court makes are determined by the penalties and orders specified by the statute creating the offence as well as other relevant statutes including the Crimes (Sentencing Procedure) Act 1999 and Fines Act 1996. Criminal penalties include imprisonment, fines, community service orders and specific orders for restoration of or reparation for harm caused by the offence.
If you fail to comply with these orders, you may be punished further and different orders made against you.
If you have received a fine or order to pay costs in criminal proceedings, you will generally have 28 days to pay. If you do not think you will be able to pay by then, there are some options available. You can apply to:
- pay by instalments
- ask for an extension to the payment due date by filing and serving a notice of motion and an affidavit in support.
These applications are dealt with by the Court’s registrar in chambers. Once a decision is made the Court will write to you to tell you the outcome of your application.
What happens if you do not pay your fine?
If you do not pay the fine on time or make other payment arrangements, the outstanding amount will be referred to the State Debt Recovery Office (SDRO) which will take further action. The types of action the SDRO can take include:
- suspending or cancelling your driver's licence or vehicle registration — known as RTA restrictions
- issuing a garnishee order to take money from your bank account or wages
- ordering you to do community service
- issuing a property seizure order that authorises the Office of the Sheriff to seize and sell your property.
In certain circumstances, you may be able to apply to SDRO to perform unpaid community work or undergo treatment. See the SDRO publication Work and Development Order.
Victims Compensation Levy
A levy is applied to many criminal cases, including those in the Land and Environment Court. The levy is in addition to any fine or order made by the Court and it is not a penalty imposed by the Court.
The levy is set by government to assist with payments for victims of crime. A victims compensation levy needs to be paid within 28 days of the Court finalising the case.
Enforcement of orders in tree disputes
In addition to the methods of enforcement of orders described above, for orders made under the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act"), the following types of actions might be able to be taken against the person in default:
- request the local council to carry out the work ordered by the Court
- criminal proceedings may be brought against the person in default for the offence of failing to comply with the order of the Court
- civil proceedings may be brought against the person in default to enforce an obligation under the Trees Act.
Local council may carry out the work ordered
If the Court orders the tree owner to carry out work in relation to a tree, the neighbouring owner, who was the applicant for the order, may request the local council to enter the tree owner’s land, first, to ascertain whether the tree owner has carried out the work in accordance with the order and, secondly, if the tree owner has not done so, to carry out the work itself: s 17(1) and (2) of the Trees Act.
The local council is not obliged to act in either of these ways, notwithstanding receiving a request from the neighbouring owner. The local council has a discretion whether to act or not to act in these ways.
If the local council elects to act, there is a statutory procedure it must follow, including given written notice to the tree owner of its intention to enter the land (except in certain circumstances): s 17(3)-(5)of the Trees Act. The person authorised by the local council to enter the land must possess and produce on request the authority (s 17(6) of the Trees Act) and the authority must meet certain content requirements (s 17(7) of the Trees Act).
The local council may bring legal proceedings, most likely in the Local Court, to recover the reasonable costs of carrying out the work ordered from the tree owner: s 17(8) of the Trees Act.
Failure to comply with any requirement imposed by an order of the Court under Part 2 or 2A of the Trees Act is an offence: s 15(1) of the Trees Act. The maximum penalty is 1,000 penalty units which currently translates to $110,000.
Proceedings for an offence may be taken in the Court in its summary jurisdiction: s 15(2) of the Trees Act. Proceedings are in Class 5 of the Court’s jurisdiction: s 21(hc) of the Land and Environment Court Act 1979.
Proceedings are to be commenced in the Court by summons claiming an order under s 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence: Part 5 r 5.3(1) of the Land and Environment Court Rules 2007. The summons is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged: Part 5 r 5.3(2) of the Land and Environment Court Rules 2007.
Civil proceedings may be brought to enforce any right, obligation or duty conferred or imposed by an order of the Court under Part 2 or 2A of the Trees Act. These proceedings are in class 4 of the Court’s jurisdiction: s 20(2) and (3) of the Land and Environment Court Act 1979. Civil proceedings are to be commenced by summons.
A person who fails to comply with an order of the Court is liable to be punished for contempt. Part 55 (Contempt) of the Supreme Court Rules 1970 applies to proceedings in Class 1, 2, 3, 4 or 8 of the Court’s jurisdiction.
An application for punishment for the contempt is to be made by motion on notice in the proceedings in which the order was made. The notice of motion is to be in the approved Form 20. Any person who has a personal stake or special interest in the proceedings, such as a person who benefits from the order of the Court, may commence contempt proceedings.
A statement of charge, that is to say, a statement specifying the contempt of which the person is alleged to be guilty, is to filed with the notice of motion. Evidence in support of the charge is to be given by affidavit unless the Court otherwise permits. The notice of motion, the statement of charge and the affidavits are to be served personally on the person alleged to be charged with contempt.
Where the person is found guilty of contempt, the Court may punish the person, if the person is an individual, by committal to a correctional centre (imprisonment) or fine or both or, if the person is a corporation, by sequestration or fine or both.