Enforcement, Endorsement and Contempt Practice Note (GPN-ENF)

General Practice Note

1. Introduction

1.1 This practice note provides guidance on:

(a) the enforcement of Federal Court judgments^[1] in Parts 2 to 3;

(b) endorsement of orders to act or not to act in Part 4; and

(c) contempt of court in Parts 5 to 8.

1.2 The above procedures are generally post-judgment procedures. However, practitioners should be aware that, although these topics may be related, orders that require endorsement may be made at any stage in a proceeding. Similarly, issues of contempt may arise at any stage in a proceeding, or outside of a proceeding.

1.3 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing.

- ENFORCEMENT -

2. Enforcement of Judgment or Order

2.1 The Court recognises that enforcement procedures are an important component of the proper administration of justice and may be a necessary step in concluding the litigation process undertaken by parties in this Court. As such, the Court seeks to facilitate streamlined and efficient enforcement procedures.

2.2 Enforcement of a judgment is ordinarily an ex parte procedure (meaning it is carried out without an oral hearing and without a potentially opposing party having the opportunity to raise objections in respect of the enforcement). Accordingly, the person seeking to enforce a Federal Court judgment has an obligation to be candid with the Court and to raise any issue that may be relevant as to why the Request for Enforcement should not be issued.

Enforcement Arrangements – Supreme Courts

2.3 A person who has obtained a Federal Court judgment has the same remedies for enforcement of that judgment as exist in the Supreme Court of the State or Territory in which the Federal Court judgment is made ("relevant Supreme Court").

2.4 The various methods of enforcement include:

• writ / warrant for seizure and sale of property;
• order for possession of land or delivery of goods;
• charging order (eg. charge over shares or money in a financial institution);
• redirection / attachment / garnishee of debts or earnings / instalment order;
• enforcement hearing / oral examination / means of inquiry.

3. Procedure for Enforcement of a Federal Court Judgment

3.1 Enforcement of a Federal Court judgment commences in the Federal Court with the filing of the Federal Court's Request for Enforcement form ("Request for Enforcement") and supporting documentation. Once the relevant procedural steps (set out in Part 3 of this practice note) have been undertaken and the enforcement process has been issued by the Federal Court, the party seeking to enforce the Federal Court judgment then utilises the enforcement procedures of the relevant Supreme Court. The Request for Enforcement and further information regarding enforcement (including links to the relevant Supreme Court websites) may be accessed via the Federal Court's website.

3.2 A person seeking to enforce a Federal Court judgment will therefore need to be familiar with:

(a) section 53 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act");

(b) rule 41.10 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules");

(c) the Request for Enforcement; and

(d) the rules and procedures of, and any documentation required by, the relevant Supreme Courts.

Preliminary Steps

3.3 Before any judgment can be enforced, the relevant order must be entered (see r 39.31 of the Federal Court Rules specifically and Division 39.4 generally).

3.4 Given that the procedures set by the relevant Supreme Court (including any required forms and supporting documentation) must be followed, it is always recommended that prior to filing documents in the Federal Court, the relevant Supreme Court (or, where enforcement is sought in multiple jurisdictions, the Supreme Court in each of those jurisdictions), be approached to clarify what form of documentation, if any,^[2] and what procedures, the relevant Supreme Court(s) expect to be utilised.

Documents to be Filed in the Federal Court

3.5 To apply to enforce a judgment of the Federal Court, the following documents should be filed:

(a) A Request for Enforcement (available on the Court's website) identifying which judgment(s) or which parts of a judgment are sought to be enforced as may be permitted by the relevant Supreme Court rules.

(b) Supporting documents as may be required by the relevant Supreme Court, such as a writ, warrant or other means of enforcement of a judgment. Supporting documents should be referred to in the Request for Enforcement and be prepared in the relevant Supreme Court format and include content as required by the rules of the relevant Supreme Court.

(c) An affidavit in support (Form 59) which addresses any matters that may be required by the rules of the relevant Supreme Court. By way of guidance only (as the requirements in each Supreme Court vary), ordinarily, an affidavit supporting a Request for Enforcement will contain necessary evidence and information clarifying matters such as:

(i) the judgment (or part thereof) sought to be enforced, exhibiting a copy of the judgment;

(ii) confirmation that the judgment has not been satisfied (or paid, as the case may be);

(iii) each order or thing that is sought, stated briefly but specifically;

(iv) whether there are any known proceedings or challenges to enforcement;

(v) important information to assist the enforcement procedure (eg. the nature and location of assets);

(vi) any other relevant and important matters, such as urgency (or other timing issues) and whether any special orders are sought (eg. suppression or confidentiality orders) and the reasons why.

(d) If the matter is urgent, a short letter outlining the reason for the urgency must also be filed together with the Request for Enforcement to alert the registry to the need to deal with the request as quickly as possible.

Claims for Costs and Interest in the Request

3.6 Where costs or interest are sought as part of the Request for Enforcement, a person seeking to enforce a Federal Court judgment should note the following:

(a) costs payable to the Sheriff (of the relevant Supreme Court) for execution are contained in the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth);

(b) a lawyer's costs for work performed for the enforcement application are calculated on an individual item basis having regard to the fees contained in Schedule 3 to the Federal Court Rules;

(c) the Interest on Judgments Practice Note (GPN-INT) clarifies certain matters relevant to the calculation of interest on Federal Court judgments.

Filing the Request

3.7 Wherever possible, the Request for Enforcement and supporting documents should be filed via eLodgment.^[3]

3.8 The Request for Enforcement and any other documents relating to the enforcement process should be filed in the relevant existing Federal Court proceeding.^[4] Therefore, the file number of the existing Federal Court proceeding in which the judgment was made should be used and there will ordinarily be no need to commence a new proceeding. If an exception is necessary, the reasons why the Request for Enforcement is being made other than in the existing proceeding should be clarified briefly in the supporting affidavit.

3.9 There is no filing fee incurred in the Federal Court for the filing of a Request for Enforcement in the prescribed form. However, if a dispute arises in relation to the entitlement to enforce the judgment, then fees may arise, as usual, with respect to any related application that is made.

Processing of the Request

3.10 A registrar will consider the Request for Enforcement and, if satisfied that the request and supporting documents are in an appropriate form, issue the enforcement process.

3.11 Once the enforcement process is issued by the Federal Court, in all States and Territories other than Queensland, the Federal Court will have no further active involvement and any further steps to enforce and execute the judgment should then be taken in the Sheriff's office of the relevant Supreme Court and the procedures contained in the rules of that Court will apply.

3.12 In Queensland however, a registrar will liaise with the Queensland Supreme Court about the enforcement process. Following that, the enforcing party should contact the Queensland Supreme Court registry.

Security for Sheriff's Costs

3.13 Depending on the nature of the enforcement application, security for costs may be required from the person seeking to enforce a Federal Court judgment in anticipation of the Sheriff's enforcement costs (r 41.52 of the Federal Court Rules, see also r 41.53). The relevant Supreme Court State or Territory Sheriff, or for Queensland matters, a registrar (after having liaised with the Queensland Supreme Court) will advise if this is necessary.

Multiple Jurisdictions

3.14 If a Federal Court judgment is sought to be enforced in more than one State or Territory (where, for example, there are assets in multiple jurisdictions), the procedures and forms of the relevant Supreme Court may be used for enforcement in the other States or Territories (r 41.10(3) of the Federal Court Rules).

3.15 By way of illustration only, assuming the Federal Court made a judgment in NSW and that judgment is sought to be enforced as against assets existing in NSW and QLD:

• the State where the judgment was made is NSW;
• the person seeking to enforce the judgment is entitled to the same remedies as are available in NSW for "like cases" (s 53(1) of the Federal Court Act);
• the person seeking to enforce the judgment is entitled to apply to the Federal Court to have enforcement steps taken in NSW as if the judgment was made in the NSW Supreme Court (r 41.10(1) of the Federal Court Rules);
• the person seeking to enforce the judgment in both NSW and QLD may adopt the procedures and forms of the Supreme Court in which the judgment has been made – ie. NSW (r 41.10(3) of the Federal Court Rules).

In that example, the Federal Court judgment may be enforced in both NSW and QLD using the procedures and forms of the NSW Supreme Court.

- ENDORSEMENT -

4. Endorsement of Order

4.1 In some cases, the judgment that is sought to be enforced requires a person to do, or not do, an act or thing. This may be the case, for example, if the Court has made an order in the nature of an injunction, mandamus or prohibition (see r 41.08(4) of the Federal Court Rules).

4.2 If the consequences of failing to comply with such an order may include committal, sequestration or punishment for contempt, the order must carry an endorsement (otherwise referred to as a "penal notice") in accordance with r 41.06 of the Federal Court Rules so that the person who is bound to do, or not to do, the act or thing is alerted to the quasi-penal consequences of failing to comply with the order.

4.3 The party with the benefit of the order should approach the Judge at the time of the making of the order to request the endorsement. The form of the endorsement will be a matter for the Court to determine. However, unless specifically required by the Court, the endorsement should be inserted on the first page of the order immediately after the section containing the proceeding title and party names but as part of the order itself and not as an attachment. The endorsement must also be prominent and easily read and understood, in the nature of an important warning. A non-prescriptive example penal notice is attached as Annexure A to this practice note.

4.4 It is also important that, before a party seeks to enter and serve an order that is required to carry an endorsement, the endorsement is inserted in the order before it is entered and served (see paragraph 3.3 of this practice note). Such an order must also be served in accordance with r 41.07 of the Federal Court Rules.

- CONTEMPT -

5. Contempt of Court Generally

5.1 The Federal Court's power to punish for contempt of its power and authority is contained in s 31 of the Federal Court Act. The power is the same as that of the High Court to punish for contempt of that court (see s 31(1) of the Federal Court Act). The power is a broad one, and includes the power to fine, imprison, order the sequestration of assets and impose a suspended sentence.

5.2 A person may be in contempt of Court if their words or actions interfere with the proper administration of justice or constitute a disregard for the authority of the Court. Besides physical disturbances, contempt includes interference with the authority of the Court by impairing confidence and respect for the Court and its judgments.

5.3 Contempt is addressed primarily in Part 42 of the Federal Court Rules. Division 42.1 deals with contempt in the face or hearing of the Court if it is necessary to deal with the conduct complained of quickly. Division 42.2 relates to applications for contempt other than contempt in the face or hearing of the Court.

5.4 In respect of appeals - leave to appeal is not required in proceedings relating to contempt of the Court or any other court (see Division 2 of the Federal Court Act relating to civil matters, including s 24(1C)).

6. Contempt in the Face or Hearing of the Court

6.1 Division 42.1 of the Federal Court Rules sets out a summary procedure for dealing with contempt in the face of the Court or in a hearing of the Court. This procedure should be used sparingly and only in serious cases, where the conduct complained of needs to be dealt with quickly.

6.2 Contempt may be considered to be "in the face of the Court" where it occurs within the Court (or its immediate precincts). A person who commits contempt in the face or hearing of the Court may be arrested, kept in interim custody, and brought before the Court (see rr 42.01 and 42.03 of the Federal Court Rules).

6.3 The Court will inform the person of the contempt with which that person is charged and allow the person to plead a defence before determining the question of guilt (see r 42.02 of the Federal Court Rules).

7. Applications for Contempt

7.1 Applications for contempt may be brought if it is alleged that a contempt has been committed by a person. It is a serious matter to commence proceedings for the punishment of contempt and applications for contempt should not be brought in trivial circumstances. Parties contemplating bringing contempt proceedings should be conscious of the required standard of proof (beyond reasonable doubt) and of the potential penalties for a finding of contempt.

Contempt in Connection with a Proceeding

7.2 If the alleged contempt relates to an existing proceeding, the application for punishment for the alleged contempt must be made by way of an interlocutory application (see r 42.11(1) of the Federal Court Rules).

Contempt not in Connection with a Proceeding

7.3 If the alleged contempt does not relate to an existing proceeding, a new proceeding should be started by filing an originating application (see r 42.11(2) of the Federal Court Rules).

Statement of Charge and Affidavits

7.4 In either case, the application should be accompanied by a statement of charge, specifying the contempt with sufficient particularity to allow the person charged to answer the charge, and the affidavit(s) on which the person making the charge intends to rely to prove the charge (see r 42.12 of the Federal Court Rules).

Relevant Forms

7.5 The following key Court forms relevant to contempt applications are available on the Court's website:

• Form 15 - Originating Application (see r 42.11(2) of the Federal Court Rules);
• Form 35 - Interlocutory Application (see r 42.11(1));
• Form 137 – Statement of Charge (see r 42.12(a));
• Form 90 – Warrant for Arrest / Detention (see rr 42.01(b), 42.14(3) and 41.05(1));
• Form 91 – Warrant for Imprisonment (see r 42.21(a)).

Application by the Registrar

7.6 A person may also apply to the Court for an order directing a registrar to make application in the proceeding, or to start a proceeding, for punishment of the contempt (r 42.16 of the Federal Court Rules). The applicant does not have to prove that there is a contempt before the order is made.

7.7 A person considering making such an application must consider whether there is a more appropriate procedure available (for example, the procedures outlined in paragraphs 7.2 and 7.3, above). The procedure in r 42.16 may be appropriate if there is a public interest in punishing the contempt, for example, where the alleged contempt is a failure to pay a Court fine.

8. Failure to Attend Court or Comply with a Subpoena

8.1 Rule 24.23 of the Federal Court Rules provides that failure to comply with a subpoena without a lawful excuse is a contempt of court.

8.2 Depending on the circumstances, where a person has failed to attend Court in response to a subpoena or other order (including where that person was required to attend Court to respond to a charge of contempt), a party may apply to the Court for a warrant for the person's arrest, detention or production to the Court (r 41.05 of the Federal Court Rules).

J L B Allsop

Chief Justice
25 October 2016

Annexure A

Example Penal Notice

Where a Penal Notice (ie. Endorsement) is required, it should be inserted on the first page of the order as part of the order itself, immediately following the section containing the title and parties to the proceeding.

For further information refer to Part 4 of this practice note and r 41.06 of the Federal Court Rules 2011 (Cth).

Below is a non-prescriptive example of a Penal Notice:

^[1]In this practice note, references to "judgment" include an "order". See s 4 of the Federal Court of Australia Act 1976 (Cth) for definition of "judgment".

^[2] It may be that not every State or Territory requires specific State or Territory-based forms to be filed.

^[3] The document type selection should be "Request for Enforcement" and the checkbox to "Request ex parte hearing" should be ticked as this will ensure that the request is brought to the attention of the Duty Registrar.

^[4] For the purposes of this practice note - "existing proceeding" means the proceeding (ie. file) which remains open in the Court or which has been closed but in which the judgment sought to be enforced was made.