Western Australian Consolidated Acts

CIVIL JUDGMENTS ENFORCEMENT ACT 2004 - NOTES

Notes

¹ This is a compilation of the Civil Judgments Enforcement Act 2004 and includes the amendments made by the other written laws referred to in the following table ^{1a, 2}. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Civil Judgments Enforcement Act 2004	28 of 2004	14 Oct 2004	s. 1 and 2: 14 Oct 2004; Act other than s. 1 and 2: 1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Housing Societies Repeal Act 2005 s. 20	17 of 2005	5 Oct 2005	10 Jul 2010 (see s. 2(3) and Gazette 9 Jul 2010 p. 3239)
Planning and Development (Consequential and Transitional Provisions) Act 2005 s. 15	38 of 2005	12 Dec 2005	9 Apr 2006 (see s. 2 and Gazette 21 Mar 2006 p. 1078)
Acts Amendment (Justice) Act 2008 Pt. 3	5 of 2008	31 Mar 2008	30 Sep 2008 (see s. 2(d) and Gazette 11 Jul 2008 p. 3253)
Legal Profession Act 2008 s. 645	21 of 2008	27 May 2008	1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)
Reprint 1: The Civil Judgments Enforcement Act 2004 as at 20 Feb 2009 (includes amendments listed above except those in the Housing Societies Repeal Act 2005 s. 20 and the Legal Profession Act 2008 s. 645)

Co-operatives Act 2009 s. 507	24 of 2009	22 Oct 2009	1 Sep 2010 (see s. 2(b) and Gazette 13 Aug 2010 p. 3975)
Police Amendment Act 2009 s. 13	42 of 2009	3 Dec 2009	13 Mar 2010 (see s. 2(b) and Gazette 12 Mar 2010 p. 941)

^1a On the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Short title	Number and year	Assent	Commencement
Co-operatives Act 2009 s. 512 4	24 of 2009	22 Oct 2009	1 Sep 2012 (see s. 2(c) and Gazette 13 Aug 2010 p. 3975)
Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 8 5	8 of 2012	21 May 2012	Operative on commencement of the Road Traffic (Administration) Act 2008 (see s. 2(d))

² The Courts Legislation Amendment and Repeal Act 2004 Pt. 22 (as amended by the Acts Amendment (Justice) Act 2008 s. 24) contains transitional provisions about enforcing judgments given before that Part commenced. Part 22 and the Civil Judgments Enforcement Act 2004 commenced on 1 May 2005. Part 22 reads as follows:

“

Part 22 — Transitional provisions

Division 1 — Provisions about enforcing judgments

143. Interpretation

(1) In this Part —

commencement means the commencement of this Part;

court fee, for an application, does not include any fee payable in connection with serving the application to the Sheriff or any other person;

enforcement process means any writ, warrant, order, or other process, issued by a court for or in connection with enforcing a judgment or order of the court.

(2) This Part does not limit the operation of the Interpretation Act 1984 Part V.

144. Judgments not satisfied before commencement

If immediately before commencement a judgment of the Supreme Court, District Court or Local Court is unsatisfied, then on commencement —

(a) if any proceedings for or in connection with enforcing the judgment are pending in a court, section 145 applies;

(aa) if any enforcement process is in force in relation to the judgment, section 146 applies;

(b) otherwise, the judgment may be enforced under and subject to the Civil Judgments Enforcement Act 2004.

[Section 144 amended by No. 5 of 2008 s. 24.]

145. Pending proceedings to enforce a judgment

(1) If immediately before commencement proceedings for or in connection with enforcing a judgment are pending in a court, then on commencement either —

(a) the proceedings may be continued under the law in force immediately before commencement, despite the enactment of the Civil Judgments Enforcement Act 2004; or

(b) the person entitled to the benefit of the judgment may discontinue the proceedings and commence proceedings under the Civil Judgments Enforcement Act 2004 to enforce the judgment.

(2) If proceedings are continued under subsection (1)(a) —

(a) no enforcement process may be issued under the law in force immediately before commencement for or in connection with enforcing the judgment; but

(b) subject to the Civil Judgments Enforcement Act 2004, the court may make any order under that Act that substantially corresponds with any order that the court could have made in the proceedings under the law in force immediately before commencement.

(3) If proceedings under the Supreme Court Act 1935 section 126(2) or the Local Courts Act 1904 section 130 are continued under subsection (1)(a), they are to be taken to be a means inquiry held under the Civil Judgments Enforcement Act 2004 for the purposes of subsection (2)(b).

(4) Subsection (2)(a) does not prevent the issue of any warrant or writ in connection with conducting any proceedings that are continued under subsection (1)(a).

(5) No court fee shall be payable for commencing proceedings as permitted by subsection (1)(b) by a person who has discontinued proceedings as permitted by that subsection.

146. Pending process to enforce a judgment

(1) If immediately before commencement any enforcement process is in force, then on commencement the process continues in force under the law in force immediately before commencement until —

(a) the process ceases to be in force under that law;

(b) the process ceases to be in force under subsection (6)(a); or

(c) the expiry of 12 months after commencement,

whichever happens first, and may be served, dealt with, or executed, under the law in force immediately before commencement which continues to apply to and in respect of the process.

(2) If —

(a) on commencement a copy of a writ of fieri facias is in the Register maintained under the Transfer of Land Act 1893, having been served on the Registrar and entered in that Register under section 133 of that Act; or

(b) after commencement a copy of a writ of fieri facias is entered in that Register under section 133 of that Act, having been served on the Registrar under that section,

then —

(c) despite subsection (1) the Transfer of Land Act 1893 section 133 (as inserted by this Act) applies to and in respect of the writ as if the writ were a property (seizure and sale) order that had been —

(i) issued under the Civil Judgments Enforcement Act 2004; and

(ii) registered under the Transfer of Land Act 1893 section 133 (as inserted by this Act) at the time when the copy of the writ was so served;

(d) if the sale period referred to in the Transfer of Land Act 1893 section 133 (as inserted by this Act) in respect of the writ expires at a time after the writ ceases to be in force under the law in force immediately before commencement, the writ is to be taken to remain in force until the sale period expires, despite that law; and

(e) subject to paragraphs (c) and (d), subsection (1) applies to and in respect of the writ.

(3) In subsection (2), a reference to a writ of fieri facias includes a reference to a warrant of execution issued out of a Local Court under the Local Courts Act 1904.

(4) If immediately before commencement any enforcement process is in force but unexecuted, the person for whose benefit the process was issued may apply for an order under the Civil Judgments Enforcement Act 2004 to enforce the judgment or order.

(5) No court fee shall be payable on making an application under subsection (4) for an order under the Civil Judgments Enforcement Act 2004.

(6) If on an application made under subsection (4) an order is made under the Civil Judgments Enforcement Act 2004 —

(a) the unexecuted process referred to in subsection (4) ceases to be in force; and

(b) the order made under the Civil Judgments Enforcement Act 2004 has the same priority as the unexecuted process referred to in subsection (4) has immediately before it ceases to be in force under paragraph (a).

147. Existing bailiffs and their assistants, termination of appointment etc.

(1) On commencement the following offices are abolished and the persons holding them cease to do so —

(a) a bailiff appointed under the District Court of Western Australia Act 1969 section 28(1);

(b) a person appointed under the District Court of Western Australia Act 1969 section 28(2) by a bailiff to assist the bailiff;

(a) a bailiff appointed under the District Court of Western Australia Act 1969 section 28(1); or

148. Transitional regulations

(1) If this Act does not provide sufficiently for a matter or issue of a transitional nature that arises as a result of the repeal or amendment of any Act by this Act and the coming into operation of any of the Acts referred to in section 3, the Governor may make regulations prescribing all matters that are required, necessary or convenient to be prescribed for providing for the matter or issue.

(2) Regulations made under subsection (1) may be expressed to have effect before the day on which they are published in the Gazette.

(3) To the extent that a provision of regulations made under subsection (1) has effect before the day on which it is published in the Gazette, it does not —

(a) affect in a manner prejudicial to any person (other than the State or an agency of the State) the rights of that person existing before the day of publication; or

(b) impose liabilities on any person (other than the State or an agency of the State) in respect of anything done or omitted to be done before the day of publication.

”.

³ Footnote no longer applicable.

⁴ On the date as at which this compilation was prepared, the Co-operatives Act 2009 s. 512 had not come into operation. It reads as follows:

512. Civil Judgments Enforcement Act 2004 amended

(1) This section amends the Civil Judgments Enforcement Act 2004.

(2) In section 45 in paragraph (c) of the definition of financial institution delete “a society registered or deemed to be registered under the Co-operative and Provident Societies Act 1903, or”.

⁵ On the date as at which this compilation was prepared, the Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 8 had not come into operation. It reads as follows:

Division 8 — Civil Judgments Enforcement Act 2004 amended

57. Act amended

This Division amends the Civil Judgments Enforcement Act 2004.

58. Section 113 amended

In section 113 in the Table insert in alphabetical order:

Road Traffic (Administration) Act 2008

Road Traffic (Authorisation to Drive) Act 2008

Road Traffic (Vehicles) Act 2012

59. Section 114 amended

In section 114(a):

(a) delete “the Road Traffic Act 1974” and insert:

a road law as defined in the Road Traffic (Administration) Act 2008 section 4

Defined Terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined Term Provision(s)
account 45
appropriated debt 45
assistant bailiff 3
available asset 85
available debt 3, 46(1)
bailiff 3
claimant 83(1)
corporation 3
court 3
debt appropriation order 3
declared areas 106
default inquiry 3
Deputy Sheriff 3
dwelling 3
earnings 3, 4
earnings appropriation order 3
enforcement costs 3
enforcement officer 3
enforcement order 17
financial institution 45
imprisonment order 92(1)
instalment order 3
interest 63(1)
interpleader proceedings 3
joint owners Sch. 1 cl. 2(1)
judgment 3
judgment creditor 3
judgment debt 3
judgment debtor 3
judgment sum 3
legal practitioner 30(1)
means inquiry 3
mobile home 3
monetary judgment 3
net earnings 34
obligated person 99(1)
officer 3
original order 103(1)
partnership 3
personal property 3
place 3
police office-holder 106
proceeds 72(1)
property (seizure and delivery) order 3
property (seizure and sale) order 3
protected officer 111(1)
public authority 63(1)
public servant 106
real property 3
record 3
saleable interest 3, 74(1), 80(1)
Sheriff 3
superintendent 92(1)
suspension order 3
third party interest 71(1)
third person 34, 45
time for payment order 3
vehicle 3