Assistant Bailiff

Guidelines

July 2009 Version 6

INTRODUCTION

These Guidelines have been prepared by officers of the Magistrates’ Court for the assistance of Assistant Bailiffs appointed pursuant to the Magistrates Court (Civil Division) Act 1992 section 15A.

The Guidelines are intended to provide background information only and are not intended to be a definitive or comprehensive statement of the law relating to execution or to offer advice as to all situations that Assistant Bailiffs could encounter.

In addition, the law invests Assistant Bailiffs as officers of the Court with particular powers and entitlements. However, those powers and entitlements carry with them onerous duties and responsibilities. The Magistrates’ Court is a public institution and is accountable not only to litigants before the Court but to the community generally for the proper and effective exercise, according to law, of the functions which have been entrusted to it by Parliament on behalf of the community. Accordingly, as Assistant Bailiffs and, therefore officers of that Court it is fundamentally important that Assistant Bailiffs be alert to the duties owed by them and to the fact that the standing and integrity of the court will be either enhanced or degraded according to the way in which those duties are discharged.

However, Assistant Bailiffs are assured that officers of the Magistrates Court are available to assist them with advice as to the proper discharge of their duties.

A G Shott

Chief Magistrate

These guidelines are to be used in conjunction with the

Magistrates Court (Civil Division) Act 1992 and

Magistrates Court (Civil Division) Rules 1998

Table of Contents

Explanatory Notes 1

ASSISTANT BAILIFF - APPOINTMENT AND FUNCTIONS 2

APPOINTMENT 2

DUTIES 2

FUNCTIONS 2

ASSISTANCE 3

HOBART 3

LAUNCESTON 3

BURNIE 3

DEVONPORT 3

PROFESSIONAL DEVELOPMENT 3

SERVICE OF COURT PROCESS 3

DAYS WHEN SERVICE IS PROHIBITED 4

EVIDENCE OF SERVICE 4

AMENDMENT TO DOCUMENTS 4

RE-ALLOCATION OF ENFORCEMENT PROCESS 4

IDENTIFICATION OF PARTY TO BE SERVED 4

MANNER OF SERVICE 4

ORDERS OF ATTACHMENT 5

AFFIDAVIT OF SERVICE 5

EXPIRY OF A SERVICE DOCUMENT 5

PROVISION OF ADVICE 5

FREQUENT SERVICE DOCUMENTS – GUIDE ONLY 5

EXECUTION OF COURT PROCESS 5

ASSISTANCE IN EXECUTION 6

RIGHT OF ENTRY 6

TRESPASS 6

NOTIFICATION TO THE DISTRICT REGISTRAR 6

EXPIRY OF A WARRANT 6

KEEPING OF RECORDS 7

RECEIPTING MONIES COLLECTED 7

FURTHER 7

EXECUTION FEES 7

ESTABLISHING OWNERSHIP 8

GOODS ON HIRE PURCHASE 8

GOODS UNDER A BILL OF SALE 8

WALKING POSSESSION 8

SEIZURE OF GOODS 9

STORAGE AND SAFEKEEPING OF GOODS UNDER SEIZURE 9

DWELLINGS OR LAND LEVIED IN EXECUTION 9

ADVERTISING 10

SALE OF GOODS 10

BANKRUPTS 11

NO EFFECTS 11

OTHER CLAIM OVER PROPERTY SEIZED 11

BAILIFF INTERPLEADER 12

ASSISTANT BAILIFF EXPENSES 12

OTHER REASONABLE EXPENSES 13

CONCLUSION-: TO LEVY OR NOT TO LEVY 13

LIST OF APPENDICES 14

1. Acknowledgement of Levy 14

2. Assistant Bailiff’s Ready Reference 14

3. Bailiff’s Report 14

4. Judgment Debtor Questionnaire 14

5. Warrant to Sell Property 14

6. Walking Possession Form & List of Goods seized 14

7. Frequent Service Documents – Guide Only 14

Appendix 1 15

Appendix 2 16

APPENDIX 3 20

Appendix 4 21

Appendix 5 22

Appendix 6 23

FREQUENT SERVICE DOCUMENTS – GUIDE ONLY Appendix 7 25

Appendix 8 26

ADVERTISEMENT 26

SCHEDULE 26

Glossary of Terms 27

Explanatory Notes

In these Guidelines quotes from any Act will be in italics followed by the section number and name of the Act. Reference to ‘the rules’ or Rule, will mean the Magistrates Court (Civil Division) Rules 1998.

ASSISTANT BAILIFF - APPOINTMENT AND FUNCTIONS

APPOINTMENT

An Assistant Bailiff is appointed under Section 15A(1) of the Magistrates Court (Civil Division) Act 1992 by a Registrar of the Magistrates Court. There is no provision for an Assistant Bailiff to appoint other persons to perform their duties as an Assistant Bailiff.

DUTIES

Once appointed an Assistant Bailiff can perform all the functions of a Bailiff and shall in the execution of their duties conform to all general rules regulating the proceedings of the court - Section 16, Magistrates Court (Civil Division) Act 1992.

Reference to a bailiff in that Act also means Assistant Bailiff. It is also the responsibility of an Assistant Bailiff to ensure he/she is aware of all the general rules of court by obtaining a copy of the Magistrates Court (Civil Division) Rules 1998 from The Government Bookshop, 2 Salamanca Place, Hobart or accessing them from the website at www.thelaw.tas.gov.au.

Other Acts and rules that may from time to time be applicable are:

State of Tasmania Debtors Act 1870 and Rules

Magistrates Court (Civil Division) Act 1992

Evidence Act 2000

Supreme Court Rules 2000

Commonwealth of Australia Service and Execution of Process Act 1992

Copies of these Acts are available at the following websites at www.thelaw.tas.gov.au or www.austlii.edu.au.

Rule 134 (1) a bailiff is to provide a District Registrar with a written report within 2 days after-

(a) Unsuccessfully attempting to seize any property; or

(b) seizing any property,

These “Guidelines for Assistant Bailiffs” are also available on the Courts website at www.magistratescourt.tas.gov.au/divisions/civil/Bailiffs

FUNCTIONS

The function of an Assistant Bailiff is to carry out the service and execution of court documents relating to enforcement of judgments and orders. However, with those functions go certain responsibilities depending on the type of document and the method of service or execution. These responsibilities will be covered in more detail later in these guidelines

It is also the Assistant Bailiff’s duty, as a Court appointed officer, to conduct himself/herself, at all times, in a manner that maintains the integrity of the Court system.

Assistant Bailiffs are required to abide by the Magistrates Court’s Code of Ethics, which is available at www.magistratescourt.tas.gov/about_us/ethics.

ASSISTANCE

If you need assistance regarding procedural functions as an Assistant Bailiff you may contact one of the following persons:

HOBART

· Administrator of Courts, 23-29 Liverpool Street, Hobart, Tel. (03) 6233 3616.

· District Registrar, Magistrates Court (Civil Division) 23-25 Liverpool Street, Hobart, Tel. (03) 62332213.

LAUNCESTON

· District Registrar, Magistrates Court (Civil Division), 73 Charles Street, Launceston, Tel. (03) 63362608.

BURNIE

· District Registrar, Magistrates Court (Civil Division), 38 Alexander Street, Burnie Tel. (03) 64346322.

DEVONPORT

· District Registrar, Magistrates Court (Civil Division), 8 Griffith Street, Devonport, Tel. (03) 642217892.

PROFESSIONAL DEVELOPMENT

It is the personal responsibility of Assistant Bailiffs to keep themselves abreast of the enforcement processes and procedures. The ‘Assistant Bailiff Guidelines’ are updated from time to time and Assistant Bailiffs will be advised when this occurs. The Court’s website contains useful information to assist Assistant Bailiffs in performing their duties.

SERVICE OF COURT PROCESS

Documents requiring service can be served by:

· A party to the proceedings

· Any person the parties requests

· A bailiff or an Assistant Bailiff

· A process server

There are many documents issued by the District Registrar that require service and each of these may have different rules that apply to that service.

Usually instructions regarding service are contained within the document or attached to it. However, this is not always the case and the Assistant Bailiff must ensure that he/she is aware of what will constitute correct service, for instance some documents have an expiry date and if served after that date are of no effect.

The rules of service of most documents issued under the Magistrates Court (Civil Division) Act 1992 are contained in the Magistrates Court (Civil Division) Rules 1998, particularly rules 39 – 43.

DAYS WHEN SERVICE IS PROHIBITED

Rule 40 (4) - Provides that no process shall be served on Christmas Day or Good Friday.

EVIDENCE OF SERVICE

As well as the completion of an affidavit of service, an Assistant Bailiff may be called upon at any time to give sworn evidence in relation to the service of any document and therefore should ensure a sufficient record is kept to enable him/her to swear to that service. The District Registrar requires the Assistant Bailiff to maintain a service book.

AMENDMENT TO DOCUMENTS

There should be no amendment or endorsement to the face of any document issued by the District Registrar, unless the District Registrar makes that amendment or endorsement.

RE-ALLOCATION OF ENFORCEMENT PROCESS

Only a District Registrar has the authority to allocate and re-allocate enforcement process amongst the pool of Assistant Bailiffs. The Court registry maintains a register for the purpose of ensuring proper supervision of allocation and re-allocation of enforcement process. If an Assistant Bailiff is unable to accept or execute an enforcement process for any reason, he/she must immediately notify the District Registrar. If an Assistant Bailiff has accepted any enforcement process which he/she then finds unable to execute due to excessive workload or for other reason, the enforcement documents must be immediately returned to the Court registry.

IDENTIFICATION OF PARTY TO BE SERVED

Verbal confirmation is usually sufficient in the identification of a party to be served.

MANNER OF SERVICE

The methods of service are contained in the Magistrates Court (Civil Division) Rules 1998. These rules should be studied carefully, particularly in relation to the service of companies.

Tip: Where service must be carried out at the judgment debtor’s place of employment it is prudent to speak with any supervisor or manager first.

ORDERS OF ATTACHMENT

It should be noted that these orders should be served, as required, regardless of the status of the employee within the company or business. The Garnishee is entitled to defend the order if they consider they are unable to carry out its terms. Remember a paymaster can also be a judgment debtor just like anyone else, so you must record on the affidavit the identity of the person served and their title.

AFFIDAVIT OF SERVICE

Your signature to and the swearing of an affidavit of service must be before a Justice of the Peace. Justices are located in each Court Registry.

EXPIRY OF A SERVICE DOCUMENT

A Claim remains valid for 12 months from the time of issuing by the Court Registry. After that time, if it has not been served the Claim must be renewed by the Court. Note, that a claim served after the date that the defendant must respond to it is of little effect. For other documents, particular notice should be taken of the Court date mentioned therein.

PROVISION OF ADVICE

The Assistant Bailiff is not a legal practitioner and therefore is not able to provide advice of a legal nature. Often in the performance of his/her duties the Assistant Bailiff will be asked,

“ What do I do now?”

The best answer is to suggest that they contact the claimant, their own solicitor or the Community Legal Service the address of which is in the telephone directory.

FREQUENT SERVICE DOCUMENTS – GUIDE ONLY

Must be used as a guide in conjunction with applicable Act and Rules.

This table is attached at Appendix 8

EXECUTION OF COURT PROCESS

The most common process an Assistant Bailiff will be required to execute is a Warrant to Sell Property against personal property and lands of judgment debtor.

Usually called a Warrant to Sell Property or simply a warrant. See Appendix 5 A copy may be given to the judgment debtor when the warrant is executed.

A warrant is an order of the court issued by the District Registrar requiring a bailiff forthwith to make and levy the sum stated at the foot of the warrant (being the amount due to the claimant under a judgment obtained against the judgment debtor) by seizure and sale of the personal property of the judgment debtor and also bills of exchange, promissory notes etc, and if these are not sufficient then by seizure and sale of the lands of the judgment debtor. What may be taken in execution is clearly defined in Rule 131 Magistrates Court (Civil Division) Rules 1998.

Goods are NOT to be levied; clothing, bedding, and tools of trade up to the value of $3,000

As an appointed officer of the Court the Assistant Bailiff should at all times act in a professional and courteous manner, many times under difficult circumstances. The Assistant Bailiff’s task is to carry out the execution of the warrant to the best of their ability within the terms of the law. He/she should never make any value judgment on the personal circumstances of the judgment debtor.

ASSISTANCE IN EXECUTION

The Police will assist, any Assistant Bailiff to keep the peace in the performance of his/her duties.

RIGHT OF ENTRY

A warrant does not give authority to force entry to any dwelling, business premises or secured property, but does entitle the Assistant Bailiff to enter upon private property without force for the purpose of execution of the warrant.

TRESPASS

A Bailiff is deemed not to be a trespasser by reason of an irregularity in the form of the Warrant. Magistrates Court (Civil Division) Act 1992 Section 18

NOTIFICATION TO THE DISTRICT REGISTRAR

The District Registrar must be provided with a report within three (3) weeks from the day of receipt of any warrant not executed. The Assistant Bailiff should make a return to the District Registrar stating the reasons why it has not been executed. The warrant will not necessarily in all case be returned with this notification.

It is not necessary to return the warrant when notifying the District Registrar of a levy being made but a photocopy of the walking possession should be forwarded.

A clear and concise report to the District Registrar as to the outcome of execution should be made on the Bailiff’s Report Form at Appendix 3.

EXPIRY OF A WARRANT

A warrant expires 12 months from the date of issue, and should be returned to the District Registrar at least 24 hours before the expiry date together with reasons as to why it could not be executed.

Assistant Bailiffs must noted that a warrant should be acted upon with out any undue delay. Some warrants may prove difficult to execute, but Assistant Bailiffs should always be attempting to finalise the matter and not just let it sit. Assistant Bailiffs should also be aware that they can be held liable with regard to neglect and escaped levies.