- tocCivil Procedure Rules
|Contents of this Part|
|Scope of this Part||Rule 44.1|
|Who may be orally examined||Rule 44.2|
|Procedure to obtain order for oral examination||Rule 44.3|
|Order for oral examination||Rule 44.4|
|Conduct of oral examination||Rule 44.5|
|Order for payment by instalments||Rule 44.6|
|Financial position notice||Rule 44.7|
- This Part deals with the examination of a judgment debtor to obtain information to assist in enforcing a judgment. Such an examination is called an “oral examination”.
- The following persons maybe ordered to attend an oral examination –
- the judgment debtor; or
- an officer or former officer of a judgment debtor which is a body corporate.
- A person referred to in paragraph (1) is called “the examinee”.
- Where permission is not required to enforce the judgment, a request for an order that a person attend an oral examination may be made by filing a request as specified in Form 29 or 30 of the Appendix, as the case requires, which contains the information required by the relevant practice direction.
- Where permission is required to enforce the judgment, an application for an order that a person attend an oral examination must be made and a copy of the permission must be attached to the application. An application under this paragraph may be made without notice.
- Where a request or an application for the order is against an officer or a body corporate, the request or the application must be supported by evidence on affidavit showing that the person to be orally examined is such an officer.
- The order, in Form 14, must state the date, time and place of the examination.
- The judgment creditor must serve the order personally on the examinee at least 7 days before the date fixed for the examination.
- The judgment creditor must file an affidavit of service not less than 3 days before the date fixed for the examination.
- The examination may take place before the registrar or an officer of the court authorised by the Chief Justice.
- A person referred to in paragraph (1) is called “the examiner.”
- The examination must be on oath or affirmation.
- The statement made by the examinee must be taken down and read to the examinee who must then be asked to sign it.
- If the examinee refuses to sign the statement it must be signed by the examiner and certified to be a true record of the examination.
- If the examinee –
- fails to attend;
- refuses to be sworn or affirm; or
- refuses to answer any question; the examiner may adjourn the examination to a judge.
- The notice of the adjourned hearing must be in Form 15.
- The judgment creditor must –
- serve the examinee personally with the notice of the adjourned hearing endorsed with the first form of notice set out in rule 53.3(b) at least 7 days before the adjourned examination; and
- file an affidavit proving service of Form 15 and that the examinee was offered his or her travelling expenses to and from the court.
- If the parties agree that the judgment debt should be paid by instalments or at some future date, the court office may draw an order to that effect.
- If the judgment to be enforced is a money judgment, the judgment creditor may serve, in addition to or in place of an order for an oral examination, a financial position notice in Form 16 requiring a judgment debtor to complete a statement of the judgment debtor’s financial position in the practice form and serve it on the judgment creditor within 14 days of service.
- The judgment creditor may notify the court if satisfied with the information provided by the judgment debtor.
- The court office must then notify the person to be examined that he or she need not attend the examination.
- If the judgment debtor is a body corporate, the financial position notice must require an officer of the body corporate to comply with paragraph (1).