Part 44 – Oral Examination in Aid of Enforcement

Scope of this Part

44.1

1. 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”.

Who may be orally examined

44.2

1. The following persons maybe ordered to attend an oral examination –
   1. the judgment debtor; or
   2. an officer or former officer of a judgment debtor which is a body corporate.
2. A person referred to in paragraph (1) is called “the examinee”.

Procedure to obtain order for oral examination etc.

44.3

1. 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.
2. 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.
3. 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.

 Order for oral examination

44.4

1. The order, in Form 14, must state the date, time and place of the examination.
2. The judgment creditor must serve the order personally on the examinee at least 7 days before the date fixed for the examination.
3. The judgment creditor must file an affidavit of service not less than 3 days before the date fixed for the examination.

Conduct of oral examination

44.5

1. The examination may take place before the registrar or an officer of the court authorised by the Chief Justice.
2. A person referred to in paragraph (1) is called “the examiner.”
3. The examination must be on oath or affirmation.
4. The statement made by the examinee must be taken down and read to the examinee who must then be asked to sign it.
5. 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.
6. If the examinee –
   1. fails to attend;
   2. refuses to be sworn or affirm; or
   3. refuses to answer any question; the examiner may adjourn the examination to a judge.
7. The notice of the adjourned hearing must be in Form 15.
8. The judgment creditor must –
   1. 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
   2. file an affidavit proving service of Form 15 and that the examinee was offered his or her travelling expenses to and from the court.

 Order for payment by instalments 

44.6

1. 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.

Financial position notice

44.7

1. 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.
2. The judgment creditor may notify the court if satisfied with the infor­mation provided by the judgment debtor.
3. The court office must then notify the person to be examined that he or she need not attend the examination.
4. 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).