AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
sheriff and is valid for 12 months from the date of issue. The money that is obtained from the sale of the property is utilised to pay off the outstanding judg - ment debt. Writ of Possession of Property Similar to a writ for the levy of property, a writ for pos - session of property relates to the seizure by the sher - iff’s office of real property in cases where the proceeds from the sale of the personal property of the judg - ment debtor are insufficient to meet the outstanding judgment debt. The court must authorise the sheriff’s office, which it will be reluctant to do (given the gravity of the process) if there are alternate means by which the debt could be satisfied. Garnishee Orders A garnishee order is commonly sought to enforce a judgment debt against a creditor to recover money from third parties, including employers, banks and other financial intermediaries, who hold money of the judgment debtor, such as the debtor’s wages, bank account or others who owe the debtor money. Pur - suant to Section 106 (1)(b) of the Civil Procedure Act 2005 (NSW), the court can direct a third party who owes money to the judgment debtor to pay the judg - ment creditor directly. Notably, where a third party fails to comply with a garnishee order, the third party may become liable for a part, or the entirety, of the judg - ment debt. Charging Orders A charging order may be obtained to extend a charge over property, including land, shares in a company or money held in a financial institution (Civil Procedure Act 2005 (NSW) Section 126 (1)). The judgment credi - tor may apply for a charging order pursuant to Section 106 (1)(c) of the Civil Procedure Act 2005 (NSW). A charging order operates to charge the property in favour of the judgment creditor to the extent that is necessary in order to satisfy the judgment. The debt - or is restrained from selling, transferring or otherwise dealing with the property (Civil Procedure Act 2005 (NSW) Section 126 (2)). However, this type of order is narrow in scope and should therefore only be relied upon in cases where
the debt faced is substantial and the debtor holds substantial assets. 5.2 Enforcement of Foreign Judgments No response has been provided in this jurisdiction. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination A party may refuse to provide information or produce documents that it may otherwise be required to dis - close, if certain privileges apply, specifically the privi - lege against self-incrimination and the right to silence. Self-Incrimination The privilege against self-incrimination is the right of an individual to refuse to answer any questions or produce any materials, if doing so “may tend to bring him into the peril and possibility of being convicted as a criminal” ( Sorby v Commonwealth (1983) 152 CLR 281; (1983) 46 ALR 237, 241). This common law right is available to: • individuals suspected of a crime; • individuals questioned in civil proceedings; and • people within non-curial context. Section 128 of the Evidence Act 1995 (Cth) establish - es the privilege against self-incrimination. Under this section, a witness is able to object to giving evidence if that evidence proves the witness (a) has committed an offence against or arising under an Australian law or a law of a foreign country or (b) is liable to a civil penalty. Right to Silence Differing from the privilege against self-incrimination is the right to silence. The right to silence protects a defendant from being obligated to testify against oneself, regardless of whether or not that testimony has the potential to be incriminating. Established by Section 17 of the Evidence Act 1995 (Cth), this statu - tory right provides that a “defendant is not competent to give evidence as a witness for the prosecution”. It solely applies to criminal proceedings and ensures
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