The applicant has now caused a summons to be issued against respondent under the Imprisonment of Fraudulent Debtors Act 1928, made applicable, with some modifications, to orders for maintenance under the Maintenance Act 1928 and the Marriage Act 1928 by the Maintenance and Alimony (Imprisonment) Act 1935. She alleges that arrears under the order amount to 771 pounds and asks that respondent be examined as to his property and means. On the return of the summons it has been objected on his behalf that the Imprisonment of Fraudulent Debtors Act 1928 had no application to a judgment or order registered in Victoria under s86 of the Maintenance Act 1928. The objection was based upon a contention that this procedure is not a means of enforcement of payment but is one designed for the punishment of debtors for fraudulent conduct and is outside the purposes for which registration is effected. The argument is based upon the decision of Hodges, J, in McNamara v Miller (1902) 28 VLR 327 (8 ALR 170) whereby it was held that an order registered in the Supreme Court under s21 of the Service and Execution of Process Act 1901 could not be the basis of an application under the Imprisonment of Fraudulent Debtors Act 1890.

S86 of the Maintenance Act 1928 is contained in PtV of that Act which re-enacts the Maintenance Orders (Facilities for Enforcement) Act 1925. PtV is headed "Enforcement in Victoria of Maintenance Orders made in England" (and in other places). S86 contains provisions for the registration in the Supreme Court of orders such as the orders in the present case, and provides that the order "shall as from the date of such registration be of the same force and effect and, subject to the provisions of this Part, all proceedings may be taken on such order as if it had been an order originally obtained in the court in which it was so registered and that court shall have power to enforce the order accordingly".

In McNamara v Miller, supra, Hodges, J, had to consider the effect of s21 of the Service and Execution of Process Act 1901 which provided for registration in any Court of Record in any State of any order obtained in a court in another State. Subs(2), so far as material, provided that "the like proceedings may be taken upon such certificate as if the judgment had been a judgment" of the court in which it is registered. His Honour held that the PtIV of the Service and Execution of Process Act 1901 (which bore the heading "Enforcement of Judgments") was limited to what was properly an enforcement of a judgment and that the Imprisonment of Fraudulent Debtors Act 1890 was not a provision to enforce judgments but to punish debtors; he further held that the Commonwealth Parliament had no power to enact laws relating to the punishment of debtors. For the respondent it was contended that a similar effect must be given to the words of s86 of the Maintenance Act 1928 which were not capable of being distinguished from the provisions of s21(2) of the Service and Execution of Process Act 1901.

Upon this contention two questions arise:--(1) Is s86 limited to giving power to enforce registered judgments? (2) Is a summons under the Imprisonment of Fraudulent Debtors Act 1928 a proceeding to enforce a judgment? I consider these two questions in order.

1. Having regard to the heading of PtV in which s86 appears it would appear that the provisions of that section are limited to enforcing the judgment. S86(1) contains three separate positive provisions:-- (a) the registered order shall be of the same force and effect as if obtained in the court in which it is registered. No question of the force and effect of the judgment arises here; (b) all proceedings may be taken on such order as if it had been obtained in the court in which it is registered; (c) that court shall have power to enforce the order accordingly. I do not consider that (b) has any wider effect than (c); it seems to me, especially when regard is paid to the heading of PtV, that (c) merely states what (b) is intended to mean, and is not a different or wider power. Accordingly, I think that the effect of s86 is to enable this court to enforce an order which has been registered here.

2. The question whether proceedings under the Imprisonment of Fraudulent Debtors Act 1928 are proceedings to enforce an order is one of some considerable difficulty. In R v Wasley; Ex parte Frankel, [1914] VicLawRp 92; [1914] VLR 635 (20 ALR 326), Hodges, J, at p. 638 described such proceedings as merely a process of execution. But in the earlier case of Re Ogle (1887) 13 VLR 330, it was held that the proceedings were penal or punitive and were not passed for the purpose of enabling the judgment creditor to obtain payment of his debt. This view was affirmed by the Full Court in R v Wallace; Ex parte O'Keefe, [1918] VicLawRp 49; [1918] VLR 285 (24 ALR 123), and by the High Court in Newmarch v Atkinson [1918] HCA 53; (1918) 25 CLR 381 (24 ALR 294). But I may now turn to authorities to the opposite effect. In Caldecott v Cunningham, [1908] VicLawRp 11; [1908] VLR 38 (13 ALR 639), which was a decision of the Full Court (Hodges, Hood and Cussen, JJ) a judgment debtor was served with a summons under the Imprisonment of Fraudulent Debtors Act 1890, and also with a subpoena as a witness. He failed to attend and was fined for failure to obey the subpoena. It was contended that as he was a defendant to punitive proceedings he could not lawfully be summoned as a witness. The contention was rejected. After referring to legislation which originally contained what is now the Imprisonment of Fraudulent Debtors Act 1928, Hodges, J, for the court said, at p. 45 that the Act "uses expressions which are strongly indicative that in the Legislature's view they are making provision for enforcement of orders for the payment of money in a particular way." Again the court said at pp. 46-7: "That language enacts fairly clearly that what the Legislature is providing for here is what may be called a stringent or severe method of bringing pressure on the debtor to pay his debt, ...". In R v Wallace, supra, Cussen, J, at p. 335 said: "The decisions as to whether steps can be taken in the Supreme Court under PtI of the Imprisonment of Fraudulent Debtors Act 1915, after the registration of the judgment, etc., are somewhat conflicting: Tipper v Wathen, [1911] VicLawRp 81; [1911] VLR 464 (17 ALR 543); McNamara v Miller (1902) 28 VLR 327 (8 ALR 170); but it seems to me that the broad view that such steps should be regarded as execution would be a desirable one to give effect to". More recently in Matheson v Matheson, [1952] VicLawRp 6; [1952] VLR 27; [1952] ALR 58), Herring, C J, held that a wife whose application to a court of petty sessions had been adjourned was a "person aggrieved" for the purpose of an order to review. His Honour said at p. 29, "It was said that the procedure under the Fraudulent Debtors Act was rather a procedure by the Court than by the party who had failed to recover the money that the court had ordered to be paid to him or her. But the true view would seem to be that expressed by the Full Court in Caldecott v Cunningham, [1908] VicLawRp 11; [1908] VLR 38, at p. 47 (13 ALR 639), that what the legislature is providing for in s22 of the Imprisonment of Fraudulent Debtors Act is what may be called a stringent or severe method of bringing pressure to bear on the debtor to pay his debt." But His Honour's attention does not seem to have been called to the other authorities to which I have referred.

If I were untrammelled by authority, much of which is obiter, I would have felt fairly clearly that proceedings of the kind in question here were proceedings to enforce an order. The whole purpose for invoking the procedure is to compel payment. The creditor is not usually concerned to punish the debtor but to have his debt repaid. The form of order is that the debtor be imprisoned, not absolutely, but unless the debt be paid either forthwith or by instalments - s6(3) and 2nd schedule, Form II to the Imprisonment of Fraudulent Debtors Act 1928. The procedure is regularly used as a means of compelling payment. It would appear to me to be a very effective method of enforcing a judgment or order. Whether I am free to give effect to my own view is, in the light of the case, a matter of considerable difficulty. The matter is one of considerable practical importance and I felt disposed to accede to the request made on behalf of the applicant that I should refer the matter to the Full Court. But I feel able to decide the question on the terms of the Maintenance Act 1928 and the Maintenance and Alimony (Imprisonment) Act 1935, which appear to indicate clearly the view Parliament has taken of the matter.

The 1935 Act is, in my opinion, of decisive importance. It is the enactment which makes the Imprisonment of Fraudulent Debtors Act 1928 apply, with some modifications, to maintenance and alimony orders and which abolishes the former power to imprison for disobedience of orders. PtI deals with maintenance and is concerned with maintenance orders made by courts of petty sessions. It has, therefore, no application to this case. PtII is headed "Amendment of the Law relating to Divorce and Matrimonial Causes". S8 provides that PtII is to be read and construed as one with the Marriage Act 1928. S9, as far as material, reads:--"Notwithstanding anything in any Act or the rules or practice of the Court or any law to the contrary, any order--(a) for the payment of alimony or maintenance under the Marriage Acts...shall (without prejudice to any other method of enforcement, other than by imprisonment) be enforceable under the Imprisonment of Fraudulent Debtors Act 1928 as a sum of money recoverable under a judgment of the court, but save as aforesaid shall not be enforceable by imprisonment".

S11 provides that where any proceedings are being taken under the Imprisonment of Fraudulent Debtors Act 1928 to enforce any order for the payment of alimony or maintenance under the Marriage Acts it shall not be necessary to pay or tender to the person in default under such order any conduct money to attend the court.

It appears to be perfectly plain in these provisions of the Act of 1935, which are to be read and construed as one with the Marriage Acts, that Parliament is using the words "enforce" and "enforcement" as apt descriptions of the procedure under the Imprisonment of Fraudulent Debtors Act 1928. The argument is made even stronger when regard is had to PtI of the Act of 1935, dealing with maintenance orders. This Part is to be read and construed as one with the Maintenance Act 1928 and it contains provisions in the same terms as those I have quoted from PtII. It is plain again that the words "enforce" and "enforcement" are used as apt to describe proceedings under the Imprisonment of Fraudulent Debtors Act 1928. When, therefore, in s86 of the Maintenance Act 1928 power is given to the court to "enforce" the order when registered, it follows that the word "enforce" is being used in the same sense as in PtI of the Act of 1935 which is to be read and construed with it, and as a next step that the word is used in the same sense as in PtII.

These provisions require me to hold, as I do, that the present proceedings are proceedings to enforce the order within s86 of the Maintenance Act 1928. If the present order "had been an order originally obtained" in this court, it could have been enforced by the present procedure: therefore the order registered in this court may be enforced in the same way.