The Act abolishes general arrest or imprisonment for ordinary unpaid debts, but preserves narrow exceptions and short-term committal where courts are satisfied a person could have paid (with caps on imprisonment). It shifts enforcement toward property remedies (sequestration, execution) and judicially controlled procedures.
It also tightens safeguards around warrants of attorney/cognovit — they must be explained and witnessed by an Australian lawyer and filed within strict time limits — changing incentives for creditors and reducing involuntary confessions of judgment.
This statute, entitled the Debtors Act 1870, reorganises the law governing arrest, imprisonment, and certain procedural devices in personal actions for payment of money, and prescribes formalities for warrants of attorney and related instruments. Mechanically it does four principal things.
First, it abolishes the general right to arrest or imprison a person solely for default in payment of a sum of money, while creating a set of specified exceptions where arrest or imprisonment remains available (s 3). The section lists seven exception categories (a-g) and limits imprisonment in those excepted cases to a maximum of six months (s 3 provisos). The section also states that the Act does not alter the effect of judgments or orders for payment, except as regards arrest and imprisonment (s 3 proviso).
Second, the Act preserves and regulates a limited power to commit debtors to custody for non‑payment in small debt cases. Subject to rules prescribed by the judges, a court may commit a person to prison for six weeks or until payment, where the person has defaulted on a judgment or order (s 4(1)). The power is subject to restrictions where courts other than the Supreme Court exercise it (s 4(1)(a)), requires proof to the court that the debtor has or had means to pay and has refused or neglected to do so (s 4(1)(b)), and provides procedures for proof, committal, discharge, and the non‑extinguishment effect of imprisonment on the underlying debt (s 4(2)-(9)).
Third, the Act retains a narrowly focussed power to arrest a defendant who a plaintiff can show is about to quit Tasmania and would cause material prejudice to the plaintiff’s action; in the Supreme Court a judge may order arrest and imprisonment for six months unless security is given, on proof by oath of a good cause of action to $50 or upwards and probable cause for flight (s 5(2)-(3)). The Act also bars arrest upon mesne process (s 5(1)).
Current sections
Direct links to the current provisions in Debtors Act 1870.
32
Part I
[Part I Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary
Part I [Part I Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary
1
Short title
1 Short title
*[Section 1 Amended by 25 Geo. V No. 78 ]*This Act may be cited as the Debtors Act 1870 .
2
Commencement
2 Commencement
*[Section 2 Amended by 25 Geo. V No. 78 ]*This Act shall come into operation on 1st January 1871.
Part II
Abolition of Imprisonment for Debt
Part II Abolition of Imprisonment for Debt
[Part II Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]
3
Abolition of imprisonment for debt
3 Abolition of imprisonment for debt
*[Section 3 Amended by 21 Geo. V No. 36, s. 2 ]**[Section 3 Amended by 25 Geo. V No. 78 ]*With the exceptions hereinafter mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money. There shall be excepted from the operation of the above enactment –
(a) default in payment of a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract;
(b) default in payment of any sum recovered summarily before justices;
(c) default by a trustee or person acting in a fiduciary capacity and ordered to pay by the Supreme Court any sum in his possession or under his control;
(d) [Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] default by any Australian legal practitioner in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order;
(e) default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy is authorised to make an order;
(f) default in payment of sums in respect of the payment of which orders are in this Act authorised to be made;
(g) default in payment by a husband to or for the benefit of his wife of any sum of money payable as alimony under or by virtue of an order of the Supreme Court or a judge thereof.
Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than 6 months, and, secondly, that nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default in paying such money.
4
Saving of power to commit for small debts
4 Saving of power to commit for small debts
[Section 4 Amended by 25 Geo. V No. 78 ]
(1) *[Section 4 Subsection (1) amended by No. 55 of 1965, s. 5 ]*Subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for 6 weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court. Provided –
(a) that the jurisdiction by this section given of committing a person to prison shall, in the case of any court other than the Supreme Court, be exercised only subject to the following restrictions; that is to say:
(i) Be exercised only as respects a judgment of the Supreme Court when such judgment does not exceed $100 exclusive of costs;
(b) that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has, or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made a default, and has refused or neglected, or refuses or neglects, to pay the same.
(2) Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.
(3) Any jurisdiction by this section given to the Supreme Court may be exercised by a judge sitting in chambers, or otherwise in the prescribed manner.
(5) For the purposes of this section any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may rescind or vary such order.
(6) Persons committed under this section may be committed to any gaol; and every order of committal shall, subject to the prescribed rules, be issued, obeyed, and executed in the like manner as nearly as may be as a writ of capias ad satisfaciendum.
(7) No imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place.
(8) Any person imprisoned under this section shall be discharged out of custody upon a certificate signed in the prescribed manner to the effect that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the prescribed costs, if any.
(9) [Section 4 Subsection (9) amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] Every order made by the Magistrates Court (Civil Division) may be set aside or varied by a judge, in such manner and upon such terms as he thinks fit, upon application being made to him in a summary way; and a judge may order the release of any person arrested under such order in the absence of such person.
5
Power to arrest defendant about to quit Tasmania
5 Power to arrest defendant about to quit Tasmania
[Section 5 Amended by 25 Geo. V No. 78 ]
(1) A person shall not be arrested upon mesne process in any action.
(2) *[Section 5 Subsection (2) amended by No. 55 of 1965, s. 5 ]*Where the plaintiff in any action in the Supreme Court in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge, that the plaintiff has good cause of action against the defendant, to the amount of $50 or upwards, and that there is probable cause for believing that the defendant is about to quit Tasmania unless he be apprehended, and that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, a judge may in the prescribed manner order such defendant to be arrested and imprisoned for 6 months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of Tasmania without the leave of the court or a judge.
(3) Where the action is for a penalty or sum in the nature of a penalty other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, and the security given (instead of being that the defendant will not go out of Tasmania) shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison.
6
Sequestration against property of debtor
6 Sequestration against property of debtor
*[Section 6 Amended by 25 Geo. V No. 78 ]*Sequestration against the property of a debtor may be issued by the Supreme Court in the same manner as if such debtor had been actually arrested.
7.
7.
[Section 7 Repealed by 25 Geo. V No. 78 ]
8
Definition of term "prescribed"
8 Definition of term "prescribed"
*[Section 8 Amended by 25 Geo. V No. 78 ]*In this Part the term
prescribed means prescribed by General Rules to be made by the judges.
Part III
[Part III Heading amended by 25 Geo V No. 78 ][Part III Heading renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]Fraud
Part III [Part III Heading amended by 25 Geo V No. 78 ][Part III Heading renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]Fraud
9.
9.
[Section 9 Repealed by 14 Geo. V No. 69, s. 3 ]
10.
10.
[Section 10 Repealed by 14 Geo. V No. 69, s. 3 ]
11.
11.
[Section 11 Repealed by 14 Geo. V No. 69, s. 3 ]
12.
12.
[Section 12 Repealed by 14 Geo. V No. 69, s. 3 ]
13
Debts incurred by fraud
13 Debts incurred by fraud
*[Section 13 Amended by 25 Geo. V No. 78 ]*Where a debtor makes any arrangement or composition with his creditors under the law relating to bankruptcy, he shall remain liable for the unpaid balance of any debt which he incurred or increased, or whereof before the date of the arrangement or composition he obtained forbearance by any fraud, provided the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends.
14.
14.
[Section 14 Repealed by 25 Geo. V No. 78 ]
15.
15.
[Section 15 Repealed by 25 Geo. V No. 78 ]
16.
16.
[Section 16 Repealed by 14 Geo. V No. 69, s. 3 ]
17.
17.
[Section 17 Repealed by 14 Geo. V No. 69, s. 3 ]
18.
18.
[Section 18 Repealed by 25 Geo. V No. 78 ]
19.
19.
[Section 19 Repealed by 7 Edw. VII No. 36, s. 3 ]
20.
20.
[Section 20 Repealed by 14 Geo. V No. 69, s. 3 ]
Part IV
Warrants of Attorney, Cognovits, and Orders for Judgment
Part IV Warrants of Attorney, Cognovits, and Orders for Judgment
[Part IV Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]
21
Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner
21 Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner
(a) the nature and effect of the warrant of attorney or cognovit actionem is, before the person signs it, explained to the person by the person's Australian legal practitioner; and
(b) the person's Australian legal practitioner is present when the person signs the warrant of attorney or cognovit actionem and attests, by signing as a witness, the signature of the person.
22
Warrant, &c., not formally executed invalid
22 Warrant, &c., not formally executed invalid
A warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same.
23
Filing of warrant and cognovit
23 Filing of warrant and cognovit
Where in an action a warrant of attorney to confess judgment or a cognovit actionem is given, the same, or a true copy thereof, shall be filed within 14 days after the execution thereof with the Registrar of the Supreme Court; and unless the same or such copy thereof is so filed within the said period, the same shall be deemed fraudulent and shall be void; and if any such warrant of attorney or cognovit actionem so filed was given subject to any defeasance or condition, such defeasance or condition shall be written on the same paper or parchment with the warrant or cognovit before the filing thereof, otherwise the warrant or cognovit shall be void.
24
Filing of judge's order to enter up judgment, &c.
24 Filing of judge's order to enter up judgment, &c.
Where a judge's order made by consent is given by a defendant in a personal action in the Supreme Court whereby the plaintiff is authorised forthwith or at any future time to sign or enter up judgment, or to issue or to take out execution, whether such order is made subject to any defeasance or condition or not, then the order shall, together with an affidavit of the time of consent being given, and a description of the residence and occupation of the defendant, be filed with the Registrar of the Supreme Court within 14 days after the making of the order, otherwise the order and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be void.
25
Application to judge's order of Warrants of Attorney Act 1822
25 Application to judge's order of Warrants of Attorney Act 1822
The provisions of the" Act of the third year of King George the Fourth, chapter 39", relating to liberty to file a warrant of attorney or cognovit actionem, or a copy thereof, and for making certain entries and searches in relation thereto, and for entering satisfaction thereon, and for fees for search, and filing and taking office copies, shall extend and be applicable to every such judge's order.
26.
26.
[Section 26 Repealed by 25 Geo. V No. 78 ]
27.
27.
[Section 27 Repealed by 25 Geo. V No. 78 ]
SCHEDULE 1 - Acts to be Repeal
SCHEDULE 1 - Acts to be Repealed
SCHEDULE 1 - Acts to be Repeal SCHEDULE 1 - Acts to be Repealed
| Reference To Act | Title of Act |
| 3 Vict. No. 1 | An Act to make Provision for the more effectual Distribution of Insolvent Estates |
| 5 Vict. No. 6 | An Act to subject Insolvents' Estates to the Payment of the Expenses of Executions issued against such Estates prior to Declarations of Insolvency |
| 7 Vict. No. 11 | An Act to extend the Order of Discharge to be granted by the Commissioners under the Provisions of the Act of this Island intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" to certain cases hereinafter mentioned |
| 15 Vict. No. 2 | An Act to explain and amend the Fifty-ninth Section of an Act intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" |
| 20 Vict. No. 12 | An Act to amend an Act, intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" |
| 23 Vict. No. 2 | An Act to regulate Arrest on Mesne Process in Civil Actions |
| 23 Vict. No. 25 | An Act to amend the Laws relating to Insolvency |
| 27 Vict. No. 31 | An Act to amend the Laws relating to Insolvency |
| 30 Vict. No. 2 | An Act to enable the Governor to appoint Substitutes for the Commissioners of Insolvent Estates during their Absence from Duty |
| 30 Vict. No 6 | An Act to confer jurisdiction upon the Judges of the Supreme Court in Cases of Insolvency |
| 31 Vict. No. 16 | An Act to abolish Imprisonment for Debt, and to provide for the Punishment of Frauds committed by Debtors |
| 33 Vict. No. 14 | An Act to amend the Law as to Arrest on Mesne Process in Civil Actions |
Source text
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part I [Part I Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary
Part I [Part I Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary
1 Short title
1 Short title
*[Section 1 Amended by 25 Geo. V No. 78 ]*This Act may be cited as the Debtors Act 1870 .
2 Commencement
2 Commencement
*[Section 2 Amended by 25 Geo. V No. 78 ]*This Act shall come into operation on 1st January 1871.
Part II Abolition of Imprisonment for Debt
Part II Abolition of Imprisonment for Debt
[Part II Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]
3 Abolition of imprisonment for debt
3 Abolition of imprisonment for debt
*[Section 3 Amended by 21 Geo. V No. 36, s. 2 ]**[Section 3 Amended by 25 Geo. V No. 78 ]*With the exceptions hereinafter mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money. There shall be excepted from the operation of the above enactment –
(a) default in payment of a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract;
(b) default in payment of any sum recovered summarily before justices;
(c) default by a trustee or person acting in a fiduciary capacity and ordered to pay by the Supreme Court any sum in his possession or under his control;
(d) [Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] default by any Australian legal practitioner in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order;
(e) default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy is authorised to make an order;
(f) default in payment of sums in respect of the payment of which orders are in this Act authorised to be made;
(g) default in payment by a husband to or for the benefit of his wife of any sum of money payable as alimony under or by virtue of an order of the Supreme Court or a judge thereof.
Fourth, the Act imposes formalities and filing obligations concerning warrants of attorney to confess judgment and cognovit actionem, and related judge’s orders given by consent. A warrant or cognovit is invalid unless, before signing, the nature and effect are explained by the person’s Australian legal practitioner and that practitioner is present and attests the signature (s 21). A warrant or cognovit (or a true copy) must be filed with the Registrar of the Supreme Court within 14 days of execution or the instrument is deemed fraudulent and void; defeasances or conditions must be written on the same paper before filing or the instrument is void (s 23). A judge’s consent order authorising immediate or future entry of judgment must be filed within 14 days together with an affidavit of the time of consent and a description of the defendant’s residence and occupation, or the order and any judgment or execution under it will be void (s 24). The Act imports provisions of the Warrants of Attorney Act 1822 for filing, entries, searches, and satisfaction (s 25).
The Act also provides procedural detail: sequestration against a debtor’s property may be issued by the Supreme Court as if the debtor had been arrested (s 6); the term “prescribed” used in the Part on imprisonment is defined as rules to be made by the judges (s 8); and several historical renumberings, amendments and repeals are recorded in the text and SCHEDULE 1.
This is a procedural and formalising statute rather than a statement of substantive private law remedies. Its concrete effects are to remove general arrest‑for‑debt, preserve targeted compulsory measures with strict limits and evidentiary thresholds, and to regulate the formal validity and public filing of instruments that surrender or permit entry of judgment.
Main concepts
The Act organises a small set of interlocking concepts. Those concepts determine when personal liberty can be affected for monetary default, what limited coercive powers remain, and what formalities make confessed‑judgment devices effective.
Abolition with enumerated exceptions (s 3): The central concept is abolition of imprisonment for debt subject to explicit exceptions. The general rule is categorical: "no person shall be arrested or imprisoned for making default in payment of a sum of money" (s 3 opening). The exceptions are explicitly enumerated (a-g) and include: penalties (non‑contractual), summary orders before justices, orders against trustees or fiduciaries by the Supreme Court, certain orders against legal practitioners for costs or sums when ordered for misconduct or in capacity as officer of the Court (s 3(d) as amended), enforcement of income attachments for benefit of creditors under bankruptcy jurisdiction, defaults where the Act itself authorises orders for payment, and ordered alimony paid by a husband under Supreme Court orders (s 3(a)-(g)). The section’s provisos set maximum imprisonment length (six months) and state that judgments’ substantive effect is otherwise unaffected except as to arrest and imprisonment.
Limited committal for small debts (s 4): The Act preserves a residual power to commit debtors to prison for six weeks or until payment in respect of debts due under an order or judgment, subject to prescribed rules and judicial restrictions (s 4(1)). That power is conditional on proof that the debtor has or had means to pay and has refused or neglected to pay (s 4(1)(b)). The provision permits instalment directions (s 4(5)), discharge upon prescribed certificate (s 4(8)), and states that imprisonment does not satisfy or extinguish the debt nor prevent execution against assets (s 4(7)).
Protections and proof mechanisms (s 4(2), s 4(3), s 4(9)): The Act requires flexibility as to proof of means ("in such manner as the court thinks just"), allows summonsing and examination on oath of debtor and witnesses, permits judges of the Supreme Court to exercise the jurisdiction sitting in chambers (s 4(2)-(3)), and allows superior courts to set aside or vary Magistrates Court orders (s 4(9)).
Security against flight and mesne process ban (s 5): The Act outlaws arrest on mesne process entirely (s 5(1)), but allows a judge to order arrest of a defendant who is likely to leave the jurisdiction where the plaintiff proves by oath a good cause of action to $50 or more and probable cause the defendant is about to quit Tasmania and that absence would materially prejudice prosecution of the action (s 5(2)). Security required is prescribed not exceeding the amount claimed (s 5(2)). For penalty actions the plaintiff need not prove material prejudice and the security may be different (s 5(3)).
Sequestration as an alternative (s 6): The Supreme Court may issue sequestration against the property of a debtor "in the same manner as if such debtor had been actually arrested" (s 6), so the Act provides for property‑based sequestration remedies mirroring arrest consequences.
Formal validity and public filing of confessed‑judgment devices (ss 21-25): The Act requires an Australian legal practitioner to explain a warrant of attorney or cognovit before signature and to be present and attest the signature (s 21). Instruments executed without that formality are invalid irrespective of actual understanding (s 22). Filing within 14 days with the Registrar is mandatory; failure renders the instrument fraudulent and void, and defeasances or conditions must be written on the same paper before filing (s 23). Judge’s consent orders that permit immediate or future judgment entry must similarly be filed within 14 days with specified affidavit detail or be void (s 24). The Act applies certain provisions of the 1822 Warrants of Attorney Act to such orders (s 25).
Procedure‑making and judicial rule‑making (s 8 and throughout Part II): The Act uses the term "prescribed" for procedural rules in Part II and defines that term as rules to be made by the judges (s 8). The presence of multiple "prescribed" references signals that much of the implementation detail rests in rules made by the judiciary.
Temporal and jurisdictional thresholds: The Act contains monetary thresholds and time limits. For example, arrest about to quit requires showing a claim to $50 or upwards (s 5(2)), while s 4(1)(a)(i) limits alternative courts' committal jurisdiction to Supreme Court judgments not exceeding $100 (exclusive of costs) when exercised by inferior courts. Filing deadlines for warrants and orders are 14 days (ss 23-24).
Repeals and historical artefacts: SCHEDULE 1 lists earlier acts that are repealed by this Act (SCHEDULE 1 header referencing s 27), and several sections are shown as repealed in the body (e.g. ss 9-12, 14-20 repealed). The Act thus consolidates or replaces prior statutory material to date of enactment.
These are the doctrinal levers in the text: abolition with precisely stated exceptions, restricted committal powers with evidentiary safeguards and judicial rule‑making, seizure/sequestration alternatives, and formalities for instruments that waive future contest or permit immediate entry of judgment. The Act links liberty restrictions to demonstrable means and specific procedural protections, while shifting many implementation details to judicially prescribed rules.
Who it affects
Primary affected actors identified within the Act are debtors and creditors in personal actions for payment of money, the judiciary (Supreme Court, judges, Magistrates Court), Australian legal practitioners, registrars, and trustees/fiduciaries ordered to pay sums.
Debtors and defendants: The person subject to an order for payment is the immediate subject of the abolition of arrest for debt (s 3) and of the residual powers to commit (s 4) and arrest where flight is probable (s 5). The Act removes the general risk of arrest for non‑payment but preserves several statutory exceptions (s 3(a)-(g)). Debtors who fall within exception categories can be arrested or imprisoned, though imprisonment is limited to six months (s 3 proviso). Debtors against whom sequestration is issued are affected by s 6. Debtors served with warrants of attorney or cognovit instruments are affected by ss 21-24: improper execution or filing renders such instruments void (ss 21-23).
Creditors and plaintiffs: Creditors remain able to seek coercive enforcement in the enumerated exception cases. They may seek committal to prison under s 4 where a debt or instalment is due under a judgment, subject to proof of the debtor’s means and prescribed rules. Plaintiffs in Supreme Court actions can apply to arrest a defendant about to quit Tasmania but must prove by oath a good cause of action of $50 or more and probable cause of imminent departure that would materially prejudice prosecution of the action (s 5(2)). For penalty actions special rules apply, reducing the need to prove material prejudice and changing the nature of security (s 5(3)). Creditors who use warrants of attorney or cognovit must comply with the legal‑practitioner explanation and attestation requirement (s 21) and the 14‑day filing rule (s 23), otherwise the instruments will be void, with the filing requirement enforced by deeming the instrument fraudulent if unmet (s 23).
Australian legal practitioners: The Act imposes a formal duty on the practitioner representing or attending a person executing a warrant of attorney or cognovit. The practitioner must explain the instrument’s nature and effect before signature, must be present when the person signs, and must sign to attest the signature (s 21). Failure to perform those duties invalidates the instrument regardless of the principal’s actual comprehension (s 22). Thus the practitioner bears a procedural responsibility exposing improperly executed instruments to invalidity.
Judiciary and registrars: Judges and courts make the substantive determinations on committal and arrest applications, exercise discretion to set aside or vary Magistrates Court orders (s 4(9)), authorise sequestration (s 6), and make the "prescribed" rules referenced in Part II (s 8). Registrars are the filing point for warrants, cognovits and judge’s consent orders; those filings are prerequisite to the instruments’ validity (ss 23-24).
Trustees and fiduciaries: A trustee or person acting in a fiduciary capacity who is ordered by the Supreme Court to pay sums in his possession can be subjected to arrest or imprisonment under one of the exceptions in s 3(c).
Persons subject to orders in bankruptcy jurisdiction: The Act preserves enforcement against portions of salary or income where the court having bankruptcy jurisdiction may order payment for benefit of creditors (s 3(e)).
Those indirectly affected include sheriffs/gaol authorities who execute committals (s 4(6)), and recipients of monies where sequestration is issued (s 6). The Act also affects anyone relying on a confessed‑judgment instrument: if the instrument is not properly executed and filed, it is void and any subsequent judgment or execution based upon it will be without statutory backing (ss 21-25).
Who pays and who bears burdens: Debtors face the risk of short term custody where exceptions apply (s 3, s 4, s 5) and face the consequences of sequestration (s 6). Creditors bear the evidentiary and procedural burden of proving means and flight risk and of complying with filing/formality obligations to make confessed‑judgment instruments enforceable (ss 4, 5, 21-24). Australian legal practitioners bear the burden of explaining, witnessing and attesting warrants and cognovits (s 21). Courts and judges bear rule‑making responsibilities where "prescribed" rules are required (s 8).
Jurisdictional and temporal constraints: The Act's monetary thresholds (e.g. $50 in s 5(2); $100 exclusive of costs in s 4(1)(a)(i)) and the 14‑day filing deadlines (ss 23-24) create sharp cutoffs that determine which parties or transactions fall within the Act’s mechanisms. Participants must identify which procedural track applies to avoid invalidating enforcement steps.
Overall, the Act primarily affects litigants and their lawyers in civil actions for payment and the courts that adjudicate and regulate procedure. The instrument shifts many implementation details to judicial rules and registrarial processes, imposing discrete duties on practitioners and time‑sensitive filing obligations on parties seeking to rely on confessed‑judgment mechanisms.
Key duties and rights
The Act assigns a set of duties and corresponding rights to courts, litigants, Australian legal practitioners, and registrars. These are predominantly procedural and evidentiary.
Duties of Australian legal practitioners (s 21): Before a person signs a warrant of attorney to confess judgment or a cognovit actionem, the practitioner must explain the nature and effect of the instrument to that person, be present when the person signs, and attest the person's signature by signing as a witness (s 21(a)-(b)). This is a mandatory formality: an instrument not executed in this manner is invalid notwithstanding proof of actual understanding (s 22). The practical duty for practitioners is to ensure presence, explanation, and attestation for any client executing such an instrument.
Filing duties (ss 23-24): A warrant or cognovit, or a true copy, must be filed with the Registrar of the Supreme Court within 14 days of execution; failure to do so renders the instrument "deemed fraudulent and shall be void" (s 23). If the instrument was given subject to any defeasance or condition, that defeasance or condition must be written on the same paper or parchment with the warrant or cognovit before filing, or the instrument will be void (s 23). Similarly, a judge’s order by consent authorising the entry of judgment must be filed with the Registrar within 14 days together with an affidavit of the time the consent was given and a description of the defendant’s residence and occupation, or the order, any judgment entered pursuant to it, and any execution issued shall be void (s 24). These provisions confer a filing duty on the party benefiting from the instrument and create a strict 14‑day window.
Duties of courts and judges (s 4, s 5, s 8, s 4(9)): Courts must apply prescribed rules when exercising committal powers (s 4(1)). The Supreme Court may exercise its jurisdiction in chambers and in the prescribed manner (s 4(3)). Where Magistrates Court (Civil Division) makes an order, a judge may set aside or vary it in a summary way and may order the release of a person arrested under such an order in the absence of the arrested person (s 4(9)). The term "prescribed" within Part II means rules to be made by the judges (s 8), imposing on judges a duty to make the procedural rules required by the Part. Judges are the decision makers on whether to order arrest to prevent a defendant leaving the jurisdiction when the plaintiff meets the evidentiary thresholds (s 5(2)).
Evidentiary and proof duties for plaintiffs/creditors (s 4(1)(b), s 5(2)): To obtain committal under s 4 the plaintiff must prove to the court’s satisfaction that the defaulting debtor has, or has had, means to pay since the date of the order or judgment and has refused or neglected to pay (s 4(1)(b)). Proof of means may be given in a manner the court thinks just and the debtor and witnesses may be summoned and examined on oath according to prescribed rules (s 4(2)). To obtain arrest under s 5(2) a plaintiff in a Supreme Court action must prove by oath a good cause of action to $50 or upwards and probable cause that the defendant is about to quit Tasmania and that absence will materially prejudice the prosecution.
Rights of debtors/defendants (s 3, s 4(7)-(9), s 5(1)-(3)): The Act grants a substantive liberty‑protecting right: (subject to exceptions) a person shall not be arrested or imprisoned for default in payment of money (s 3). Where committal or arrest is permitted, the Act imposes maximum custodial periods (six weeks under s 4; six months in excepted s 3 cases and s 5) and provides mechanisms for discharge: discharge upon certificate of payment and prescribed costs (s 4(8)); judges may set aside Magistrates Court orders or order release (s 4(9)). The Act further states that imprisonment under s 4 does not satisfy the debt and does not prevent execution against a debtor’s property (s 4(7)), preserving creditors’ remedies after committal. Section 5(1) separately establishes a right against being arrested on mesne process.
Rights of creditors/plaintiffs (s 3 exceptions, s 4, s 5, s 6): Creditors retain coercive tools in the enumerated exceptions in s 3, including summons and imprisonment for particular categories of debts. They retain the power to seek committal to secure payment (s 4) and to apply for arrest of a defendant likely to leave the jurisdiction under the s 5 test. They can seek sequestration against a debtor’s property in the same manner as if the debtor had been arrested (s 6).
Registrar’s role and rights (ss 23-24): The Registrar is the recipient of filings for warrants, cognovits and consent orders and is the record point on which the statutory validity of such instruments depends (ss 23-24). The Registrar’s administrative processes thus directly affect the enforceability of confessed‑judgment devices.
Limits on enforcement and protective ceilings (s 3 provisos, s 4(1)-(1)(a)(i), s 5(2)-(3)): The Act caps custodial durations (six weeks under s 4; six months in s 3 exceptions and s 5) and sets jurisdictional monetary ceilings that limit where inferior courts may commit (s 4(1)(a)(i) referring to judgments of the Supreme Court not exceeding $100 exclusive of costs). For arrest about to quit, the plaintiff must show a claim of $50 or upwards (s 5(2)). These thresholds create duty‑bearing limits for creditors and protective limits for debtors.
Formal invalidity rules and absolute duties (ss 21-23): The Act imposes absolute duties that attach to instruments. A warrant or cognovit executed without the practitioner’s presence and explanation is invalid even if actual understanding can be proven later (s 22). Filing obligations are cast as mandatory and failure results in the instrument being deemed fraudulent and void (s 23). These are strict duties producing immediate substantive invalidity if not complied with.
In sum, the Act distributes duties narrowly: practitioners must explain and witness, parties must file within 14 days and supply required affidavits and descriptions, plaintiffs must meet strict evidentiary thresholds to obtain arrest or committal, and judges must make the prescribed rules and exercise discretion in line with statutory constraints. Rights are preserved mainly as limits on arrest for debt and procedural protections within the committal/arrest regime.
Penalties and enforcement
The Act deploys custodial penalties, declaratory invalidity, and procedural enforcement mechanisms. It does not create a schedule of monetary fines within the text supplied, but it prescribes custodial time limits, conditions for arrest and committal, consequences for non‑filing of instruments, and execution modalities.
Custodial penalties and time limits: The Act removes general imprisonment for debt but authorises incarceration in specified circumstances with defined temporal ceilings. Where an exception under s 3 applies (for example, default in payment of penalties, summary orders, trustees ordered by the Supreme Court, certain legal practitioners’ defaults, income attachment for bankruptcy purposes, and ordered alimony), a person may be arrested or imprisoned, but not for longer than six months (s 3 proviso). Separately, s 4 permits commitment to prison for six weeks or until payment of the sum due in respect of a debt or instalment due under a judgment or order, subject to prescribed rules and judicial restrictions (s 4(1)). Section 5 allows a judge to order arrest and imprisonment for up to six months in cases where a defendant is likely to abscond (s 5(2)). These maximum durations are the statutory penalties for conduct falling within the specified enforcement categories.
Procedural enforcement and execution: The Act prescribes that orders of committal under s 4 may be executed in the like manner as a writ of capias ad satisfaciendum (s 4(6)), and persons committed under s 4 may be committed to any gaol (s 4(6)). Imprisonment imposed under s 4 does not operate as satisfaction or extinguishment of the debt and does not prevent execution against lands, goods or chattels in the same manner as if imprisonment had not occurred (s 4(7)). This means the creditor can pursue post‑imprisonment execution remedies.
Discharge mechanisms: The Act provides discharge on proof of payment. Any person imprisoned under s 4 shall be discharged upon a certificate signed in the prescribed manner to the effect that he has satisfied the debt or instalment and paid prescribed costs, if any (s 4(8)). For Magistrates Court orders, a judge may set aside or vary any order and may order release of any person arrested under such an order in the person’s absence (s 4(9)). These mechanisms limit the practical duration of custody.
Invalidation and voidness as penalty: Filing failures carry a strong statutory consequence. A warrant of attorney or cognovit not filed with the Registrar within 14 days of execution is deemed fraudulent and void (s 23). Where a judge’s consent order is not filed with accompanying affidavit and defendant particulars within 14 days, the order and any judgment signed on it and any execution issued thereon shall be void (s 24). The Act converts administrative non‑compliance into substantive invalidity, effectively stripping the creditor of enforcement rights under the instrument.
Evidential burdens and judicial gatekeeping as enforcement control: The Act imposes evidentiary thresholds that function as enforcement filters. A plaintiff seeking arrest because the defendant is about to quit must produce evidence on oath to a judge of a good cause of action to $50 or upwards, probable cause the defendant is about to quit, and material prejudice to the prosecution of the action if the defendant leaves (s 5(2)). For committal, the court must be satisfied the debtor had means and has refused or neglected to pay (s 4(1)(b)), and proof mechanisms are subject to prescribed rules (s 4(2)). These judicially supervised thresholds beget gatekeeping discretion and limit the frequency of custodial enforcement.
Sequestration as an enforcement alternative (s 6): The Supreme Court may issue sequestration against the property of a debtor as if the debtor had been arrested (s 6). This gives the court an alternative enforcement device directed at property rather than person, with the same procedural effect as arrest in terms of consequences.
No pecuniary penalties or criminal sanctions expressed: The Act does not create new criminal offences in the text supplied; instead, it regulates civil enforcement procedures and validates or invalidates confessed‑judgment devices. It treats fraudulent instruments as "deemed fraudulent and shall be void" (s 23), which is a civil nullity rather than a specified criminal sanction within this text.
Court discretion and judicially prescribed rules: The Act leaves much enforcement detail to rules prescribed by judges (s 8) and to judicial discretion in setting aside orders (s 4(9), s 4(3)). This delegation concentrates enforcement discretion in the judiciary and signals that operational enforcement will depend on rules and judicial practice rather than statutory minutiae.
In sum, enforcement under this Act operates principally through short‑term custody with explicit time limits, sequestration against property, mandatory filing requirements that create voidness for non‑compliance, and judicial proof gates. The Act limits the scope of custodial enforcement and conditions it on proof and procedural compliance while preserving alternative property‑directed enforcement.
How it interacts with other laws
The Act expressly references and interacts with prior statutes and judicial rule‑making, and it preserves certain legal regimes outside its abolition of general arrest for debt. The text sets out several specific linkages.
Bankruptcy law: Section 3(e) preserves enforcement against "payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy is authorised to make an order." That provision explicitly excludes from the abolition of imprisonment those enforcement mechanisms that arise under bankruptcy jurisdiction relating to income attachments for the benefit of creditors. The Act therefore co‑exists with bankruptcy‑based enforcement and does not displace income garnishee or pay‑roll orders made under bankruptcy law.
Trustees and fiduciaries (Supreme Court orders): Section 3(c) excepts defaults by trustees or persons acting in a fiduciary capacity where the Supreme Court has ordered payment of sums in their possession or under their control. That links enforcement under the Debtors Act to the Supreme Court’s equitable jurisdiction over trustees and fiduciaries, preserving the Court's ability to order arrest or imprisonment for default in those particular supervisory contexts.
Warrants of Attorney Act 1822: Section 25 provides that provisions of "the Act of the third year of King George the Fourth, chapter 39" (the 1822 Warrants of Attorney Act) relating to liberty to file a warrant or a copy, for certain entries and searches, and for entering satisfaction, and fees for search, filing and office copies, extend to every judge’s order of the type described in s 24. In other words, the Debtors Act imports selected procedural features from the 1822 Act for the treatment of judge’s consent orders as if they were warrants of attorney under that earlier statute. The interaction is direct: the 1822 Act’s provisions are made applicable to the judge’s order filing regime.
Court procedural rules and judges’ rule‑making: The term "prescribed" used throughout Part II is defined as rules prescribed by the judges (s 8). As a result, the Act interacts with the courts’ internal rule‑making capacity. The procedural operation of committal, proof methods (s 4(2)), forms of discharge (s 4(8)), and other operational details depend on the General Rules the judges must make. This creates a legal interdependence between statute and judicially prescribed civil procedure rules.
Supreme Court and Magistrates Court jurisdictional interface: The Act specifies limits on the exercise of committal jurisdiction by courts other than the Supreme Court, including a monetary ceiling for certain judgments (s 4(1)(a)(i)). It also gives judges power to set aside or vary orders made by the Magistrates Court, which introduces a hierarchical interaction where superior courts supervise and can overturn lower court orders (s 4(9)). This preserves appellate or superior court oversight of lower court committal decisions.
Sequestration as parallel to arrest: Section 6 allows sequestration against a debtor’s property "in the same manner as if such debtor had been actually arrested." This creates an operational linkage between property sequestration mechanisms and the arrest‑based enforcement regime, allowing the Supreme Court to use property remedies consistent with arrest consequences under other statutes or common law.
Relation to penal/penalty regimes: Section 3(a) excepts non‑contractual penalties from the abolition, so the Debtors Act coexists with statutory penalty schemes. For penalty or sums "in the nature of a penalty", arrest and imprisonment remain available as an enforcement option unless the penalty is in respect of a contract. The Act therefore operates alongside statutes imposing penalties and enforcement measures for breaches of regulatory or penal regimes.
Historical repeals and consolidation: The SCHEDULE 1 lists numerous earlier Acts that are repealed (reference to s 27), including acts concerned with insolvency, arrest on mesne process, and the abolition of imprisonment for debt in earlier forms. Those repeals indicate the Debtors Act's consolidation effect vis‑à‑vis prior enactments. The statutory notes throughout the text (e.g. sections amended or repealed by later local statutes) show ongoing interactions with subsequent amending or repealing instruments recorded in the Act's annotations.
Administrative filing systems and registrarial practice: Sections 23-24 make instrument validity dependent on filing with the Registrar of the Supreme Court within 14 days and on inclusion of certain particulars with judge’s consent orders. That imposes an operational interaction with the Supreme Court’s registry processes and fee/satisfaction regimes imported from the 1822 Act (s 25). Registry practice therefore becomes functionally linked to the statute’s enforcement outcomes.
Limits and savings: The Act’s proviso that "nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default" (s 3 proviso) clarifies that other statutory and common law consequences of judgments remain unaffected. Thus enforcement measures not involving arrest or imprisonment continue to operate under existing laws.
In summary, the Debtors Act 1870 integrates with bankruptcy and trustee‑supervision regimes, imports select provisions of the 1822 Warrants of Attorney Act for the filing regime, delegates procedural content to judges’ General Rules, and preserves interactions between superior and inferior courts through supervisory powers and monetary ceilings. The Act is procedural and preservative in its relations with other statutes rather than transformative of substantive creditor rights outside its specified scope.
Amendment history
The text supplied contains numerous internal amendment and repeal annotations. The Act as presented has been the subject of discrete amendments, renumberings and repeals documented inline. The key textual amendment signals recorded in the supplied statute are as follows.
Part and section renumberings and headings: The Part I and Part IV headings have been renumbered by No. 36 of 1958, s 4 and Schedule 3, as indicated in the top of Part I and Part IV (preliminary and warrants parts) and in the Part IV header.
Section 1 and 2 amendments: Section 1 (Short title) and s 2 (Commencement) show amendment annotations "Amended by 25 Geo. V No. 78" and confirm the Act may be cited as the Debtors Act 1870 and came into operation on 1 January 1871; the amendment notes signal later modifications to those provisions or their annotation.
Section 3 amendments: Section 3 (Abolition of imprisonment for debt) carries amendment annotations: "Amended by 21 Geo. V No. 36, s. 2" and "Amended by 25 Geo. V No. 78". Subsection 3(d) was specifically amended by No. 66 of 2007, Schedule 1, and applied on 31 December 2008; that amendment inserted the exception in respect of Australian legal practitioners default in costs or sums when ordered to pay for misconduct as such or in their capacity as an officer of the Court (s 3(d) amendment note).
Section 4 amendments: Section 4 is annotated "Amended by 25 Geo. V No. 78" and several subsections record later modifications. Subsection (1) was amended by No. 55 of 1965, s 5; an internal paragraph (ii) or further text in (a) shows an amendment by No. 27 of 1992, Schedule 1, applied on 30 March 1998; subsection (4) is shown as omitted by No. 27 of 1992, Schedule 1 (applied 30 March 1998); subsection (9) is shown as amended by No. 27 of 1992, Schedule 1. The effect in the text is that the detailed threshold and procedural text in s 4 has been updated over time, with removals and substitutions.
Section 5 amendments: Section 5 has an amendment note "Amended by 25 Geo. V No. 78" and subsection (2) was amended by No. 55 of 1965, s 5. The text reflects the inserted monetary threshold and procedural test for arrest about to quit.
Section 6 amendment: Section 6 is annotated "Amended by 25 Geo. V No. 78" indicating legislative changes to align sequestration procedures to the arrest equivalent.
Section 8 amendment: Section 8 is annotated "Amended by 25 Geo. V No. 78" and defines the term "prescribed" within Part II as rules to be made by the judges.
Part III repeals: A cluster of sections in Part III (ss 9-12, 16-20) are explicitly shown as repealed by 14 Geo. V No. 69, s 3 and by 25 Geo. V No. 78 and by 7 Edw. VII No. 36 as appropriate. The Act therefore underwent pruning to remove certain fraud provisions or other content in Part III.
Sections 21-25 modernisation and substitution: Section 21 shows a substitution by No. 23 of 2009, s 8 that took effect 16 June 2009, replacing the prior text on warrants of attorney and cognovits and imposing the current requirement of explanation and attestation by an Australian legal practitioner. Several of the later sections (s 22-25) are in force but the text shows they are carried forward; s 23 carries the filing obligation and s 24 imports judge’s orders filing regime.
Schedule 1 repeals earlier acts: SCHEDULE 1 lists acts to be repealed under s 27; the schedule reproduces a list of early Victorian and colony statutes (3 Vict. No. 1, 5 Vict. No. 6, etc.) covering insolvency and arrest on mesne process, indicating that the Debtors Act repealed a number of earlier enactments at the time of its original passage.
Temporal application of amendments: The annotations specify applied dates where relevant , for example, the No. 66 of 2007 amendment to s 3(d) was applied 31 December 2008; the No. 27 of 1992 amendments applied 30 March 1998; the No. 23 of 2009 substitution for s 21 applied 16 June 2009. These applied dates indicate when the textual changes took effect in the statute as annotated.
Repeal annotations within the body: Several sections include inline "Repealed by ..." notes. Examples include ss 9-12, 14, 15, 16, 17, 18, 19, 20 which are shown as repealed by a combination of 14 Geo. V No. 69, 25 Geo. V No. 78, and 7 Edw. VII No. 36, s 3. Section 7 is shown as repealed by 25 Geo. V No. 78. Section 26 and 27 are also shown as repealed by 25 Geo. V No. 78. These are integrated repeal markers that reflect mid‑20th century consolidation.
Collectively, the amendment annotations in the supplied Act show an ongoing pattern of statutory pruning and targeted modernisation, a late substitution in 2009 for practitioner formalities, and selective amendments to adjust monetary thresholds and procedural rules in the late 20th century. All amendment references are those printed in the supplied text and identify the amending instruments by short title and citation where recorded in the brackets accompanying each section.
Litigation history
The statute text provided contains no case law citations and lists no judicial decisions. Several sections have been repealed or amended and those amendments are annotated; however, no specific judgments, reported cases, or litigation outcomes are mentioned within the Act text as provided.
Because the source text does not record any judicial decisions construing the statute, this document cannot cite or summarise litigation history beyond observing that the Act’s implementation rests substantially on judges’ exercise of discretion and rule‑making powers (see s 8 for the definition of "prescribed" as rules to be made by the judges). The absence of cases in the text means the following are factual observations grounded in the source:
The Act gives judges powers of rule‑making and supervision (s 8; s 4(3), s 4(9)); these are procedural levers within which litigation has occurred in practice, but no such litigation is recorded in the supplied statute.
The Act attaches invalidity consequences to non‑compliance with prescribed formalities (ss 21-24); those provisions commonly give rise to litigation in practice, but the text supplies no examples or appellate rulings.
Sections dealing with committal, sequestration, and arrest thresholds (ss 3-6) are phrased to require judicial fact‑finding and discretion; again, no specific cases or reported judicial treatments are included in the source.
Accordingly, the statute as provided contains no litigation history. Any analysis of judicial interpretation, patterns of enforcement, or appellate authority must be sourced to case law outside this text. This note refrains from inventing or importing that case law. Users seeking precedents, reported decisions, or the practical way courts have applied the evidentiary tests and filing rules under this Act will need to consult case reports, court registries, or an up‑to‑date legal database; none are printed in the supplied Act.
Gotchas
Several features of the Act are procedural traps or sharp compliance pitfalls for practitioners and litigants. The statute’s language converts administrative failures into substantive invalidity and ties significant relief to precise evidentiary, filing and formality thresholds. The following are the concrete "gotchas" derived from the text.
14‑day filing deadlines operate as a fail‑safe voidness rule (ss 23-24): The Act requires that a warrant of attorney or cognovit, or a true copy, be filed with the Registrar of the Supreme Court within 14 days after execution, and that a judge’s consent order authorised by a defendant in a personal action be similarly filed within 14 days with an accompanying affidavit and particulars (ss 23-24). The statutory consequence for non‑filing is stark: the instrument is "deemed fraudulent and shall be void" (s 23) or "the order and any judgment ... shall be void" (s 24). There is no textual grace period or saving clause in the supplied text. Practitioners must treat the 14‑day window as essential and ensure registry filing and correct inscription of defeasances or conditions on the same paper for warrants.
Mandatory practitioner explanation and attestation (s 21 and s 22): A warrant of attorney or cognovit is invalid unless a person’s Australian legal practitioner explains its nature and effect before signing and is present to attest the signature (s 21). Section 22 makes clear that even proof that the person understood the instrument will not cure non‑compliance with the formal requirement: "not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof" (s 22). Practitioners must therefore attend execution in person and sign as witness; telephone explanations, later confirmations, or evidence of actual understanding do not validate an improperly executed instrument.
Defeasances or conditions must be on the same paper (s 23): If a warrant or cognovit is given subject to any defeasance or condition, that defeasance or condition must be written on the same paper or parchment with the warrant before filing, or the instrument is void (s 23). Splitting the defeasance onto another document or failing to ensure the condition is physically on the same paper will void the instrument for filing purposes.
Strict monetary thresholds determine available remedies (s 4(1)(a)(i), s 5(2)): The Act contains precise monetary cutoffs that shape whether certain courts may exercise committal jurisdiction and whether arrest as a flight‑prevention measure is available. For example, s 5(2) requires the plaintiff to show a cause of action to $50 or upwards before a judge may order arrest to prevent quitting Tasmania; s 4(1)(a)(i) confines inferior courts’ exercise of committal jurisdiction "only as respects a judgment of the Supreme Court when such judgment does not exceed $100 exclusive of costs." These dollar thresholds are literal statutory conditions that must be satisfied in evidence or the court lacks authority to order the enforcement step.
"Prescribed" delegations to judges (s 8): The term "prescribed" is defined as rules to be made by the judges (s 8). Where the Act refers to "prescribed rules," the operational effect of committal and proof procedures depends on court rule‑making. Practitioners must identify the current General Rules in force because the Act’s procedural references assume and defer to those rules. Assuming a practice based on the text alone without consulting current prescribed rules risks non‑compliance.
Imprisonment does not extinguish debt or block execution (s 4(7)): A debtor imprisoned under s 4 remains subject to execution against lands, goods or chattels "in the same manner as if such imprisonment had not taken place" and imprisonment does not operate as satisfaction or extinguishment of the debt (s 4(7)). Creditors should not assume that custody equates to debt discharge; debtors should not assume custody resolves the debt.
Sequestration mirrors arrest consequences (s 6): The Supreme Court may issue sequestration against a debtor's property "in the same manner as if such debtor had been actually arrested" (s 6). Parties may misread sequestration as an alternative to arrest with different procedural safeguards, but the Act equates the two procedurally; practitioners should verify the precise procedural prescriptions in the prescribed rules.
Magistrates Court orders subject to judicial set aside (s 4(9)): Orders made by the Magistrates Court may be set aside or varied by a judge in a summary manner and the judge may order release of a person arrested under such an order in the absence of the person (s 4(9)). Creditors relying on Magistrates Court committals should expect a superior court review route; defendants should be made aware that summary applications to a judge can vary or discharge such orders.
Voidness rather than refund or rectification for filing defects (ss 23-24): The statutory remedy for failure to file is voidness; the Act does not provide an express mechanism for curing a filing omission or for relief from voidness in the text supplied. Parties must therefore prevent filing defects proactively.
Penalty exceptions mean category analysis is critical (s 3): The s 3 exception list is narrowly defined and includes categories such as penalties not arising from contracts, summary orders, trustees, legal practitioners under certain orders, bankruptcy‑based salary orders, sums authorised by this Act, and alimony ordered by the Supreme Court (s 3(a)-(g)). A creditor or practitioner must identify whether the relevant debt fits a listed exception; misclassification risks wrongful enforcement or forfeiture of remedies.
Practical administrative dependency on Registrar and court rules: Because the validity of confessed‑judgment instruments and judge’s orders depends on registry filings and judges’ "prescribed rules," parties must synchronise legal steps with registry practice and the current rules published by judges. Failure to account for registry hours, required forms, and rules can result in instruments being void.
No textual listing of sanctions besides voidness and custody: The Act does not provide for fines or quantified penalties for registry non‑compliance; the immediate effect is that the instrument is void and custodial limits apply as stated. Expect the practical consequence to be loss of enforcement rather than incremental sanctions.
These are concrete compliance risks identifiable from the text. Practitioners should map the 14‑day filing obligations, the practitioner presence formalities, the monetary thresholds, and the need to consult judicially prescribed rules and registry practice to avoid nullity or unintended loss of enforcement.
How to comply
Compliance under the Act requires attention to four procedural areas: (1) avoiding loss of liberty for defendants through timely security or discharge, (2) meeting evidentiary thresholds and prescribed proof methods for committal or arrest applications, (3) ensuring formalities and filings for warrants, cognovits and consent orders, and (4) liaising with court rule instruments and registry procedures. The following operational checklist is grounded in the statutory text.
Check statutory categorisation of the debt (s 3)
Identify whether the debt falls within the exceptions in s 3(a)-(g) (penalty, summary order, trustee/fiduciary sums, legal practitioner costs orders, bankruptcy salary orders, sums authorised by this Act, alimony). If yes, arrest or imprisonment may be available subject to the Act’s limits. If the debt does not fit an exception, arrest for non‑payment is not available.
For creditors seeking committal under s 4
Confirm that a judgment or order exists for the debt or instalment (s 4(1) refers to debt due "in pursuance of any order or judgment").
Determine the correct court for application. Note the restrictions on courts other than the Supreme Court: the jurisdiction to commit must be exercised only subject to listed restrictions, including the Supreme Court judgment not exceeding $100 exclusive of costs in certain circumstances (s 4(1)(a)(i)). Review the precise amended text and any substituted paragraphs as they apply locally.
Assemble proof of means. The court requires satisfaction that the debtor has or had means to pay and has refused or neglected to pay (s 4(1)(b)). Prepare evidence that the debtor had means since the order’s date and that there has been refusal or neglect. The court may accept proof "in such manner as the court thinks just" and may summon debtor and witnesses to be examined on oath according to prescribed rules (s 4(2)). Ensure witness statements and documentary proof are ready for the judge’s scrutiny.
Follow prescribed rules. Consult the judges’ General Rules (s 8) that apply to committal and the prescribed forms of proof. Confirm procedural steps such as whether matters are to be heard in chambers (s 4(3)).
For plaintiffs seeking arrest of a defendant about to quit Tasmania under s 5
Ensure the claim meets the monetary threshold: prove a good cause of action to the amount of $50 or upwards (s 5(2)).
Prepare affidavit evidence on oath to show probable cause that the defendant is about to quit Tasmania and that the absence will materially prejudice the prosecution of the action (s 5(2)). The evidential standard is on the plaintiff to the satisfaction of a judge.
Be ready to offer the prescribed security, not exceeding the amount claimed, that the defendant will not leave Tasmania without leave of the court or judge (s 5(2)). For penalty actions, note that the plaintiff need not prove material prejudice and the security required is instead that any sum recovered be paid or that the defendant be rendered to prison (s 5(3)).
Use the prescribed manner for the judge’s order and security. Confirm the format and registry procedures required for seizing or detaining the defendant.
For practitioners and parties using warrants of attorney and cognovits (ss 21-23)
Ensure an Australian legal practitioner personally explains the nature and effect of the warrant or cognovit to the signatory before signature and is physically present when the signatory signs the instrument (s 21(a)-(b)). The practitioner must attest the signature by signing as witness.
Do not rely on evidence of later comprehension to cure a failure to meet s 21; s 22 makes such an instrument invalid irrespective of proof of understanding.
If the instrument includes a defeasance or condition, ensure that the defeasance or condition is written on the same paper or parchment with the warrant before filing; otherwise the instrument will be void (s 23).
File the warrant, cognovit, or a true copy with the Registrar of the Supreme Court within 14 days after execution. Confirm registry hours, acceptable filing methods and fees to prevent missing the deadline (s 23). The instrument is "deemed fraudulent and shall be void" if not filed within 14 days.
For judge’s consent orders that authorise entry of judgment (s 24)
Where a defendant gives a judge’s order by consent authorising immediate or future entry of judgment or execution, file the order with the Registrar within 14 days of making the order and include an affidavit stating the time of consent and a description of the defendant’s residence and occupation (s 24).
Ensure the judge’s order documents any defeasance or condition on the same paper if relevant and preserve the original executed document for registry validation.
For discharge of imprisoned persons under s 4
If an imprisoned person satisfies the debt or instalment and prescribed costs, obtain and present a certificate signed in the prescribed manner to the gaol or registry to secure discharge (s 4(8)). Know the prescribed form and signee
Section 4Saving of power to commit for small debts
Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than 6 months, and, secondly, that nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default in paying such money.
4 Saving of power to commit for small debts
4 Saving of power to commit for small debts
[Section 4 Amended by 25 Geo. V No. 78 ]
(1) *[Section 4 Subsection (1) amended by No. 55 of 1965, s. 5 ]*Subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for 6 weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court. Provided –
(a) that the jurisdiction by this section given of committing a person to prison shall, in the case of any court other than the Supreme Court, be exercised only subject to the following restrictions; that is to say:
(i) Be exercised only as respects a judgment of the Supreme Court when such judgment does not exceed $100 exclusive of costs;
(ii) [Section 4 Subsection (1) amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] . . . . . . . .
(b) that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has, or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made a default, and has refused or neglected, or refuses or neglects, to pay the same.
(2) Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.
(3) Any jurisdiction by this section given to the Supreme Court may be exercised by a judge sitting in chambers, or otherwise in the prescribed manner.
(4) [Section 4 Subsection (4) omitted by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] . . . . . . . .
(5) For the purposes of this section any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may rescind or vary such order.
(6) Persons committed under this section may be committed to any gaol; and every order of committal shall, subject to the prescribed rules, be issued, obeyed, and executed in the like manner as nearly as may be as a writ of capias ad satisfaciendum.
(7) No imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place.
(8) Any person imprisoned under this section shall be discharged out of custody upon a certificate signed in the prescribed manner to the effect that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the prescribed costs, if any.
(9) [Section 4 Subsection (9) amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] Every order made by the Magistrates Court (Civil Division) may be set aside or varied by a judge, in such manner and upon such terms as he thinks fit, upon application being made to him in a summary way; and a judge may order the release of any person arrested under such order in the absence of such person.
5 Power to arrest defendant about to quit Tasmania
5 Power to arrest defendant about to quit Tasmania
[Section 5 Amended by 25 Geo. V No. 78 ]
(1) A person shall not be arrested upon mesne process in any action.
(2) *[Section 5 Subsection (2) amended by No. 55 of 1965, s. 5 ]*Where the plaintiff in any action in the Supreme Court in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge, that the plaintiff has good cause of action against the defendant, to the amount of $50 or upwards, and that there is probable cause for believing that the defendant is about to quit Tasmania unless he be apprehended, and that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, a judge may in the prescribed manner order such defendant to be arrested and imprisoned for 6 months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of Tasmania without the leave of the court or a judge.
(3) Where the action is for a penalty or sum in the nature of a penalty other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, and the security given (instead of being that the defendant will not go out of Tasmania) shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison.
6 Sequestration against property of debtor
6 Sequestration against property of debtor
*[Section 6 Amended by 25 Geo. V No. 78 ]*Sequestration against the property of a debtor may be issued by the Supreme Court in the same manner as if such debtor had been actually arrested.
7.
[Section 7 Repealed by 25 Geo. V No. 78 ]
8 Definition of term "prescribed"
8 Definition of term "prescribed"
*[Section 8 Amended by 25 Geo. V No. 78 ]*In this Part the term
prescribed means prescribed by General Rules to be made by the judges.
Part III [Part III Heading amended by 25 Geo V No. 78 ][Part III Heading renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]Fraud
Part III [Part III Heading amended by 25 Geo V No. 78 ][Part III Heading renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]Fraud
9.
[Section 9 Repealed by 14 Geo. V No. 69, s. 3 ]
10.
[Section 10 Repealed by 14 Geo. V No. 69, s. 3 ]
11.
[Section 11 Repealed by 14 Geo. V No. 69, s. 3 ]
12.
[Section 12 Repealed by 14 Geo. V No. 69, s. 3 ]
13 Debts incurred by fraud
13 Debts incurred by fraud
*[Section 13 Amended by 25 Geo. V No. 78 ]*Where a debtor makes any arrangement or composition with his creditors under the law relating to bankruptcy, he shall remain liable for the unpaid balance of any debt which he incurred or increased, or whereof before the date of the arrangement or composition he obtained forbearance by any fraud, provided the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends.
14.
[Section 14 Repealed by 25 Geo. V No. 78 ]
15.
[Section 15 Repealed by 25 Geo. V No. 78 ]
16.
[Section 16 Repealed by 14 Geo. V No. 69, s. 3 ]
17.
[Section 17 Repealed by 14 Geo. V No. 69, s. 3 ]
18.
[Section 18 Repealed by 25 Geo. V No. 78 ]
19.
[Section 19 Repealed by 7 Edw. VII No. 36, s. 3 ]
20.
[Section 20 Repealed by 14 Geo. V No. 69, s. 3 ]
Part IV Warrants of Attorney, Cognovits, and Orders for Judgment
Part IV Warrants of Attorney, Cognovits, and Orders for Judgment
[Part IV Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]
21 Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner
21 Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner
[Section 21 Amended by 25 Geo. V No. 78 ][Section 21 Substituted by No. 23 of 2009, s. 8, Applied:16 Jun 2009] A warrant of attorney to confess judgment in a personal action or a cognovit actionem is invalid unless –
(a) the nature and effect of the warrant of attorney or cognovit actionem is, before the person signs it, explained to the person by the person's Australian legal practitioner; and
(b) the person's Australian legal practitioner is present when the person signs the warrant of attorney or cognovit actionem and attests, by signing as a witness, the signature of the person.
22 Warrant, &c., not formally executed invalid
22 Warrant, &c., not formally executed invalid
A warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same.
23 Filing of warrant and cognovit
23 Filing of warrant and cognovit
Where in an action a warrant of attorney to confess judgment or a cognovit actionem is given, the same, or a true copy thereof, shall be filed within 14 days after the execution thereof with the Registrar of the Supreme Court; and unless the same or such copy thereof is so filed within the said period, the same shall be deemed fraudulent and shall be void; and if any such warrant of attorney or cognovit actionem so filed was given subject to any defeasance or condition, such defeasance or condition shall be written on the same paper or parchment with the warrant or cognovit before the filing thereof, otherwise the warrant or cognovit shall be void.
24 Filing of judge's order to enter up judgment, &c.
24 Filing of judge's order to enter up judgment, &c.
Where a judge's order made by consent is given by a defendant in a personal action in the Supreme Court whereby the plaintiff is authorised forthwith or at any future time to sign or enter up judgment, or to issue or to take out execution, whether such order is made subject to any defeasance or condition or not, then the order shall, together with an affidavit of the time of consent being given, and a description of the residence and occupation of the defendant, be filed with the Registrar of the Supreme Court within 14 days after the making of the order, otherwise the order and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be void.
25 Application to judge's order of Warrants of Attorney Act 1822
25 Application to judge's order of Warrants of Attorney Act 1822
The provisions of the" Act of the third year of King George the Fourth, chapter 39", relating to liberty to file a warrant of attorney or cognovit actionem, or a copy thereof, and for making certain entries and searches in relation thereto, and for entering satisfaction thereon, and for fees for search, and filing and taking office copies, shall extend and be applicable to every such judge's order.
26.
[Section 26 Repealed by 25 Geo. V No. 78 ]
27.
[Section 27 Repealed by 25 Geo. V No. 78 ]
SCHEDULE 1 - Acts to be Repeal SCHEDULE 1 - Acts to be Repealed
SCHEDULE 1 - Acts to be Repeal SCHEDULE 1 - Acts to be Repealed
Section 27
| Reference To Act | Title of Act |
| 3 Vict. No. 1 | An Act to make Provision for the more effectual Distribution of Insolvent Estates |
| 5 Vict. No. 6 | An Act to subject Insolvents' Estates to the Payment of the Expenses of Executions issued against such Estates prior to Declarations of Insolvency |
| 7 Vict. No. 11 | An Act to extend the Order of Discharge to be granted by the Commissioners under the Provisions of the Act of this Island intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" to certain cases hereinafter mentioned |
| 15 Vict. No. 2 | An Act to explain and amend the Fifty-ninth Section of an Act intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" |
| 20 Vict. No. 12 | An Act to amend an Act, intituled "An Act to make Provision for the more effectual Distribution of Insolvent Estates" |
| 23 Vict. No. 2 | An Act to regulate Arrest on Mesne Process in Civil Actions |
| 23 Vict. No. 25 | An Act to amend the Laws relating to Insolvency |
| 27 Vict. No. 31 | An Act to amend the Laws relating to Insolvency |
| 30 Vict. No. 2 | An Act to enable the Governor to appoint Substitutes for the Commissioners of Insolvent Estates during their Absence from Duty |
| 30 Vict. No 6 | An Act to confer jurisdiction upon the Judges of the Supreme Court in Cases of Insolvency |
| 31 Vict. No. 16 | An Act to abolish Imprisonment for Debt, and to provide for the Punishment of Frauds committed by Debtors |
| 33 Vict. No. 14 | An Act to amend the Law as to Arrest on Mesne Process in Civil Actions |