Imprisonment of Fraudulent Debtors Act 1958

Version No. 056

Imprisonment of Fraudulent Debtors Act 1958

No. 6276 of 1958

Version incorporating amendments as at
1 March 2019

table of provisions

Section Page

1 Short title and commencement 1

2 Repeal 1

2A Definitions 2

Part I—On judgment of Supreme Court 3

3 Imprisonment upon writ of capias ad satisfaciendum abolished 3

4 Debtor may be summoned 3

5 Debtor may be examined and imprisoned 4

6 Examination may be had on the original hearing 6

7 Form of warrant of commitment 6

8 Order may be ex parte 6

9 Judgment debtor may appeal to Court of Appeal 7

10 Prisoner to be discharged on payment of debt and costs 7

11 Examination to be taken down in writing 8

12 Examination to be a judicial proceeding 8

13 Effect of this Part of this Act 8

Part II—On judgment of County Court 9

14 Imprisonment for debt abolished in county court 9

15 Judgment debtor may be summoned 9

16 Judgment debtor may be examined and imprisoned 10

17 Examination may be had on the original hearing 12

18 Form of warrant of commitment 12

19 Order may be ex parte 12

20 Prisoner to be discharged on payment of debt and costs 13

21 Examination to be a judicial proceeding 13

Part III—On order of Magistrates' Court 15

22 Defendants in civil cases not to be imprisoned except under certain circumstances 15

23 Warrant in default of compliance 17

24 Ex parte order of commitment 18

25 Debtor, how discharged 18

26 Non-application of Magistrates' Court Act 19

27 Examination to be a judicial proceeding 19

28 Imprisonment for fraud no satisfaction of debt 19

28A Appeal to County Court 20

Part IV—General 21

29 Judgment need not necessarily be served before fraud summons under Parts 1, 2 and 3 21

Schedules 22

First Schedule 22

Second Schedule 23

Third Schedule 27

Endnotes 35

1 General information 35

2 Table of Amendments 37

3 Amendments Not in Operation 40

4 Explanatory details 41

Version No. 056

Imprisonment of Fraudulent Debtors Act 1958

No. 6276 of 1958

Version incorporating amendments as at
1 March 2019

An Act to consolidate the Law relating to the Imprisonment of Fraudulent Debtors.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

S. 1
amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.1).

1 Short title and commencement

This Act may be cited as the Imprisonment of Fraudulent Debtors Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2 Repeal

(1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any order warrant arrest certificate direction appeal proceeding power notice obligation saving liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act.

S. 2A inserted by No. 37/2014 s. 10(Sch. item 84.1).

2A Definitions

In this Act—

police officer has the same meaning as it has in the Victoria Police Act 2013.

Part I—On judgment of Supreme Court

No. 3700 s. 3.

3 Imprisonment upon writ of capias ad satisfaciendum abolished

No person shall be arrested or imprisoned or detained in prison upon any writ of capias ad satisfaciendum issued out of the Supreme Court after or before the passing of this Act, any law or practice of such court to the contrary notwithstanding.

No. 3700 s. 4.

S. 4
amended by Nos 110/1986 s. 140(2), 6/2018 s. 68(Sch. 2 item 68.1).

4 Debtor may be summoned

Whenever any sum of money recoverable under any judgment of the Supreme Court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money (whether or not any execution has issued upon or under such judgment) to obtain from time to time from the prothonotary a summons in the form contained in the Second Schedule to this Act or to the like effect directed to the person liable to pay such money; and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath or by affirmation by the Supreme Court touching his estate and effects and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied and as to the disposal he may have made of any property and as to his intention to leave Victoria without paying such money as is still unsatisfied or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which the liability the subject of such judgment was incurred; and the person obtaining such summons as aforesaid and all other witnesses whom the court thinks requisite may be examined upon oath or by affirmation touching the inquiries authorized to be made as aforesaid.

Nos 3700 s. 5, 4876 s. 2(1).

5 Debtor may be examined and imprisoned

(1) If a person summoned as aforesaid—

(a) does not attend as required by such summons or allege a sufficient excuse for not attending; or

S. 5(1)(b) amended by No. 6/2018 s. 68(Sch. 2 item 68.2).

(b) if attending, refuses to be sworn or affirmed or to disclose any of the things aforesaid; or

S. 5(1)(c) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(a)).

(c) does not make answer touching the same to the satisfaction of the Court; or

S. 5(2) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(b)).

(2) If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person—

S. 5(2)(a) repealed by No. 10063 s. 23(a).[1]

---

S. 5(2)(b) substituted by No. 10063 s. 23(b).

(b) is about to leave Victoria without paying the debt damages costs or money so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments has been made; or

(c) is about to depart elsewhere within Victoria with intent to evade payment thereof; or

S. 5(3) amended by Nos 110/1986 s. 140(2), 57/1989 s. 3 (Sch. item 98.2(b)(c)).

(3) If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person if a defendant incurring the liability which is the subject of the action or proceeding in which judgment has been obtained—

(a) obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or

(b) has made or caused to be made any gift delivery or transfer of any property, or has charged removed or concealed the same with intent to defraud his creditors or any of them—

it shall be lawful for the Court, if it thinks fit, to make an order in the form contained in the Second Schedule to this Act or to the like effect that unless such person pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied with interest thereon at such rate as the court directs not exceeding Eight per centum per annum and the costs to be fixed in such order of any fruitless writs or warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than six months.

If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of the Court, the Court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to the Court seem just and reasonable.

No. 3700 s. 6.

S. 6
amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item .3).

6 Examination may be had on the original hearing

In any case in which any defendant in any action in the Supreme Court in respect of any cause or causes of action aforesaid personally appears at the trial or hearing of the same, the court at the trial or hearing of the cause or at any adjournment thereof, if a verdict is found against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore in the last preceding section mentioned and of making an order as the Court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment as hereinbefore mentioned.

No. 3700 s. 7.

S. 7 amended by No. 37/2014 s. 10(Sch. item 84.2).

7 Form of warrant of commitment

Whenever any order for commitment has been made under the provisions hereinbefore contained and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the prothonotary shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Second Schedule to this Act or to the like effect; and the sheriff and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant; and all police officers shall aid and assist in the execution of such warrant.

No. 3700 s. 8.

S. 8
amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item 98.4).

8 Order may be ex parte

Any order for commitment under the provisions hereinbefore contained may (if the special circumstances of the case appear to the court to warrant it) be made by the Court ex parte and without notice on proof by affidavit only of any of the matters aforesaid; and in that case such order for commitment may be filed in the Supreme Court; and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued by the prothonotary in such case shall be in the form or to the effect in the Second Schedule to this Act.

No. 3700 s. 9.

S. 9 (Heading) inserted by No. 62/2014 s. 15(1).

S. 9
amended by Nos 110/1986 s. 140(2), 57/1989 s. 3(Sch. item 98.5), 62/2014 s. 15(2).

9 Judgment debtor may appeal to Court of Appeal

Any judgment debtor or defendant aggrieved by any order for commitment made under the preceding sections may, upon entering into such recognisance and subject to such terms and conditions as the court thinks fit, appeal against such order to the Court of Appeal with leave of the Court of Appeal; and the Court of Appeal shall have power to review the same and to confirm vary annul or discharge the same and to make such order as to the costs of such appeal as appears fit to the Court of Appeal.

No. 3700 s. 10.

S. 10 amended by No. 110/1986 s. 140(2).

10 Prisoner to be discharged on payment of debt and costs

Any person imprisoned by virtue of any warrant under this Part, who pays or satisfied the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the prothonotary. Notwithstanding the provisions hereinbefore contained, it shall be lawful for the Supreme Court at any time by order (if in the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order shall be forthwith discharged and such person shall be forthwith discharged accordingly.

No. 3700 s. 11.

11 Examination to be taken down in writing

The examination of such person liable to pay money as aforesaid shall be taken down in writing; and a copy thereof may be used on the hearing of any appeal from any order for commitment.

No. 3700 s. 12.

12 Examination to be a judicial proceeding

The examination of any person examined under any of the provisions of this Part shall be deemed to be a judicial proceeding; and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false answer statement or declaration shall be liable to the penalties of perjury.

No. 3700 s. 13.

13 Effect of this Part of this Act

Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any judgment, but notwithstanding such imprisonment a fresh writ or warrant against the property or other proceedings to recover the amount may be issued on such judgment and executed in due course of law.

Part II—On judgment of County Court

No. 3700 s. 14.

S. 14 amended by No. 19/1989 s. 16(Sch. item 27.1).

14 Imprisonment for debt abolished in county court

It shall not be lawful for the registrar or a deputy registrar of the county court to issue a warrant of commitment upon a return made to any warrant of execution that the bailiff or officer could find no sufficient property of the person against whom such warrant has issued liable to satisfy such execution; and no person shall be arrested or imprisoned in execution upon or in satisfaction of any judgment or order recovered or obtained in the county court, save in the special cases where such court is empowered by law to make an order for commitment, and in no such case shall any person be committed for a longer period than four months.

No. 3700 s. 15.

S. 15 amended by Nos 19/1989 s. 16(Sch. item 27.2), 6/2018 s. 68(Sch. 2 item 68.1).

15 Judgment debtor may be summoned

Whenever any sum of money recoverable under any judgment or order in the county court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money, whether any warrant of execution has or has not been issued for the same, to obtain from time to time from the registrar or deputy registrar of the court at the place at which such judgment or order was made a summons in the form contained in the Third Schedule to this Act or to the like effect, directed to the person liable to pay such money, and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath or by affirmation touching his estate and effects, and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied, and as to the disposal he may have made of any property, and as to his intention to leave Victoria without paying such money as is still unsatisfied, or to depart elsewhere within Victoria with intent to evade payment thereof, and as to the mode in which the liability the subject of such judgment or order was incurred; and the person obtaining such summons as aforesaid, and all other witnesses whom the court thinks requisite, may be examined upon oath or by affirmation touching the inquiries authorized to be made as aforesaid.

Nos 3700 s. 16, 4876 s. 2(2).

16 Judgment debtor may be examined and imprisoned

(1) If a person so summoned as aforesaid—

(a) does not attend as required by such summons, or allege a sufficient cause for not attending; or

S. 16(1)(b) amended by No. 6/2018 s. 68(Sch. 2 item 68.2).

(b) if attending, refuses to be sworn or affirmed or to disclose any of the things aforesaid; or

(c) does not make answer touching the same to the satisfaction of such court; or

(2) If it appears to the satisfaction of such court by oral testimony or affidavit or both that such person—

S. 16(2)(a) repealed by No. 10063 s. 23(c).[2]

---

S. 16(2)(b) substituted by No. 10063 s. 23(d).

(b) is about to leave Victoria without paying the sum so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments had been made; or

(c) is about to depart elsewhere within Victoria with intent to evade payment thereof; or

S. 16(3) amended by No. 19/1989 s. 16(Sch. item 27.3
(a)–(d)).

(3) If it appears to the satisfaction of such court by oral testimony or affidavit, or both, that such person if a defendant incurring the liability which is the subject of the proceeding in which judgment has been obtained or an order has been made—

(a) obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or

(b) has made or caused to be made any gift delivery or transfer of any property or has charged removed or concealed the same with intent to defraud his creditors or any of them—

it shall be lawful for such court, if it thinks fit, to make an order in the form contained in the Third Schedule hereto or to the like effect that unless such party pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied, with interest thereon at such rate as the court directs, not exceeding five per cent per annum, and the costs of any fruitless warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than four months.

If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of such court, such court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to such court seem just and reasonable.

No. 3700 s. 17.

S. 17 amended by No. 19/1989 s. 16(Sch. item 27.4).

17 Examination may be had on the original hearing

In any case in which any defendant in any proceeding in the county court personally appears at the trial or hearing of the same, the court, at such trial or hearing of the same or at any adjournment thereof if judgment is given or an order is made against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore mentioned, and of making an order as the court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment.

No. 3700 s. 18.

S. 18 amended by No. 37/2014 s. 10(Sch. item 84.2).

18 Form of warrant of commitment

Whenever any order for commitment has been made under the provisions hereinbefore contained, and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the registrar of the court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Third Schedule to this Act or to the like effect; and the bailiff of the said court and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant and all police officers shall aid and assist in the execution of such warrant.

No. 3700 s. 19.

S. 19 amended by No. 19/1989 s. 16(Sch. item 27.5
(a)–(d)).

19 Order may be ex parte

Any order for commitment under the provisions hereinbefore contained may (if the special circumstances of the case appear to the county court to warrant it) be made by the court ex parte and at any place in Victoria and without notice on proof by affidavit only of any of the matters aforesaid, and in that case such order for commitment may be filed in the county court at any place at which the court is held; and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued by the registrar or deputy registrar in such case shall be in the form or to the effect in the Third Schedule to this Act.

No. 3700 s. 20.

S. 20 amended by No. 19/1989 s. 16(Sch. item 27.6
(a)–(d)).

20 Prisoner to be discharged on payment of debt and costs

Any person imprisoned by virtue of any warrant under this Part who pays or satisfies the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the registrar or deputy registrar of the court at the place where such judgment was recovered. Notwithstanding the provisions hereinbefore contained it shall be lawful for the county court at any time by order (if in the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order as aforesaid shall be forthwith discharged, and he shall be forthwith discharged accordingly.

No. 3700 s. 21.

21 Examination to be a judicial proceeding

(1) The examination of any person examined under any of the provisions of this Part shall be deemed to be a judicial proceeding; and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false answer statement or declaration shall be liable to the penalties of perjury.

(2) Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any judgment or order, but notwithstanding such imprisonment a fresh writ or warrant against the property or other proceedings to recover the amount may be issued on such judgment or order and executed in due course of law.

Pt 3
(Heading) amended by No. 7876 s. 2(3).

Part III—On order of Magistrates' Court

Nos 3700 s. 22, 4876 s. 2(3).

S. 22 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.6(a)–(d)).

22 Defendants in civil cases not to be imprisoned except under certain circumstances

An order made by the Magistrates' Court for the payment of any civil debt recoverable before it or of any instalment thereof and whether with or without costs, or for the payment of damages for an assault or for trespass by cattle or of any instalment thereof or for the payment of damages summarily recoverable and not enforceable as a fine or any instalment thereof and in every such case whether with or without costs, or for costs ordered to be paid on a conviction or for costs alone (including costs ordered to be paid by an informant) or any instalment of any such costs, or for the delivery of goods detained without just cause after due notice, and in the event of neglect or refusal to deliver up such goods according to such order for the payment of the value of such goods to the party aggrieved, shall not in default of payment or delivery be enforced by imprisonment—

(1) Unless it is proved to the satisfaction of the Magistrates' Court that the person making default in payment of such civil debt damages instalment or costs—

S. 22(1)(a) repealed by No. 10063 s. 23(e).[3]

---

(b) is about to leave Victoria without paying such debt damages costs or money or instalment or so much thereof as is still unsatisfied; or

(c) is about to depart elsewhere within Victoria with intent to evade payment thereof; or

S. 22(1)(d) amended by Nos 8427 s. 12, 8731 s. 173 (as amended by No. 9059 s. 2(1)(Sch. item 52)).

(d) has neglected or refused to comply with any order for the delivery of goods detained without just cause after due notice, and has not paid the value thereof to the party aggrieved; or

S. 22(2) amended by Nos 8181 s. 2(1)(Sch. item 69), 6/2018 s. 68(Sch. 2 item 68.1).

(2) Unless it is proved to the satisfaction of such magistrates' court that such person if a defendant incurring the liability which is the subject of the proceeding in which such order was made—

(a) obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or

(b) has made or caused to be made any gift delivery or transfer of any property or has charged removed or concealed the same with intent to defraud his creditors or any of them.

Proof of any of the above-mentioned matters may be given in such manner as the court to which application is made for the commitment to prison thinks just, and for the purposes of such proof the person making default may be personally served with a summons in the form in the Fourth Schedule or to the like effect, and may be examined on oath or by affirmation on the return thereof as to any of the matters hereinbefore mentioned and set out in such summons, and any witnesses (including the person making default) may be summoned and examined on oath or by affirmation according to the provisions relating to the summoning and examination of witnesses in cases of summary jurisdiction.

If any of the aforesaid matters are proved to the satisfaction of the court, the court may if it thinks fit make an order in the form in the Fourth Schedule to this Act or to the like effect that unless the person making such default pays to the court either forthwith or within the time or times limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied, together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than two months: Provided that no such order for commitment shall be made against any person whose estate has since the order under which the money was recoverable was made been sequestrated either compulsorily or voluntarily under the provisions of any law of the Commonwealth relating to bankruptcy.

If none of the aforesaid matters is proved to the satisfaction of the court, the court may order the applicant to pay to the person making default such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to the court seem just and reasonable.

No. 3700 s. 23.

S. 23 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.7), 37/2014 s. 10(Sch. item 84.2).

23 Warrant in default of compliance

Whenever any order for commitment has been made under the provisions of the last preceding section and the money and costs or any instalment of such money or costs named therein has or have not been paid in pursuance thereof, a registrar of the magistrates' court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Fourth Schedule or to the like effect, and the keeper of the gaol to whom such warrant is directed shall execute and obey the said warrant, and all police officers shall aid and assist in the execution of such warrant.

Nos 3700 s. 24, 4876 s. 3(1)(b).

S. 24 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.8(a)–(d)).

24 Ex parte order of commitment

Any order for commitment under the provisions hereinbefore contained may if the special circumstances of the case appear to the Magistrates' Court to warrant it be made by the Court ex parte and without notice upon proof by affidavit only of any of the matters aforesaid, and in that case such order for commitment may be filed in the Court, and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued in such case shall be in the form or to the effect in the Fourth Schedule to this Act.

Nos 3700 s. 25, 4876 s. 3(1)(a).

S. 25 amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.9).

25 Debtor, how discharged

Any person imprisoned by virtue of any warrant under this Part who pays or satisfies the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by a registrar of the magistrates' court. Notwithstanding the provisions hereinbefore contained, it shall be lawful for the magistrates' court at any time by order (if under the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order as aforesaid shall be forthwith discharged, and such person shall be forthwith discharged accordingly.

S. 26
repealed by No. 6571 s. 2, new s. 26 inserted by No. 7043 s. 2, amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 98.10), 33/1994 s. 11(2).

26 Non-application of Magistrates' Court Act

Where any proceedings are brought under this Part section 71 or 82E of the Magistrates' Court Act 1989 shall not apply in respect of the issue of any warrant of commitment thereon or in respect of any person imprisoned by virtue of any such warrant.

Nos 3700 s. 27, 4876 s. 3(1)(c).

27 Examination to be a judicial proceeding

(1) The examination of any person examined under the provisions of this Part shall be deemed to be a judicial proceeding, and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false statement or declaration shall be liable to the penalties of perjury.

S. 27(2) amended by Nos 7876 s. 2(3), 16/1986 s. 30,
repealed by No. 57/1989 s. 3(Sch. item 98.11).

---

No. 3700 s. 28.

28 Imprisonment for fraud no satisfaction of debt

Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any order, but notwithstanding such imprisonment a fresh warrant against the property or other proceedings to recover the amount may be issued on such order and executed in due course of law.

S. 28A inserted by No. 51/1989 s. 145.

28A Appeal to County Court

(1) A person may appeal to the County Court against an order for commitment made against that person under this Part.

S. 28A(2) amended by No. 68/2009 s. 97(Sch. item 69).

(2) The Criminal Procedure Act 2009 applies to an appeal under subsection (1) as if it were an appeal under section 254 of that Act.

Part IV—General

No. 5757 s. 6.

29 Judgment need not necessarily be served before fraud summons under Parts 1, 2 and 3

Notwithstanding any rule of law to the contrary, in any proceeding under Part I or Part II or Part III of this Act it shall not be necessary for the judgment debtor to be served with the judgment or copy thereof in respect of which the proceedings are brought before the issue of the fraud summons (that is to say the summons requiring him to attend the court to be examined touching his estate effects property and means of paying and discharging the debt) but if he has not previously been served personally with the judgment or copy thereof the judgment or copy therefore shall be served on the judgment debtor together with the fraud summons.

Schedules

Section 2.

First Schedule

Second Schedule

Supreme Court

Section 4.

Sch. 2 Form 1 amended by No. 110/1986 s. 140(2).

Form I

Summons to debtor

In the Supreme Court.

To A.B. of

Whereas judgment in favour of C.D. was entered against you in the said court the day of for the sum of $ and costs which have been taxed [or fixed;] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid:

These are therefore to require you to appear personally before the said court on the day of at o'clock in the noon to be examined by the said court touching your estate and effects and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability and if you disobey this summons you will be committed to prison.

Given under my hand this day of

O.P., Prothonotary.

Section 5.

Sch. 2 Form 2 amended by Nos 10063 s. 23(f), 110/1986 s. 140(2).

Form II

Order for commitment in default of payment

In the Supreme Court.

To A.B. of

Whereas judgment in favour of C.D. was entered against you in the said court on the day of for the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex. gr., ''that you did not attend as required by the said summons or allege a sufficient excuse for not attending'' or ''it has appeared to the satisfaction of the court that you contracted the liability which was the subject of the judgment by means of fraud'']:

It is ordered that unless you pay into the said court the said sums [or the said sum of $ ] immediately [or within days or by the following instalments upon the following days (that is to say):—here set out days and sums] together with the sum of $ for interest at the rate of per centum per annum on the said sums [or sum] and the sum of $ for the costs of fruitless writs of execution and levies thereunder, and the sum of
$ for the costs of the summons [or summons and examination] you be committed to prison for the term of or until you shall have paid or satisfied the said judgment or order and the sums hereinbefore ordered to be paid for interest and costs or until you shall be otherwise discharged by due course of law.

Dated this day of .

Section 7.

Sch. 2 Form 3 amended by No. 110/1986 s. 140(2).

Form III

Warrant of commitment

In the Supreme Court.

To the Sheriff and to the keeper of the gaol at

Whereas the Supreme Court did on the day of order that A.B. against whom C.D. had in the Supreme Court recovered the sum of $ and costs which had been taxed [or fixed] at the sum of $ should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said sheriff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate signed by the prothonotary of the said court that the said A.B. has paid or satisfied the said sums [or sum] or until the said A.B. shall be otherwise discharged by due course of law.

Given under my hand this day of

O.P., Prothonotary.

Section 8.

Sch. 2 Form 4 amended by No. 110/1986 s. 140(2).

Form IV

Warrant of commitment on ex parte application

In the Supreme Court.

To the Sheriff and to the keeper of the gaol at

Whereas the Supreme Court did under the special circumstances of the case on the day of order that A.B., against whom C.D. had in the Supreme Court recovered the sum of should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said sheriff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate signed by the prothonotary of the said court that the said A.B. has paid or satisfied the said sums [or sum] or until the said A.B. shall be otherwise discharged by due course of law.

Given under my hand this day of

O.P., Prothonotary.

Third Schedule

County Court

Section 15.

Sch. 3 Form 1 amended by No. 19/1989 s. 16(Sch. item 27.7(a)).

Form I

Summons to debtor

19 No.

In the County Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of &c., as the case may be] are still wholly due and unpaid:

These are therefore to require you to appear personally before the said court on the day of at o'clock in the noon, to be examined by the said court touching your estate and effects, and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability; and if you disobey this summons you will be committed to prison.

Given under my hand and the seal of the said court this day of

Registrar [or Deputy Registrar] of the said court.

Section 16.

Sch. 3 Form 2 amended by Nos 10063 s. 23(g), 19/1989 s. 16(Sch. item 27.7(b)).

Form II

Order for commitment in default of payment

19 No.

In the County Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which have been taxed [or fixed] at the sum of $ and the said sums [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex. gr., ''that you did not attend as required by the said summons or allege a sufficient excuse for not attending'' or ''it has appeared to the satisfaction of the court that you contracted the liability which was the subject of the judgment by means of fraud'']:

It is ordered that unless you pay into court the said sums [or the said sum of
$ ] immediately [or within days or by the following instalments upon the following days (that is to say):—here set out days and sums] with the sum of $ for interest at the rate of per centum per annum on the said sums [or sum] and the sum of for the costs of fruitless warrants of execution and levies thereunder and the sum of $ for the costs of the said summons [or summons and examination] you be committed to prison for the term of or until you shall have paid or satisfied the said sums [or sum] and the sums hereinbefore ordered to be paid for interest and costs or until you shall be otherwise discharged by due course of law.

Given under my hand and the seal of the said court this day of

Registrar [or Deputy Registrar] of the said court.

Section 18.

Sch. 3 Form 3 amended by No. 19/1989 s. 16(Sch. item 27.7(c)).

Form III

Warrant of commitment

19 No.

To the bailiff of the County Court at and to the keeper of the gaol at

Whereas the said court did on the day of order that A.B. against whom C.D. had in the said court recovered the sum of
$ and costs which have been taxed [or fixed] at the sum of
$ should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said bailiff to take the said A.B. and convey him to the said gaol, and deliver him to the said keeper thereof, and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by the registrar or deputy registrar of the said court) that the said A.B. has paid or satisfied the said sums, or until the said A.B. shall be otherwise discharged by due course of law.

Given under my hand and the seal of the said court this day of

Registrar [or Deputy Registrar] of the said court.

Section 19.

Sch. 3 Form 4 amended by No. 19/1989 s. 16(Sch. item 27.7(d)).

Form IV

Warrant of commitment on ex parte application

19 No.

To the bailiff of the County Court at and to the keeper of the gaol at

Whereas the county court did under the special circumstances of the case on the day of order that A.B. against whom C.D. had in the county court recovered the sum of should be committed to prison for [state time] unless he did [as in Order for Commitment]. And the said A.B. having made default by not [state shortly the default]:

These are therefore to command you the said bailiff to take the said A.B. and convey him to the said gaol and deliver him to the said keeper thereof, and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by the registrar or deputy registrar of the said court) that the said A.B. has paid or satisfied the said sums, or until the said A.B. shall be otherwise discharged by due course of law.

Given under my hand and the seal of the said court this day of

Registrar [or Deputy Registrar] of the said court.

Sch. 4 amended by No. 8181 s. 2(1)(Sch. item 70).

Fourth Schedule

Magistrates' Court

Section 22.

Sch. 4 Form 1 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3(Sch. item 98.12(a)(i)(ii)).

Form I

Summons to debtor

In the Magistrates' Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which by the said order were fixed at the sum of $ and costs which by the said order were fixed at the sum of $ [or the sum of $ for costs] and the said sums [or sum] [or $ part of, &c., as the case may be] are still wholly due and unpaid:

These are therefore to command you to appear personally before the magistrates' court at [place] on the day of at o'clock in the noon to be examined by the said court touching your estate and effects and as to the property and means you have or have had of paying and discharging the said sums [or sum] and as to the disposal you have made of your property and as to your intention to leave Victoria without paying the said sums [or sum] or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which you incurred the liability [and as to your neglect or refusal to comply with an order for the delivery of goods detained without just cause after due notice and to pay the value thereof to the complainant].

Dated at the day of

Registrar of Magistrates' Court.

Section 22.

No. 4876 s. 3(1)(d).

Sch. 4 Form 2 amended by Nos 7703 s. 5, 9427 s. 6(1)(Sch. 5 item 71), 10063 s. 23(h), 16/1986 s. 30, 57/1989 s. 3 (Sch. item 98.12(b)).

Form II

Order for commitment in default of payment

In the Magistrates' Court at

To A.B. of

Whereas the said court did on the day of order that you should pay to C.D. the sum of $ and costs which by the said order were fixed at the sum of $ [or the sum of $ for costs] and the said sums [or sum] [or $ part of, &c., as the case may be] are still wholly due and unpaid, and it has been proved against you that you were duly summoned [or summoned and examined] and [here set out the specific offence found, ex.gr., "it has been proved to the satisfaction of the magistrates' court that you contracted the liability under false pretences or by means of fraud or breach of trust'' or ''it has been proved to the satisfaction of the magistrates' court that you have neglected or refused to comply with an order under the Magistrates' Court Act 1989 for the delivery of goods detained without just cause after due notice and have not paid the value thereof to the complainant]:

It is adjudged that unless you pay into the said court immediately [or within
days or by the following instalments upon the following days (that is to say):—here set out dates and sums] the said sum together with the sum of $ for the costs of the summons [or summons and examination] you be committed to prison for the term of [or until you shall have paid or satisfied the said order and the sums hereinbefore ordered to be paid for costs, or until you shall be otherwise discharged by due course of law].

Dated at this day of

Magistrate.

Section 23.

Sch. 4 Form 3 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3 (Sch. item 98.12(c)(i)(ii)), 37/2014 s. 10(Sch. item 84.3).

Form III

Warrant of commitment

In the Magistrates' Court at

To a police officer and to the keeper of the gaol at

The magistrates' court having ordered that A.B. against whom C.D. had in the said court obtained an order for should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

You the said police officer are commanded to take the said A.B. and convey him to the said gaol and deliver him to the keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by a registrar of the court) that the said A.B. has paid or satisfied the said sums or until the said A.B. shall be otherwise discharged by due course of law.

Dated at this day of

Registrar of Magistrates' Court.

Section 24.

Sch. 4 Form 4 amended by Nos 7703 s. 5, 7876 s. 2(3), 57/1989 s. 3 (Sch. item 98.12(d)(i)(ii)), 37/2014 s. 10(Sch. item 84.3).

Form IV

Warrant of commitment on ex parte application

In the Magistrates' Court at

To a police officer and to the keeper of the gaol at

The magistrates' court having in the special circumstances of the case on
the day of ordered that A.B. against whom C.D. had in the said court obtained an order for should be committed to prison for [state time] unless he did [as in Order for Commitment] and the said A.B. having made default by not [state shortly the default]:

You the said police officer are commanded to take the said A.B. and convey him to the said gaol and deliver him to the keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the space of or until you shall receive a certificate (signed by a registrar of the court) that the said A.B. has paid or satisfied the said sums or until the said A.B. shall be otherwise discharged by due course of law.

Dated at this day of

Registrar of the Magistrates' Court.

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Imprisonment of Fraudulent Debtors Act 1958 was assented to on 30 September 1958 and came into operation 1 April 1959: Government Gazette 18 March 1959 page 892.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Imprisonment of Fraudulent Debtors Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Imprisonment of Fraudulent Debtors (Depositions) Act 1959, No. 6571/1959

Fraudulent Debtors Commitment Act 1963, No. 7043/1963

Abolition of Bailiwicks Act 1968, No. 7703/1968

Justices (Amendment) Act 1969, No. 7876/1969

Statute Law Revision Act 1971, No. 8181/1971

Magistrates' Courts Act 1973, No. 8427/1973

Magistrates (Summary Proceedings) Act 1975, No. 8731/1975 (as amended by No. 9059/1977)

Statute Law Revision Act 1980, No. 9427/1980

Judgment Debt Recovery Act 1984, No. 10063/1984

Courts Amendment Act 1986, No. 16/1986

Supreme Court Act 1986, No. 110/1986

County Court (Amendment) Act 1989, No. 19/1989

Magistrates' Court Act 1989, No. 51/1989

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

Magistrates' Court (Amendment) Act 1994, No. 33/1994

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Courts Legislation Miscellaneous Amendments Act 2014, No. 62/2014

Oaths and Affirmations Act 2018, No. 6/2018

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Amendments Not in Operation

There are no amendments which were Not in Operation at the date of this publication.

4 Explanatory details

1. S. 5(2)(a) (repealed): Sections 24–26 of the Judgment Debt Recovery Act 1984, No. 10063 read as follows: ↑

2. 24 Proceedings under the Imprisonment of Fraudulent Debtors Act 1958

(1) Where before the commencement of this Act a summons has been issued under section 4, 15 or 22 of the Imprisonment of Fraudulent Debtors Act 1958 being a summons returnable after that commencement and upon the return of the summons the matters set out in section 5(2)(a), 16(2)(a) or 22(1)(a) (as the case may be) of that Act as in force before that commencement are alleged, the court shall proceed to deal with the matter as if it had come before the court under section 6(8) of this Act and may make an instalment order under this Act.

(2) Where before the commencement of this Act a summons has been issued under section 4, 15 or 22 of the Imprisonment of Fraudulent Debtors Act 1958 and—

(a) before that commencement the judge or court has been satisfied as to the matters set out in section 5(2)(a), 16(2)(a) or 22(1)(a) (as the case may be) of that Act as in force before that commencement but the judge or court has not made an order under that Act as so in force; or

(b) the judge or court having before that commencement commenced to deal with the matter, the judge or court is after that commencement satisfied as to the matters set out in section 5(2)(a), 16(2)(a) or 22(1)(a) (as the case may be) of that Act as in force before that commencement—

the judge or court shall not make an order under that Act but may make an instalment order under this Act.

(3) An instalment order made pursuant to this section shall be deemed to be an instalment order made under section 6(8) of this Act.

25 Orders under the Imprisonment of Fraudulent Debtors Act 1958

(1) In this section, existing order means an order for commitment in default of payment made before the commencement of this Act under the Imprisonment of Fraudulent Debtors Act 1958 by a judge or court satisfied as to the matters set out in section 5(2)(a), 16(2)(a) or 22(1)(a) (as the case may be) of that Act as in force before that commencement.

(2) Subject to this section, an existing order shall notwithstanding the amendments made by this Act to the Imprisonment of Fraudulent Debtors Act 1958 continue to have the same force and effect as it would have had if those amendments had not been made.

(3) Notwithstanding the Imprisonment of Fraudulent Debtors Act 1958, where any money interest and costs or any instalment thereof have not before the commencement of this Act been or are not after that commencement paid as required by an existing order, the judgment creditor in respect of the existing order shall be entitled to apply under section 17 of this Act in all respects as if the existing order were an instalment order under this Act and the judgment debtor had defaulted in an instalment thereunder.

(4) Notwithstanding the Imprisonment of Fraudulent Debtors Act 1958, a judgment creditor or judgment debtor in respect of an existing order may at any time make application under section 8 of this Act in all respects as if the existing order were an instalment order under this Act.

(5) Notwithstanding the Imprisonment of Fraudulent Debtors Act 1958, no person shall be committed to prison under a warrant of commitment or warrant of commitment on an ex parte application issued under that Act in respect of an existing order.

26 Appeals under the Imprisonment of Fraudulent Debtors Act 1958

(1) Where before the commencement of this section a person has pursuant to section 9 of the Imprisonment of Fraudulent Debtors Act 1958 appealed to the Full Court of the Supreme Court in respect of an order for commitment in default of payment made by a judge satisfied as to the matters set out in section 5(2)(a) of that Act as in force before that commencement and the Full Court has not determined that appeal, the Full Court shall not under that Act confirm or vary the order appealed against, but may under that Act annul or discharge the order or make an instalment order under this Act.

(2) An instalment order made pursuant to subsection (1) shall be deemed to be an instalment order made under section 6(8) of this Act.

S. 16(2)(a) (repealed): See note 1. ↑

3. S. 22(1)(a) (repealed): See note 1. ↑