Commonwealth Numbered Regulations

1984 No. 425 FAMILY LAW RULES - ORDER 33 RULE 4

4. (1) In this rule, unless the contrary intention appears-

"applicant" means a person or authority instituting proceedings under sub-rule
(2);

"garnishee" means a person (including a corporation, the Commonwealth, a State
or Territory or an authority or institution constituted by or under a law of
the Commonwealth, or of a State or Territory) from whom the applicant claims
that money is due or accruing to the respondent;

"respondent" means the person who has refused or failed to comply with an
order of the Court or agreement specified in rule 2.

(2) In matters to which rule 2 applies, a party to the proceedings that
resulted in the making of the order or a party to a relevant agreement, the
Registrar or other authority or person entitled to take proceedings for
enforcement, may apply to the court for a garnishment order.

(3) An application for a garnishment order may be made ex parte .

(4) The following moneys may be the subject of a garnishment order:

   (a)  a sum standing to the credit of the respondent in a bank, building
        society, co-operative housing society or similar society, credit
        union, credit society or investment fund or corporation, that is
        payable to the respondent on call or on notice;

   (b)  the earnings of the respondent (being wages or salary and fees, bonus,
        commission, overtime pay or other emoluments payable in addition to or
        in lieu of wages or salary), a pension, annuity, moneys payable in
        lieu of leave, or retirement benefit due or accruing to the
        respondent;

   (c)  any debt or other sum of money due or accruing to the respondent.

(5) Where the application for a garnishment order is made by a person other
than the Registrar, it shall be verified by affidavit.

(6) An affidavit in support of an application for a garnishment order shall
state-

   (a)  particulars of the moneys payable by the respondent;

   (b)  efforts made by the applicant or any other person to obtain payment of
        those moneys;

   (c)  details of any relevant information furnished by the respondent in
        response to a notice under paragraph 3 (1) (a) or obtained in an
        examination pursuant to a summons issued under paragraph 3 (1) (b);

   (d)  particulars of the moneys referred to in sub-rule (4) in respect of
        which application is made for garnishment; and

   (e)  the order sought against the garnishee.

(7) The court shall, in respect of an application for a garnishment order-

   (a)  make the order sought or such other appropriate order on the
        application as it thinks fit; or

   (b)  dismiss the application.

(8) Prior to the making of an order under sub-rule (7), the court may, in
proceedings on an application for a garnishment order-

   (a)  adjourn the proceedings and require the garnishee and the respondent
        or either of them to be served with a copy of the application;

   (b)  give directions as to service and the further hearing of the
        proceedings; and

   (c)  make such other order as it thinks necessary to prevent the moneys
        that are the subject of the application from disappearing or being
        dissipated.

(9) Where the court makes a garnishment order attaching the earnings of the
respondent, it shall-

   (a)  specify the periodic amount to be deducted from the respondent's
earnings in satisfaction of the moneys payable, that is to say, the "normal
deduction rate";

   (b)  specify an amount fixed by the court as the amount below which the
        respondent's earnings shall not be reduced by compliance with the
        order, that
is to say, the "protected earnings rate";

   (c)  specify the person to whom, the place at which and the manner in which
        payment of amounts to be paid by the garnishee under the order is to
        be made;

   (d)  specify the amount that the garnishee may deduct from the normal
        deduction rate referred to in paragraph (a) for administrative
        expenses; and

   (e)  specify the date from which the payments shall commence.

(10) A sealed copy of an order under sub-rule (7) shall be served on the
garnishee and on the respondent in accordance with Order 18, paragraph 5 (1)
(a), (b) or (c).

(11) A garnishee who has been served with a garnishment order-

   (a)  may apply to the court disputing his liability to make payments under
        the order; or

   (b)  shall comply with the order.

(12) If the garnishee applies to the court disputing the order, the garnishee
shall file an affidavit setting out the facts and circumstances upon which the
order is disputed, and serve a copy of the affidavit on the applicant and the
respondent in accordance with Order 18, rule 5.

(13) On the hearing of an application by a garnishee disputing the liability
of the garnishee to make payments under a garnishment order, the court-

   (a)  may proceed with the hearing and determination of the dispute
        notwithstanding that the respondent has not been served with the
        application; and

   (b)  shall hear and determine the matter in dispute and make such order,
        including an order as to costs, as it thinks fit.

(14) Where a person complies with an order under paragraph (7) (a), his
compliance with the order shall be a valid discharge of the indebtedness of
the person to the respondent to the extent of the amount paid under the order.

(15) The court may, on application or of its own motion, vary or discharge an
order under paragraph (7) (a) upon such conditions as it thinks fit.

(16) Where an order is varied or discharged under sub-rule (15), the court
shall make such orders as to service of the order as varied or the order for
discharge on the garnishee and other persons as it thinks fit.

(17) The provisions of sub-rule (11) apply, insofar as they are applicable, to
an order that has been varied under sub-rule (15).

(18) An amount standing to the credit of a respondent in an account in a bank,
building society, co-operative housing society or similar society, credit
union or credit society, or investment fund or corporation, that is payable to
the respondent on call or on notice shall, subject to sub-rule (19), for the
purposes of this rule, be a debt due to the respondent notwithstanding that
any condition relating to the account or a demand or notice for payment under
the account is unsatisfied.

(19) Where an amount referred to in sub-rule (18) is made the subject of an
order under this rule then, unless the court otherwise orders, the
first-mentioned order only operates to require payment of the said amount when
any necessary period of notice has expired, but service on the garnishee of
the order for payment of the said amount shall be deemed to be the giving of
that notice.

(20) A garnishee shall not, without reasonable excuse-

   (a)  fail to comply with an order made under sub-rule (7), (13) or (15); or

   (b)  dismiss a respondent from or injure a respondent in respect of
        employment, or alter the respondent's position to the prejudice of the
        respondent, by reason of an order made under this rule.

Penalty: $500.00.

(21) A conviction under sub-rule (20) does not limit, restrict or otherwise
affect any obligation that the garnishee may have in relation to the
respondent or any right or remedy that the respondent may have against the
garnishee under any other law of the Commonwealth or of a State or Territory.

(22) A pension, annuity or allowance that is protected from garnishment or
encumbrance under any law shall not be subject to an order under this rule.

(23) Where an order under this rule is in force and the respondent ceases to
be employed by the garnishee, the respondent and the garnishee shall, within
21 days after the respondent ceases to be so employed, each give notice to the
court-

   (a)  notifying that the respondent has ceased employment with the
        garnishee; and

   (b)  specifying the date on which the employment ceased, and, if the
        respondent has a new employer, the respondent shall, in the notice
        given under this sub-rule, specify-

   (c)  the name and address of that employer and the place of the
        respondent's employment by that employer; and

   (d)  the amount of the respondent's earnings from employment with that
        employer.

Penalty: $500.00.

(24) Where the Court receives a notice under sub-rule (23), it shall notify
the applicant in writing and, if no written objection is received from the
applicant or the respondent within a reasonable time, it may, of its own
motion, issue a fresh order in appropriate terms naming the new employer as
garnishee.