Introduction to suing a rich dog owner
This is a story about a very large dog that attacked my dog and several other dogs.
In this story, you will find information about WA civil court procedures and how a friend can be very useful for serving papers and moral support.
The description is of a worst-case scenario where the defendant has (in my opinion) had experience with this type of civil action before.
Following the procedures and paying the required fees, has resulted in the defendant, not responding to any paperwork or writ. Therefore, he did not turn up to the Midland court for a means inquiry and is in contempt of court.
As you will see the bailiffs have been ineffectual in serving any papers or capturing the defendant to escort him to court.
In all, I see that the powers of the sheriff and bailiffs need to be strengthened for civil action where the defendant is in contempt of court.
My dog is dead – May 2022
Initial letter and contact. Here is a letter I wrote to the owner of a large dog who killed my dog.
Dear Frank,
I am bringing to your attention, that your large black dog entered my premises and fatally injured my small dog on Thursday the 19th of May.
You followed moments later in your car looking for the said dog as per my CCTV.
You may not be aware my dog was fatally injured.
While you were at my premises you looked around going to my cellar door entrance and my carport. I found my injured and bleeding dog in the carport.
As you know, I arrived as you were leaving, without you saying or indicating your intent.
Just before you arrived your dog ( a large black dog with white flash) fatally injured my dog, named Lucy (a King Charles Spaniel).
Please contact me regarding compensation.
regards
Duncan Harris
As the reader will find, a non-response is the norm for this guy.
How do you sue someone in the West Australian Magistrates court
To sue someone in the West Australian civil court, you need to follow these general steps:
- Determine if the court has jurisdiction: Before filing a lawsuit in Western Australia, you need to determine whether the court has jurisdiction over the defendant. Generally, the court has jurisdiction if the defendant resides in Western Australia or has sufficient minimum contacts with the state.
- Prepare a statement of claim: To initiate a lawsuit, you need to prepare a statement of claim number 4. The writ or statement of claim should state the legal basis for the lawsuit, the facts supporting your claim, and the relief you are seeking.
- File statement of claim with the court: Once you have prepared the writ or statement of claim, you need to file it with the court. You will also need to pay a filing fee.
- Serve the defendant: After filing the writ or statement of claim, you need to serve the defendant with a copy of the writ or statement of claim. The defendant must respond to the claim within a certain time period.
- Attend court hearings: If the defendant responds to the writ or statement of claim, you will likely need to attend court hearings to present your case and evidence.
- Obtain a judgment: If the court rules in your favour, you will obtain a judgment that awards you the relief you sought in the writ or statement of claim.
It’s important to note that the above steps are general and may vary depending on the specific circumstances of your case. You may want to consult with a West Australian lawyer to get advice on how to proceed with your specific case.
NB. The above positive steps are now what you are about to read about. This is a much harder case than I imagined.
What’s the difference between civil court action and criminal court?
The main difference between civil court action and criminal court is the type of legal dispute being addressed and the potential consequences of the legal proceedings.
Civil court actions are typically related to disputes between private individuals or organizations, such as contract disputes, property disputes, personal injury claims, and family law matters. In a civil case, the plaintiff (the person bringing the case) seeks compensation or a resolution to the dispute, rather than criminal punishment for the defendant (the person being sued). Civil cases are usually decided based on a preponderance of the evidence, meaning the evidence presented by one side is more convincing than the other.
In contrast, criminal court cases are brought by the state or federal government against an individual who is accused of committing a crime, such as theft, assault, or murder. The defendant in a criminal case faces the possibility of criminal penalties, including fines, imprisonment, or other punishments. The prosecution must prove the defendant’s guilt beyond a reasonable doubt, meaning that the evidence presented must be so strong that there is no other logical explanation than that the defendant committed the crime.
In summary, the main differences between civil court actions and criminal court cases are the parties involved, the legal issues at stake, and the potential consequences of the legal proceedings.
In this case, I have to sue the defendant in the WA magistrates court as a civil action.
Civil Court action
Form No 4 for Minor case claims in the civil court.
Fill out Form CIV_Form_4_Minor_Case and pay the fee on the WA ecourt website.
After a Minor Case Claim is served on the Defendant, there are a few possible outcomes, depending on how the defendant responds:
- The Defendant may admit liability and pay the claim: If the Defendant accepts liability for the minor claim, they may choose to pay the amount claimed or negotiate a settlement with the Claimant.
- The Defendant may dispute the claim: If the Defendant disputes the claim, they must file a defence with the court within the timeframe specified in the claim. This will initiate the court process, which may involve a hearing or trial to determine the outcome.
- The Defendant may ignore the claim: If the Defendant fails to respond to the claim within the specified timeframe, the Claimant may apply for a default judgment, which means that the court will automatically rule in favour of the Claimant.
It is important to note that the specific legal procedures and timelines for handling Minor Case Claims may vary depending on the jurisdiction and legal system in which the claim is made. In WA it is 6 years, but it may be extended.
Ensuring the Bailiff does their job.
Bailiff Fails
In this situation, I impress upon you to do some research. Where does the defendant live? What hours does he keep? Where is his employer? Does the premises have a locked gate? Do you have a photo of the defendant?
All this information should be provided to the bailiff. In this system, a defendant can lie and cheat anyone, including a bailiff. You have to be smarter than the defendant.
After three tries, including meeting the defendant, the bailiff without a photograph, could not identify the defendant.
The forms were returned to court. Once the forms are returned to the court you can get a friend who knows of the defendant to present papers to the Defendant. This we did within 10 minutes of obtaining the new papers. Why was this so easy, and hard for the bailiff? Don’t watch American TV shows. Bailiffs are not creative, but bureaucratic, only work specific hours and have lots of rules.
After 14 days of presenting the papers
The defendant ignores the forms and does not reply to the court. In hindsight, they have been probably been briefed by the best lawyers in town and know the system.
After 14 days you can ask for judgement. This means you do not have to present any evidence. All you need to do is ask the court for judgment.
Judgement granted
Next Steps
The Defendant
Who are you dealing with?
If the defendant has been evasive or has not answered the court document, do some research. Know who you are dealing with and presume the worst. If the defendant does not reply to the initial forms, and you have judgment you can ask for a means of inquiry.
What does this do? This is a way of getting the defendant into the magistrate’s court to ascertain how they are going to pay you. This may be harder than you think.
First of all, fill out and submit MAGISTRATES COURT of WESTERN AUSTRALIA (CIVIL JURISDICTION) AFFIDAVIT OF SERVICE FORM 11.
Means Enquiry
A means inquiry must be held at the Court registry where the judgment was
given. In this case Midland Court House.
A judgment debtor is required to complete a Statement of Financial Affairs and bring it to court. At court, they will be required to answer questions under oath from the judgment creditor about their income, expenses, assets and debts and the financial situation of their partner and/or dependents. This information helps the judgment creditor to know which enforcement option is more suitable to obtain the money they are owed.
So you fill out forms and pay fees and a court date is then set. Instead of using the bailiff to present the papers, you can get your friend to present the papers for you. In our case, this was relatively easy. The defendant was reluctant to accept the papers, but they were left on a table in his presence and the required form was then filled into and loaded onto e-court as filed.
Means Enquiry – Court Date
My daughter came to support me. What a nervous time, the defendant did not show. The magistrate suggested we have him arrested. “I agree, Your Honour.” Please fill out Form 6 and pay the fees.
End of case. That was less than 5 minutes in the Midland Magistrates Court.
Failure to attend a Means Inquiry
As the judgment creditor, you must attend the means inquiry, or it may be dismissed.
If you do not, the Court also has the power to award costs against you. If the judgment debtor has been served with the summons and does not attend the hearing, the Court may give leave for the judgment creditor to issue a warrant to have the judgment debtor arrested and brought before the Court.
Complete and lodge a Form 6 – Application or request to a Court and pay
the prescribed bailiff fees. Approximately $200
Means Enquiry Summons.
This Means Inquiry Summons issued must be presented by the bailiff, will they succeed this time?
We researched his mobile number and provided it to the bailiff. The bailiff calls the defendant on his mobile phone. The answer, he is very ill.
I refer to the above matter.
Our agent attempted to deliver to the address xxxxxxxxxxxxxxxxxxxx, Upper Swan for the first time; please see note the following:
10/01/2023: 12:59: Front gate locked; no access; no intercom; no one home; mailbox locked; calling card left.
I also called the number provided, and a male third party answered the phone (I suspect that is the subject) and informed the defendant that he was not well.
These are typical avoidance techniques.
Is this going to work?
The second attempt by the bailiff.
Please be advised that there are two more attempts left in the matter.
As per our conversation over the phone today, it looks like we have a few options; please see the details below:
1) Attempt two will be made on any Thursday between 3-5 p.m. as per request. We do have our agent working the evening shift between 3 and 8 p.m.
2) The second attempt will take place in March when the event begins. Please note that we will seek your confirmation to place the matter on hold while it waits to be scheduled in March.
3) Attempt two is scheduled for any Thursday evening, and if that fails, attempt three will take place in March, during the event.
Please advise.
I was advised and decided to use the two-up method.
The first attempt looked promising with the two bailiffs attending and approaching the defendant. The defendant lied about who he was and then it was too late for the bailiff to grab him. The police attended and the defendant took off on his quad bike, evading the 4 officers.
How hard is it to be caught by bailiffs and police?
At the next attempt, the bailiffs arrived but the police were not booked to attend. The attempt was abandoned.
Next scheduled attempt – see below.
Good afternoon, Duncan.
Please accept my sincere apologies.
Regarding the WFA Convey for the defendant.
Due to the continued illness of one of our bailiffs, the matter will be to the new date.
My manager will give me the new date, at the latest, by next Monday.
Apologies for the inconvenience, and thank you for your patience.
Seeking advice from a lawyer
In summary at $360 per hour. The lawyer said, You have lots of information, as you have a judgement that may be overturned in the court, by the defendant.
As we believe all his assets are in trusts and P/L companies you will have little chance of recovering the debt, however, you may use the court to ascertain more information on the defendant about his companies. An option may be to try and bankrupt him, which may cost $3000-4000.
Going Two up, what does that mean?
Have the bailiff “Go 2 up.” meaning that two bailiffs attend and if the defendant avoids being taken to court, without force, they will call the police to attend.
As per our phone conversation today, I believe you would like to go ahead with 2UP, which is two agents going to address and bring the subject to court.
I checked our schedule, and the date that will be available is on March 17, 2023, at 9 a.m.
Please confirm the date and time as above; if you are happy with that, we will issue the 2UP deposit invoice of $400.00.
The date to pick up the defendant arranged
The two bailiffs attended the defendant’s residence as the gate was open. The defendant gave the usual spiel, saying the defendant was not there and his ex wife’s car was parked over there.
NB, we found out later the car was owned by the defendant, he was lying.
He then refused to be arrested and the police were called. The defendant disappeared into the bush on his quad bike behind his premises so the police and the bailiffs could not catch him. Police and bailiff street cars are not allowed off-road.
Next attempt at two up.
Good morning, Duncan.
Apologies for the late response.
I have forwarded the information to our bailiff/manager regarding the matter.
We have discussed when and how we can proceed with the enforcement.
Unfortunately, we are unable to perform the warrant for arrest on April 6, 2023, due to the fact that a number of agents are not well and the bailiff is not available.
However, our bailiff provided a suggested date for enforcement, which is either April 19 or 20, 2023, between 8.30 a.m. and 9.00 a.m. at the address.
Our bailiff will bring an appropriate vehicle if we are going to a different entry, and a police assistant will be booked for the day.
Please let me know if you are okay with the suggested date above.
My apologies for any inconvenience.
Kind regards,
The bailiff’s office.
My comment: Is this a game of cops and robbers?
Next Email from the bailiffs office
Good afternoon, Duncan.
I just got confirmation from the manager.
The new date for the Warrant for arrest will be set on 24th April 2023 at 8.30 am at the address.
The bailiffs arrived and went onto the property.
Besides a couple of dogs barking, there were no lights on and all the house doors were locked therefore they left.
The bailiffs told me that as this was a civil case, they were not allowed to use force and had no handcuffs. The defendant needs to volunteer to be conveyed to the court.
One try remains, otherwise, the summons is returned to court.
Second Visit – For another day?
Good morning, Duncan.
I refer to the above matter,
We have visited the second time at the address on 24th April 2023 at 8.30am, the outcome is our agent managed to get the access to the property, knocked on the main door and called out, however, there was no response from the front door. No sign of the subject. two large dogs at the address. We assumed the defendant was home, but not answering the door.
The matter still has one more attempt available.
I believe our bailiff has explained to you the process and an alternative option in regards to the matter.
The matter is now placed on hold and is waiting for your further instructions.
Mmm what to do next?
The bailiffs explained that they were unable to use force to deliver the defendant to the court. The defendant needs to volunteer to attend court. Bailiffs don’t have handcuffs, so they have to be civil.
Is there an issue with the law or the regulations here? This guy is in contempt of court!
What happens if the third attempt fails?
I received this letter from the bailiff’s office after asking about what happened after the third attempt.
Good morning, Duncan.
Thank you for your email below.
We will await instructions from you for the late attempt at the address.
In regards to your question below, if the matter returns to court, there might be a few things you need to know.
- The matter is returned to the court, which means the matter will be closed, the return will be unsuccessful, and no further enforcement will be taken.
or
- The matter will also be returned to the court when we complete three attempts, either successful or unsuccessful.
or
- The matter returns to the court when we receive your instruction, you will lodge another method of service.
I hope this information helps you.
Kind regards,
Next Letter 20th July 2023
Good afternoon, Duncan,
I’m here to follow up on the instructions in regard to the matter.
If we do not receive your instructions by July 31, 2023, the warrant will be returned to the issuing Court.
Oh, dear, we don’t know if the defendant is at the property.
What is a Means inquiry?
A means inquiry – determines if the defendant can pay the judgment debt. If the court finds the defendant can pay, the Claimant can apply for one of the following:
a) time for payment order;
b) instalment order; or
c) earnings appropriation order.
A defendant, who is not able to pay the judgment debt, can apply for a suspension order at a means inquiry. – S15 CJEA
The lodgement of an appeal does not automatically suspend the enforcement of a judgment.
Application made utilising Form 9 – must be supported by an affidavit
What is the Claimant responsible for at the Means inquiry?
At the means inquiry hearing, you the claimant are responsible for examining the defendant to determine if they can pay the judgment debt.
The following enforcement orders can be made:
1. time for payment order – pay in full
2. instalment order – by instalments of a set amount
3. earnings appropriation order – earnings paid directly to the JC
Seeing the local state politician regarding the law.
I went to see Jessica Shaw, who represents my area. She was positive and supportive. She wrote the Justice Department on my behalf. Below, is their response.
Letter received from the Justice Department.
Dear Ms Shaw
Thank you for your further correspondence to the Office of the Hon. John Quigley MLA, Attorney General; Minister for Electoral Affairs dated 24 August 2023 in relation to constituent Mr Ducan Harris. I am responding on the Attorney General’s behalf.
The Department of Justice is aware defendants have various means of evading Bailiff service, such as refusing to answer a door or departing the premises. Unfortunately, although these concerns are noted, the powers afforded to Bailiffs and Sheriff’s Officers are limited in compliance with the relevant legislation.
There is currently no planned review of the Civil Judgments Enforcement Act 2004 being considered by the Department of Justice.
Yours sincerely
Hon. Matthew Swinbourn MLC
PARLIAMENTARY SECRETARY TO THE
ATTORNEY GENERAL; MINISTER FOR ELECTORAL AFFAIRS
7 September 2023
Third attempt to persuade the defendant to come to court
The big day – 29th September.
The 29th of September was chosen as it was a setup day for an event at the property. We were pretty sure the defendant would be home.
At 7.20 am I went to the front gate to find that it was already open and a bailiff in attendance. A few minutes later we rendezvoused at the school car park a hundred metres along the highway while some trucks entered the property and until the other bailiffs arrived. In all, there were two cars and 4 bailiffs.
Eventually, they took off to enter the premises. They drove down the long laneway and had a look around the house and to their amazement, the defendant brazenly opened the door but said that he was not going to be arrested.
The bailiff put his hand on his shoulder and told him that he was under arrest”. He then got in his car and left the property. Pity we did not shut the front gate! Anyway, the police are now involved and that means that they have powers of restraint.
I await a phone call from the court saying the defendant has been arrested.
Oh No, no, no. That’s not how it works. The police have no interest in civil matters. The only way the defendant would be arrested is if he attended a police station or court and asked to be arrested.
What Happens Next
Today is a good day.
Well, I thought it was. However, the police are not going to do anything unless the defendant turns up at the police station and asks to be arrested.
Here is some good info from lawyers in Perth.
https://fcawa.org/wp-content/uploads/2018/11/BailliffPowersCiviljudge-Sept-2018.pdf
and
Debt Recovery Litigation Seminar – Law Society of WA – Richard Graham
“The Court does not have a practice direction for civil cases. Therefore, you just learn the
Court’s practices ‘on the job’.”
DEALING WITH BAYCORP
Here are some questions and answers regarding:
Warrants for arrest from the seminar.
(means inquiry)
Q: What steps are followed? What are the OH&S issues that
inform the process?
A: There are 2 steps.
First, a Baycorp staff member will visit the property. If the debtor is there, they will ask the debtor to contact the Baycorp office for arrest by appointment. If the debtor is not there, a
calling card is left. If, subsequently, contact is made with the Baycorp office, then this results in a date being set for arrest by 16 March 2016
Debt Recovery Litigation Seminar – Law Society of WA – Richard Graham
Appointment. The Warrant for Arrest is then carried out, providing the debtor turns up.
Second, where there is no response from the debtor, contact is made with the creditor to ask whether the creditor is prepared to pay for 2 members of Baycorp staff to go to the
address provided and physically arrest the debtor and convey them to Court.
A deposit is required to be paid to cover the costs of the 2nd staff member. This is a legislated fee. There is a refund of the balance of the deposit at the conclusion of the process.
There are OH&S issues. The safety of the Baycorp agent is paramount when there is an instruction to convey to Court, rather than arrest by appointment. It is the same as a civil
arrest by member of the public, so the Baycorp agent does not have any forms of defence, such as gun, taser or pepper spray. They do not have handcuffs or cable ties to restrain defendants.
The person arrested is conveyed in a Baycorp private vehicle and 1 of the 2 Baycorp staff members sits in the back of the vehicle with the person who does not want to be there.
The Baycorp staff members can request police assistance if a threat is made, but they are reliant on the availability of police.
Excessive delays in police arrival can result in the attempt being aborted. This also makes any subsequent attempt on that debtor more difficult because they are likely to become evasive.
The rule of thumb is that the Baycorp staff members must retreat or abort if they feel threatened. This is due to the Bailiffs having the lack of powers of police. The police have the excuse they are underfunded and it is not part of their modus operandi.
Conclusions about Means Enquiry Summons and Powers of Arrest.
Firstly, a member of the public, from all that can be obtained online and speaking to court officers and bailiffs is to believe that Bailifs will arrest and bring the defendant to court.
However, in this situation, reality is completely the opposite.
If you are a defendant and do not want to pay a civil judgment fine you are within the law to lie to Bailiffs, keep your front gate locked at all times, don’t answer the door if Bailiffs come knocking and if they do put their hand on your shoulder and say you are under arrest, you can refuse to be taken to the magistrates’ court. How good is that!
Don’t forget to keep your cool, aggressive behaviour will attract the bailiff to call for police backup.
Another thing. Make sure all your possessions are in your $2 company name. Even though it is hard to find out what possessions a defendant owns don’t take the risk. The defendant risks having a PSSO served upon them.
Next Steps to Claim Justice.
The chief Bailiff, advised me to try the avenue of Property seizure. I believed that the defendant had ALL his property in the company name and therefore he didn’t own ANYTHING. One day, the defendant arrived at John Kosovich Wines in his car to buy a bottle of wine on a Saturday afternoon, 16th September.
I just happened to be visiting and took this photo of the defendant’s car.
the defendant bought a bottle of wine. I wonder if the car is in his name, I asked myself. So I asked the court and found out that the car was in the name of the defendant.
Next Step.
PSSO – Property Seizure and Sale Order
What is a PSSO?
A property (seizure & sale) order authorises a bailiff to seize and sell as much
of the judgment debtor’s real or personal property as necessary to satisfy the
judgment debt wholly or partially. Bailiffs have much more power under the law in WA than they do for a civil arrest, for a Means Enquiry.
How a judgment creditor applies for a property (seizure & sale) order
Complete and lodge Form 6 – Application or Request to a Court and pay
the prescribed fee, which includes the bailiff’s enforcement fees. Enforcement
fees may vary based on various factors.
Fill out the form and submit it to the court. Pay the money.
The bailiff then contacted me and let me know there was a $2500 deposit to pay for the tow truck and the bailiff’s time. You get three chances.
Some rules:
- A judgment debtor’s saleable interest in any real estate property must not be sold unless the bailiff is satisfied that the sale of personal property will not be sufficient to satisfy the judgment.
- PSSO can only be enacted between 9 am and 5 pm.
- Police must be in attendance.
- You must provide your locksmith.
First attempt at PSSO.
The PSSO was scheduled for 10 am as the defendant sometimes arrives at the premises at 0945. However, on this day the defendant departed the premises early in the morning (he left the gate unlocked) and returned some minutes later at 9.15 am. Then at 9.30 am, he left the premises. With no bailiffs in sight, the PSSO was called off. A costly exercise that went on the bill of the defendant.
The defendant left the property
The second attempt at PSSO
A message from the bailiff regarding the second attempt.
I am trying to schedule in another UPLIFT attempt on the defendant AUDI Q7 matter PSSO. RE:
The first availability we have at all is Friday 8th DEC @ 09:00 am and schedule Kerrin & Dan both there with Police booked/requested by myself and the Locksmith from your side. From our conversation, do you believe 9 am will be more effective than 10 am?
I have pencilled this date in, but I am unavailable that day due to alternative commitments.
Thanks and I have placed the matter in the schedule pending your reply and Caroline can then reissue the document pack.
The tow truck arrives
Here the police and bailiffs with a tow truck are on the premises for the uplift. The defendant was hiding in the house until the tow truck arrived. He then emerged to discuss the matter with the bailiffs and police. He gave the bailiffs some excuses, however with a PSSO, no excuses will be accepted. The vehicle will be taken unless the matter is FULLY paid for.
The defendant was given the phone number of the bailiff’s office and paid the bill in FULL. 🙂
That was a great relief as there was no guarantee the defendant was home that day.
Money at the Bailiffs
Once the paperwork is processed the money is transferred to the court. Once the court has received the documentation the creditor will be contacted to allow transfer of the money to the creditors account. This may take up to a month, says the bailiff’s office.
Finally, after 22 months, the court transferred the residual monies and all is well. Vale Lucy.