What is a bailiff?
A bailiff is an authorised officer of the court, appointed by the Sheriff of Western Australia to:
What are the powers of a bailiff?
The powers are different depending on what the bailiff is authorised to do, for example, serve a claim or enforcement summons, or enforce a court order.
The bailiff may, when authorised by the Sheriff, use any force and assistance that is reasonably necessary to:
- Enter any place where they believe on reasonable grounds there is or may be personal property or a record about title of any property which can be seized under a property (seizure and sale) order.
- Re-enter any place where personal property or a record is that may be seized under a property (seizure and sale) order.
- Seize and remove any personal property or record.
- Make and keep a copy of the record (there are rules about how this can be done).
- Make a print out, and keep a copy of the record (there are rules about how this can be done).
- Take reasonable measures to secure and protect property, records, computers or other such things against damage or unauthorised removal or interference.
These powers are not to be exercised in relation to a home without the consent of the occupier, or if there is no occupier, the owner of the home. If:
- the consent is unreasonably withheld
- the bailiff after reasonable attempts to do so, cannot contact the owner or occupier
the bailiff may exercise powers of entry without consent at any time between 9.00am and 5.00pm.
Is it an offence to hinder or stop the seizure of goods?
Yes, it is a criminal offence to hinder or stop the seizure of goods by removing, hiding, retaining or disposing of the goods. The offence is punishable by fines or imprisonment.
To avoid being charged with a criminal offence it is important that judgment debtors cooperate with bailiffs and Sheriffs and not impede, hinder or obstruct them doing their job of enforcement.
What personal property can't be seized by a bailiff?
A list of the personal property that cannot be seized or sold by a bailiff is contained in a fact sheet Property (Seizure and Sale) Order available from the Magistrates Court of WA or a registry office.
If I own a house can it be sold?
Your real estate property can't be sold unless the bailiff decides the judgment debt can't be met by selling only your personal property.
The bailiff is at my door. What can I do?
What you can do depends on why the bailiff is at the door. If the bailiff is there to:
- Serve a claim or other court documents, it may be served on you if you are the defendant, or on you to give to the defendant if you are aged over 18 and show a willingness to pass it on to the defendant.
- To enforce a property (seizure and sale) order, entry to your property may be sought if they have reasonable grounds for believing there is or may be personal property that can be seized under the order (see above under the heading What are the powers of entry in relation to a property (seizure and sale) order?.
- To enforce a property (seizure and sale) order in a home by consent or otherwise between 9.00am and 5.00pm, they can enter the property and evict any person who is not lawfully entitled to be there and remove personal property from the place.
- Arrest you for not attending the court as ordered by a summons. You will be arrested and taken to a prison, lockup or court custody centre until your case can be at court.
- Enforce an arrest and imprisonment order for contempt of court where imprisonment have previously been suspended, you will be arrested and taken to the appropriate prison to serve the period of the imprisonment order.
What are my options if I do not want my property seized and sold?
If you do not want your property seized or sold by the bailiff you can:
- Pay the debt and costs in full.
- Talk to the judgment creditor to arrange payment. If you reach an agreement the judgment creditor may agree to instruct the bailiff to return the property (seizure and sale) order to the court.
- Apply to have enforcement put on hold. This is called a "suspension order". You should get legal advice before doing this especially as additional costs are involved.
It is sometimes possible for a judgment debtor to negotiate with a bailiff and arrange to pay the debt before they return to seize good or land.
How do I apply to have enforcement suspended?
You need to make an application to suspend enforcement of judgment to the court registry where judgment was given.
For more information and the forms go to a Magistrates Court registry or to the Magistrates Court of WA website.
The Sheriff or bailiff cannot cease or suspend enforcement unless directed to do so by the judgment creditor, the Court, or after full satisfaction of the order.
What if the bailiff has seized property that doesn't belong to the judgment debtor?
The person who has a claim against the property seized by the bailiff will have to take action to get the property back. This is called interpleader proceedings. For more information on this see the fact sheet on the Magistrates Court of WA website.
Where can I get more information?
- Contact Legal Aid WA's Infoline on 1300 650 579.
- Fact sheets and forms for both judgment creditors and debtors can be found at the Magistrates Court of WA website.
- Community Online Resource Essentials (CORE) are free interactive resources about the law for use by people throughout Western Australia. They contain step by step practical information, including checklists and "how to" videos by experienced lawyers. Mortgage stress- a self help guide is now available. Part 4 of the guide After court may help if you have defaulted on your mortgage and judgment has been entered against you. Visit the CORE webpage today to find out more and register.
Last reviewed: 11/11/2015