1Short title
This Act may be cited as the Service and Execution of Process Act 1992.
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This Act may be cited as the Service and Execution of Process Act 1992.
Section 1 and this section commence on the day on which this Act receives the Royal Assent.
Paragraph 7(2)(a) commences when section 10 of the Territories Law Reform Act 1992 commences.
Paragraph 7(2)(b) commences when section 19 of the Territories Law Reform Act 1992 commences.
Subject to subsection (5), the remaining provisions of this Act commence on a day to be fixed by Proclamation.
If those provisions do not commence under subsection (4) within the period of 4 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
In this Act, unless the contrary intention appears:
adjudicative function, in relation to a tribunal, means the function of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties, including the function of making a determination:
altering those rights or liabilities; or
relating to any matters of a kind mentioned in section 48.
appearance means:
in Division 1 of Part 2—an appearance within the meaning of section 14; and
in Division 2 of Part 4—an appearance within the meaning of section 49.
audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.
audiovisual link means facilities that enable audio and visual communication between persons in different places.
Australia includes the external Territories.
authority means a judge, magistrate, coroner or officer of a court appointed or holding office under a law of a State.
Section 81A alters the meaning of this term for the purposes of Part 5.
authority of issue, in relation to a process, means the authority by which the process was issued.
civil proceeding means a proceeding other than a criminal proceeding.
company means a company incorporated, or taken to be incorporated, under the Corporations Act 2001.
court, except in Part 7, means a court of a State and includes an authority exercising the powers of such a court.
court of issue, in relation to a process, means the court by which the process was issued.
criminal proceeding means:
a prosecution for an offence; or
a procedure, other than a prosecution, that, under a law of a State, may be used:
to determine liability for an offence; or
to impose a penalty for an offence; or
a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b);
but does not include:
a claim for compensation; or
a proceeding under proceeds of crime legislation.
cross‑border laws means the following:
the cross border laws of a participating jurisdiction, within the meaning of the Cross‑Border Justice Act 2008 of Western Australia;
the laws of a State, or provisions of a law of a State, that are prescribed by the regulations for the purposes of this paragraph.
custodian, in relation to a person in prison, means the officer in charge of the institution or place at which the person is detained.
evidence that relates to matters of state means evidence the adducing of which would:
prejudice the security, defence or international relations of Australia; or
damage relations between the Commonwealth and a State or relations between 2 or more States; or
prejudice the prevention, investigation or prosecution of offences; or
prejudice:
the prevention or investigation of; or
the conduct of proceedings for recovery of civil penalties brought with respect to;
other contraventions of the law; or
disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of a law of the Commonwealth or of a State; or
prejudice the proper functioning of the government of the Commonwealth or of a State; or
be contrary to the public interest for any other reason that could form the basis for a claim in a judicial proceeding that the evidence should not be disclosed.
expenses, in relation to a subpoena, an order under subsection 83(8) or an order under section 86 that is similar to an order under that paragraph, include the reasonable costs of:
necessary travel to and from, and accommodation at, the place where complying with the subpoena or order is required; and
finding, collating and producing a document or thing;
for the purposes of complying with the subpoena or order.
initiating process means a process:
by which a proceeding is commenced; or
by reference to which a person becomes a party to a proceeding.
investigative function, in relation to a tribunal, means the function of conducting an inquiry other than an inquiry conducted in connection with the performance of an adjudicative function.
judgment means:
a judgment, decree or order given, entered or made by a court in a civil proceeding under which:
a sum of money is made payable; or
a person is required to do or not to do an act or thing (other than the payment of money);
not being an order made under proceeds of crime legislation (other than a pecuniary penalty order); or
an order made by a court in a criminal proceeding under which:
a sum of money is made payable as a debt due to the Crown in right of the Commonwealth or a State; or
a person is required to do or not to do an act or thing (other than the payment of money); or
an order made by a court for the forfeiture of bail; or
an order that:
is made by a tribunal in connection with the performance of an adjudicative function; and
is enforceable without an order of a court (whether or not the order made by the tribunal must be registered or filed in a court in order to be enforceable); or
an order, decree or judgment registered in a court under the Foreign Judgments Act 1991 or the Trans‑Tasman Proceedings Act 2010;
whether or not the judgment, decree or order is final, but does not include:
a judgment, decree or order of a court of a foreign country that has been registered in a court in Australia otherwise than under the Foreign Judgments Act 1991 or the Trans‑Tasman Proceedings Act 2010; or
an order, however described, imposing a fine; or
an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or
an order relating to the guardianship of a person who is incapable of managing his or her personal affairs; or
an order relating to the management of the property of a person who is incapable of managing that property; or
an order relating to the care, control or welfare of a child; or
an order that, if contravened by the person to whom it is directed, will render the person liable to conviction for an offence in the State in which the order was made.
magistrate, except in sections 57 and 67, includes:
a justice of the peace who has power to issue warrants under a law of the State in which the justice holds that office; and
a person who is appointed under section 120 of the Magistrates’ Court Act 1989 of Victoria as a bail justice or is a bail justice because of holding a prescribed office within the meaning of section 121 of that Act.
order for production means an order made under section 39, 67 or 79.
person under restraint means a person who:
is on bail; or
has been conditionally released from prison (whether on parole, licence, work release, home detention or otherwise) before the end of a term of imprisonment to which he or she has been sentenced; or
is subject to the supervision of another person under a probation order; or
is serving a period of home detention or a term of imprisonment by way of periodic detention; or
is subject to:
a community service order; or
a community based order; or
an attendance order; or
a work and development order; or
any other restriction on his or her movements, imposed by law or by order of a court, that is inconsistent with the person complying with a subpoena served on the person under this Act;
but does not include a person who is in prison.
place of issue, in relation to a process, means the State in which the process was issued.
prescribed means prescribed by the regulations or by rules regulating the practice and procedure of a court.
prison includes a gaol, lock‑up or other place of detention.
proceeding, except in Part 4, means a proceeding in a court or before an authority (other than a tribunal that is an authority) and includes:
an interlocutory or similar proceeding; and
a proceeding heard in chambers.
proceeds of crime legislation means:
the Proceeds of Crime Act 1987; or
the Proceeds of Crime Act 2002; or
a law of a State that is a corresponding law within the meaning of the Proceeds of Crime Act 2002.
registered body has the same meaning as it has in section 601CX of the Corporations Act 2001.
State includes the meaning given in section 5.
subpoena, except in Part 4, means a process that requires a person to do one or both of the following:
to give oral evidence before a court, authority or person;
to produce a document or thing to a court, authority or person;
but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.
tribunal means:
a person appointed by the Governor of a State, or by or under a law of a State; or
a body established by or under a law of a State;
and authorised by or under a law of the State to take evidence on oath or affirmation, but does not include:
a court; or
a person exercising a power conferred on the person as a judge, magistrate, coroner or officer of a court.
Section 81A alters the meaning of this term for the purposes of Part 5.
warrant (except in the definition of authority in section 81A) means a process issued by a court, authority or tribunal in accordance with:
this Act; or
a law of a State; or
the provisions of such a law as applied by subsection 68(1) of the Judiciary Act 1903;
that authorises the apprehension of a person.
Section 81A alters the meaning of this term for the purposes of Part 5.
For the purposes of the definition of tribunal in subsection (1), a body is taken to be authorised by or under a law of a State to take evidence on oath or affirmation if a member of the body is authorised, by or under the law by or under which the body was established, to take evidence on oath or affirmation.
A reference in this Act to a subpoena issued by a court or tribunal is a reference to a subpoena issued by or out of the court or tribunal.
A reference in this Act to allowances and travelling expenses includes a reference to vouchers tendered in substitution for the whole or part of those allowances and travelling expenses.
A reference in this Act to a law of the Commonwealth or a State is a reference to a law (whether written or unwritten) of or in force in the Commonwealth or the State, as the case may be.
A reference in this Act to a person who is in prison does not include a reference to a person who is serving a term of imprisonment by way of periodic detention.
For the purposes of this Act, if a Territory does not have its own police force, the police force performing the policing functions of the Territory is taken to be the police force of the Territory.
For the purposes of this Act, a document that is identical to a process, order or document in all material respects is taken to be a copy of the process, order or document.
A document that purports to be a copy of a process, order or document is presumed to be such a copy unless evidence is adduced that raises real doubt that it is such a copy.
For the purposes of this Act, each Territory (other than a Territory that, under subsection 7(2), is taken to be part of a State or another Territory) is to be regarded as a State.
For the purposes of the application of this Act in relation to a Territory (other than the Australian Capital Territory), the reference to the Governor of a State in paragraph (a) of the definition of tribunal in subsection 3(1) is a reference to the Administrator of the Territory.
This Act binds the Crown in all its capacities.
This Act extends to each external Territory.
For the purposes of this Act:
the Christmas Island Territory is taken to be part of Western Australia; and
the Territory of Cocos (Keeling) Islands is taken to be part of Western Australia; and
the Jervis Bay Territory, the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands are taken to be part of the Australian Capital Territory; and
the Territory of Ashmore and Cartier Islands is taken to be part of the Northern Territory; and
the Coral Sea Islands Territory is taken to be part of Norfolk Island.
This Act does not affect a decision of a court or tribunal to allow substituted service of a process.
This Act does not affect the operation of:
the Transfer of Prisoners Act 1983, or a law of a State that, in an instrument published under section 5 of that Act, is declared to be a State transfer law of the State; or
the Removal of Prisoners (Territories) Act 1923; or
the Removal of Prisoners (Australian Capital Territory) Act 1968 of the Australian Capital Territory; or
the Family Law Act 1975, or the regulations or Rules of Court made under that Act.
This Act does not affect the operation of a law of a State so far as the law provides for service of a subpoena on a person:
only after permission or leave has been given; or
only if it is served not less than a specified number of days, being greater than 14 days, before the date for compliance with the subpoena.
This Act:
does not affect the operation of the cross‑border laws; and
does not apply to a person in relation to a particular matter if the cross‑border laws would, apart from this Act, apply to the person in relation to the matter.
Subject to this Act, this Act applies to the exclusion of a law of a State (the relevant State) with respect to:
the service or execution in another State of process of the relevant State that is process to which this Act applies; or
the service or execution in the relevant State of process of another State that is process to which this Act applies; or
the service or execution in another State of judgments of a court of the relevant State that are judgments to which this Act applies; or
the service or execution in the relevant State of judgments of a court of another State that are judgments to which this Act applies; or
the service or execution in another State of judgments to which this Act applies that are orders of a tribunal of the relevant State; or
the service or execution in the relevant State of judgments to which this Act applies that are orders of a tribunal of another State.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Service of a process, order or document under this Act on a company is to be effected by leaving it at, or by sending it by post to, the company’s registered office.
Without limiting the operation of subsection (1), a process, order or document may be served on a company by delivering a copy of it personally to a director of the company who resides in Australia.
If a liquidator of a company has been appointed, a process, order or document may be served on the company by leaving it at, or by sending it by post to, the address of the liquidator’s office in the most recent notice of that address lodged under the Corporations Act 2001.
If an administrator of a company has been appointed, a process, order or document may be served on the company by leaving it at, or by sending it by post to, the address of the administrator in the most recent notice of that address lodged under the Corporations Act 2001.
Service of a process, order or document under this Act on a registered body is to be effected by leaving it at, or by sending it by post to, the body’s registered office.
If the registered body is a registered foreign company, a process, order or document may be served by leaving it at, or by sending it by post to:
the address of a local agent of the foreign company notice of which has been lodged under the Corporations Act 2001; or
if a notice or notices of a change or alteration in that address has or have been so lodged—the address shown in that last‑mentioned notice or the later or latest of those last‑mentioned notices.
Without limiting the operation of subsections (5) and (6), a process, order or document may be served on a registered body by delivering a copy of it personally to each of 2 directors of the registered body who reside in Australia.
If a liquidator of a registered body has been appointed, a process, order or document may be served on the registered body by leaving it at, or by sending it by post to, the last address of the office of the liquidator notice of which has been lodged under the Corporations Act 2001.
Without limiting the operation of this section, if the process, order or document is not an initiating process or subpoena, service may be effected at the address for service of the company or registered body in the proceedings concerned in accordance with any applicable rules of court.
Subsections 109X(1) and (2) and section 601CX of the Corporations Act 2001 do not apply to a process, order or document that may be served under this Act.
For the purposes of this section:
the situation of a company’s registered office is to be determined according to Part 2B.5 of the Corporations Act 2001; and
the situation of a registered body’s registered office is to be determined according to subsection 601CX(2) of the Corporations Act 2001.
In this section:
director has the same meaning as it has in the Corporations Act 2001.
local agent has the same meaning as it has in the Corporations Act 2001.
registered foreign company has the same meaning as it has in section 601CX of the Corporations Act 2001.
registered office has the same meaning as it has in the Corporations Act 2001.
Service of a process, order or document under this Act may be served on a body corporate that is not a company or a registered body in accordance with this section.
If a law of the State in which service is to be effected provides that service may be effected on the body corporate at a particular place, service may be effected by:
leaving the process, order or document at that place; or
sending the process, order or document to that place by post.
If a law of the State in which service is to be effected does not provide that service may be effected on the body corporate at a particular place, service may be effected by:
leaving the process, order or document at the head office, a registered office or the principal place of business of the body corporate; or
by sending the process, order or document to that office or that place of business by post.
Without limiting the operation of this section, if the process, order or document is not an initiating process or subpoena, service may be effected at the address for service of the body corporate in the proceedings concerned in accordance with any applicable rules of court.
Subject to subsections (2) and (8), service of a process, order or document under this Act is taken to have been proved only if the following are proved:
the identity of the person who served it;
the time at which and the day on which it was served;
the place at which it was served;
the way in which it was served;
if service was effected in a way that required the person served to be identified—the way in which the person served was identified.
Subsection (1) does not apply to service by post.
Service of a process, order or document under this Act by post on an individual is taken to have been proved only if the following are proved:
it was sent by pre‑paid post to the person’s last known address, or the person’s address for service in the proceedings concerned;
it was addressed to the person, or, if it was sent to an address for service that is the office of a solicitor, to that solicitor;
the day on which it was posted.
Service of a process, order or document under this Act by post on a company, a registered body or any other body corporate is taken to have been proved only if the following are proved:
it was sent by pre‑paid post to an address for service on the company, registered body or other body corporate under section 9 or 10;
it was addressed to the company, registered body or other body corporate, or, if the address for service is the office of a solicitor, to that solicitor;
the day on which it was posted.
Service of a process, order or document under this Act may be proved:
by affidavit sworn before:
any justice of the peace having jurisdiction in the State or part of the State in which the service was effected; or
a Commissioner for Affidavits or Declarations; or
a notary public for that State or part of that State; or
a person who is a barrister or a solicitor, or both; or
in any way in which the service might have been proved if it had been effected within the State in which the process, order or document was issued.
It is only necessary to call the deponent to give evidence of service if a court, authority or tribunal, or a person appearing before a court, authority or tribunal, so requires.
For the purposes of paragraph (1)(e), evidence of a statement that:
is made by a person served; and
concerns the person’s identity or office;
is admissible as evidence of the person’s identity or office.
The court, authority or tribunal before which service on a person is to be proved may dispense with all or any of the requirements of subsection (1) if it is satisfied that personal service of the process, order or document in question was effected on the person.
For the purposes of this Act, a document that purports to have been signed by a person acknowledging that the person has received a specified postal article is admissible as evidence that the person received the article.
For the purposes of this Act, a document that purports to have been signed by a person acknowledging that a court, authority, tribunal or body for which the person is acting has received a specified postal article is admissible as evidence that the court, authority, tribunal or body received the article.
A process, order or document served by post under this Act is presumed to have been served on the fourth day after the day it was posted unless evidence is adduced that raises real doubt that the process, order or document was delivered by post to the person to whom it was addressed within 4 days after the day it was posted.
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