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This Act may be cited as the Crown Proceedings 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, and is divided into Parts as follows:
Part I—Recovery of Debts and Property by the Crown ss 3–19
Part II—Civil Proceedings by and against the Crown ss 20–27.
The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.
Except as in this Act expressly or by necessary implication provided—
all persons things and circumstances appointed or created by or under either of the repealed Acts or existing or continuing under either of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;
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 rule summons writ proceeding information fiat certificate judgment order decree fine arrest recognisance bond assignment satisfaction appeal penalty liability or right made issued presented granted given entered imposed accrued incurred or acquired or existing or continuing by or under either of such repealed Acts before the commencement of this Act.
S. 2A inserted by No. 37/2014 s. 10(Sch. item 43.1).
In this Act—
S. 2A def. of bail guarantor inserted by No. 28/2023 s. 64(1).
bail guarantor has the same meaning as in the Bail Act 1977;
police officer has the same meaning as in the Victoria Police Act 2013.
Part I—Recovery of debts and property by the Crown
No. 3665 s. 3.
S. 3 amended by No. 25/2023 s. 7(Sch. 1 item 9.1).
All debts damages duties sums of money land or goods due payable or belonging to His Majesty shall be sued for and recovered by the means and in the manner hereinafter mentioned.
No. 3665 s. 4.
S. 4 amended by Nos 57/1989 s. 3(Sch. item 48.1(a)(b)), 74/2000 s. 3(Sch. 1 item 32), 33/2018 s. 88.
When any fine is imposed upon any person otherwise than by a judgment or conviction of some court, the judge or the magistrate by whom such fine is imposed if the same is not immediately paid shall by writing in the form contained in the Second Schedule to this Act or to the like effect certify that fact together with the name and place of abode or business of the person on whom such fine has been so imposed and the cause and amount of such fine; and shall deliver or send by the post to a law officer such writing, and upon receipt thereof the law officer shall cause a final judgment to be signed in the Supreme Court for the amount of such fine and $10[1] for costs; and every such judgment may be in the form contained in the Third Schedule to this Act or to the like effect, and no writ of error or appeal shall lie or be had therefrom.
S. 5 substituted by No. 7900 s. 2, amended by No. 8124 s. 2(a)(b).
S. 5(1) amended by Nos 57/1989 s. 3(Sch. item 48.2(a)), 25/2023 s. 7(Sch. 1 item 9.2).
Where a court is satisfied that a person has failed to observe a condition of a recognisance to His Majesty the court shall declare the recognisance to be forfeited and shall order that the amount of the recognisance be paid to the proper officer of the court forthwith or within such time as the court allows and that in default of payment of that amount in accordance with the order—
in the case of a principal—that he be imprisoned for the term (not exceeding two years) fixed by the order; and
S. 5(1)(b) amended by No. 57/1989 s. 3(Sch. item 48.2(b)(i)(ii)).
in the case of a surety—that the amount be obtained by seizing and selling the property of the surety and in default, in whole or in part, that the surety be imprisoned for the term (not exceeding two years) fixed by the order.
S. 5(2) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(i)), 57/1989 s. 3(Sch. item 48.3(a)(b)).
Every order under subsection (1) shall be in writing in the prescribed form, shall be signed by the judge or magistrate presiding and shall be delivered to the proper officer of the court.
S. 5(2A) inserted by No. 8124 s. 3, amended by No. 57/1989 s. 3(Sch. item 48.4(a)(b)).
Where a court makes an order under subsection (1) in the absence of a principal the proper officer of the court shall send by post addressed to the principal and to each of the sureties (if any) at the respective addresses shown in the recognisance a notice in writing signed by the proper officer setting forth—
particulars of the order made against the principal and each of the sureties (if any); and
S. 5(2A)(b) amended by No. 57/1989 s. 3(Sch. item 48.4(c)).
a statement that a warrant to imprison, a warrant of seizure and sale or a warrant to seize property (as the case requires) will issue after the expiration of twenty-eight days unless—
the amount due under the order is paid;
an order is made for the payment of the amount by instalments; or
application is made under subsection (3) for rescission or variation of the order.
S. 5(2B) inserted by No. 8124 s. 3.
Where a court makes an order under subsection (1) in the absence of a principal no warrant shall issue for the recovery of moneys due under the order until after the expiration of twenty-eight days from the day the order is made.
S. 5(3) amended by No. 8124 s. 4(1).
S. 5(3)(a) amended by Nos 16/1986 s. 30, 19/1989 s. 16(Sch. item 17.1(a)(b)), 57/1989 s. 3 (Sch. item 48.5(a)(i)(ii)) (as amended by No. 34/1990 s. 5(Sch. 4 item 45)).
(a) Where a recognisance has been forfeited under subsection (1) any principal or surety may at any time within twenty-eight days after the making of the order or, if the order was made in the absence of the principal or surety, within twenty-eight days after the order first comes to his notice apply to the court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount of the recognisance having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.
S. 5(3)(b) amended by No. 57/1989 s. 3(Sch. item 48.5(b)).
Every application under paragraph (a) shall be in writing in the prescribed form signed by the person making the application, shall set forth the grounds of the application, and shall be lodged with the proper officer of the court a reasonable time in the circumstances before the hearing of the application.
S. 5(3)(c) amended by Nos 8124 s. 4(2), 9848 s. 18(1), 57/1989 s. 3 (Sch. item 48.5(c)), 68/2009 s. 97(Sch. item 42.1).
Not less than twenty-eight days before the hearing of an application under this subsection the applicant shall serve or cause to be served personally or by post on the informant or complainant or, in the case of an indictment, the Director of Public Prosecutions a true copy of the application lodged with the proper officer of the court.
S. 5(3)(d) inserted by No. 8124 s. 4(3), amended by Nos 19/1989 s. 16(Sch. item 17.2), 57/1989 s. 3(Sch. item 48.5(d)(i)(ii)) (as amended by No. 34/1990 s. 5(Sch. 4 items 46, 47)).
At any time after the lodging of an application under paragraph (a) the applicant may apply ex parte to a court for a stay of proceedings in the matter and upon any such application the court may direct the return of any warrant unexecuted or may stay the issue or execution of any such warrant pending the determination of an application under paragraph (a).
S. 5(3)(e) inserted by No. 8124 s. 4(3).
The Governor in Council may make regulations prescribing forms for the purposes of this section.
S. 5(4) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(ii)), 57/1989 s. 3(Sch. item 48.6).
Every warrant to imprison a principal pursuant to the provisions of paragraph (a) of subsection (1) shall be in or to the effect of the prescribed form.
S. 5(5) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(iii)), 57/1989 s. 3(Sch. item 48.7(a)–(c)).
Every warrant of seizure and sale and warrant to seize property of a surety to a forfeited recognisance shall be in or to the effect of the prescribed form and every warrant to imprison a surety shall be in or to the effect of the prescribed form.
S. 5(6)–5(9) repealed.[2]
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S. 5(9A) inserted by No. 8124 s. 4(5), amended by Nos 57/1989 s. 3(Sch. item 48.8(a)(b)), 37/2014 s. 10(Sch. item 43.2(a)).
The proper officer of the court shall attach or cause to be attached to every warrant to imprison issued under this section a notice in the prescribed form addressed to the police officer executing the warrant requiring the police officer to deliver to the principal or surety before the execution of the warrant a statement in writing in the prescribed form with respect to the provisions of subsection (3) and shall allow the principal or surety, as the case may be, reasonable time and opportunity to make application thereunder should he so desire.
S. 5(10) amended by Nos 57/1989 s. 3(Sch. item 48.9), 37/2014 s. 10(Sch. item 43.2(b)).
Any police officer to whom a warrant under this section is directed shall execute the warrant according to its tenor unless the amount of money specified in the warrant be sooner paid and the keeper of the gaol shall receive into his custody any person referred to in a warrant to imprison and safely keep him for the term or period on the warrant named unless the said amount be sooner paid or unless he is otherwise removed or discharged from custody by due course of law.
S. 5(11) amended by Nos 8124 s. 4(6)(a)(b), 8731 s. 173, 57/1989 s. 3 (Sch. item 48.10(a)).
The provisions of the Magistrates' Court Act 1989 with respect to warrants and to the payment or part payment of moneys shall, so far as those provisions are applicable and with such modifications as are necessary, extend and apply with respect to the recovery of moneys payable under forfeited recognisances and in particular with the following modifications, namely—
any reference in those provisions to a warrant shall be read and construed as if it were a reference to a warrant issued for the purposes of this section;
S. 5(11)(b) amended by No. 57/1989 s. 3(Sch. item 48.10(b)).
any reference in those provisions to a fine or other sum adjudged to be paid under a conviction or order of the Magistrates' Court shall be read and construed as if it were a reference to an order made for the recovery of the moneys payable under a forfeited recognisance;
S. 5(11)(c) amended by No. 57/1989 s. 3(Sch. item 48.10(c)(i)(ii)).
any reference in those provisions to the Magistrates' Court shall be read and construed as if it were a reference to the court making an order forfeiting a recognisance; and
S. 5(11)(d) amended by No. 57/1989 s. 3(Sch. item 48.10(d)).
any reference in those provisions to a registrar of the magistrates' court shall be read and construed as if it included a reference to the Prothonotary or the Registrar of the County Court (as the case requires).
S. 5(12) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(v)), 57/1989 s. 3(Sch. item 48.11).
The officer in charge of a prison shall on receiving payment of moneys payable under a forfeited recognisance forthwith pay the amount received to the proper officer of the court.
S. 5(13) amended by No. 19/1989 s. 16(Sch. item 17.3), repealed by No. 57/1989 s. 3(Sch. item 48.12).
* * * * *
S. 6 repealed by No. 7900 s. 3, new s. 6 inserted by No. 9008 s. 2(1)(Sch. item 3(b)).
S. 6(1) amended by Nos 57/1989 s. 3(Sch. item 48.13(a)–(c)), 25/2023 s. 7(Sch. 1 item 9.3), 28/2023 s. 64(2).
Where a court is satisfied that a person has failed to observe a condition of bail the court shall declare the bail to be forfeited and shall order that the amount undertaken by the bail guarantor or guarantors to be paid to His Majesty in the event of such a breach be paid to the proper officer of the court forthwith or within such time as the court allows and that in default of payment of that amount in accordance with the order that the amount be obtained by seizing and selling the property of the bail guarantor or guarantors and in default, in whole or in part, that the bail guarantor or guarantors be imprisoned for the term (not exceeding two years) fixed by the order.
S. 6(1A) inserted by No. 9158 s. 6, amended by Nos 57/1989 s. 3(Sch. item 48.14), 70/2010 s. 37, 28/2023 s. 64(3).
Where a court makes an order under subsection (1) and the bail guarantor has pursuant to section 9(3) of the Bail Act 1977 lodged in cash the amount of the bail the court shall order that the cash lodged be forfeited and that the amount of the bail be paid to the proper officer of the court.
S. 6(2) amended by No. 57/1989 s. 3(Sch. item 48.15(a)(b)).
Every order under subsection (1) shall be in the prescribed form, shall be signed by the judge, or magistrate presiding and shall be delivered to the proper officer of the court.
S. 6(3) amended by Nos 57/1989 s. 3(Sch. item 48.16(a)(b)), 28/2023 s. 64(4)(a)(b).
Where a court makes an order under subsection (1) in the absence of one or more bail guarantors the proper officer of the court shall send by post addressed to each of the absent bail guarantors at his address shown in the undertaking of bail a notice in writing signed by the proper officer of the court setting forth—
S. 6(3)(a) amended by No. 28/2023 s. 64(4)(c).
particulars of the order made against the bail guarantor; and
S. 6(3)(b) amended by No. 57/1989 s. 3(Sch. item 48.16(c)).
a statement that a warrant of seizure and sale or a warrant to seize property will issue after the expiration of 28 days unless—
the amount due under the order is paid;
an order is made for the payment of the amount by instalments; or
application is made under subsection (4) for rescission or variation of the order.
S. 6(4) amended by Nos 16/1986 s. 30, 19/1989 s. 16(Sch. item 17.4(a)(b)), 57/1989 s. 3 (Sch. item 48.17(a)) (as amended by No. 34/1990 s. 5(Sch. 4 item 48)), 28/2023 s. 64(5).
Where bail is declared to be forfeited under subsection (1) any bail guarantor may at any time within 28 days after the making of the order or, if the order was made in the absence of the bail guarantor, within 28 days after the order first comes to his notice apply to the Court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount undertaken to be paid having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.
S. 6(5) amended by No. 57/1989 s. 3(Sch. item 48.18).
Every application under subsection (4) shall be in writing in the prescribed form signed by the person making the application, shall set forth the grounds of the application and shall be lodged with the proper officer of the court a reasonable time in the circumstances before the hearing of the application.
S. 6(6) amended by No. 57/1989 s. 3(Sch. item 48.19(b)).
Not less than 28 days before the hearing of an application under subsection (4) the applicant shall serve or cause to be served personally or by post—
on the informant or complainant; or
S. 6(6)(b) amended by No. 37/2014 s. 10(Sch. item 43.3(a)).
where the informant is a police officer—on the officer in charge of the police station nearest to the court where the application is to be heard; or
S. 6(6)(c) amended by Nos 57/1989 s. 3(Sch. item 48.19(a)), 68/2009 s. 97(Sch. item 42.2).
in the case of an indictment or an appeal—the Director of Public Prosecutions—
a true copy of the application lodged with the proper officer of the court.
S. 6(7) amended by Nos 19/1989 s. 16(Sch. item 17.5), 57/1989 s. 3(Sch. item 48.20 (a)(b)) (as amended by No. 34/1990 s. 5(Sch. 4 items 49, 50)).
At the time after the lodging of an application under subsection (4) the applicant may apply ex parte to a court for a stay of proceedings in the matter and upon any such application the court may direct the return of any warrant unexecuted or may stay the issue or execution of a warrant pending the determination of the application.
The Governor in Council may make regulations prescribing forms for the purposes of this section.
S. 6(9) amended by Nos 57/1989 s. 3(Sch. item 48.21(a)–(c)), 28/2023 s. 64(5).
Every warrant of seizure and sale and warrant to seize property of a bail guarantor to forfeited bail shall be in or to the effect of the prescribed form and every warrant to imprison a bail guarantor shall be in or to the effect of the prescribed form.
S. 6(10) amended by Nos 57/1989 s. 3(Sch. item 48.22(a)(b)), 37/2014 s. 10(Sch. item 43.3(b)), 28/2023 s. 64(5).
The proper officer of the court shall attach or cause to be attached to every warrant to imprison issued under this section a notice in the prescribed form addressed to the police officer executing the warrant requiring the police officer to deliver to the bail guarantor before the execution of the warrant a statement in writing in the prescribed form with respect to the provisions of subsection (4) and shall allow the bail guarantor reasonable time and opportunity to make application thereunder should he so desire.
S. 6(11) amended by Nos 57/1989 s. 3(Sch. item 48.23), 37/2014 s. 10(Sch. item 43.3(c)).
Any police officer to whom a warrant under this section is directed shall execute the warrant according to its tenor unless the amount of money specified in the warrant be sooner paid and the officer in charge of the prison shall receive into his custody any person referred to in a warrant to imprison and safely keep him for the period stated in the warrant unless the amount be sooner paid or unless he is otherwise removed or discharged from custody by due course of law.
S. 6(12) amended by No. 57/1989 s. 3(Sch. item 48.24(a)).
The provisions of the Magistrates' Court Act 1989 with respect to warrants and to the payment or part payment of moneys shall, so far as those provisions are applicable and with such modifications as are necessary, extend and apply with respect to the recovery of moneys payable under bail undertakings and in particular with the following modifications, namely—
any reference in those provisions to a warrant shall be read and construed as if it were a reference to a warrant issued for the purposes of this section;
S. 6(12)(b) amended by No. 57/1989 s. 3(Sch. item 48.24(b)).
any reference in those provisions to a fine or other sum adjudged to be paid under a conviction or order of the Magistrates' Court shall be read and construed as if it were a reference to an order made for the recovery of the moneys payable under forfeited bail;
S. 6(12)(c) amended by Nos 19/1989 s. 16(Sch. item 17.6), 57/1989 s. 3(Sch. item 48.24 (c)(i)(ii)) (as amended by No. 34/1990 s. 5(Sch. 4 item 51)).
any reference in those provisions to the Magistrates' Court shall be read and construed as if it were a reference to a court declaring bail to be forfeited;
S. 6(12)(d) amended by No. 57/1989 s. 3(Sch. item 48.24(d)(i)(ii)).
any reference in those provisions to a registrar of the Magistrates' Court shall be read and construed as if it included a reference to the Prothonotary or the Registrar of the County Court (as the case requires).
S. 6(13) amended by No. 57/1989 s. 3(Sch. item 48.25).
The officer in charge of a prison shall on receiving payment of moneys payable under bail declared to be forfeited forthwith pay the amount received to the proper officer of the court.
S. 6(14) amended by No. 19/1989 s. 16(Sch. item 17.7), repealed by No. 57/1989 s. 3 (Sch. item 48.26).
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No. 3665 s. 7.
S. 7 amended by Nos 19/1989 s. 16(Sch. item 17.8), 25/2023 s. 7(Sch. 1 item 9.4).
When any debt duty or sum of money is due to His Majesty otherwise than upon or by virtue of any recognisance His Majesty may cause to be sued out of the Supreme Court a certain writ to be called a writ of capias ad respondendum; and every such writ may be in the form contained in the Sixth Schedule to this Act or to the like effect, and shall be executed by the sheriff or other officer or person to whom the same is directed, and shall be deemed and taken to be the commencement of a Crown suit: Provided always that it shall be lawful for His Majesty to order the sheriff or other officer or person to whom such writ is directed not to arrest any one or more of the defendants but to serve a copy thereof only on such defendant or defendants, which order shall be duly obeyed by such sheriff or other officer or person; and such service shall be of the same force and effect as the service of a writ in any civil proceeding between subject and subject; and no such writ shall be issued except upon a fiat under the hand of the Attorney-General in the form contained in the Seventh Schedule to this Act or to the like effect stating the mode in which the same (so far as regards the execution or service thereof) is to be indorsed; and before signing any such fiat the Attorney-General shall by due inquiry in that behalf satisfy himself that such indorsement is reasonable and proper under the circumstances of the case.
No. 3665 s. 8.
S. 8 amended by No. 25/2023 s. 7(Sch. 1 item 9.5).
If any person is arrested under or by virtue of any such writ as last aforesaid and the sheriff or other officer or person to whom the same is directed takes bail from such person, such sheriff or other officer or person at the request of the Attorney-General shall assign to His Majesty the bail bond taken from such person by indorsing and attesting the same under his hand and seal in the presence of two or more credible witnesses; and if such bail bond is forfeited, such process shall thereupon issue as on bonds originally made to His Majesty.
No. 3665 s. 9.
All such steps and proceedings as are mentioned in or upon any writ issued under this Part or in any notice issued according to the course and practice for the time being of the Supreme Court shall and may with such alterations modifications and substitutions as are necessary be had and taken in the same manner as if the same were expressly directed by this Part.
No. 3665 s. 10.
S. 10 amended by Nos 19/1989 s. 16(Sch. item 17.9 (a)(b)), 57/1989 s. 3 (Sch. item 48.27(a)–(c)), 25/2023 s. 7(Sch. 1 item 9.6).
In lieu of the indorsement of claim in a civil proceeding between subject and subject, a complaint shall be filed or delivered (as the case may be) by the Attorney-General for and on behalf of His Majesty; and in the complaint the cause of complaint shall be set forth in the same manner and form as nearly as may be as in any such indorsement of claim as aforesaid; and the complaint shall commence and conclude in the form contained in the Eighth Schedule to this Act or to the like effect.
No. 3665 s. 11.
S. 11 amended by No. 19/1989 s. 16(Sch. item 17.10).
The time form and manner of process and proceeding in any Crown suit, except where it is otherwise provided by this Act, shall be the same as nearly as may be as by any law or rule of practice or pleading now or hereafter to be in force in the Supreme Court is directed in any civil proceeding between subject and subject.
No. 3665 s. 12.
S. 12 amended by Nos 19/1989 s. 16(Sch. item 17.11), 35/1996 s. 453(Sch. 1 item 20), 18/2005 s. 18(Sch. 1 item 31), 17/2014 s. 160(Sch. 2 item 31).
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