Service and Execution of Process Act 1901 (Cth)
SERVICE AND EXECUTION OF PROCESS ACT 1901 [Note: This Act is "repealed" by Act No. 166 of 1992]
(#DATE 31:03:1992)
(#DATE 31:03:1992)
- Updated as at 31 March 1992 *1* The Service and Execution of Process Act 1901 as shown in this reprint comprises Act No. 11, 1901 amended as indicated in the Tables below.
Act Date Date of Application
Number and of assent commencement saving or
year transitional
provisions
Service and Execution of Process Act 1901
11, 1901 16 Oct 1901 16 Oct 1901
Service and Execution of Process Act 1905 (a)
5, 1905 25 Aug 1905 25 Aug 1905 -
Service and Execution of Process Act 1912
18, 1912 6 Nov 1912 6 Nov 1912 -
Service and Execution of Process Act 1918
29, 1918 27 Nov 1918 27 Nov 1918 -
Service and Execution of Process Act 1922
27, 1922 18 Oct 1922 18 Oct 1922 -
Service and Execution of Process Act 1924
26, 1924 26 Sept 1924 26 Sept 1924 -
Service and Execution of Process Act 1928
14, 1928 22 June 1928 22 June 1928 -
Service and Execution of Process Act 1931
45, 1931 29 Oct 1931 29 Oct 1931 -
Statute Law Revision Act 1934
45, 1934 6 Aug 1934 6 Aug 1934 -
Matrimonial Causes Act 1945 (b)
22, 1945 16 Aug 1945 13 Sept 1945 -
Statute Law Revision Act 1950
80, 1950 16 Dec 1950 31 Dec 1950 Ss. 16 and 17
Service and Execution of Process Act 1953
48, 1953 26 Oct 1953 23 Nov 1953 Ss. 9 (2) and 11
Service and Execution of Process Act 1958
6, 1958 23 Apr 1958 23 Apr 1958 -
Service and Execution of Process Act 1963
35, 1963 21 Aug 1963 Ss. 11 and 12: 1 Jan 1964 (see
Gazette 1963, p. 4469)
Remainder: Royal Assent -
Service and Execution of Process Act 1968
147, 1968 9 Dec 1968 6 Jan 1969 S. 4 (2)
Statute Law Revision Act 1973
216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9 (1)
and 10
as amended by
20, 1974 25 July 1974 Dec 1973 -
Service and Execution of Process Act 1974
96, 1974 18 Nov 1974 16 Dec 1974 S. 4
Jurisdiction of Courts (Miscellaneous Amendments) Act 1979
19, 1979 28 Mar 1979 Parts II-XVII (ss. 3-123): 15
May 1979 (see Gazette
1979, No. S86)
Remainder: Royal Assent
S. 124 (1) and (4)
Australian Federal Police (Consequential Amendments) Act 1979
155, 1979 28 Nov 1979 19 Oct 1979 (see s. 2 and Gazette
1979, No.S206) -
Australian Federal Police (Consequential Amendments) Act 1980
70, 1980 28 May 1980 28 May 1980 -
Companies (Miscellaneous Amendments) Act 1981
92, 1981 18 June 1981 Part I (ss. 1 and 2): Royal Assent
Div. 1 of Part XI (s. 36): 1 July
1981 (see s. 2 (2) and Gazette
1981,
No. S118)
Remainder: 1 July 1982 (see s. 2
(3)
and Gazette 1982, No. S124) -
Law and Justice Legislation Amendment Act 1990
115, 1990 21 Dec 1990 S. 49: Royal Assent (c) -
Service and Execution of Process Amendment Act 1991
124, 1991 23 Aug 1991 23 Aug 1991 -
(a) The Service and Execution of Process Act 1905 was repealed by section 2 of the Service and Execution of Process Act 1912.
(b) The Matrimonial Causes Act 1945 was repealed by section 4 of the Matrimonial Causes Act 1959. That section provides that the repeal does not affect the operation of the amendment made by that Act or the provision for the citation of the Act as so amended. The Matrimonial Causes Act 1959 was repealed by section 3 of the Family Law Act 1975.
(c) The Service and Execution of Process Act 1901 was amended by section 49 only of the Law and Justice Legislation Amendment Act 1990, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
Title am. No. 48, 1953; No. 216, 1973 (as am. by
No. 20, 1974)
S. 1 am. No. 48, 1953
rs. No. 35, 1963
S. 1A ad. No. 35, 1963
rep. No. 216, 1973 (as am. by No. 20, 1974)
S. 2 rs. No. 48, 1953; No. 35, 1963
am. No. 216, 1973 (as am. by No. 20, 1974)
S. 3 am. No. 18, 1912; No. 6, 1958
rs. No. 35, 1963
Heading preceding s. 4 rep. No. 35, 1963
Heading to Div. 1 of Part II
ad. No. 35, 1963
S. 4 am. No. 18, 1912; No. 147, 1968; No. 216,
1973 (as am. by No. 20, 1974); No. 92, 1981
S. 5 am. No. 96, 1974
S. 8 am. No. 18, 1912
rs. No. 48, 1953
am. No. 216, 1973 (as am. by No. 20, 1974)
S. 9 am. No. 96, 1974
S. 11 am. No. 22, 1945; No. 147, 1968; No. 216,
1973 (as am. by No. 20, 1974); No. 96, 1974;
No. 92, 1981
S. 13 am. No. 96, 1974
Heading preceding s. 14 rep. No. 35, 1963
Heading to Div. 2 of Part II
ad. No. 35, 1963
S. 15 am. No. 18, 1912; No. 29, 1918; No. 26, 1924;
No. 45, 1931
rs. No. 48, 1953
am. No. 35, 1963; No. 96, 1974
S. 16 am. No. 18, 1912; No. 6, 1958; No. 35, 1963;
No. 96, 1974
S. 16A ad. No. 14, 1928
am. No. 35, 1963; No. 96, 1974
Heading preceding s. 17 rep. No. 35, 1963
S. 17 am. No. 124, 1991
Heading to Div 3 of Part II
ad. No. 35, 1963
Part III (ss. 18, 18A, 19)
rep. No. 48, 1953
Part III (ss. 18, 19, 19A-19C)
ad. No. 48, 1953
S. 18 am. No. 5, 1905; No. 18, 1912; No. 29, 1918;
No. 45, 1931 rs. No. 48, 1953
am. No. 6, 1958; No. 96, 1974; No. 124, 1991
S. 18A ad. No. 27, 1922
rep. No. 48, 1953
S. 19 rs. No. 48, 1953
S. 19A ad. No. 48, 1953
am. No. 96, 1974
S. 19B ad. No. 48, 1953
S. 19C ad. No. 48, 1953
am. No. 19, 1979
Part 3A (ss. 19D-19ZH) ad. No. 124, 1991
Ss. 19D-19ZH ad. No. 124, 1991
Heading to Part IV rs. No. 35, 1963
S. 21 am. No. 18, 1912
S. 22 am. No. 29, 1918
rs. No. 48, 1953
S. 22A ad. No. 18, 1912
Part IVA (ss. 26A-26R) ad. No. 35, 1963
S. 26A ad. No. 35, 1963
am. No. 216, 1973 (as am. by No. 20, 1974);
No. 96, 1974; No. 155, 1979; No. 70, 1980;
No. 115, 1990
Ss. 26B, 26C ad. No. 35, 1963
S. 26D ad. No. 35, 1963
am. No. 96, 1974
S. 26E ad. No. 35, 1963
am. No. 115, 1990
Ss. 26F-26H ad. No. 35, 1963
am. No. 96, 1974
S. 26J ad. No. 35, 1963
am. No. 96, 1974; No. 115, 1990
Ss. 26K-26R ad. No. 35, 1963
Part V (ss. 27, 28) rs. No. 48, 1953
S. 27 rs. No. 48, 1953
S. 28 am. No. 29, 1918; No. 27, 1922; No. 26, 1924;
No. 45, 1934; No. 80, 1950
rs. No. 48, 1953; No. 147, 1968
am. No. 216, 1973 (as am. by No. 20, 1974);
No. 96, 1974
First Schedule rep. No. 48, 1953
Third Schedule am. No. 18, 1912
Fourth Schedule ad. No. 35, 1963
am. No. 96, 1974
Fifth Schedule ad. No. 124, 1991
SERVICE AND EXECUTION OF PROCESS ACT 1901 - TABLE OF PROVISIONS TABLE
TABLE OF PROVISIONS
Section
PART I-PRELIMINARY
1. Short title
2. Extension to Territories
3. Interpretation
PART II-SERVICE OF PROCESS
Division 1-Service of Writs of Summons
4. Writ of summons may be served in any part of the
Commonwealth
5. Indorsement on writ for service outside State
6. Effect where writ of summons not properly indorsed
7. Concurrent writs may be issued
8. Time limited for appearance
9. Appearance to state address for service
10. Order for plaintiff to give security for costs
11. Proceedings where no appearance entered
12. Effect of judgment
13. No increased jurisdiction conferred by this Part
Division 2-Service of other Process
14. Process may be served in any part of the Commonwealth;
mode of service
15. Service of summons etc. issued on information etc.
16. Subpoena or summons to witness may be served in
another State by leave of a Judge etc.
16A. Orders for the production of prisoners
Division 3-Proof of Service
17. Mode of proof of service
PART III-EXECUTION OF WARRANTS AND WRITS OF ATTACHMENT
18. Backing of warrant for execution out of the State or
part of the Commonwealth in which it was issued
19. Review of order of Magistrate or Justice
19A. Provisional warrants
19B. Forfeiture of recognizances
19C. Writ of attachment may be executed in another State or
part of the Commonwealth
PART 3A-SERVICE AND EXECUTION OF PROCESS OF
INVESTIGATIVE TRIBUNALS
Division 1-Preliminary
19D. Interpretation
19E. Copies
19F. Territories regarded as States
19G. Crown to be bound
19H. Extension to external Territories
19J. Limitations on power of court to give leave etc.
19K. Proof of service
Division 2-Service of subpoenas generally
19L. Application of Division
19M. Order for leave
19N. Service of subpoena
19P. Expenses
19Q. Obligation to meet expenses
19R. Subpoenas not requiring attendance
Division 3-Service of subpoenas addressed to persons in prison
19S. Application of Division
19T. Order for production
19U. Service of order for production
19V. Expenses
19W. Custody of prisoner etc.
Division 4-Execution of warrants
19X. Warrants issued by tribunals
19Y. Person subject to warrant may be apprehended
19Z Procedure after apprehension
19ZA. Procedure on remand on bail
19ZB. Review
19ZC. Custody of person etc.
19ZD. Release of persons unnecessarily detained
19ZE. Laws applicable to grant of bail etc.
Division 5-Miscellaneous
19ZF. Matters of state
19ZG. Claim of public interest privilege not precluded
19ZH. Effect on other provisions of this Act
PART IV-ENFORCEMENT OF CIVIL JUDGMENTS
20. Certificate of judgment
21. Registration of judgments and proceedings thereunder
22. Definition of courts of like jurisdiction
22A. Costs of proceedings under this Act
23. Execution not to issue unless affidavit of liability
filed
24. Proceedings subject to the control of the Court
25. Stay of proceedings
26. Notification of proceedings upon certificate and of
satisfaction of judgment
PART IVA-ENFORCEMENT OF FINES IMPOSED BY COURTS OF SUMMARY
JURISDICTION
26A. Interpretation
26B. Proclaimed Territories
26C. Constitution of Courts
26D. Issue of warrants of apprehension
26E. Execution of warrant of apprehension
26F. Proceedings before Court
26G. Review of orders of committal
26H. Issue of warrant of commitment
26J. Payment of fine after issue of warrant of apprehension
26K. Person liable to pay two or more fines etc.
26L. Release of person from prison on payment of fine etc.
26M. Effect of imprisonment
26N. Juveniles not to be imprisoned
26P. Conditions of imprisonment
26Q. Application of Removal of Prisoners (Territories) Act
26R. Saving
PART V-RULES AND REGULATIONS
27. Rules of Court
28. Regulations
SCHEDULES
SECOND SCHEDULE
INDORSEMENT ON WARRANT
THIRD SCHEDULE
CERTIFICATE OF JUDGMENT
FOURTH SCHEDULE
FORMS
FIFTH SCHEDULE
NOTICE TO WITNESS
SERVICE AND EXECUTION OF PROCESS ACT 1901 - LONG TITLE SECT
An Act to provide for the Service and Execution throughout
the Commonwealth and the Territories of the Civil and Criminal
Process and the Judgments of the Courts of the States and of the
Territories, and for other purposes connected therewith
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART I
PART I-PRELIMINARY
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 1
Short titleSECT
1. This Act may be cited as the Service and Execution of Process Act 1901.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 2
Extension to TerritoriesSECT
2. (1) This Act extends to Norfolk Island, the Territory of Papua and the Territory of New Guinea.*2* (2) For the purposes of this Act:
(a) the Territory of Papua and the Territory of New Guinea shall be deemed to be one Territory of the Commonwealth; *2*
(b) the Jervis Bay Territory shall be deemed to be part of the Australian Capital Territory; and
(c) a reference to a part of the Commonwealth shall be read as including a reference to a Territory to which this Act extends or is for the time being applied by the regulations.*3* *2* S. 2 (1) and (2)-Section 5 of the Papua New Guinea Independence Act 1975 provides that, on the expiration of the day preceding Independence Day, every Act, and every Imperial Act, extending to the whole or any part of Papua New Guinea as part of the law of Papua New Guinea ceases so to extend. Independence Day was 16 September 1975.*3* S. 2 (2)-Regulations 2 and 3 of the Service and Execution of Process Regulations provide as follows:
"2. The Service and Execution of Process Act 1901-1953 applies to, and in relation to, the Territory of Cocos (Keeling) Islands." (Commenced 23 November 1955.)
"3. The Service and Execution of Process Act 1901-1958 applies to, and in relation to, the Territory of Christmas Island." (Commenced 1 October 1958.)
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 3
InterpretationSECT
3. In this Act, unless the contrary intention appears:
"Court" includes any judge or justice of the peace acting judicially;
"Court of Record" includes any court that is required to keep a record of its proceedings;
"defendant" includes any party against whom relief is sought in a suit or who is required to attend the proceedings in an action as a party thereto;
"judgment" includes any judgment, decree, rule or order given or made by a Court in any suit whereby any sum of money is made payable or any person is required to do or not to do any act or thing other than the payment of money;
"party" includes the Commonwealth or a State or any person suing or being sued on behalf of the Commonwealth or a State;
"plaintiff" includes:
(a) the Crown;
(b) any person suing on behalf of the Crown; and
(c) any party seeking relief in a suit against any other party;
"suit" means any suit, action or original proceeding between parties or in rem, but does not include:
(a) a suit, action or proceeding in which a person is charged with an offence, whether the offence is punishable summarily or on indictment; or
(b) except in Part IV, a suit, action or proceeding under a law of a State or part of the Commonwealth that makes provision with respect to the maintenance of wives, children or other persons or with respect to affiliation;
"writ of summons" means any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting relief sought in a suit.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART II
PART II-SERVICE OF PROCESS
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 1
Division 1-Service of Writs of Summons
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 4
Writ of summons may be served in any part of the CommonwealthSECT
4. (1) A writ of summons issued out of or requiring the defendant to appear at any Court of Record of a State or part of the Commonwealth may be served on the defendant in any other State or part of the Commonwealth. (2) Subject to any rules of court that may be made under this Act, the service under this section of a writ of summons may be effected:
(a) in the same manner as if the writ were served on the defendant in the State or part of the Commonwealth in which the writ was issued; or
(b) without limiting the generality of the foregoing, where the writ of summons is to be served in a State or Territory on a corporation that:
(i) is incorporated under a law in force in that State
or Territory relating to companies; or
(ii) is a foreign company for the purposes of, and is
registered as such a company under, such a law of that State or Territory;
by leaving at, or by sending by post to, the place that is, for the purposes of that law, the registered office of the corporation the writ of summons or a copy of the writ of summons.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 5
Indorsement on writ for service outside StateSECT
5. (1) Every writ of summons for service under this Act out of the State or part of the Commonwealth in which it was issued shall, in addition to any other indorsement or notice required by the law of such State or part of the Commonwealth, have indorsed thereon a notice to the following effect (that is to say):
"This summons (or as the case may be) is to be served out of the State (or as the case may be) of and in the State (or as the case may be) of ."(2) Every such writ of summons to which, by the law of such State or part, an appearance is required to be entered, shall have indorsed thereon a notice to the following effect (that is to say):
"Your appearance to this summons (or as the case may be) must give an address at some place within 10 kilometres of the office of the Court of at at which address proceedings and notices for you may be left."(3) Every writ of summons for service under this Act shall also contain or have indorsed thereon or annexed thereto a short statement of the nature of the claim made or the relief sought by the plaintiff in the suit, and if the plaintiff sues in a representative capacity shall also state such capacity.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 6
Effect where writ of summons not properly indorsedSECT
6. If a writ of summons or copy thereof does not bear all the indorsements hereby required it shall be ineffective for service under this Act.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 7
Concurrent writs may be issuedSECT
7. A writ of summons for service out of the State or part of the Commonwealth in which it was issued may be issued as a concurrent writ with one for service within such State or part of the Commonwealth and shall in that case be marked as concurrent.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 8
Time limited for appearanceSECT
8. The period specified in a writ of summons for service under this Act as the period within which a defendant may enter or make an appearance to the writ of summons shall be:
(a) if the writ of summons is issued in a State, in the Australian Capital Territory or in the Northern Territory and is to be served in a State or in either of those Territories-not less than twenty days after service of the writ has been effected; or
(b) in any other case-not less than forty-five days after service of the writ has been effected;
or, if a longer period is prescribed by the rules of the court out of which the writ of summons is issued, not less than that longer period.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 9
Appearance to state address for serviceSECT
9. (1) Every appearance entered by or on behalf of a defendant to a writ of summons served on him under this Act shall give an address at some place within 10 kilometres of the office of the Court out of which the writ was issued, at which address all proceedings and notices may be left for him. (2) If such address is not given or is fictitious or illusory the appearance may be set aside as irregular.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 10
Order for plaintiff to give security for costsSECT
10. Any defendant who has been served under this Act with a writ of summons may apply to the Court out of which the writ was issued, or a Judge thereof, for an order compelling the plaintiff to give security for costs, and upon such application the Court or Judge may make the order.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 11
Proceedings where no appearance enteredSECT
11. (1) When no appearance is entered or made by a defendant to a writ of summons served on him under this Act, if it is made to appear to the Court from which the writ was issued or a Judge thereof:
(a) that the subject-matter of the suit so far as it concerns such defendant is:
(1) land or other property situate or being within the
State or part of the Commonwealth in which the writ was issued; or
(2) shares or stock of a corporation or company having
its principal place of business within that State or part; or
(3) any deed, will, document, or thing affecting any
such land, shares, stock, or property; or
(b) that any contract in respect of which relief is sought in the suit against such defendant by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting such contract, or by way of recovering damages or other remedy against such defendant for a breach thereof, was made or entered into within that State or part; or
(c) that the relief sought against the defendant is in respect of a breach, within that State or part, of a contract wherever made; or
(d) that any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was done or is to be done or is situate within that State or part; or
(e) that at the time when the liability sought to be enforced against the defendant arose he was within that State or part; or
(f) in a matrimonial cause:
(i) that the domicile of the person against whom any
relief is sought is within that State or part; or
(ii) that the proceedings were instituted under the
Matrimonial Causes Act 1959-1973;
and if one of the following is also made to appear to such Court or Judge:
(g) that the writ was personally served on the defendant; or in the case of a corporation served on its principal officer or manager or secretary within the State or part in which service is effected;
(h) that reasonable efforts were made to effect personal service thereof on the defendant, and that it came to his knowledge or in the case of a corporation that it came to the knowledge of such officer as aforesaid (in which case it shall be deemed to have been served on the defendant); or
(i) that, in a case where the defendant is a corporation that:
(i) is incorporated under a law in force in a State or
Territory relating to companies; or
(ii) is a foreign company for the purposes of, and is
registered as such a company under, such a law;
service of the writ was effected in the manner specified in paragraph (b) of subsection (2) of section 4;
such Court or Judge may on the application of the plaintiff order from time to time that the plaintiff shall be at liberty to proceed in the suit in such manner and subject to such conditions as such Court or Judge may deem fit, and thereupon the plaintiff may proceed in the suit against such defendant accordingly.(2) Any such order may be rescinded or set aside or amended on the application of the defendant.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 12
Effect of judgmentSECT
12. When a judgment is given or made against a defendant who has been served with a writ of summons under this Act, such judgment shall have the same force and effect as if the writ had been served on the defendant in the State or part of the Commonwealth in which the writ was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 13
No increased jurisdiction conferred by this PartSECT
13. This Part does not confer on any Court jurisdiction to hear or determine any suit which it would not have jurisdiction to hear and determine if the writ of summons had been served within the State or part of the Commonwealth in which the writ was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 2
Division 2-Service of other Process
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 14
Process may be served in any part of the Commonwealth; mode of serviceSECT
14. (1) When, in any suit in a Court of Record of a State or part of the Commonwealth, any writ (other than a writ of summons) notice decree or other process is required to be served on any party or person, such writ notice decree or process may be served on such party or person in any other State or part of the Commonwealth. (2) Such service may, subject to any Rules of Court which may be made under this Act, be effected in the same way, and shall have the same force and effect, as if the service were effected in the State or part of the Commonwealth in which the writ notice decree or process was issued.
(3) Thereupon all such proceedings may be taken as if the writ, notice, decree, or process had been served in the State or part of the Commonwealth in which it was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 15
Service of summons etc. issued on information etc.SECT
15. (1) This section applies to a summons or other process, not being a summons or other process to which section 4 or 14 applies, which is issued on an information, complaint or application made on, or supported by, oath, being a summons or other process which:
(a) requires a person to appear before a court and answer to the information, complaint or application; or
(b) gives to a person notice of the hearing before a court of the information, complaint or application.(2) A summons or other process to which this section applies which is issued in one State or part of the Commonwealth may be served on the person to whom it is addressed in another State or part of the Commonwealth.
(3) Service under this section may, subject to the rules of court in force under this Act, be effected in the same way as it could be effected in the State or part of the Commonwealth in which the summons or other process was issued.
(4) Service so effected shall have the same force and effect as if it had been service in the State or part of the Commonwealth in which the summons or other process was issued, and if the person on whom service has been effected fails to appear before the court and at the time and place specified in the summons or other process, and it appears to the court that service was effected a sufficient time before the time so specified, the like proceedings may be taken as if service had been effected in the State or part of the Commonwealth in which the summons or other process was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 16
Subpoena or summons to witness may be served in another State by
leave of a Judge etc.SECT
16. (1) When a subpoena or summons has been issued by or out of a Court, or by a Judge, a Police, Stipendiary or Special Magistrate or a Coroner, in any State or part of the Commonwealth, requiring any person to appear and give evidence or to produce books or documents, in any civil or criminal trial or proceeding (including any proceeding before a Coroner), such subpoena or summons may upon proof that the testimony of such person or the production of such books or documents is necessary in the interests of justice by leave of such Court Judge Magistrate or Coroner on such terms as the Court Judge Magistrate or Coroner may impose be served on such person in any other State or part of the Commonwealth. (2) If such person fails to attend at the time and place mentioned in such subpoena or summons, such Court Judge Magistrate or Coroner or any other Police, Stipendiary, or Special Magistrate having jurisdiction in the State or part of the State or part of the Commonwealth in which the subpoena or summons was issued may on proof that the subpoena or summons was duly served on such person, and that a reasonable sum was tendered to him for his expenses issue such warrant for the apprehension of such person as such Court Judge Magistrate or Coroner might have issued if the subpoena or summons had been served in the State or part of the Commonwealth in which it was issued.
(3) The powers of a Supreme Court of a State or other part of the Commonwealth, or of a Judge of such a Court, to grant leave under subsection (1) may be exercised by an officer of the Court authorized in that behalf by rules of court made by virtue of subsection (1) of section 27.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 16A
Orders for the production of prisonersSECT
16A. (1) Where it appears to any Court of Record of a State or part of the Commonwealth or to any Judge thereof that the attendance before the Court of a person who is undergoing sentence in any State or part of the Commonwealth is necessary for the purpose of obtaining evidence in any proceeding before the Court, the Court or Judge may issue an order directed to the Superintendent or other officer in charge of the gaol or place where the person is undergoing sentence requiring him to produce the person at the time and place specified in the order. (1A) A Court or a Judge may, before issuing an order under the last preceding subsection, require the applicant for the order to give such security as the Court or Judge thinks fit for ensuring compliance with any order that may be made under subsection (3) for payment by the applicant or any other person of the whole or any part of the costs of compliance with that first-mentioned order.
(2) Any order made under this section may be served upon the Superintendent or officer to whom it is directed in whatever State or part of the Commonwealth he may be and he shall thereupon produce, in such custody as he thinks fit, the person referred to in the order at the time and place specified therein.
(3) The Court before which any person is produced in accordance with an order issued under this section may make such order as to the costs of compliance with the order as to the Court seems just.
(4) Where a person who is undergoing sentence in any State or part of the Commonwealth is, in pursuance of an order made under this section, produced in another State or part of the Commonwealth, he shall, while in that other State or part of the Commonwealth, in compliance with the order, be deemed to be undergoing his sentence, and the officer in whose custody he is shall have the same powers, in relation to the detention and disposition of that person, as the Superintendent or officer to whom the order was directed has in the State or part of the Commonwealth in which sentence was imposed upon that person.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 3
Division 3-Proof of Service
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 17
Mode of proof of serviceSECT
17. When any writ notice decree or other process has under the provisions of this Act (other than Part 3A) been served out of the State or part of the Commonwealth in which it was issued such service may be proved:
(a) by affidavit sworn before any Justice of the Peace having jurisdiction in the State or part of the State or part of the Commonwealth in which such service was effected, or before a Commissioner for Affidavits or Declarations, or Notary Public for that State or part; or
(b) in any manner in which such service might have been proved if it had been effected within the State or part of the Commonwealth in which the writ notice decree or process was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART III
PART III-EXECUTION OF WARRANTS AND WRITS OF ATTACHMENT
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 18
Backing of warrant for execution out of the State or part of the
Commonwealth in which it was issuedSECT
18. (1) Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section 16 or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person (not being a warrant to which Division 4 of Part 3A applies), a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act authorizing its execution in that other State or part of the Commonwealth. (2) A warrant so endorsed is sufficient authority to the person bringing the warrant, to all constables and persons to whom the warrant is directed and to all constables and peace officers in that other State or part of the Commonwealth to execute the warrant in that other State or part of the Commonwealth, to apprehend the person against whom the warrant was issued and to bring that person before a Police, Stipendiary or Special Magistrate or a Justice of the Peace who has power to issue warrants for the apprehension of persons under the law of that State or part of the Commonwealth.
(3) Subject to this section, the Magistrate or Justice of the Peace before whom the person is brought may:
(a) by warrant under his hand, order the person to be returned to the State or part of the Commonwealth in which the original warrant was issued and, for that purpose, to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed; or
(b) admit the person to bail, on such recognizances as he thinks fit, on condition that the person appears at such time, and at such place in the State or part of the Commonwealth in which the original warrant was issued, as the Magistrate or Justice specifies to answer the charge or complaint or to be dealt with according to law.(4) A warrant issued under paragraph (a) of the last preceding subsection may be executed according to its tenor.
(5) The Magistrate or Justice of the Peace before whom the person is brought has, for the purposes of this section, the same power to remand the person and admit him to bail for that purpose as he has in the case of persons apprehended under warrants issued by him.
(6) If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that:
(a) the charge is of a trivial nature;
(b) the application for the return of the person has not been made in good faith in the interests of justice; or
(c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period;
the Magistrate or Justice of the Peace may:
(d) order the discharge of the person;
(e) order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or
(f) make such other order as he thinks just.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19
Review of order of Magistrate or JusticeSECT
19. (1) Where:
(a) a person apprehended is dissatisfied with an order made under subsection (3) or (6) of the last preceding section; or
(b) a Magistrate or Justice of the Peace has made, under subsection (3) or (6) of the last preceding section, an order for the discharge of an apprehended person, or an order for the return or admittance to bail of such a person under the terms of which the person is not, or may not be, required to return or be returned within three months after the date of the order to the State or part of the Commonwealth in which the original warrant was issued;
the apprehended person or the person bringing the warrant, as the case requires, may apply to a Judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order.(2) A Judge to whom an application is made for the review of an order may:
(a) order the release on bail of the apprehended person on such terms and conditions as the Judge thinks fit; or
(b) direct that the apprehended person be kept in such custody as the Judge directs in the State or part of the Commonwealth in which the person is apprehended until the order has been reviewed.(3) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.
(4) For the purposes of a review under this section, a copy of a public document or of a document filed in a Department or office of the Commonwealth or of a State or part of the Commonwealth, certified to be a true copy of the document by the person purporting by the certificate to have charge of the document, shall be received as evidence of the facts stated in the copy.
(5) Upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead.
(6) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate or Justice of the Peace.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19A
Provisional warrantsSECT
19A. (1) A Magistrate, Justice of the Peace or officer of a court who, under subsection (1) of section 18, is empowered, subject to his being satisfied as to the matter specified in that subsection, to endorse a warrant for the apprehension of a person may, if the warrant is not produced to him or he requires further information or proof before endorsing the warrant, issue a provisional warrant for the apprehension of that person upon such information and under such circumstances as, in his opinion, justify the issue of a provisional warrant, and the provisional warrant may be executed according to its tenor. (2) Where a person is apprehended in pursuance of a provisional warrant, he shall be brought forthwith before a Police, Stipendiary or Special Magistrate or Justice of the Peace who has power to issue warrants for the apprehension of persons under the law of the State or part of the Commonwealth in which he is apprehended, and, if the original warrant has not yet been endorsed, the Magistrate or Justice may:
(a) discharge the person;
(b) admit him to bail on such conditions and recognizances as the Magistrate or Justice thinks fit; or
(c) authorize his detention for a reasonable time pending the endorsement of the original warrant.(3) Where a person has been apprehended under a provisional warrant (not being a person who has been discharged in pursuance of the last preceding subsection) and the original warrant is not, within a reasonable time, endorsed by a Magistrate or Justice of the Peace for the State or part of the Commonwealth in which the person was apprehended a Magistrate or Justice of the Peace for that State or part of the Commonwealth may discharge the person or release him from bail, as the case requires.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19B
Forfeiture of recognizancesSECT
19B. (1) Where a person has, in pursuance of any of the last three preceding sections, been admitted to bail in a State or part of the Commonwealth, and a Magistrate, Justice of the Peace for that State or part or, where the person was admitted to bail by a Judge of the Supreme Court of that State or part, a Judge of that Court, is satisfied that the person has failed to comply with the conditions of the recognizance upon which he was so admitted to bail, that Magistrate, Justice or Judge may, by order under his hand, declare the recognizance to be forfeited. (2) Where a recognizance is so declared to be forfeited, payment of any sum due under the recognizance by a person residing in the State or part of the Commonwealth in which the recognizance was declared to be forfeited may be enforced as a fine imposed by a District or County Court or other inferior Court of Record having jurisdiction in that State or part.
(3) An amount recovered in pursuance of this section shall be transmitted to the Attorney-General of the State in which the original warrant was issued or, if that warrant was issued in a part of the Commonwealth other than a State, to the Attorney-General of the Commonwealth.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19C
Writ of attachment may be executed in another State or
part of the CommonwealthSECT
19C. (1) Where a Court of Record of a State or part of the Commonwealth or a Judge of such a Court has, whether before or after the commencement of this section, issued a writ of attachment for the arrest of a person for a contempt of the Court or disobedience of an order of the Court, the writ may:
(a) by leave of a Judge of the Federal Court of Australia, be executed in any other State or part of the Commonwealth specified by the Judge; or
(b) by leave of a Judge of the Supreme Court of another State or part of the Commonwealth, be executed in that other State or part of the Commonwealth.(2) The leave:
(a) shall be endorsed on the writ of attachment; and
(b) shall be sufficient authority to:
(i) the Sheriff of the Federal Court of Australia;
(ii) the Sheriff of the State or part of the
Commonwealth in which the writ was issued;
(iii) the Sheriff of a State or part of the
Commonwealth in which leave to execute the warrant is given; and
(iv) all other officers named in the endorsement on
the writ;
to apprehend the person against whom the writ was issued and to bring that person before the Court out of which the writ was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART 3A
PART 3A-SERVICE AND EXECUTION OF PROCESS OF INVESTIGATIVE
TRIBUNALS
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 1
Division 1-Preliminary
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19D
InterpretationSECT
19D. (1) In this Part, unless the contrary intention appears:
"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:
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or relations between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of offences; or
(d) prejudice:
(i) the prevention or investigation of; or
(ii) the conduct of proceedings for recovery of
civil penalties brought with respect to;
other contraventions of the law; or
(e) 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, whether written or unwritten, of the Commonwealth or of a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State; or
(g) 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, or an order for production relating to a subpoena, includes the reasonable costs of:
(a) necessary travel to and from, and accommodation while at, the place where compliance with the subpoena is required; and
(b) finding, collating and producing a document or thing;
for the purpose of complying with the subpoena;
"facsimile", in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;
"investigative tribunal" means:
(a) a person appointed by the Governor of a State, or by or under a law of a State; or
(b) a body established by or under a law of a State;
for the purpose of inquiring into and reporting on any matter, being a person who, or a body that, is authorised by or under a law of the State to take evidence on oath or affirmation, but does not include:
(c) a court; or
(d) a person exercising a power conferred on the person as judge, magistrate, coroner or officer of a court;
"magistrate" includes a Justice of the Peace who has power, under a law of the State in which the Justice holds office, to issue warrants;
"order for production" means an order made under section 19T;
"photocopy", in relation to a document, means a copy of the document that has been produced by photocopy reproduction;
"prison" includes a gaol, lock-up or other place of detention;
"subpoena" means a process that requires a person to do one or both of the following:
(a) to give oral evidence before a tribunal;
(b) to produce a document or thing to a tribunal;
"warrant" means a process that:
(a) is issued by:
(i) a court of a State; or
(ii) a tribunal of a State, or a member of such a
tribunal;
under the law of the State; and
(b) authorises the apprehension of a person.(2) For the purposes of the definition of "investigative 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 so authorised to take evidence on oath or affirmation.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19E
CopiesSECT
19E. (1) A reference in this Part to a copy of a document is a reference to a completely legible facsimile or photocopy of the document. (2) For the purposes of this Part, a document produced as mentioned in subsection (1) that is identical to a document in all material respects is taken to be a copy of the document.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19F
Territories regarded as StatesSECT
19F. (1) For the purposes of this Part, each Territory is to be regarded as a State. (2) For the purposes of the application of this Part in relation to a Territory, the reference to the Governor of a State in paragraph (a) of the definition of "investigative tribunal" in subsection 19D (1) is a reference to the Administrator of a Territory.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19G
Crown to be boundSECT
19G. This Part binds the Crown in all its capacities.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19H
Extension to external TerritoriesSECT
19H. This Part extends to each external Territory.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19J
Limitations on power of court to give leave etc.SECT
19J. (1) A court must not:
(a) give leave under section 19M for a subpoena to be served; or
(b) make an order under section 19T in relation to a subpoena; or
(c) make an order under section 19X in relation to a warrant;
unless it is satisfied as to the matters referred to in subsections (2), (3) and (5).(2) The court must be satisfied that:
(a) the evidence likely to be given by the person to whom the subpoena is addressed, or to whom the warrant relates; or
(b) a document or thing specified or referred to in the subpoena or warrant;
is relevant to the matter that is to be inquired into or reported on by the investigative tribunal concerned.(3) Subject to subsection (4), the court must be satisfied that the evidence, document or thing concerned cannot reasonably be obtained from a person in the State in which the subpoena or warrant was issued.
(4) Subsection (3) does not apply to the giving of evidence by, or the production of a document or thing by, a person in the person's capacity as an expert.
(5) If the evidence, document or thing concerned may constitute or contain evidence that relates to matters of state, the court must be satisfied that, having regard to the purpose and subject matter of the function being performed by the investigative tribunal, the public interest
in having the evidence, document or thing made available to the tribunal outweighs the public interest in preserving the secrecy or confidentiality of the evidence, document or thing.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19K
Proof of serviceSECT
19K. When any subpoena, warrant, order for production or notice has been served, under this Part, out of the State in which it was issued, the service may be proved:
(a) by affidavit sworn before:
(i) any Justice of the Peace having jurisdiction in
the State or part of the State in which the service was effected; or
(ii) a Commissioner for Affidavits or Declarations;
or
(iii) a notary public for that State or part of that
State; or
(b) in any way in which the service might have been proved if it had been effected within the State in which the subpoena, warrant, order or notice was issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 2
Division 2-Service of subpoenas generally
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19L
Application of DivisionSECT
19L. This Division applies to a subpoena that:
(a) has been issued by or out of a court or an investigative tribunal; and
(b) is addressed to a person:
(i) who is not in prison; or
(ii) who is in prison but who need not attend before
the tribunal for the purpose of complying with the subpoena.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19M
Order for leaveSECT
19M. (1) The Supreme Court of the State in which a subpoena is issued may, on application, give leave to serve the subpoena outside the State. (2) In granting an application, the court:
(a) must impose a condition that the subpoena not be served after a specified day; and
(b) may impose other conditions.
Note 1: section 19J places conditions on a court's power to give leave.
Note 2: section 19ZF deals with proceedings that may involve questions of matters of state.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19N
Service of subpoenaSECT
19N. (1) Subject to subsection (2), where such leave is given, service of the subpoena outside the State concerned may be effected in the same way, and has the same force and effect, as if the service were effected in the State in which the subpoena was issued. (2) Service of a subpoena is not effective unless a notice in accordance with Form 1 in the Fifth Schedule is attached to the subpoena.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19P
ExpensesSECT
19P. Service of a subpoena is not effective unless, at the time of service or at some other reasonable time before the person to whom the subpoena is addressed is required to comply with it, allowances and travelling expenses or vouchers sufficient to meet the person's reasonable expenses of complying with the subpoena are paid or tendered to the person.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19Q
Obligation to meet expensesSECT
19Q. (1) Subject to subsection (3), the amount of the expenses reasonably incurred by a person in complying with a subpoena must be paid by the State in which was appointed or established the investigative tribunal to which the subpoena requires evidence to be given or a document or thing to be produced. (2) Subject to subsection (3), the amount of the expenses reasonably incurred by a person is taken to be:
(a) where the investigative tribunal is empowered to determine the amount that the person is to be paid for expenses and so determines-the amount so determined; or
(b) in any other case-the amount that the person would have been entitled to be paid if the subpoena had been issued by the Supreme Court of the State in connection with proceedings before that court.(3) If a law of the State fixes the amount to be paid to the person for expenses, that amount is taken to be the amount of the expenses reasonably incurred.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19R
Subpoenas not requiring attendanceSECT
19R. Where a subpoena only requires production of a document or thing:
(a) it may be complied with by producing the document or thing, not less than 24 hours prior to the date for compliance, to the person holding the office (however described) of secretary of the investigative tribunal concerned; and
(b) if it is complied with in that manner-no attendance at the tribunal is required by the person to whom the subpoena is addressed on the date for compliance.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 3
Division 3-Service of subpoenas addressed to persons in prison
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19S
Application of DivisionSECT
19S. This Division applies to a subpoena that:
(a) has been issued by or out of a court or an investigative tribunal; and
(b) is addressed to a person (in this Division called the "prisoner") who:
(i) is in prison; and
(ii) is required to attend before the tribunal for
the purpose of complying with the subpoena.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19T
Order for productionSECT
19T. (1) The Supreme Court of the State in which a subpoena is issued may, on application, order that the prisoner be produced at the time and place specified in the subpoena as the time and place at which compliance with the subpoena is required. (2) The order:
(a) may be made subject to specified conditions; and
(b) must be addressed to the custodian from time to time of the prisoner.
Note 1: section 19J places conditions on a court's power to make an order.
Note 2: section 19ZF deals with proceedings that may involve questions of matters of state.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19U
Service of order for productionSECT
19U. (1) Subject to any conditions specified under paragraph 19T (2) (a), the order for production and the subpoena to which it relates, or a copy of both the order and the subpoena, must be served on the custodian for the time being of the prisoner, together with a copy, or a further copy, of both the order and the subpoena for service on the prisoner. (2) Service of the order and subpoena, or a copy of both the order and the subpoena, on the custodian is not effective unless a notice in accordance with Form 2 in the Fifth Schedule, or a copy of such a notice, is attached to the subpoena and the copy of the subpoena, or to each copy of the subpoena, as the case requires.
(3) Service of the order for production and subpoena is to be effected in the same way as service of a subpoena in the State in which the subpoena was issued.
(4) As soon as practicable after receiving the order for production and subpoena, the custodian must serve a copy of the order and a copy of the subpoena on the prisoner.
(5) Service of the copies on the prisoner is not effective unless a copy of the notice, in accordance with Form 2 in the Fifth Schedule, served on the custodian is attached to the copy of the subpoena.
(6) Where:
(a) the copies are so served; and
(b) the prisoner is released from prison at a time sufficiently prior to the date for compliance with the subpoena to make compliance with the subpoena reasonably practicable;
the prisoner:
(c) is taken to have been served with the subpoena under section 19N as if leave for its service had been given under section 19M; and
(d) subject to paragraph 19V (2) (b), is required to comply with the subpoena.(7) Having been served with the order for production, the custodian must comply with it unless the person to whom the subpoena is addressed is released from prison before the time for compliance.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19V
ExpensesSECT
19V. (1) Service of an order for production is not effective unless, at the time of service or at some other reasonable time before the date for compliance with the order, there are paid or tendered to the custodian the allowances and travelling expenses or vouchers that would have been required under section 19P to have been paid or tendered to the prisoner, on service of the subpoena to which the order relates, if he or she were not a prisoner. (2) If, before the time for compliance with the order for production, the person to whom the order relates is released from prison:
(a) the custodian, or a person acting on his or her behalf, must, as soon as practicable, pay or tender to the person the allowances and travelling expenses or vouchers paid or tendered to the custodian under subsection (1); and
(b) the person is not required to comply with the subpoena to which the order relates unless the allowances and travelling expenses or vouchers were paid or tendered to the person, by the custodian or another person, no later than a reasonable time after the time when the person ceased to be in prison.(3) The amount of expenses reasonably incurred by:
(a) the custodian; and
(b) any escort of the person arranged by the custodian; and
(c) any person who keeps the person in custody under subsection 19W (2), other than a person who so keeps the person in custody in the State in which the order was made;
in connection with compliance with the order must be paid by the State in which the order was made.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19W
Custody of prisoner etc.SECT
19W. (1) The custodian of the prisoner, and any escort of the prisoner arranged by the custodian, have:
(a) custody of the prisoner; and
(b) power to do such things as are necessary to ensure that the prisoner is:
(i) produced in compliance with the order; and
(ii) afterwards returned to the prison in which the
prisoner was in prison.(2) Without limiting subsection (1), the custodian or the escort may, in any State, require that a person in charge of a prison in the State:
(a) receive the prisoner and keep the prisoner in custody for such time as the custodian or the escort requires; and
(b) surrender custody of the prisoner to the custodian or the escort at the time and in the manner that the custodian or the escort requires;
and the person so required must comply with such requirements as are reasonable.(3) Subject to any conditions specified in writing by the custodian as conditions to be complied with while the prisoner is outside the State in which he or she was in prison, the provisions of a law in force in the State that relate to the liability of a person who escapes from lawful custody apply to the prisoner while the prisoner is outside the State for the purposes of compliance with the order for production.
(4) Subsection (3) does not apply to lawful custody in respect of an offence against the law of the Commonwealth.
(5) If a prisoner in respect of whom an order for production has been made escapes from lawful custody while the prisoner is, for the purpose of complying with the order for production, outside the State in which he or she was in prison, proceedings in relation to the escape must be taken in the State in which the prisoner was in prison.
(6) A person who is serving a sentence of imprisonment in a State is taken to be serving that sentence while the person is outside the State for the purposes of compliance with an order for production so long as the person remains in the custody of the custodian or escort, or in custody arranged by the custodian or escort.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 4
Division 4-Execution of warrants
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19X
Warrants issued by tribunalsSECT
19X. (1) This Division applies to a warrant issued by or out of a court or an investigative tribunal only if:
(a) the warrant was issued because of non-compliance with subpoena in relation to which leave has been given under section 19M; or
(b) the Supreme Court of the State in which the warrant was issued makes an order under subsection (2).(2) The Supreme Court of a State may make an order authorising the apprehension of a person named in a warrant (not being a warrant mentioned in paragraph (1) (a)) issued in the State because of non-compliance with a subpoena that was served on a person in the State.
Note 1: section 19J places conditions on a court's power to give leave.
Note 2: section 19ZF deals with proceedings that may involve questions of matters of state.(3) An order may be subject to specified conditions.
(4) Where such an order has been made in relation to a warrant:
(a) this Division applies in relation to the warrant subject to the conditions (if any) to which the order is subject; and
(b) the requirement under section 19Z to produce the warrant or a copy of the warrant is taken to include a requirement to produce a copy of the order.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19Y
Person subject to warrant may be apprehendedSECT
19Y. (1) Subject to this Division, the person named in a warrant issued in a State may be apprehended in another State. (2) The person may be apprehended by:
(a) an officer of the police force of the State in which the person is found; or
(b) the Sheriff of that State, or any of the officers of that Sheriff; or
(c) an officer of the police force of the State in which the warrant was issued.(3) It is not necessary to produce the warrant when the person is apprehended.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19Z
Procedure after apprehensionSECT
19Z. (1) As soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended. (2) If the warrant or a copy of the warrant is available, it must be produced to the magistrate.
(3) If the warrant or a copy of the warrant is not produced, the magistrate may:
(a) order that the person be released; or
(b) adjourn the proceedings for such reasonable time, not exceeding 7 days, as the magistrate specifies and remand the person on bail or in such custody as the magistrate specifies.(4) If the warrant or a copy of the warrant is not produced when the proceeding resumes, the magistrate must order that the person be released.
(5) Subject to subsections (7) and (8), if the warrant or a copy of the warrant is produced, the magistrate must order:
(a) that the person be remanded on bail on condition that the person appear at such time and place in the State in which the warrant was issued as the magistrate specifies; or
(b) that the person be taken, in such custody and otherwise as the magistrate specifies, to a specified place in the State in which the warrant was issued.(6) The order may be subject to other specified conditions.
(7) If, on an application by the apprehended person, the magistrate is satisfied that:
(a) the warrant is invalid; or
(b) it would be manifestly unjust or oppressive to make either of the orders referred to in subsection (5);
the magistrate must order that the person be released.(8) If, on an application by the apprehended person, the magistrate is satisfied that it would be manifestly unjust or oppressive for either of the orders mentioned in subsection (5) to be effective immediately, the magistrate must:
(a) make an order under subsection (5) and suspend its operation until a specified time; or
(b) adjourn the proceeding for a specified time;
and order that the person be remanded on bail, or in such custody as the magistrate specifies, until that time.(9) An application may be made at any time to vary an order made under subsection (8).
(10) When a proceeding resumes following an order made under paragraph (8) (b), the magistrate must:
(a) make an order under subsection (5) or (7); or
(b) make an order under paragraph (8) (a) and order that the person be remanded on bail, or in such custody as the magistrate specifies, until a specified time; or
(c) make a further order under paragraph (8) (b) and order that the person be remanded on bail, or in such custody as the magistrate specifies, until a specified time.(11) An order of a magistrate under this section may be executed according to its tenor.
(12) For the purposes of a proceeding under this section:
(a) the magistrate may adjourn the proceeding and remand the person on bail, or in such custody as the magistrate specifies, for the adjournment; and
(b) it is not necessary that a magistrate before whom the proceeding was previously conducted continue to conduct the proceeding.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZA
Procedure on remand on bailSECT
19ZA. (1) Where a magistrate has made an order under paragraph 19Z (5) (a), the magistrate must prepare an instrument setting out the conditions to which the grant of bail is subject. (2) The magistrate and the person the subject of the order must each sign the instrument.
(3) A copy of the instrument must be:
(a) given to the person; and
(b) furnished to the tribunal before which the person has been remanded to appear.(4) If the person:
(a) refuses to sign the instrument; or
(b) does not comply with a condition to which the grant of bail is subject, being a condition precedent to the person's release on bail;
the magistrate must revoke the order and make an order under paragraph 19Z (5) (b).
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZB
ReviewSECT
19ZB. (1) Where an order has been made under section 19Z, the apprehended person or a person to whom the warrant was directed may, within 7 days after the making of the order, apply to the Supreme Court of the State in which the order was made for review of the order. (2) The respondent is to be:
(a) if the application is made by the apprehended person-a person to whom the warrant was directed; or
(b) if the application is made by a person to whom the warrant was directed-the apprehended person.(3) Service of the notice of application on the respondent is to be effected in the same way as notice of an appeal to the Supreme Court of the State in a criminal proceeding would be effected.
(4) If, under the order, the apprehended person is remanded on bail, notice of the application is to be served in the same way on any person providing surety for the granting of bail.
(5) The Supreme Court may, pending its review:
(a) stay the execution of the order; and
(b) order the person to be remanded on bail or in such custody as the court specifies.(6) The review is to be by way of rehearing.
(7) The Supreme Court may confirm, vary or revoke the order and, if it revokes the order, it may make a new order.
(8) The order as confirmed or varied, or the new order, may be executed according to its tenor.
(9) If the order as confirmed or varied, or the new order, is an order that is similar to an order mentioned in paragraph 19Z (5) (a):
(a) the Supreme Court must cause an instrument of the type referred to in subsection 19ZA (1) to be prepared; and
(b) subject to subsection (10), subsections 19ZA (2), (3) and (4) apply.(10) For the purposes of paragraph (9) (b):
(a) a reference in subsection 19ZA (2) to a magistrate is a reference to the person whom this Supreme Court has caused to prepare the instrument; and
(b) a reference in subsection 19ZA (4) to a magistrate is a reference to the Supreme Court.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZC
Custody of person etc.SECT
19ZC. (1) For the purpose of complying with an order made under paragraph 19Z (5) (b), or an order confirmed, varied or made under section 19ZB that is similar to an order mentioned in paragraph 19Z (5) (b), the person to whom the custody of the apprehended person has been committed may, in any State, require that the person in charge of a prison in the State:
(a) receive the apprehended person and keep the apprehended person in custody for such time as the first-mentioned person requires; and
(b) surrender custody of the apprehended person to the first-mentioned person at the time and in the manner that the first-mentioned person requires;
and the person so required must comply with such requirements as are reasonable.(2) The provisions of a law in force in the State in which a warrant was issued that relate to the liability of a person who escapes from lawful custody apply to a person being taken to the State in compliance with an order referred to in subsection (1).
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZD
Release of persons unnecessarily detainedSECT
19ZD. (1) A person taken in custody, pursuant to an order made, confirmed or varied under this Division, to the State in which a warrant was issued for the purpose of giving evidence or producing a document or thing may apply to the Supreme Court of the State for an order that he or she be released from custody. (2) The respondent is to be:
(a) if the investigative tribunal that issues the subpoena to which the order relates is a body corporate or an individual-the tribunal; or
(b) in any other case-the members of the tribunal.(3) Notice of the application must be served on the respondent personally, by post or by facsimile telegraphy.
(4) If the court is satisfied that it is not necessary for the person to be held in custody in order to secure his or her attendance to give the evidence or produce the document or thing, the court may order that the person be released from custody, and the person is to be released accordingly.
(5) The court may further order that the person be remanded on bail on condition that he or she appear, at a specified future time or date, before the investigative tribunal to which the evidence is to be given or the document or thing is to be produced.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZE
Laws applicable to grant of bail etc.SECT
19ZE. (1) The law of a State with respect to the granting of bail applies in relation to a power under this Division to grant bail to:
(a) a person apprehended in that State; or
(b) a person who has applied in that State for an order under section 19ZD;
as if the person had been apprehended under, or by authority of, a law of that State.(2) The law of a State with respect to bail and matters related to bail (including enforcement of bail) applies in relation to a person who has been remanded on bail under this Division under an order made in that State.
(3) Money received in proceedings for the enforcement of bail may be retained by the State in which the bail condition, the breach of which led to the proceedings being brought, was imposed.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - DIVISION 5
Division 5-Miscellaneous
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZF
Matters of stateSECT
19ZF. (1) This section applies to a proceeding if:
(a) it is a proceeding to determine an application to a court for:
(i) leave under section 19M for service of a
subpoena; or
(ii) an order under section 19T in relation to a
subpoena; or
(iii) an order under section 19X in relation to a
warrant concerning a subpoena; and
(b) the court is satisfied that:
(i) the evidence likely to be given by the person to
whom the subpoena is addressed; or
(ii) a document or thing specified in the subpoena;
may constitute or contain evidence relating to matters of state.(2) In a proceeding to which this section applies, the court must not give leave under section 19M or make an order under section 19T or 19X unless the applicant for leave or for the making of the order has given at least 14 days notice of the proceeding, and the issue of the subpoena, to all of the following persons:
(a) the Attorney-General for the Commonwealth;
(b) the Attorney-General for the State in which the investigative tribunal is established;
(c) the Attorney-General for the State in which is located the person to whom the subpoena is addressed.(3) In a proceeding to which this section applies:
(a) the Commonwealth; and
(b) the State in which the investigative tribunal was established; and
(c) the State in which is located the person to whom the subpoena is addressed;
are entitled to intervene.(4) A court may direct that a proceeding to which this section applies is to be held in camera.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZG
Claim of public interest privilege not precludedSECT
19ZG. A claim by a person in proceedings before an investigative tribunal that certain evidence is subject to public interest privilege is not precluded or affected by:
(a) the fact that a court has given leave or made an order under this Part; or
(b) the disclosure of any evidence or matter in the course of proceedings for the giving of such leave or the making of such an order.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 19ZH
Effect on other provisions of this ActSECT
19ZH. Nothing in this Part affects the interpretation of any provisions of any other Part in this Act.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART IV
PART IV-ENFORCEMENT OF CIVIL JUDGMENTS*4**4* Part IV (ss. 20-26)-See Part XIII of the Family Law Act 1975 regarding enforcement of decrees under that Act.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 20
Certificate of judgmentSECT
20. Any person in whose favour a judgment is given or made, whether before or after the commencement of this Act, in a suit by any Court of Record of any State or part of the Commonwealth, may obtain from the prothonotary or registrar or other proper officer of such Court a certificate of such judgment in the form and containing the particulars set forth in the Third Schedule hereto or as near thereto as the circumstances will permit, which certificate such officer is hereby required to grant under his hand and the seal of such Court.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 21
Registration of judgments and proceedings thereunderSECT
21. (1) Upon production of such certificate:
(a) to the prothonotary, registrar, or other proper officer of any Court of like jurisdiction in any other State or part of the Commonwealth; or
(b) if there is no Court of like jurisdiction in such other State or part, to the registrar or other proper officer of a District or County Court or other inferior Court of Record having civil jurisdiction in such State or part;
such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called "The Australian Register of Judgments".(2) From the date of registration the certificate shall be a record of the Court in which it is registered, and shall have the same force and effect in all respects as a judgment of that Court, and the like proceedings (including proceedings in bankruptcy or insolvency) may be taken upon the certificate as if the judgment had been a judgment of that Court, and interest shall be payable thereunder at the rate and from the date set out therein.
(3) No certificate of a judgment shall be so registered after the lapse of twelve months from the date of the judgment, unless leave in that behalf has first been obtained from the Court in which the certificate is proposed to be registered or from a Judge thereof.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 22
Definition of courts of like jurisdictionSECT
22. For the purposes of the last preceding section:
(a) the Supreme Courts of the several States and parts of the Commonwealth are Courts of like jurisdiction to one another;
(b) the District
Courts, County Courts and other Courts of Record of the several States and parts of the Commonwealth having limited civil jurisdiction (other than Courts referred to in the next succeeding paragraph) are Courts of like jurisdiction to one another; and
(c) the Small Debts Courts, Courts of Petty Sessions and other Courts of Record of the several States and parts of the Commonwealth having civil jurisdiction to hear and determine suits in a summary way are Courts of like jurisdiction to one another.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 22A
Costs of proceedings under this ActSECT
22A. (1) The Court in which any such certificate of a judgment has been registered may, upon being satisfied that the registration of the judgment was reasonably justified under the circumstances, order that the plaintiff's costs of registration and other proceedings under this Act, to an amount to be assessed by the Court or Judge, but not exceeding the amount prescribed, be paid by the defendant to the plaintiff. (2) Any such order shall be deemed to be incorporated with the certificate, and the amount payable thereunder to be payable under the certificate.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 23
Execution not to issue unless affidavit of liability filedSECT
23. No execution shall be issued or other proceedings taken upon such certificate unless an affidavit is first filed in the Court out of which it is intended to issue such execution or take such proceedings made by the person in whose favour the judgment was given or made or by some other person cognizant of the facts of the case, stating:
(a) that the amount for which execution is proposed to be issued is actually due and unpaid; or
(b) that an act ordered to be done remains undone; or
(c) that the person ordered to forbear from doing an act has disobeyed the order;
and no execution shall be issued for a larger amount than that sworn to.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 24
Proceedings subject to the control of the CourtSECT
24. The Court in which any such certificate of a judgment has been registered and the Judges thereof shall, in respect of execution upon the certificate and the enforcement of the judgment, have the same control and jurisdiction over the judgment as if the judgment were a judgment of such Court.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 25
Stay of proceedingsSECT
25. (1) The Court in which any such certificate of a judgment has been registered or a Judge thereof may, on the application of any person against whom the judgment has been given or made, order a stay of proceedings on such certificate. (2) Such order may be made on such terms as to giving security, or as to making application to the Court by which the judgment was given or made, to set aside the same, or otherwise, as to the Court or Judge may seem fit.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26
Notification of proceedings upon certificate and of satisfaction of
judgmentSECT
26. (1) When:
(a) any certificate of a judgment is registered in any Court; or
(b) any execution is issued or other proceedings are taken in any Court upon any such certificate; or
(c) satisfaction of the judgment either in whole or in part is entered in any Court upon any such certificate;
the Registrar or other proper officer of that Court shall forthwith notify the same in writing under the seal of the Court to the Registrar or other proper officer of the Court in which the judgment was given or made.(2) When any judgment whereof a certificate has been registered in any Court has been satisfied in whole or in part, the Registrar or other proper officer of the Court in which the judgment was given or made shall forthwith, upon such satisfaction being made or notified as the case may be, enter such satisfaction upon the judgment and notify such satisfaction in writing under the seal of the Court to the Registrar or other proper officer of every other Court in which a certificate of the judgment has been registered, and such satisfaction shall thereupon be entered upon every such certificate.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART IVA
PART IVA-ENFORCEMENT OF FINES IMPOSED BY COURTS OF
SUMMARY JURISDICTION
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26A
InterpretationSECT
26A. (1) In this Part, unless the contrary intention appears:
"constable" means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory;
"Court" means a Court of a State or of a Territory having jurisdiction in relation to the summary trial of all or any offences under the law of the State or Territory, as the case may be;
"discharged", in relation to a fine or part of a fine, means discharged by reason of a payment, remission or pardon, or otherwise;
"facsimile", in relation to a warrant, means a copy of the warrant that has been produced by facsimile telegraphy;
"fine" means a pecuniary penalty imposed by a Court for an offence against a law of the Commonwealth (other than a revenue law) or of a State or Territory, together with any amount (including an amount of costs, compensation or revenue charges) the payment of which by the person on whom the fine was imposed was ordered by the Court in the proceedings in which the fine was imposed;
"gaol" includes a prison, lock-up or other place of detention;
"proclaimed Territory" means the Australian Capital Territory, the Northern Territory or a Territory declared by Proclamation to be a proclaimed Territory for the purposes of this Part;
"revenue law" means a law of the Commonwealth relating to taxation (including duties) that contains special provisions with respect to imprisonment for non-payment of penalties;
"Territory" means the Australian Capital Territory, the Northern Territory or a Territory to which this Act extends or has been applied by the regulations;
"the Clerk", in relation to a Court, means the Clerk or other proper officer of or for the Court;
"warrant of apprehension" means a warrant issued under section 26D for the apprehension of a person;
"warrant of commitment" means a warrant issued under section 26H for the commitment of a person to gaol.(2) References in this Part to a fine shall, in relation to a fine in respect of part only of which a warrant of apprehension has been issued, be read as references to that part only of the fine.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26B
Proclaimed TerritoriesSECT
26B. (1) The Governor-General may, by Proclamation, declare a Territory to be a proclaimed Territory for the purposes of this Part. (2) The Governor-General may, by Proclamation, revoke the declaration under this section of a Territory as a proclaimed Territory for the purposes of this Part, but such a Proclamation shall not have effect until a date specified in the Proclamation, being a date not less than six months after the publication of that Proclamation in theGazette .
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26C
Constitution of CourtsSECT
26C. The jurisdiction of a Court for the purposes of this Part may be exercised by the Court constituted by any person (other than a single Justice of the Peace sitting as such) or persons competent to exercise the jurisdiction of the Court in any other matter.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26D
Issue of warrants of apprehensionSECT
26D. (1) Where:
(a) a Court of a State or of a Territory that is a proclaimed Territory has, whether before or after the commencement of this Part, imposed a fine on a person;
(b) the liability of the person to pay the fine has not been fully discharged;
(c) the amount owing in respect of the fine is or includes an amount by reason of the non-payment of which a warrant for the commitment to gaol of the person on whom the fine was imposed:
(i) has been issued and is subsisting; or
(ii) could be issued without further order of a Court;
and
(d) the Clerk of the Court by which the fine was imposed or a Justice of the Peace for the State or Territory in which the fine was imposed has reason to believe that the person on whom the fine was imposed may be in a State or proclaimed Territory other than the State or Territory in which the fine was imposed;
the Clerk or Justice may issue a warrant for the apprehension of the person on whom the fine was imposed by reason of the non-payment of the amount referred to in paragraph (c).(2) A warrant of apprehension shall be substantially in accordance with Form 1 in the Fourth Schedule to this Act and shall be addressed to all constables in the State or Territory in which it is believed the person concerned may be.
(3) Where, after a warrant of apprehension has been issued in respect of a person and before the warrant is executed, the liability of the person to pay the fine is fully discharged, the Clerk of the Court by which the fine was imposed may take such steps as he considers necessary to withdraw the warrant.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26E
Execution of warrant of apprehensionSECT
26E. (1) A warrant of apprehension is sufficient authority to any constable to whom it is addressed to execute the warrant in accordance with this section. (2) Where a constable who is authorized to execute a warrant of apprehension in a State or Territory finds in that State or Territory the person for whose apprehension the warrant is issued, he shall give the person an opportunity of forthwith paying to the constable the whole of the unpaid amount in respect of the fine as specified in the warrant.
(3) If the person so pays the whole amount forthwith, the constable shall not apprehend the person but shall cause the warrant to be returned to the Clerk of the Court by which the fine was imposed, together with the amount paid to him.
(4) If the person does not so pay the whole amount forthwith, the constable may apprehend the person, in which event the constable shall bring the person, as soon as practicable, before a nearby Court in the State or Territory in which the apprehension takes place and deliver the warrant to the Clerk of that Court.
(5) A constable apprehending a person under this section shall produce the warrant of apprehension to that person at the time of, or as soon as practicable after, the apprehension and, if the warrant , or a facsimile of the warrant, has not been produced at the expiration of forty-eight hours after the apprehension or of such longer time as may, before the expiration of that time, be fixed by a Justice of the Peace and the person has not been released from custody by virtue of another provision of this Part, he shall forthwith be released from custody, but any such release does not prevent the further apprehension of the person under the warrant by any constable to whom it is addressed who is in possession of the warrant and produces it at the time of the apprehension.
(6) The laws of a State or Territory relating to the custody of persons charged with summary offences, including laws relating to remanding in custody, granting of bail and entering into and forfeiture of recognizances, shall apply and be applied as far as they are applicable to and in relation to a person apprehended in that State or Territory in pursuance of this section as if he had been apprehended for a summary offence against the laws of that State or Territory.
(7) Where, during the detention in custody of a person in pursuance of the last preceding subsection, the liability of the person to pay the fine to which the warrant of apprehension relates is fully discharged, the person shall forthwith be released.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26F
Proceedings before CourtSECT
26F. (1) Where a person is brought, or appears, before a Court in accordance with the last preceding section:
(a) if the Court is satisfied that the person before the Court is the person on whom the fine was imposed and is not satisfied that the liability of the person to pay the fine has been fully discharged, the Court shall, subject to subsection (4), order that, by reason of non-payment of the fine or of the part of the fine that remains unpaid, the person be committed to gaol to serve such period of imprisonment as is specified in the order, being a period ascertained in accordance with subsection (3), unless he is sooner released in accordance with law; or
(b) in any other case, the Court shall, subject to subsection (6) of the last preceding section, order the discharge of the person.(2) For the purposes of this section, the Court may presume that the person before the Court is the person on whom the fine was imposed if the person before the Court does not adduce evidence that he is not the person on whom the fine was imposed.
(3) The period of imprisonment to be specified in an order under this section is:
(a) the period of imprisonment specified in the warrant of apprehension or the period of six months, whichever is the shorter; or
(b) if an amount has been paid or remitted in respect of the fine after the issue of the warrant of apprehension and before the making of the order of committal under this section-the period that bears to the period that would have been specified but for the payment or remission the same proportion as the amount that is payable in respect of the fine at the time of the making of the order of committal under this section bears to the amount specified as unpaid in the warrant of apprehension, any fraction of a day being disregarded.(4) A Court of a State or Territory having powers in relation to a person under this section may:
(a) suspend the execution of an order of committal for the purpose of allowing the person time for payment of the amount payable in respect of the fine or of allowing him to pay the amount by specified instalments or for any other reason; and
(b) exercise such other powers in relation to the person as the Court has in the case of a person charged with an offence against the law of that State or Territory.(5) In proceedings under this section, the Court shall not make any order as to the costs of the proceedings.
(6) In proceedings under this section:
(a) a warrant of apprehension is evidence of the facts stated in the warrant; and
(b) a document purporting to be a warrant of apprehension shall, unless the contrary is proved, be deemed to be such a warrant and to have been duly issued.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26G
Review of orders of committalSECT
26G. (1) Where any person is aggrieved by any order or by the exercise of any power under the last preceding section, such person may apply to a Judge of the Supreme Court of the State or Territory in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order. (2) A Judge to whom an application is made for the review of an order may:
(a) order the release on bail of the apprehended person on such terms and conditions as the Judge thinks fit; or
(b) direct that the apprehended person be kept in such custody as the Judge directs in the State or Territory of the Commonwealth in which the person was apprehended until the order has been reviewed.(3) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.
(4) For the purposes of a review under this section, a copy of a public document or of a document filed in a Department or office of the Commonwealth or of a State or Territory of the Commonwealth, certified to be a true copy of the document by the person purporting by the certificate to have charge of the document, shall be received as evidence of the facts stated in the copy.
(5) Upon the review of an order, the Judge may confirm or vary the order, or quash the order and order the discharge of the person, and may make such other order (including an order as to the costs of the review) as the Judge thinks proper.
(6) An order as confirmed or varied shall have effect according to its tenor as an order of the Court before which the person apprehended was brought or appeared in accordance with section 26E.
(7) A warrant of commitment issued in pursuance of an order as confirmed or varied under this section shall make appropriate reference to the review under this section and to the confirmation or variation, as the case may be.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26H
Issue of warrant of commitmentSECT
26H. (1) Where, under this Part, a Court of a State or Territory orders the committal of a person to gaol, the Clerk of the Court or a Justice of the Peace of the State or Territory may issue a warrant accordingly, substantially in accordance with Form 2 in the Fourth Schedule to this Act, for the commitment of the person to a gaol in which offenders against the laws of that State or Territory may be confined. (2) Where, after the making of an order of committal under this Part by reason of non-payment of an amount in respect of a fine and before the issue of a warrant of commitment in pursuance of the order, a pardon is granted in respect of the relevant offence or any payment is made, or any remission is granted, in respect of the fine:
(a) in a case where a pardon is granted or the whole of the amount in respect of which the order was made is paid or remitted-the order shall be deemed to be discharged; and
(b) in a case where part only of the amount in respect of which the order was made is paid or remitted-the order shall operate as if it directed imprisonment for a period equal to the period that would, in accordance with paragraph (b) of subsection (3) of section 26F, have been the period of imprisonment ordered if the payment had been made, or the remission had been granted, before the making of the order of committal, and the warrant of commitment issued in pursuance of the order shall be expressed accordingly.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26J
Payment of fine after issue of warrant of apprehensionSECT
26J. (1) Subject to subsection (2), payment of an amount in respect of a fine may be made to, and received by, the constable executing a warrant of apprehension issued in relation to the fine, a person having the custody of the person liable to pay the fine, the Clerk of the Court before which the person liable to pay the fine has been taken in pursuance of such a warrant of apprehension or has appeared in pursuance of this Part or the keeper of the gaol in which the person liable to pay the fine is imprisoned in pursuance of this Part. (1A) Subject to subsection (2), payment of an amount in respect of a fine in relation to which a warrant of commitment has been issued under section 26H may be made to, and received by, the constable executing the warrant before the constable takes the person liable to pay the fine into custody.
(1B) Where a payment is received by a constable under subsection (1A), the constable must not execute the warrant of commitment but must return it to the Clerk of the Court that made the order of committal at the same time as the constable forwards the amount of the payment to the Clerk under subsection (4).
(2) Payment of part only of the unpaid amount referred to in a warrant of apprehension or a warrant of commitment shall not be received by the constable executing that warrant.
(3) Where, at the time when a payment is received in accordance with this section, no order of committal has been made under this Part in respect of the fine, the amount of the payment shall be forwarded to the Clerk of the Court that imposed the fine.
(4) Where a payment is made in accordance with this section after the making of an order of committal under this Part:
(a) if the person receiving the payment is a person other than the Clerk of the Court that made the order of committal, he shall forward the amount of the payment to that Clerk; and
(b) that Clerk shall forward the amount of the payment, when it is received by him, whether directly or by virtue of the last preceding paragraph, to the Clerk of the Court by which the fine was imposed.(5) Where, after a warrant of apprehension has been issued in respect of a person and before his liability to pay the fine to which the warrant relates has been discharged or the warrant has been withdrawn, the whole or any part of the fine is paid to a person in the State or Territory in which the fine was imposed, other than the Clerk of the Court by which the fine was imposed, the person to whom the payment is made shall forthwith inform the Clerk of that Court of the payment.
(6) Where, after a person is brought, or appears, before a Court by virtue of a warrant of apprehension issued in respect of the person and before his liability to pay the fine to which the warrant relates has been discharged or the warrant has been withdrawn:
(a) a pardon is granted to the person in respect of the relevant offence;
(b) the whole or any part of the fine is remitted;
(c) the whole or any part of the fine is paid to the Clerk of the Court by which the fine was imposed; or
(d) the Clerk of the Court by which the fine was imposed is informed in accordance with the last preceding subsection that the whole or a part of the fine has been paid to another person;
the Clerk of the Court by which the fine was imposed shall forthwith inform the Clerk of that first-mentioned Court of the pardon, remission or payment, as the case requires.(7) Where:
(a) by virtue of the issue of a warrant of apprehension, a person has been brought, or has appeared, before a Court in accordance with section 26E; and
(b) after the issue of the warrant of apprehension and before the issue of a warrant of commitment in respect of the person, a pardon has been granted to the person in respect of the relevant offence or any remission has been granted, or any payment has been made, in respect of the fine to the Clerk of the Court by which the fine was imposed or to any other person in the State or Territory in which the fine was imposed;
then, for the purposes of this Part, the pardon or remission shall be deemed to have been granted, or the payment shall be deemed to have been made, as the case may be, at the time when the Clerk of the Court before which the person was brought or appeared is informed of the pardon, remission or payment by the Clerk of the Court by which the fine was imposed.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26K
Person liable to pay two or more fines etc.SECT
26K. Where the keeper of a gaol is in possession of a warrant of commitment authorizing the imprisonment by him of a person under this Part and is also in possession of another warrant or other warrants (whether under this Part, under any other law of the Commonwealth or under a law of a State or Territory of the Commonwealth) authorizing the imprisonment by him of the same person, any imprisonment of that person by that keeper shall be taken to be imprisonment under the warrant under this Part, or under each of the warrants under this Part, as the case may require, until that warrant or those warrants have been fully executed, whether or not the imprisonment is also taken into account as imprisonment under any other warrant.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26L
Release of person from prison on payment of fine etc.SECT
26L. (1) Where a person is in gaol under the authority of a warrant of commitment and:
(a) the Clerk of the Court by which the order of committal was made informs the keeper of the gaol that a pardon has been granted to the person in respect of the relevant offence or that the whole of the unpaid amount specified in the warrant has been remitted; or
(b) the whole of that unpaid amount is paid;
the keeper of the gaol shall release the person unless he is in custody for some other cause.(2) Where a person is in gaol under the authority of a warrant of commitment and:
(a) the Clerk of the Court by which the order of committal was made informs the keeper of the gaol that a part of the unpaid amount specified in the warrant has been remitted; or
(b) a part of that unpaid amount is paid;
the period of imprisonment specified in the warrant shall be deemed to be reduced so that it will be equal to the period of imprisonment that would have been specified in the warrant if the payment or remission had been taken into account at the time of the issue of the warrant as a payment or remission made before the issue of the warrant, and the keeper of the gaol shall release the person on the expiration of the period as so reduced, or, if the period as so reduced has expired, forthwith, unless he is in custody for some other cause.(3) An amount paid to a person other than the keeper of the gaol shall not be taken into account for the purposes of this section until the Clerk of the Court by which the order of committal was made informs the keeper of the gaol of the payment.
(4) Where:
(a) a person is in gaol under the authority of a warrant of commitment; and
(b) the whole or a part of the fine to which the warrant relates is paid to the Clerk of the Court by which the order of committal was made or the Clerk of that Court is satisfied that:
(i) the whole or a part of the fine has been paid to
another person (other than the keeper of the gaol) or has been remitted; or
(ii) a pardon has been granted in respect of the
relevant offence;
the Clerk of that Court shall forthwith inform the keeper of the gaol of the payment, remission or pardon, as the case may be.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26M
Effect of imprisonmentSECT
26M. Where a person has been imprisoned under this Part by reason of failure to pay an amount in respect of a fine, he is, upon the termination of that imprisonment, discharged, by force of this section, from any liability to pay that amount or any part of that amount remaining unpaid, and from any liability to be imprisoned (whether under the law of a State or Territory, under this Part or under any other law of the Commonwealth), by reason of non-payment of that amount or of any part of that amount remaining unpaid.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26N
Juveniles not to be imprisonedSECT
26N. (1) A Clerk or Justice of the Peace shall not issue a warrant of apprehension under this Part in respect of a person whom he has reason to believe may be under the age of eighteen years. (2) A constable shall not, under a warrant of apprehension under this Part, apprehend a person whom he has reason to believe may be under the age of eighteen years.
(3) A Court shall not, under this Part, order the committal to gaol of a person where the Court is satisfied that the person is under the age of eighteen years.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26P
Conditions of imprisonmentSECT
26P. The laws of a State or Territory with respect to:
(a) the conditions of imprisonment of persons imprisoned in that State or Territory by reason of default in the payment of fines imposed under the laws of that State or Territory;
(b) the treatment of such persons during imprisonment; and
(c) the transfer of such persons from gaol to gaol;
apply, so far as they are applicable, in relation to persons imprisoned in that State or Territory in pursuance of this Part.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26Q
Application of Removal of Prisoners (Territories) ActSECT
26Q. The Removal of Prisoners (Territories) Act 1923-1962 applies, with such modifications and adaptations as are prescribed, to and in relation to a person for whose imprisonment an order has been made under this Part by a Court in a Territory in like manner as it applies to and in relation to a person who has been sentenced to imprisonment in that Territory.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 26R
SavingSECT
26R. Nothing in this Part affects the operation of any other Part of this Act.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - PART V
PART V-RULES AND REGULATIONS
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 27
Rules of CourtSECT
27. (1) The powers of a Judge or Judges, or of another authority, under the law of a State or part of the Commonwealth, to make rules of court in relation to the Supreme Court of that State or part extend, by force of this Act, to the making of rules of court for prescribing:
(a) the practice and procedure in connexion with the service of the process of the Courts of that State or part of the Commonwealth under this Act;
(b) the practice and procedure in connexion with the execution and enforcement by the Courts of that State or part of the Commonwealth of the process and judgments of the Courts of other States and parts of the Commonwealth;
(c) the fees to be paid in connexion with the service of the process of the Courts of that State or part of the Commonwealth under this Act;
(d) the fees to be paid in connexion with the execution and enforcement under this Act by Courts of that State or part of the Commonwealth of the process and judgments of the Courts of other States and parts of the Commonwealth;
(e) the costs to be allowed to a person upon the execution or enforcement under this Act by the Courts of that State or part of the Commonwealth of a judgment or other process of another State or part of the Commonwealth; and
(f) the manner of recovery of any such fees or costs.(2) So far as rules of court made under the last preceding subsection do not prescribe matters referred to in that subsection, the practice and procedure shall be:
(a) in connexion with the service of process-the practice and procedure that would be applicable to service in the State or part of the Commonwealth in which the process was issued; or
(b) in connexion with the execution and enforcement of process and judgments-the practice and procedure applicable in the State or part of the Commonwealth in which the execution or enforcement is effected.(3) Rules of court made by virtue of this section shall not be deemed to be statutory rules within the meaning of theRules Publication Act 1903-1939.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SECT 28
RegulationsSECT
28. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for applying this Act, with or without modification, to, or in relation to, a Territory not specified in subsection (1) of section 2.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SCHEDULE 2 SCH
SCHEDULES
SECOND SCHEDULE Section 18
State of Queensland* to wit)
INDORSEMENT ON WARRANT
WHEREAS proof upon oath has this day been made before me that
the name of J.S. subscribed to the within warrant is in the
handwriting of the
within-mentioned (Justice of the Peace of the State of New South
Wales*), I hereby authorize W.T., who brings me this warrant, and all
other persons to whom this warrant was originally directed or by whom
it may be lawfully executed, and also all constables and other peace
officers of the (State of Queensland*), to execute this warrant
within the (State of Queensland*), and to bring the said A.B., if
apprehended within the (State of Queensland*), before me or before
some (Justice of the Peace of the State of Queensland*) to be dealt
with according to law.
Given under my hand this day of ,
One thousand nine hundred and .
J.L.,
A Justice of the Peace of the (State of Queensland*)
*Or as the case may be.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SCHEDULE 3 SCH
THIRD SCHEDULE Section 20
CERTIFICATE OF JUDGMENT
IN the
Court of
Title of suit and date of commencement
Form or nature of suit
Name and addition of party to whom payment is to be made
or in whose favour judgment is given or made
Name and addition of party ordered to pay money, or
to do or not to do any act
Date of judgment
Abstract of judgment stating amount (if any)
ordered to be paid, the rate of interest
(if any) payable thereon, and the date from which
it is payable, and particulars of any act
ordered to be done or not to be done
Date of trial and amount of verdict, if any I certify that this certificate correctly and fully sets forth
the particulars of a judgment given in this Court, on the
day of , in a suit wherein A.B. was plaintiff and C.D. was
defendant (or as the case may be).
Dated this day of 19 .
(Prothonotary, Registrar, or other proper officer.)
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SCHEDULE 4 SCH
FOURTH SCHEDULE
FORM 1 Section 26D
COMMONWEALTH OF AUSTRALIA
Service and Execution of Process Act 1901-1963
WARRANT OF APPREHENSION
To all members of the Police Force of the State (or Territory)
of
and all Commonwealth Police Officers in that State (or Territory).
Whereas
then of ,
(hereinafter referred to as "the said convicted person")
was on the day of , 19 ,
convicted by (name of Court),
at
in the State (or Territory) of , of the
offence of (short description of nature of
offence) and it was adjudged by the Court that he pay for his offence
a fine of
together with (set out particulars of other amounts (including costs)
in respect of non-payment of which the warrant
is issued):
And whereas the amount
of still remains unpaid in respect of the said fine
and other amounts so adjudged to be paid:
And whereas, by reason of non-payment of the said unpaid
amount, the said convicted person is liable to be committed to gaol
for a period of :
And whereas it appears to me that the said convicted person may be
in the State (or Territory) of and may be found at :
These are therefore to authorize and command you to find the said
convicted person in the last-mentioned State (or Territory) and
having so found him-
(a) to produce this warrant to him;
(b) to give him an opportunity of forthwith paying to you the whole
of the said unpaid amount; and
(c) if he does not forthwith pay the whole of the said amount to
you, to apprehend him and bring him before a nearby Court of Summary
Jurisdiction, to be dealt with according to law:
These are also to command you, if the said convicted person pays
the whole of the said unpaid amount to you, to send the amount so
paid to the Clerk of the abovementioned Court.
Given under my hand at this day of ,
19.
Clerk of the (name of court) or Justice of the Peace.
FORM 2 Section 26H
COMMONWEALTH OF AUSTRALIA
Service and Execution of Process Act 1901-1963
WARRANT OF COMMITMENT
To all members of the Police Force of the State (or Territory) of
and all Commonwealth Police Officers in that State (or Territory) and
to the Keeper of the Gaol at in the State
(or Territory).
Whereas
of
(hereinafter referred to as "the said convicted person")
was on the day of , 19 ,
convicted by (name of Court)
at in the State (or Territory) of , of the
offence of (short description of nature of offence) and it was
adjudged
by the said Court that he pay for his offence a fine of together with
(set out particulars of other amounts (including costs) specified
in the Warrant of Apprehension):
And whereas the said convicted person on the day of , 19 , was
brought (or appeared) before the
(name of Court) in accordance with Part IVA of the Service and
Execution of Process Act 1901-1963 of the Commonwealth of Australia:
And whereas, it appearing to the last-mentioned Court that an
amount of still remained unpaid in respect of
the said fine and other amounts so adjudged to be paid, it was
ordered by that Court that, by reason of non-payment of the said
amount, the said convicted person be committed to gaol to serve a
period of imprisonment of days unless sooner
released in accordance with law:
* And whereas, by reason of a payment or payments made, or a
remission granted, in respect of the said fine and other amounts, the
unpaid amount is now and the period for
which the said convicted person is now liable to be imprisoned in
pursuance of the said order has been reduced to
days:
* Strike out this paragraph if inapplicable.
These are therefore to authorize and command-
(a) you, the said police officers, to convey the said convicted
person to the gaol at in the State (or Territory) of
and deliver him to the Keeper of the said gaol together with this
warrant; and
(b) you, the said Keeper, to receive the said convicted person into
your custody in the said gaol and there to imprison him for the
period
of days unless in the meantime you are required to release him in
accordance with section 26L of the Service and Execution of Process
Act
1901-1963.
Given under my hand at this day of , 19 .
Clerk of the (name of court) or Justice of the Peace.
SERVICE AND EXECUTION OF PROCESS ACT 1901 - SCHEDULE 5 SCH
FIFTH SCHEDULE
FORM 1 Section 19N
COMMONWEALTH OF AUSTRALIA
Service and Execution of Process Act 1901
NOTICE TO WITNESS
YOU SHOULD READ THIS DOCUMENT VERY CAREFULLY
IF YOU HAVE ANY TROUBLE UNDERSTANDING IT YOU SHOULD GET LEGAL ADVICE
AS SOON AS POSSIBLE
Attached to this notice is a subpoena issued by the (1)
Leave to serve the subpoena outside (2)
has been given by the Supreme Court of (2)
Service of this subpoena outside (2)
is allowed by the Service and Execution of Process Act 1901.
YOUR OBLIGATIONS
You must obey the subpoena if:
(a) you received the subpoena before (3) ; and
(b) you have been paid or there has been tendered to you, not
later than a reasonable time before the date for compliance with the
subpoena, allowances and travelling expenses or vouchers sufficient
to meet your reasonable expenses in complying with the subpoena.
Where the subpoena only requires production of a document or
thing, no attendance is required by you before the (1)
if you produce the document or thing specified in the subpoena to the
(4)
of the (5)
not less than 24 hours prior to (6)
Instructions:
1. insert the name of the tribunal or court of issue.
2. insert the name of the State or Territory of issue.
3. insert the date by which the Supreme Court has required
service of the subpoena.
4. insert the title of the office of the chief executive officer of
the tribunal.
5. insert the name of the tribunal before which
compliance with the subpoena is required.
6. insert the date for compliance with the subpoena.
FORM 2 Section 19U
COMMONWEALTH OF AUSTRALIA
Service and Execution of Process Act 1901
NOTICE TO WITNESS
YOU SHOULD READ THIS DOCUMENT VERY CAREFULLY
IF YOU HAVE ANY TROUBLE UNDERSTANDING IT YOU SHOULD GET LEGAL
ADVICE AS SOON AS POSSIBLE
Attached to this notice is a subpoena issued by the (1)
Service of this subpoena outside (2)
is allowed by the Service and Execution of Process Act 1901.
YOUR OBLIGATIONS
You must obey the subpoena if:
(a) you are released from prison or the place in which you
are detained at a time sufficiently prior to the date for compliance
with the subpoena to make compliance with the subpoena reasonably
practicable; and
(b) you have been paid, or there has been tendered to you, not
later than a reasonable time after your release, allowances and
travelling expenses or vouchers sufficient to meet your reasonable
expenses in complying with the subpoena.
Instructions:
1. insert the name of the tribunal or court of issue.
2. insert the name of the State or Territory of issue.
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