INTRODUCTION
1.1 This is the third report in the Community Law Reform Program. The Program was established by the then Attorney General the Hon F.J. Walker, Q.C., M.P., by letter dated 24 May 1982 addressed to the Chairman of the Commission. The letter included the following statement:
This letter may therefore be taken as an authority to the Commission in its discretion to give preliminary consideration to proposals for law reform made to it by members of the legal profession and the community at large. The purpose of preliminary consideration will be to bring to my attention matters that warrant my making a reference to the Commission under s.10 of the Law Reform Commission Act, 1967.
1.2 The Commission wrote on 9 June 1982 seeking its first Community Law Reform references. By letter of reply dated 28 July 1982 the Attorney General referred three matters to the Commission the second of which is the subject of this report. The first two reports were handed to the Attorney General respectively, on 8 February and 15 February 1983. The present reference requires the Commission to inquire and report in the following terms:
Service of Civil Process on Sundays
The law relating to the service of civil process on Sundays and, in particular, without limiting the foregoing the service of initiating process issued out of a civil court and the service of subpoenas.
Any matter incidental to the foregoing ...
The background of the Community Law Reform Program is described in greater detail in the Commission’s Annual Report for 1982.
LAW REGULATING SERVICE OF CIVIL PROCESS ON SUNDAY
1.3 The present law in New South Wales regulating the service of civil process on Sunday, and its background, are described in detail in Chapter 3. The primary provision is section 41 of the Imperial Acts Application Act, 1969 which provides:
Service of any writ, process, warrant, order, judgment or decree (except in case of an offence, breach of the peace or any warrant, writ or process for the apprehension of any person) upon a Sunday shall be void.
Section 41 is, in modern form, a re-enactment of section 6 of the English statute entitied the Sunday Observance Act 1677.
WHAT IS CIVIL PROCESS?
1.4 Not all texts define the word “process” in the context of legal proceedings in the same way. The following definition is given in Jowitt’s Dictionary of English Law:2
Process, the proceedings in any action or prosecution real or personal civil or criminal from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof by which the rest is directed.
In civil actions process is of two kinds, viz., process against the defendant being either process to compel him to appear, now consisting of a writ of summons or originating summons, or process of execution, by which the judgment, decree, etc., is executed or carried into effect ... and process against persons not parties to the action e.g. process to summon jurors, witnesses, etc.
The first paragraph of this definition was cited with approval by Mr Justice Gibbs (as he then was) in Boilermakers Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty. Ltd.3 Mr. Justice Jeffries and Mr. Justice Lucas agreed with Mr. Justice Gibbs' reasoning. His Honour continued:
In its broader sense it [the word “process” includes all proceedings in the course of litigation but in its narrower sense it is restricted to refer to the summons writ or other mandate by which a person is brought into court and the litigation is formally commenced.4
For the purposes of this report we use the term “process” to include not only documents initiating legal proceedings, but also documents, such as subpoenas issued in the course of proceedings. In addition we use the term to apply to documents relating to the execution of judgments or orders of the court, but not to the act of execution itself.
1.5 Our terms of reference refer to the service of “civil process”. In this report we use that expression to refer to process employed in civil proceedings, as distinct from “criminal process”, which is employed in criminal proceedings, It is important to emphasise that under New South Wales law it is already lawful to serve criminal process on Sundays. This contrasts with the fact that generally it is not lawful to serve civil process on that day, although there may be exceptions even to this rule.
1.6 Section 41 of the Imperial Acts Application Act, 1969, speaks neither of “civil process” nor “criminal process”. It makes void the service on Sunday
of any writ process, warrant, order, judgment or decree (except in case of an offence, breach of the peace or any warrant, writ or process for the apprehension of any person).
The exceptions in section 41 may extend to legal process other than that normally associated with criminal proceedings. For example, it may be that a “warrant, writ or process for the apprehension of any person” includes process related to civil proceedings aimed at the committal of a person for contempt of court, or for not doing or not abstaining from doing an act in accordance with a judgment of the court.5 It may also be that such process should be called “civil process”. If this is the case, it would be correct to say that section 41 also makes lawful the service on Sunday of some civil process.6 However, it is not necessary to analyse in detail the precise limits of the various exceptions in section 41. The recommendations in this report, if accepted, will permit service of all process on Sunday.
THE ISSUE FOR LAW REFORM
1.7 The immediate reason for the Commission giving preliminary consideration to the subject matter of this report was a request from the Attorney General following his receipt of a letter from a corporate member of the Institute of Mercantile Agents. This company is engaged in the business of service of Legal process and submitted to the Attorney General that the present law prohibiting in New South Wales the service of civil process on Sunday should be repealed. The submission argued that recent years have seen substantial changes in social attitudes in Australia towards commercial activity and public entertainment on Sunday, a wider range of activity now being regarded as permissible. The submission suggested that the time has arrived for reform of the law so as to reflect these changes.
1.8 Ignoring social considerations for the moment and focusing solely on the words of section 41, we again draw attention to the f act that that section envisages that certain types of legal process may be served in New South Wales on Sunday. Even the English Act of 1677 permitted the service of some legal process on Sunday.7 The service of all process issued out of a number of courts established by Commonwealth legislation is also lawful on Sunday.8 As discussed elsewhere in this report9 legal process that may already be lawfully served in New South Wales includes the following:
(i) all criminal process issued out of New South Wales courts;
(ii) process “for the apprehension of any person” issued out of New South Wales courts, which appears to include some process properly described as “civil”10 and
(iii) all process of the Federal Court of Australia (including bankruptcy notices and bankruptcy process) and the Family Court of Australia.
The critical question in this reference may be narrowly stated. Some civil process may now be served on Sunday, namely, that included in the scope of subparagraphs (ii) and (iii) above. Should other, or all civil process be permitted to be served on that day? In short should section 41 of the Imperial Acts Application Act 1969 be amended or repealed General issues of Sunday observance and business activity are not here involved, although in our view some understanding of the background and history of Sunday observance assists in examining the question which arises.11
UNDERLYING PRINCIPLE
1.9 Civil proceedings are normally commenced by filing in court a formal document such as a statement of claim or a summons, followed by service of that document on the defendant. There can be no justification for a general prohibition of service of originating process, or any other process, on a particular day or at particular hours, unless there is good reason, for example, that the act of service conflicts with established community opinion. The succeeding chapters show that the Commission’s inquiry has revealed no good reason for the continuation in New South Wales of section 41 of the Imperial Acts Application Act 1969.
1.10 The principles and conclusions underlying our recommendations are discussed in Chapters 5 and 6. They include recognition that there is a world-wide (but not universal acceptance of Sunday as a day of rest for citizens from normal weekday activities and that this acceptance is a characteristic of the New South Wales community, further, that under modern conditions. Sunday is a day of rest for secular rather than religious reasons. Correlative conclusions are that the community accepts the entitlement of any member to choose to work on Sunday, conversely, however, the “right” to have Sunday as a day of rest and leisure does not mean that a citizen necessarily has an entitlement to immunity or freedom from unwanted or unpleasant experiences, for example, service of legal process.
1.11 In Chapter 6 we discuss a number of positive reasons for permitting the service of civil process on Sunday. These include the desirability of uniform legal rules within New South Wales. This is a significant point in view of the substantial quantity of State process and Federal process that may already be served on Sunday and the inconsistency between the rules governing the service of much Federal civil process and State civil process.12 Other positive reasons for reform are the general relaxation in recent years of statutory restrictions on commercial and other activity on Sunday, and the recurrent necessity in urgent matters for courts to grant injunctions and make orders permitting service of process outside normal business hours.
PARLIAMENTARY COUNSEL
1.12 In relation to this report, as with the first and second reports in the Community Law Reform Program, we are indebted to Parliamentary Counsel, Mr D R Murphy. We wish to record our thanks to him for assistance and advice on the form and content of the draft legislation submitted with this report in the Appendix.
FOOTNOTES
1. Section 6 of The Sunday Observance Act 1677 is set out in para 2.18.
2. (2nd ed 1977), vol 2, pp-1438-1439; see also Stroud’s judicial Dictionary (4th ed 1974). Vol 4, pp. 2129-213.
3. [1965] Qd R. 598.
4. Id, at p.605. The judgment of Gibbs J. Was applied by menhennitt J. In Aurel Jorras Pty. Ltd. v. Graham Karp Developments Pty. Ltd. [1975] V.R. 202, at p.218.
5. See Supreme Court Rules, 1970, Parts 42, 55.
6. See, however, W. Tidd, The Practice of the Courts of King’s Bench and Common Pleas (1828), vol 1, p.218. for analysis of s.6 of The Sunday Observance Act 1677 (paras. 1.3, 2.18) in relation to this question. The author suggests that” process of contempt [is] of a criminal nature”.
7. See para 2.18.
8. See Chapter 3 and Table to that Chapter.
9. Paras 1.5, 1.6, 6.4 - 6.7.
10. See para. 1.6.
11. See Chapter 2.
12. See paras 1.3, 1.6, 1.8, 3.4-3.11.
