PREVIOUS WORK OF THIS COMMISSION
3.1 In November 1967 this Commission presented a report on Imperial (British) Acts still in force in New South Wales.1 Some provisions of the Imperial Acts described in the report were plainly still in force in New South Wales, while the status of others was less obvious because of inappropriate language, obsoleteness or other reasons. The report discussed, inter alia, The Sunday Observance Act 1625,2 The Sunday Observance Act 1627,3 and The Sunday Observance Act 1677.4 The Sunday Observance Act 1780 had been repealed in the preceding year by the Sunday Entertainment Act 1966.5
3.2 This Commission took the view that the 1625 Act did not apply in New South Wales because its application depended upon the existence of parishes in the English sense and in any event it appeared to have been repealed in part by the Sunday Entertainment Act, 1966, section 7.6 The 1627 Act was therefore considered to be obsolete.7
3.3 The Act of 1677 related to Sunday trading and labour generally. In Ex parte Rogerson, an 1888 decision of the Full Court of the Supreme Court of New South Wales, the 1677 Act was held to be in force in New South Wales, in addition to a local statute restricting Sunday trading.8 In our 1967 report we made the following comment on the 1677 Act:
The only portion of the Statute which we recommend for reproduction is that portion of section 6 which relates to service of process on the Lord s Day.9
No detailed reasons were provided for this recommendation In the event, our recommendation was accepted, and the 1677 Act was repealed by the Imperial Acts Application Act 1969.10 Section 41 of the 1969 Act effectively reproduced section 6 of the 1677 Act.11 At the time of our report neither the Federal Court nor the Family Court had been created by the Commonwealth and in general there were few exceptions to the rule prohibiting service of civil process on Sunday.
NEW SOUTH WALES - PRESENT LEGAL RESTRICTION ON ACTIVITIES ON SUNDAY
Service and Execution of Legal Process
Courts of the State of New South Wales
3.4 Criminal process be served and executed in New South Wales on Sunday.12
3.5 Subject to the matters mentioned in paragraph 1.6 no civil process of the Supreme Court,13 District Court,14 or a Local Court15 may be served on Sunday. Civil process of the Supreme Court and Local Courts may be executed on Sunday, but execution of civil process of the District Court on that day is forbidden by the District Court Rules.16
3.6 It has been suggested in one text that the word “service” in section 41 of the Imperial Acts Application Act, 1969 may include “execution”.17 if this were so the result would be to prohibit execution of process on Sunday. We do not think this interpretation is correct, since there is a clear distinction between the procedures involved in service and those involved in execution This distinction is recognised by the Supreme Court Rules. The respective writs covered by the expression “writ of execution” in Part 44 rule 2 are each addressed “to the Sheriff” and require him to levy execution against the land, goods, or other property, as the case maybe, of the judgment debtor. Execution of a judgment or order is thus a procedure of a different kind from the service of process, whether initiating process such as a writ, or other process such as a subpoena.
Federal Courts: the Family Court
3.7 ProcessoftheFamilyCourtofAustraliamaybeservedaswellasexecutedonSunday. Regulation 28 of the Family Law Regulations provides:
Federal Courts: the Federal Court of Australia
3.8 Process of the Federal Court of Australia may also be served as well as executed on Sunday. Order 7 of the rules of the Federal Court regulates service of process and contains no restriction on the days upon which service may occur. Orders 37 and 47 deal with the enforcement and execution of judgments and orders, and contain no restriction upon the days upon which these procedures may occur.
Federal Courts: Bankruptcy
3.9 The question of the validity of service of a bankruptcy notice on Sunday was answered by a decision of the Federal Court in 1980 in Re Hopper, Ex parte Esanda Ltd.18 Mr. Justice McGregor noted that the Bankruptcy Rules (which were made under the Bankruptcy Act 1966 (Cth)) make no direct reference to the service of a bankruptcy notice on Sunday. His Honour considered that the rules
are comprehensive, deal fully with service and do not admit... that there has been any lack of provision on any subject which is then to be found elsewhere.19
On that basis he held that the rules do not forbid the service of a bankruptcy notice on Sunday. Service of bankruptcy notices and creditors’ petitions is regulated by Division 3 of Part 11 of the Bankruptcy Rules, while “service of process” is regulated by Division 4 of Part IX which also lacks direct reference to service on Sunday. The reasoning in Hopper would seem to be applicable to bankruptcy process generally so that service of all such process may be made on Sunday.
Federal Courts: the High Court of Australia
3.10 The rules of the High Court of Australia forbid the service of the courts process(except for warrants) on Sunday. Rule 9(1) of Order 60 provides:
Service of pleadings, notices, summonses, orders, rules and other documents, other than a warrant, shall not be made on Sunday, Christmas Day or Good Friday.
It is significant that the notes to this rule (the present High Court Rules came into force on 1 January 1953)20 refer to rule 12 of Order 67 of the rules of the Supreme Court in England.21 That rule, at the time of making the present High Court Rules, related to the service of “instruments” in Admiralty actions, and contained the following words:
No instrument except a warrant shall be served on a Sunday, Good Friday, or Christmas Day.
The notes to rule 12 indicated that it originated in 1859.22 In 1953 in England, service generally of court process was still covered by section 6 of The Sunday Observance Act 1677.23 Since the repeal of that Act24 in 1969, the rules of the Supreme Court of England have contained specific reference to the service of process on Sunday, imposing a general prohibition on such service but allowing the court to authorise it in urgent cases.25 To summarise, it may be said that the present High Court rule restricting the service of process on Sunday was based on an English Supreme Court rule which is no longer in force and which itself had a much earlier origin.
Tabulation
3.11 We attach to this Chapter a Table that shows in relation both to the courts of the State of New South Wales and the courts of the Commonwealth the process that may and may not be served and executed on Sunday.
Sunday Entertainment
3.12 The Sunday Entertainment Act 1966, in addition to repealing the Act of 1780, authorises public entertainments and meetings after 12.30 pm on Sunday (and earlier by special permission of the Minister for Leisure Sport and Tourism).”Entertainment includes “amusement, exhibition sporting event or contest”. This legislation was intended, among other things, to permit the opening of cinemas and the conducting of public sporting fixtures on Sunday (except for horse race meetings which are forbidden by section 53 of the Gaming and Betting Act, 1912).
Shops Trading on Sunday
Prior to 1962
3.13 Prior to 1962,The Sunday Observance Act 1677,supplemented by specific New South Wales statutory prohibitions, operated to keep shops shut on Sunday.26 The Factories, Shops and Industries Act, 196227 introduced a much more permissive approach to Sunday trading.
Scheduled Shops, Small Shops and General Shops
3.14 Section 84 of the Factories, Shops and industries Act, 1962 permits “scheduled shops” and “small shops” to open on Sunday.28 Shops other than “scheduled shops” and “small shops” may not open on Sundays. In this report they are referred to as general shops.
- General shops which are not defined, but include butchers and hairdressers, and supermarkets, jewellery, hardware, electrical footware and clothing shops, may not open on Sunday unless they are “small shops”.
- “Scheduled shops”, that is, those classes of shops (mainly food shops) listed in Schedule III to the Factories, Shops and Industries Act, 1962, may open on Sunday.
- “Small shops” may also open on Sunday. “Small shops” are defined by section 76A of the Act as having not more than two owners who must be actively engaged in the business and must have no interest in another shop.
- Bread can be sold in small shops and scheduled shops on Sunday, but under the awards governing the working hours of bakers throughout New South Wales, cannot be baked on Sunday.
Pawnbrokers
3.15 Under section 27(1) of the Pawnbrokers Act, 1902, pawnbrokers are prohibited from carrying on business on Sunday, Christmas Day or Good Friday.
Sale of Alcoholic Liquor
3.16 Since 1979, the Liquor Act 1912 has provided that the holder of a publican’s licence or Australian wine licence may keep the licensed premises open between the hours of 12 noon and 10 pm for the sale of liquor upon any Sunday, other than a Sunday on which Christmas Day (or a day proclaimed in the Government Gazette) falls.29
An Inquiry into Retail Trading Hours
3.17 An inquiry into retail trading hours in New South Wales is currently taking place under the auspices of the Department of Industrial Relations. It is anticipated that submissions will be made to it supporting the enlargement of retail trading on Sunday.
WORKING ON SUNDAY - EMPLOYEES
3.18 Some industries, such as certain manufacturing industries must function twenty-four hours-a-day, seven days-a-week. In such cases “shift allowances” are usually included in the applicable industrial awards for persons required to work on Sunday. Most other employees are covered by industrial awards which provide overtime rates so that work on Sunday entitles them to be paid at rates such as “time and a half”, “time and three-quarters”, or most commonly, “ double time”. For obvious reasons, penalty rates of this kind are not included in awards applicable to employees of shops or businesses that are forbidden by law to trade on Sunday. Accordingly, it could be argued that industrial laws in New South Wales do not aim to prohibit or prevent the performance of paid work on Sunday, but may have the effect of discouraging such work by means of higher award wages.30
OFFICIAL INQUIRIES IN NEW SOUTH WALES RELATING TO SUNDAY OBSERVANCE
3.19 Official inquiries held in New South Wales in relation to Sunday observance have concerned liquor trading31 and retail trading hours.32 Neither of these reports examined the historical background behind Sunday as a day of rest and relaxation We referred above to a pending inquiry into retail trading hours.33
3.20 The Anti-Discrimination Board anticipates that it will issue in 1983 a report on “Discrimination and Religious Conviction.” That report we understand, will examine the gradual breaking down of laws placing Saturday and Sunday in a special category on the basis of religious significance.
FOOTNOTES
1. New South Wales Law Reform Commission Report on the Application of Imperial Acts(LRC. 4, 1967).
2. Id., at pp.93, 145 (s.8): see also para. 2.15.
3. Ibid: see also para. 2.16.
4. Id., at pp.57-58, 143-144 (s.5), 162 (s.41); see also paras. 2.17-2.19.
5. Sunday Entertainment Act 1966, s.7.
6. New South Wales Law Reform Commission note 1 above, p.93.
7. Ibid.
8. (1888) 9 NSWLP, 30, at p.34, per Darley C.J.
9. New South Wales Law Reform Commission note 1 above, p.58.
10. Section 5(2) and the First Schedule.
11. See paras. 1.3, 2.18.
12. Imperial Acts Application Act. 1969, s.41; see also paras.1.3 et seq.
13. Ibid.
14. District Court Rules, Part 8 rule 4.
15. Imperial Acts Application Act. 1969. s.41. The commencement of the Local Courts Act, 1982 has not yet been proclaimed. Upon that commencement courts of Petty Sessions will become known as Local Courts. Such courts are in this report called Local Courts and the courts of Petty Sessions (Civil Claims) Act, 1970 is referred to as the Local Courts (Civil Claims) Act, 1970, its prospective title.
16. District Court Rules, Part 34 rule 10.
17. S.V. Jackson and G. Byrom Courts of Petty Sessions (Civil Claims) Practice (2nd ed. 1980), para. 380.
18. (1980) 43 FLR. 452.
19. Id., at p.455.
20. High Court Rules, Order I rules 2, 3.
21. Id., Order 60 rule 9(1).
22. The Annual Practice 1952 (Eng.), p.1536.
23. Id., p.65.
24. See para. 2.23.
25. See para. 4.19; see also The Supreme Court Practice 1982 (Eng.), pp.1148-1149 (RSC, 0.65 r.10).
26. See Ex parte Rogerson (1888) 9 NSWLF, 30, at pp.30-31; see also the Police Offences Act 1901, s.61.
27. Act No.43, 1962.
28. in this regard, see the Report of the Committee of Inquiry into Retail Trading Hours (N.S.W.) (1977).
29. in this regard, see the Report of the Select Committee of the Legislative Assembly upon Liquor Trading (1979), pp.18-19.
30. See generally, C.P. Mills, Industrial Law-New South Wales (4th ed. 1977), para. 282; see also C.P. Millsand G.H. Sorrelt Federal Industrial Laws (5th ed. 1975), paras.212-221, esp. Paras. 219, 221.
31. See note 29 above.
32. See note 28 above.
33. See para.3.17.
Table to Chapter 3
(See paragraph 3.11)
New South Wales
 | Process of NSW Supreme Court | Process of NSW District Court | Process of NSW Local Court |
| Criminal | Civil | Criminal | Civil | Criminal | Civil |
| Service | Execution | Service | Execution | Service | Execution | Service | Execution | Service | Execution | Service | Execution |
| Monday to Friday | + | + | + | + | + | + | + | + | + | + | + | +
Except between 8 pm on one day and 7 am the next day1 |
| Saturday | + | + | + | + | + | + | + | + | + | + | + | +
(Same exception as above) |
| Sunday | + | + | x2 | + | + | + | x3 | x4 | + | | x2 | +
(Same exception as above) |
| Public Holidays | + | + | + | + | + | + | + All public holidays except Christmas Day and Good Friday3 | + All public holidays except Christmas Day and Good Friday4 | + | + | + | +
(Same exception as above) |
1. Local Courts (Civil Claims) Act, 1970, s.61.
2. Imperial Acts Application Act 1969, s.41.
3. District Courts Rules, Part 8 rule 4.
4. District Courts Rules, Part 34 rule 10.
The symbol “+” means that service or execution (as the case may be) of process may be carried out.
The Symbol “x” means that service or execution (as the case may be) of process may not be carried out.
Australia
| Process of Family Court | Process to High Court | Process of Federal Court (including bankruptcy) |
| | Service | Execution | Service | Execution | Service | Execution |
| Monday to Friday | + | +2 | + | + | + | + |
| Saturday | + | +2 | + | + | + | + |
| Sunday | + | +2 | x3 | + | +
As to service of bankruptcy notice on Sunday, see re Hooper (1980) 43 FLR 452 | + |
| Public Holidays | + | +2 | +
Except Christmas Day and Good Friday4 | + | + | + |
Notes:
1. Family Law Regulations, reg.28(1).
2. Family Law Regulations, reg.28(2).
3. High Court Orders, Order 60 rule 9(1).
The symbol “+” means that service or execution (as the case may be) of process may be carried out.
The symbol “x” means that service or execution (as the case may be) of process may not be carried out.
