OTHER STATES AND TERRITORIES OF AUSTRALIA
Victoria
4.1 In Victoria the Supreme Court Act 19581 preserves the effect of section 6 of The Sunday Observance Act 1677.2 Section 62(1B) of the Supreme Court Act 1958 provides:
Service of any writ, process, warrant, order, judgment or decree (except in cases 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.
4.2 The Sunday Entertainment Act 1967 repealed in Victoria the English statute of 17803 and permitted cinemas to open after 1.30 pm on Sunday. The Act confers powers upon the Chief Secretary in relation to the issue of permits for entertainment on Sunday.4 In granting a permit the Chief Secretary takes into account the public interest, whether church services are being held in the vicinity, any objection raised by the municipality concerned the nature of the entertainment and its cost.5
4.3 The opening of shops in Victoria on Sunday is regulated by the Labour and Industry Act 1958. That Act permits petrol shops and shops of the classes or kinds mentioned in the Fifth Schedule to be open for the whole of the day, but with those exceptions. requires shops to be closed on Sunday.6 The Fifth Schedule is similar to but not identical with the Third Schedule to the Factories, Shops and Industries Act 1962 (NSW).7 In addition the Minister may grant an exemption from Sunday closing rules for a holiday resort.8 Butchers’ shops cannot open on Sunday.9
Tasmania
4.4 The law relating to Sunday observance in Tasmania was examined in 1967 in the Phillips Report.10 The Sunday Observance Act 1968 was thereafter enacted. Section 5 provides that service of process on Sunday is void with certain exceptions which include cases of crime and breach of the peace.
4.5 The Sunday Observance Act 1968 prohibits people from carrying on their ordinary calling or doing any work for reward on Sunday, but there are many exceptions. These include public utilities, transportation agriculture, fishing, the provision of food in hotels and restaurants, sports and entertainments.
Western Australia
4.6 Section 6 of The Sunday Observance Act 1677 appears to prohibit service of civil process of the Supreme Court on Sunday. The rules of the Local Courts in Western Australia provide that no summons, warrant or other process (except a warrant of commitment) shall be served or executed on Sunday, Christmas Day or Good Friday.11
4.7 Under section 3(2) of the Sunday Entertainments Act 1979 public entertainments on Sunday are restricted to cases for which the Minister gives his permission.
4.8 Under the Factories and Shops Act 1963-1981, shops other than “exempted shops”, privileged shops” and “small shops” must close on Sunday. “Exempted shops” are similar to scheduled shops” in New South Wales and “small shops” are similar to “small shops” in New South Wales.12
Queensland
4.9 In Queensland The Sunday Observance Act 1677, prohibits service of civil process on Sunday. The Queensland Law Reform Commission in a Working Paper,13 in relation to Imperial statutes in force in Queensland, has recommended14 that in lieu of the 1677 legislation a provision be enacted whereby service of civil process upon a Sunday shall be void. The Commission has offered no specific reason or principle for this recommendation.15
4.10 The Factories and Shops Acts 1960-1975 provide that the occupiers of “exempted shops” (which include chemist shops, book stores, bread shops, fruit shops, restaurants, fish shops and service stations) may agree among themselves as to their trading hours.16 “Exempted shops” need not comply with section 61 of the Acts, which operate to preclude all other shops from opening on Sunday.
4.11 Sunday entertainment in Queensland is regulated by local government authorities under section 30 of the Local Government Act 1936-1982.
South Australia
4.12 Service on Sunday of civil process of the Supreme Court of South Australia is prohibited by The Sunday Observance Act 1677. The rules of the South Australian Local Courts provide that no process shall be served on Sunday, Christmas Day or Good Friday.17
4.13 The Shop Trading Hours Act 1977-1980 requires shops other than “exempt shops” to be closed on Sunday.18 “Exempt shops” include chemists’ shops, restaurants and newsagencies.19
4.14 The Places of Public Entertainment Act 1913-1972, which repealed the British statute of 1780,20 empowers the Minister to grant a permit authorising the holding of public entertainment on Sunday However, the Minister must first consider the following:
- any increase in the number of persons working on Sunday,
- the practice existing before the Act was passed;
- any disturbance to the locality.21
Australian Capital Territory
4.15 In 1970 the Joint Committee on the Australian Capital Territory issued a report on Sunday observance.22 The report did not deal with service of civil process on Sunday. It was subsequently implemented in relation to trading hours and Sunday entertainment. In August, 1982 the report of a Parliamentary Joint Committee was issued recommending the relaxation of Sunday trading hours.23
Northern Territory
4.16 The Supreme Court Rules of the Northern Territory are silent on the matter of service of civil process on Sunday, but in the Local Courts, process cannot be served or executed on Sunday, Christmas Day or Good Friday.24
4.17 In addition to the specific rules applicable to Local Courts, The Sunday Observance Act 1677 still applies as it does in South Australia, to prohibit service of civil process.25
OTHER COMMONWEALTH COUNTRIES
England
4.18 The Crathorne Report of 196426 did not deal with service of civil process on Sunday, but did recommend a general relaxation of entertainment and trading restrictions on Sunday. As a consequence, parts of the report were adopted by the enactment of the Sunday Cinema Act 1972 and the Sunday Theatre Act 1972.
4.19 Since the repeal in England in 1969 of The Sunday Observance Act 1677, both the rules of the Supreme Court and the County Court Rules have introduced specific reference to service of process on Sunday.27 These rules modify the prohibition embodied in section 6 of the 1677 Act by providing for leave to be granted to serve process in urgent cases. For example, rule 10 of Order 65 of the Supreme Court Rules provides:
(1) No process shall be served or executed within the jurisdiction on a Sunday except in case of urgency, with the leave of the Court
(2) For the purposes of this rule” process” includes a writ judgment notice, order, petition originating or other summons or warrant.
Canada
4.20 In 1976 the Law Reform Commission of Canada issued its report on Sunday observance.28 That report proposed that the federal Lords Day Act 1906 should be repealed and that the Provinces and Territories should be free to enact independent secular measures respecting the observance of Sunday. It did not deal specifically with service of process on Sunday.
4.21 We are advised that the Canadian Law Reform Commissions report has not been implemented through legislation.29 Following the report, the Canadian government did offer to the Provinces to repeal the Lords Day Act 1906 if they were prepared to implement their own legislation. However, despite two Federal - Provincial conferences, the Provinces have yet to take legal action.30
Canada - Province of Ontario
4.22 The Ontario judicature Act31 provides that no person upon the Lords Day shall serve or execute, or cause to be served or executed any writ process, warrant order or judgment except in cases of treason felony, or breach of the peace, and that such service on the Lords Day is void. We are advised that this Act is under review by the Ministry of the Attorney General and that present thinking is to permit service on a Sunday in cases of urgency.32
New Zealand
4.23 In New Zealand service of civil process of the Supreme Court33 and the District Court 34 is not permitted on Sunday.
FOOTNOTES
1. Supreme Court Act 1958 (Vic.), s.62(1 B).
2. See paras 1.3, 2.18.
3. 21 Geo.3 c.49; see paras.2.20, 3.12.
4. Sunday Entertainment Act 1967 (Vic.), s.9.
5. Id., s.7.
6. Labour and Industry Act 1958 (Vic.), s.80.
7. See para.3.14.
8. Labour and Industry Act 1958 (Vic.), s.80A.
9. Id., s.81.
10. Report of the Board of Inquiry on Sunday Observance in Tasmania (1967).
11. Western Australian Local Court Rules, Order 38 rule 14.
12. See para.3.14.
13. Queensland Law Reform Commission Working Paper in Relation to an Examination of the Imperial Statutes (QLRC W.23, 1979).
14. Id., p.2, cl9.
15. See also para.6.9.
16. Factories and Shops Acts 1960-1975 (Qld.), ss.60, 63.
17. Rule 53.
18. Shop Trading Hours Act 1977-1980 (SA), s.53.
19. Id., s.4.
20. Note 3 above.
21. Places of Public Entertainment Act 1913-1972, (SA), s.20.
22. Joint Committee on the Australian Capital Territory, Report on Sunday Observance in the Australian Capital Territory (1971).
23. Joint Committee on the Australian Capital Territory, Report on Retail Trading Hours in the ACT (1982).
24. Northern Territory Local Court Rules, rule 24.
25. The Northern Territory was part of the Colony of New South Wales until 1860 when it became part of South Australia. It was transferred to the Commonwealth in 1911 and became self-governing in 1978. Laws in existence in the Territory at that time were continued by the Northern Territory (Self-Government) Act, 1978. These included The Sunday Observance Act 1677.
26. Report of the Departmental Committee on the Law on Sunday Observance (Cmnd 2528, 1964): see also para 2.23.
27. See Order 65 rule 10 of the Rules of the Supreme Court and Order 7 rule 3 of the County Court Rules 1981; see also para 3.10.
28. Law Reform Commission of Canada, Report on Sunday Observance (1976).
29. Letter from Law Reform Commission of Canada, dated March 17, 1983.
30. Ibid.
31. judicature Act RSO 1980, c.223, s.132.
32. Letter from Ontario Law Reform Commission dated March 9, 1983.
33. New Zealand Code of Civil Procedure, rule 33.
34. District Courts Rules 1948, rule 86.
