Service and Execution of Process Regulations 2018
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.
Dated 12 July 2018
Peter Cosgrove
Governor-General
By His Excellency’s Command
Christian Porter
Attorney-General
Contents
Part 1—Preliminary 1
1 Name..............................................1
2 Commencement........................................1
3 Authority............................................1
4 Schedule 2...........................................1
5 Definitions...........................................1
Part 2—Notices, warrants and correction services 2
6 Required notices for service.................................2
7 Additional authorities that may issue warrants.......................2
8 Person taken to be in charge of the correction service of a State............3
Schedule 1—Forms 5
Form 1—Notice when serving initiating process in civil proceedings 5
Form 2—Notice when serving subpoena 7
Form 3—Notice when serving subpoena addressed to person in prison 10
Form 4—Notice when serving initiating process in tribunal proceedings 13
Form 5—Notice when serving tribunal subpoena 15
Form 6—Notice when serving tribunal subpoena addressed to person in prison 18
Schedule 2—Repeals 21
Service and Execution of Process Regulations 1993 21
This instrument is the Service and Execution of Process Regulations 2018.
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this instrument | The day after this instrument is registered. | 20 July 2018 |
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
This instrument is made under the Service and Execution of Process Act 1992.
Each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.
Note: A number of expressions used in this instrument are defined in the Act, including State.
In this instrument:
Act means the Service and Execution of Process Act 1992.
Part 2—Notices, warrants and correction services
6 Required notices for service
For the purposes of a provision of the Act specified in column 1 of an item in the following table, a notice in the form specified in column 2 of the item is prescribed.
Item | Column 1 Provision of Act | Column 2 Form of notice |
1 | section 16 | Form 1 in Schedule 1 |
2 | paragraph 31(a) | Form 2 in Schedule 1 |
3 | section 41 | Form 3 in Schedule 1 |
4 | section 51 | Form 4 in Schedule 1 |
5 | paragraph 59(a) | Form 5 in Schedule 1 |
6 | section 69 | Form 6 in Schedule 1 |
7 Additional authorities that may issue warrants
(1) For the purposes of subparagraph (a)(vi) of the definition of authority in section 81A of the Act, an intensive correction order is prescribed.
(2) For the purposes of paragraph (b) of the definition of authority in section 81A of the Act, the bodies and persons mentioned in column 2 of the following table are prescribed.
8 Person taken to be in charge of the correction service of a State
For the purposes of section 84 of the Act, the holder of an office specified in column 2 of an item in the following table in the State specified in column 1 of the item is taken to be the person in charge of the correction service of the State.
Person taken to be in charge of the correction service of a State | ||
Item | Column 1 State | Column 2 Office |
1 | New South Wales | Commissioner (within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW)) |
2 | Victoria | Commissioner mentioned in section 8A of the Corrections Act 1986 (Vic.) |
3 | Queensland | chief executive mentioned in section 263 of the Corrective Services Act 2006 (Qld) |
4 | Western Australia | CEO within the meaning of the Sentence Administration Act 2003 (WA) |
5 | South Australia | chief executive of the Department (within the meaning of the Correctional Services Act 1982 (SA)) |
6 | Tasmania | Director of Corrective Services mentioned in section 5 of the Corrections Act 1997 (Tas.) |
7 | Australian Capital Territory | director-general within the meaning of the Crimes (Sentence Administration) Act 2005 (ACT) |
8 | Northern Territory | (a) if the person under restraint is a youth (within the meaning of the Youth Justice Act (NT)) other than one sentenced to a term of imprisonment—CEO (within the meaning of that Act); or (b) otherwise—Commissioner of Correctional Services mentioned in section 17 of the Correctional Services Act (NT) |
9 | police officer in charge in Norfolk Island | |
Schedule 1—Forms
Note: See section 6.
Form 1—Notice when serving initiating process in civil proceedings
Note: This form is to be used when serving an initiating process in civil proceedings in a court: see section 16 of the Act.
Service and Execution of Process Act 1992
Notice to defendant1
Please read this notice and the attached document very carefully
If you have any trouble understanding them you should get legal advice as soon as possible
Attached to this notice is a [name of process] (“the attached process”) issued out of the [issuing court].
Service of the attached process outside [State or Territory of issue] is authorised by the Service and Execution of Process Act 1992.
Your rights
If a court of a State or Territory other than [State or Territory of issue] is the appropriate court to determine the claim against you set out in the attached process, you may be able to [2have the proceeding stayed by applying to the [issuing court] / 3apply to the Supreme Court in [State or Territory of issue] to have the proceeding transferred to another Supreme Court or a federal court].
If you think the proceeding should be stayed or transferred you should get legal advice as soon as possible.
Contesting this claim
If you want to contest this claim, you must take any action set out in the attached process as being necessary to contest the claim.
4If you want to contest this claim, you must also file an appearance5 in the [issuing court]. You have only 216 days after receiving the attached process to do so.
The appearance5 must contain [7an address in Australia where documents can be left for you or sent to you / 8your address].
1If the person to be served is not described in the process as a “defendant”, substitute the correct description.
2Include if the court of issue is not a Supreme Court.
3Include if the court of issue is a Supreme Court.
4If the defendant need not enter an appearance (as defined in section 14 of the Act) in order to contest the claim, omit this paragraph and the remainder of the form.
5If the document that must be filed is not called an appearance, substitute the correct name.
6If the issuing court has allowed a shorter period for filing an appearance, substitute that shorter period and disregard the next paragraph.
If the law of the State or Territory of issue would allow a longer period than 21 days for filing an appearance in the case of service within the State or Territory, substitute that longer period. If that law would allow different periods for service within the State or Territory, depending on the distance of the place of service from another place, and the period based on the longest distance would be longer than 21 days, substitute that period.
Note: This note is a summary, for guidance only, of subsections 17(1) and (1A) of the Act. The applicable period under those provisions must be stated.
7Include if the appearance is required to set out an address for service.
8Include if the appearance is not required to set out an address for service.
Form 2—Notice when serving subpoena
Note: This form is to be used when serving a subpoena issued by a court or an authority that is addressed to a person who is not in prison, or who is in prison but who does not need to attend or give oral evidence: see paragraph 31(a) of the Act.
Service and Execution of Process Act 1992
Notice to witness
This notice is very important
Please read it and the attached document or documents very carefully
If you have any trouble understanding them you should get legal advice as soon as possible
Attached to this notice is a subpoena1 (“the attached subpoena”) that is a subpoena for the purposes of Part 3 of the Service and Execution of Process Act 1992 issued by the [issuing court or authority].
Service of the attached subpoena outside [State or Territory of issue] is authorised by that Act.
Your rights
You may be able to apply to a court or authority to set aside or obtain other relief in respect of the attached subpoena. If you would like to make an application you should get legal advice as soon as possible.
Your obligations
You must obey the attached subpoena if:
(a) at the time of service or at some reasonable time before [date for compliance] you were offered or given:
(i) enough money to meet your reasonable expenses in obeying it, including any travel and accommodation costs; or
(ii) a combination of money, travel tickets and vouchers to meet those expenses; and
(b) either:
(i) you received the attached subpoena at least 142 days before [date for compliance]; or
(ii) you received the attached subpoena less than 142 days before [date for compliance] and you received with the attached subpoena a copy of an order made by [issuing court or authority] permitting the attached subpoena to be served at that time.
If the attached subpoena only requires production of documents or things, you may comply with the attached subpoena by delivering the documents or things at least 24 hours before [date for compliance] to the Registrar3 of [issuing court or the court to which the issuing authority belongs].
This is most important
If you are subject to a restriction on your movements that you might breach if you comply with the attached subpoena, there are some additional actions you must take for your own protection.
The restriction on you could be imposed as:
(a) conditions of bail; or
(b) conditional release from prison; or
(c) conditions of probation; or
(d) home or periodic detention; or
(e) a community service order, community based order, attendance order, intensive correction order or work and development order; or
(f) some other restriction on your movements imposed by law or by order of a court.
If you are under a restriction of that kind, you must, as soon as practicable after you receive the attached subpoena, inform your supervisor of the service of the attached subpoena. If you are on bail, and your bail is subject to a condition that you report periodically to the police, your supervisor is any police officer at the police station at which you are required to report. If you are on bail, and your bail is subject to a condition that you report periodically to a correction service officer, that officer is your supervisor. In any other case, your supervisor is the person who supervises your compliance with the restriction.
Also, you must, as soon as practicable, inform the [issuing court or authority] [4and [person at whose request the subpoena was issued]] of the restriction to which you are subject.
You must take all reasonable steps to have the restriction varied so that you can comply with the attached subpoena.
If the restriction is not varied, you must inform the [issuing court or authority] [4and [person at whose request the subpoena was issued]] either:
(a) of the steps you took to have the restriction varied, and that the restriction has not been varied; or
(b) that the law does not permit that variation;
whichever is the case.
1If the process to be served is not called a subpoena, substitute the name of the process.
2If the law of the State or Territory requires a longer period than 14 days from the service of a subpoena until the return date, substitute that period.
4Include if the subpoena was issued at the request of a person.
Form 3—Notice when serving subpoena addressed to person in prison
Note: This form is to be used when serving a subpoena issued by a court or an authority that is addressed to a person who is in prison and who is required to attend or give oral evidence: see section 41 of the Act.
Service and Execution of Process Act 1992
Notice to witness
This notice is very important
Please read it and the attached document or documents very carefully
If you have any trouble understanding them you should ask to receive legal advice as soon as possible
Attached to this notice is a subpoena1 (“the attached subpoena”) that is a subpoena for the purposes of Part 3 of the Service and Execution of Process Act 1992 issued by the [issuing court or authority].
Service of the attached subpoena outside [State or Territory of issue] is authorised by that Act.
An order, called an order for production, based on the attached subpoena has been served on the person in charge of the institution or place in which you are held. Under this order you will be taken to [name and location of the court, authority or person before which compliance is required], unless you are released before [date for compliance]. A copy of the order for production is required to be served on you by the person in charge of the institution or place in which you are held.
Your rights
The person in charge of the institution or place in which you are held must provide any assistance that you reasonably require to:
(a) apply to set aside or obtain other relief from the attached subpoena; or
(b) apply to set aside or vary the order for production relating to the attached subpoena; or
(c) obtain legal advice.
You may be able to apply to a court or authority to set aside or obtain other relief in respect of the attached subpoena or the order for production. If you would like to make an application you should ask for assistance to obtain legal advice as soon as possible. If you make an application to set aside or vary the order for production, you must, within 24 hours, give a copy to the person in charge of the institution or place in which you are held. [2If you make an application to set aside or obtain other relief in respect of the attached subpoena or the order for production, you must, within 24 hours, give a copy to [person at whose request the subpoena was issued].]
You will only be able to apply for the order for production to be varied or set aside if complying with it would have a substantial detrimental effect on your health or safety.
If the person in charge of the institution or place in which you are held makes an application to set aside or vary the order for production, you must be given a copy of that application within 24 hours of its being made.
Your obligations on release from custody
If you are released from the institution or place where you are held before [date for compliance], you must obey the attached subpoena yourself if:
(a) there is sufficient time between when you are released and [date for compliance] for it to be reasonably practicable for you to comply with the attached subpoena; and
(b) a copy of the order for production was served on you with the attached subpoena; and
(c) within a reasonable time after you were released you were offered or given:
(i) enough money to meet your reasonable expenses in obeying it, including any travel and accommodation costs; or
(ii) a combination of money, travel tickets and vouchers to meet those expenses.
This is most important
If, after your release, you are subject to a restriction on your movements that you might breach if you comply with the attached subpoena, there are some additional actions you must take for your own protection.
The restriction on you could be imposed as:
(a) conditions of bail; or
(b) conditional release from prison; or
(c) conditions of probation; or
(d) home or periodic detention; or
(e) a community service order, community based order, attendance order, intensive correction order or work and development order; or
(f) some other restriction on your movements imposed by law or by order of a court.
If you are under a restriction of that kind, you must, as soon as practicable after you are released, inform your supervisor of the service of the attached subpoena. If you are on bail, and your bail is subject to a condition that you report periodically to the police, your supervisor is any police officer at the police station at which you are required to report. If you are on bail, and your bail is subject to a condition that you report periodically to a correction service officer, that officer is your supervisor. In any other case, your supervisor is the person who supervises your compliance with the restriction.
Also, you must, as soon as practicable, inform the [issuing court or authority] [2and [person at whose request the subpoena was issued]] of the restriction to which you are subject.
You must take all reasonable steps to have the restriction varied so that you can comply with the attached subpoena.
If the restriction is not varied, you must inform the [issuing court or authority] [2and [person at whose request the subpoena was issued]] either:
(a) of the steps you took to have the restriction varied, and that the restriction has not been varied; or
(b) that the law does not permit that variation;
whichever is the case.
______________
1If the process to be served is not called a subpoena, substitute the name of the process.
2Include if the subpoena was issued at the request of a person.
Form 4—Notice when serving initiating process in tribunal proceedings
Note: This form is to be used when serving an initiating process for certain proceedings in a tribunal: see section 51 of the Act.
Service and Execution of Process Act 1992
Notice to respondent
Please read this notice and the attached document very carefully
If you have any trouble understanding them you should get legal advice as soon as possible
Attached to this notice is a [name of process] (“the attached process”) issued out of the [issuing tribunal].
Service of the attached process outside [State or Territory of issue] is authorised by the Service and Execution of Process Act 1992 if the claim made against you concerns:
(a) real property within [State or Territory of issue]; or
(b) a contract, wherever made, for the supply of goods or the provision of services of any kind (including financial services) within [State or Territory of issue]; or
(c) an act or omission within [State or Territory of issue]; or
(d) the carrying on of a profession, trade or occupation within [State or Territory of issue]; or
(e) a pension or benefit under a law of [State or Territory of issue]; or
(f) the validity of an act or transaction under a law of [State or Territory of issue].
The attached process is served in reliance on item(s) [letter(s) corresponding to ground(s) relied on].
Your rights
If you think that none of the above items applies in this case, you should get legal advice as soon as possible on what to do to stop the [issuing tribunal] dealing with this claim against you.
Contesting this claim
If you want to contest this claim, you must take any action set out in the attached process as being necessary to contest the claim.
1If you want to contest this claim, you must also file an appearance2 in the [issuing tribunal]. You have only 213 days after receiving the attached process to do so.
The appearance2 must contain [4an address in Australia where documents can be left for you or sent to you / 5your address].
______________
1If the respondent need not enter an appearance (as defined in section 49 of the Act) in order to contest the claim, omit this paragraph and the remainder of the form.
2If the document that must be filed is not called an appearance, substitute the correct name.
3If the issuing tribunal has allowed a shorter period, substitute that period.
4Include if the appearance is required to set out an address for service.
5Include if the appearance is not required to set out an address for service.
Form 5—Notice when serving tribunal subpoena
Note: This form is to be used when serving a subpoena issued by a tribunal that is addressed to a person who is not in prison, or who is in prison but who does not need to attend or give oral evidence: see paragraph 59(a) and subsection 77(1) of the Act.
Service and Execution of Process Act 1992
Notice to witness
This notice is very important
Please read it and the attached document or documents very carefully
If you have any trouble understanding them you should get legal advice as soon as possible
Attached to this notice is a subpoena1 (“the attached subpoena”) that is a subpoena for the purposes of the Service and Execution of Process Act 1992 issued by the [issuing tribunal].
Service of the attached subpoena outside [State or Territory of issue] is authorised by [court or person that gave leave to serve the subpoena] under that Act.
Your rights
You may be able to apply to the [2[issuing tribunal] or to a court / 3Supreme Court of [State or Territory of issue]] to set aside or obtain other relief in respect of the attached subpoena. If you would like to make an application you should get legal advice as soon as possible.
Your obligations
You must obey the attached subpoena if:
(a) at the time of service or at some reasonable time before [date for compliance] you were offered or given:
(i) enough money to meet your reasonable expenses in obeying it, including any travel and accommodation costs; or
(ii) a combination of money, travel tickets and vouchers to meet those expenses; and
(b) you received with the attached subpoena a copy of an order from [2a court in / 3the Supreme Court of] [State or Territory of issue] permitting the attached subpoena to be served outside [State or Territory of issue] and specifying the day before which it must be served.
If the attached subpoena only requires production of documents or things, you may comply with the attached subpoena by delivering the documents or things at least 24 hours before [date for compliance] to the Secretary4 of the [issuing tribunal].
This is most important
If you are subject to a restriction on your movements that you might breach if you comply with the attached subpoena, there are some additional actions you must take for your own protection.
The restriction on you could be imposed as:
(a) conditions of bail; or
(b) conditional release from prison; or
(c) conditions of probation; or
(d) home or periodic detention; or
(e) a community service order, community based order, attendance order, intensive correction order or work and development order; or
(f) some other restriction on your movements imposed by law or by order of a court.
If you are under a restriction of that kind, you must, as soon as practicable after you receive the attached subpoena, inform your supervisor of the service of the attached subpoena. If you are on bail, and your bail is subject to a condition that you report periodically to the police, your supervisor is any police officer at the police station at which you are required to report. If you are on bail, and your bail is subject to a condition that you report periodically to a correction service officer, that officer is your supervisor. In any other case, your supervisor is the person who supervises your compliance with the restriction.
Also, you must, as soon as practicable, inform the [issuing tribunal] [5and [person at whose request the subpoena was issued]] of the restriction to which you are subject.
You must take all reasonable steps to have the restriction varied so that you can comply with the attached subpoena.
If the restriction is not varied, you must inform the [issuing tribunal] [5and [person at whose request the subpoena was issued]] either:
(a) of the steps you took to have the restriction varied, and that the restriction has not been varied; or
(b) that the law does not permit that variation;
whichever is the case.
______________
1If the process to be served is not called a subpoena, substitute the name of the process.
2Include if the subpoena is issued in the performance of an adjudicative function.
3Include if the subpoena is issued in the performance of an investigative function.
4If the proper officer is not called the Secretary, substitute the correct title.
5Include if the subpoena was issued at the request of a person.
Form 6—Notice when serving tribunal subpoena addressed to person in prison
Note: This form is to be used when serving a subpoena issued by a tribunal that is addressed to a person who is in prison and who is required to attend or give oral evidence: see section 69 and subsection 80(1) of the Act.
Service and Execution of Process Act 1992
Notice to witness
This notice is very important
Please read it and the attached document or documents very carefully
If you have any trouble understanding them you should ask to receive legal advice as soon as possible
Attached to this notice is a subpoena1 (“the attached subpoena”) that is a subpoena for the purposes of the Service and Execution of Process Act 1992 issued by the [issuing tribunal].
Service of the attached subpoena outside [State or Territory of issue] is authorised by that Act.
An order, called an order for production, based on the attached subpoena has been served on the person in charge of the institution or place in which you are held. Under this order you will be taken to [name and location of the tribunal before which compliance is required], unless you are released before [date for compliance]. A copy of the order for production is required to be served on you by the person in charge of the institution or place in which you are held.
Your rights
The person in charge of the institution or place in which you are held must provide any assistance that you reasonably require to:
(a) apply to set aside or obtain other relief from the attached subpoena; or
(b) apply to set aside or vary the order for production relating to the attached subpoena; or
(c) obtain legal advice.
You may be able to apply to the [2[issuing tribunal] or to a court / 3Supreme Court of [State or Territory of issue]] to set aside or obtain other relief in respect of the attached subpoena or the order for production. If you would like to make an application you should ask for assistance to obtain legal advice as soon as possible. If you make an application to set aside or vary the order for production, you must, within 24 hours, give a copy to the person in charge of the institution or place in which you are held. [4If you make an application to set aside or obtain other relief in respect of the attached subpoena or the order for production, you must, within 24 hours, give a copy to [person at whose request the subpoena was issued].]
You will only be able to apply for the order for production to be varied or set aside if complying with it would have a substantial detrimental effect on your health or safety.
If the person in charge of the institution or place in which you are held makes an application to set aside or vary the order for production, you must be given a copy of that application within 24 hours of its being made.
Your obligations on release from custody
If you are released from the institution or place where you are held before [date for compliance], you must obey the attached subpoena yourself if:
(a) there is sufficient time between when you are released and [date for compliance] for it to be reasonably practicable for you to comply with the attached subpoena; and
(b) a copy of the order for production was served on you with the attached subpoena; and
(c) within a reasonable time after you were released you were offered or given:
(i) enough money to meet your reasonable expenses in obeying it, including any travel and accommodation costs; or
(ii) a combination of money, travel tickets and vouchers to meet those expenses.
This is most important
If, after your release, you are subject to a restriction on your movements that you might breach if you comply with the attached subpoena, there are some additional actions you must take for your own protection.
The restriction on you could be imposed as:
(a) conditions of bail; or
(b) conditional release from prison; or
(c) conditions of probation; or
(d) home or periodic detention; or
(e) a community service order, community based order, attendance order, intensive correction order or work and development order; or
(f) some other restriction on your movements imposed by law or by order of a court.
If you are under a restriction of that kind, you must, as soon as practicable after you are released, inform your supervisor of the service of the attached subpoena. If you are on bail, and your bail is subject to a condition that you report periodically to the police, your supervisor is any police officer at the police station at which you are required to report. If you are on bail, and your bail is subject to a condition that you report periodically to a correction service officer, that officer is your supervisor. In any other case, your supervisor is the person who supervises your compliance with the restriction.
Also, you must, as soon as practicable, inform the [issuing tribunal] [4and [person at whose request the subpoena was issued]] of the restriction to which you are subject.
You must take all reasonable steps to have the restriction varied so that you can comply with the attached subpoena.
If the restriction is not varied, you must inform the [issuing tribunal] [4and [person at whose request the subpoena was issued]] either:
(a) of the steps you took to have the restriction varied, and that the restriction has not been varied; or
(b) that the law does not permit that variation;
whichever is the case.
______________
1If the process to be served is not called a subpoena, substitute the name of the process.
2Include if the subpoena is issued in the performance of an adjudicative function.
3Include if the subpoena is issued in the performance of an investigative function.
4Include if the subpoena was issued at the request of a person.
Service and Execution of Process Regulations 1993
1 The whole of the instrument
Repeal the instrument.